Ehrlich v. Jennings ( 1907 )

This is an application to the Court, in the exercise of its original jurisdiction, for a writ of mandamus, requiring the State Treasurer to issue a certificate of stock in exchange for a bond which was heretofore surrendered to the Treasurer and a certificate of stock issued in exchange for it, under the provisions of the Act of 1892 entitled "An Act to provide for the redemption of that part of the State debt known as the Brown Consul Bonds and Stocks, by issue of other bonds and stocks," which, among others, contains the following provisions:

Section 1. "That the State Treasurer shall cause to be prepared a sufficiency of blanks of coupon bonds and certificates of stock of uniform design and appearance, to be colored brown, as will provide for a total issue of an amount (face value) in the aggregate of such bonds and certificates of stock, not to exceed the aggregate amount of bonds and stocks that have been or may be issued, under an Act entitled `An Act to reduce the volume of the public debt and provide for the payment of the same,' approved December, A.D. 1873, and Acts amendatory thereto."

Section 2. "That the said coupon bonds shall be exchangeable for certificates of stock, and said certificates of stock shall be exchangeable for coupon bonds."

Section 3. "That all bonds and certificates of stock surrendered, as hereafter provided for, shall immediately upon such surrender be cancelled, and filed by the State Treasurer with the permanent records of his office, and a correct registry shall be kept by the State Treasurer, of all exchanges made under the provisions of this Act, so as to exhibit in a separate account and convenient form, the names of the holders thereof, and the number and amounts of all such bonds and stocks, received into the Treasurer's office, together with the numbers and denominations of all bonds and stocks, issued in exchange therefor, or sold by him under the provisions of this Act. And the Secretary of State is hereby required to keep at all times a correct registry of all the bonds sealed by him under the provisions of this Act. And the Governor is in like manner hereby required to keep a similar registry of all bonds signed by him, each registry to be accessible to public inspection at all times."

The said bond was not cancelled but was stolen and placed in circulation, and came into the hands of the petitioner, who alleges that he is a bona fide holder thereof.

There is not even the slightest suspicion of wrong, on the part of the petitioner, attaching to his possession of the bond.

The first question that will be considered is whether mandamus is the appropriate proceeding.

There is no difference in principle between this case and that of Lord v. Bates, 48 S.C. 95, 26 S.E., 213, which was an action instituted, in the original jurisdiction of this Court for a writ of mandamus requiring the State Treasurer to fund certain bonds which were lost. The application was refused on the ground that the duty of the Treasurer was not plainly defined, peremptory and ministerial.

In that case the Court quoted with approval, the following language from the case of International Cont. Co. v.Lamont, 155 U.S. 303, 308:

"It is elementary law that mandamus will only lie to enforce a ministerial duty, as contradistinguished from a duty which is only discretionary. * * * Moveover, the obligation must be both peremptory and plainly defined. The law must not only authorize the act (Commonwealth v. Boutwell, 13 Wall., 526), but it must require the act to be done. `A mandamus will not lie against the Secretary of the Treasury unless the laws require him to do what he is asked in the petition to be made to do.' Reeside v. Walker, 11 How., 272; see also Secretary v. McCarahan, 9 Wall., 298; and the duty must be `clear and indisputable.' Knox CountyCommissioners v. Aspinwall, 24 How., 376."

To the same effect is the case of United States v. Windom,11 Sup. Ct. Rep., 197, 199, in which the Court says:

"The principle upon which persons holding public office may be compelled, by a writ of mandamus, to perform duties imposed by law have been distinctly defined. * * * That principle is that the writ of mandamus may issue where the duty which the Court is asked to enforce is plainly ministerial, and the right of the party applying for it is clear, and he is without any other adequate remedy; and it cannot issue in a case where its effect is to direct or control the head of an executive department, in the discharge of an executive duty, involving the exercise of judgment or discretion.

"The doctrine to be gathered from these cases, as well those in which mandamus was granted, as those in which it was refused, especially from the two leading cases, Kendall v. United States, supra, and Decatur v. Paulding, supra, is thus enunciated in United States v. Black, supra, by Mr. Justice Bradley, who delivered the opinion of the Court: `The Court will not interfere by mandamus with the executive officers of the government, in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the Court having no appellate power for that purpose; but when they refuse to act in a case at all, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon them — that is, a service which they are bound to perform without further question — then, if they refuse, a mandamus may be issued to compel them.' It is proper here to remark, as applicable to the determination of this case, that, in the extreme caution with which this remedy is applied by the courts, there are cases when the writ will not be issued to compel the performance of even a purely ministerial act. In a case, for instance, where the intention of the officer, though acting within the scope of his duty, had been frustrated by a clerical mistake (United States v. Schurz, supra), or where the case is one of doubtful right (Insurance Co. v. Wilson, 8 Pet., 291, 302), or in a case where the relator having another adequate remedy, the granting of the writ may in this summary proceeding affect the rights of persons who are not parties thereto."

See also Conant v. Fuller, 18 S.C. 246; the concurring opinion of Mr. Chief Justice McIver in Lord v. Bates, 48 S.C. 95,26 S.E., 213; State v. Morris, 67 S.C. 153; Pugh v. Moore (La.), 10 So. Rep., 710; Rerwig v. Richardson, 11 So. Rep., 135; 19 Enc. of Law, 732-37, 783.

When the bond was surrendered and a certificate of stock issued in exchange, it lost its legal effect as a subsisting obligation of the State. Cancellation was not a condition precedent upon which the validity of the certificate of stock, which was issued in exchange therefor, depended; and such requirement was intended simply to prevent fraud after the transaction between the holder of the bond and the State had terminated, by the exchange.

The provision as to cancellation stood upon the same footing as that in regard to the registry of the bonds, as to which the Court, in the bond debt cases, 12 S.C. 200, 293, used this language:

"It is very manifest that this provision in regard to the registry of the bonds is a mere direction to the Treasurer, and was not designed to be a condition precedent, the performance of which should be necessary to the validity of the bonds. It does not provide that before any bond is issued it shall be registered by the Treasurer, but it is clear that the registration is to follow, not precede, the issue of the bonds, and could not, therefore, affect their validity. * * * The Constitution was never designed to afford the means of setting a trap for the holders of the bonds of the State by making their rights dependent upon the performance or nonperformance of duty by one of the officers of the State, after the bonds had been issued."

The rights of the petitioner are equitable, and mandamus is not the proper remedy for the assertion of a mere equity. "The remedy by mandamus rests upon the legal rights of the relator, on the one hand, and the obligations and duties of the respondent on the other, and cannot be predicated solely upon the equitable rights and obligations existing between the parties." 19 Enc. of Law., 731, 732.

The question whether the petitioner is a bona fide holder of the bond in question is not ministerial, but strictly judicial in its nature, and the action of the Treasurer in refusing to exchange the bond for a certificate of stock is not subject to control or review by this Court.

The Attorney General, however, stated, upon the hearing of this case, that he did not urge the objection that mandamus was not the proper remedy; and did not contend that the petitioner had actual notice of any facts which would tend to show that he was not a bona fide holder of the bond.

Conceding that he had neither actual nor constructive notice of such facts as tended to show that he was not abona fide holder of the bond, it does not by any means follow necessarily that the writ should be granted requiring the Treasurer to make a second issue of a certificate in exchange for said bond.

The right of the Treasurer to issue a second certificate of stock involves a question of power, and must be determined by the act of 1892, hereinbefore mentioned, under which petitioner contends he is entitled to relief.

The sections of that act hereinbefore set out, and the absence of words conferring power upon the Treasurer to make a second issue of a certificate, clearly show that the Legislature had in contemplation but a single issue in exchange for a bond, and that the Treasurer is not authorized to make a second issue.

In the bond debt cases, 12 S.C. 200, the principle was announced, that after there had been one issue of bonds under the act therein mentioned, there was no power to make a second issue thereunder. In that case the Court used this language:

"These bonds, together with their coupons, must, therefore, upon the foregoing principles, be regarded as valid debts in the hands of bona fide holders, if the acts so referred to be constitutional and do in fact authorize their issue, even though it may now appear that all the conditions prescribed may not have been complied with, and even though there may have been the grossest frauds perpetrated by the officers and agents of the State in issuing them and putting them into circulation. It is not and cannot be denied that the acts so referred to, do in fact purport to authorize the issue of bonds, except in the case of the second issue of bonds for the payment of the interest upon the public debt, for which there does not seem to have been the shadow of authority of any kind, and which, therefore, are absolutely void, no matter in whose hands they may be. For, if the act be construed as giving authority for a second issue, there is no conceivable reason why a third or fourth or an indefinite number of issues could not have been made upon the same construction; and, certainly a construction leading to such a result cannot be a correct one."

That case clearly shows that bonds issued without authority of law are void even in the hands of a bona fide holder.

To the same effect is the case of Branch v. Com. of SinkingFund, 5 Hansbrough (Va.), 427, in which there was an application for a writ of mandamus to compel the Commissioners of the Sinking Fund to fund certain bonds of the State of Virginia which had been redeemed but were afterwards stolen from the Treasury of the State, and purchasedbona fide for value, and without notice on the part of the petitioner that they had been stolen.

In refusing the writ of mandamus the Court used this language:

"We are of opinion that, after these bonds with their appurtenances had been redeemed by the State, and taken into her possesion and custody, they ceased to be her obligations; and could not again become such unless she voluntarily redelivered or reissued them. They had run their career, and fulfilled their mission, and had returned to the dusty depository of dead matter in the Treasury and they had been submitted by outstanding equivalents which represent the legal and moral obligations of the State. They had no longer any legal inception or existence as the bonds of the State, and they were and are as though they never had been."

As the act of 1892 does not authorize the second issue of a certificate, the stock which the petitioner prays the Treasurer may be required to issue, would be void, even in the hands of a bona fide holder, by reason of a lack of authority to perform such act.

Lastly, if the duty enjoined upon the Treasurer to issue a second certificate is not ministerial, this Court (however willing it might be to grant the petitioner relief) has not the power in mandamus proceedings to do so; for, when it appears that rights of the State, other than those incidental to mandamus proceedings, are involved, the action becomes in effect a suit against the State, and its rights cannot be adjudicated unless it is made a party, which cannot be done, except by an act of the Legislature.

"When no provision has been made by law for the auditing and payment of claims against the State or when the claim has not been admitted or is disputed, mandamus will not lie, because it would be equivalent to an action against the State and a State cannot be sued without its consent." 19 Enc. of Law., 804, 805.

"That a State cannot be sued in any of its Courts without its express consent, which can only be given by the legislative authority, is a proposition so universally conceded as to render any argument or authority to support it wholly unnecessary. If, however, authority should be asked for, it will be found in almost every case which will be hereinafter cited, where it will be found that the proposition has either been distinctly decided or expressly recognized, and we are not aware of any authority to the contrary." Lowry v.Thompson, 25 S.C. 416, 1 S.E., 141. See also WaterPower Co. v. Electric Co., 43 S.C. 154. 20 S.E., 1002, in which the language from Lowry v. Thompson, supra, is quoted with approval.

For these reasons I dissent.

MR. CHIEF JUSTICE POPE and CIRCUIT JUDGES GARY, KLUGH, PRINCE and HYDRICK concur in this opinion.