Evans v. Tillman

• Decision Date: 19 January 1893
• Citation: 17 S.E. 49,38 S.C. 238
• Parties: EVANS v. TILLMAN, Governor, et al.
• Court: South Carolina Supreme Court

17 S.E. 49

38 S.C. 238

EVANS v. TILLMAN, Governor, et al.

Supreme Court of South Carolina

January 19, 1893

Original petition in the supreme court for an injunction by John Gary Evans against B. R. Tillman, as governor, and W. T. C. Bates as treasurer, of the state of South Carolina. Injunction refused and petition dismissed.

The contract referred to in the opinion is as follows: "This memorandum of agreement, made and concluded at Columbia, in the state aforesaid, this ___ day of January, A. D. 1893, by and between Benjamin R. Tillman, as governor, and W. T. C Bates, as treasurer, of the said state of South Carolina, of the first part, and the Baltimore Trust & Guarantee Company of Baltimore, a body corporate by and under the laws of the state of Maryland, and having its principal place of business at Baltimore, in the said state of Maryland, on behalf of itself, and as agent for the others whose subscriptions are hereto appended, of the second part, witnesseth--that under and by virtue of the act of the general assembly of the state of South Carolina, hereinafter mentioned, the party of the first part hereby covenant and agree to sell and deliver to the party of the second part, its successors or assigns, and the party of the second part, in its own behalf, to the extent of its subscription, and as agent as hereinbefore set forth, hereby covenants and agrees to purchase from the parties of the first part for itself and its associates two million ($2,000,000) dollars of the bonds and stock bearing four and a half (4 1/2) per cent. interest, payable semiannually, and issued pursuant to the terms of an act of the general assembly of the side state of South Carolina entitled 'An act to provide for the redemption of that part of the state debt known as the "Brown Console Bonds and Stock" by an issue of other bonds and stock,' approved the 22d day of December, 1892, upon the following terms and conditions, that is to say: The said bonds and stock so purchased shall bear date 1st January, 1893, and shall carry interest from January 1st, 1893, payable semiannually. They shall be sold by the parties of the first part and purchased by the party of the second part at par flat; that is to say, nothing additional shall be paid for any interest which may have accrued at the time of delivery. The purchase money of said bonds and stock shall be due and payable one hundred thousand ($100,000) dollars thereof upon the execution of this contract, and the remainder thereof on or before the 30th day of June, 1893, in such sums and at such times as to the party of the second part may be most convenient; and the said bonds and stock shall be delivered by the parties of the first part to the parties of the second part in such amounts and at such times as they may be called for by the party of the second part upon the payment of the balance of ninety-five (95) per cent. due thereon, the said sum of $100,000 being held and taken to be 5 per cent. upon the whole purchase of $2,000,000. And in consideration of the purchase aforesaid by the party of the second part the parties of the first part hereby further covenant and agree to sell and deliver to the party of the second part, its successors or assigns, so much of the remainder of the bonds and stock issued or to be issued by virtue of the said act as is saleable by the governor and treasurer under the said act or any part thereof; said bonds and stock to bear date January 1st, 1893, to carry interest from January 1st, 1893 and to be paid for at par flat; and remainder of such bonds and stock being understood to be $3,800,000: provided, however, that the offer of sale hereby made shall be accepted in due form on or before the first day of April, 1893; and it is agreed that five per cent. upon all purchases made under this option shall be paid on account thereof at the time such purchases are made, and that the remainder due upon the bonds and stock so purchased may be paid for at any time and in any amounts, at the pleasure of the party of the second part, on or before the 30th day of June 1893, and said bonds and stock shall be delivered by the parties of the first part to the party of the second part, its successors or assigns, in such sums and at such times as they may be called for by the party of the second part upon the payment of the ninety-five per cent. remainder due thereon; it being expressly understood that the said trust company incurs no individual liability hereunder save to the extent of its own subscription."

Townsend Steele, Atty. Gen., for respondents.

McGOWAN, J.

This is an application addressed to the court in the exercise of its original jurisdiction for an injunction to restrain the defendants from entering into a contract for the sale of the 4 1/2 per cent. bonds of this state (a copy of which contract is appended to the proceedings in this case) upon the ground that such a proposed contract is not authorized by the terms of "An act to provide for the redemption of that part of the state debt known as the 'Brown Consol Bonds and Stock' by issue of other bonds and Stock," approved 22d day of December, A. D. 1892. In the judgment of the majority of this court, based upon the consideration of the several sections of the act in question, the contract is not in excess of the power given the defendants by the said act when its provisions are construed together, and hence there is no ground for the injunction prayed for. It is therefore ordered that the prayer of the petitioner be refused, and the petition be dismissed. An opportunity, at an early day, will be used to prepare and file an opinion stating more at large the reasons influencing the judgment of a majority of this court in reaching this conclusion.

McIVER, C.J., (dissenting.)

I regret very much indeed to say that I am unable to concur in the conclusion reached by a majority of this court, and will take the earliest opportunity which the pressure of official duties will permit to give in writing the grounds upon which my dissent is based.

The opinion and dissenting opinion, filed February 23, 1893, referred to in the foregoing decision of the case, are as follows:

McGOWAN J.

This was a sworn petition, filed in the original jurisdiction of this court by John Gary Evans, stating that he is a citizen and taxpayer of the state of South Carolina, and that B. R. Tillman is governor, and William T. C. Bates treasurer, of said state, respectively. (2) That at the last session of the legislature of said state an act was passed entitled "An act to provide for the redemption of that part of the state debt known as the 'Brown Consol Bonds and Stocks' by the issue of other bonds and stocks," etc. That, among other and various provisions, section 6 of said act reads as follows: "That the governor and state treasurer are hereby authorized and instructed to sell the issue of bonds herein provided for at not less than par or face value, and the proceeds thereof shall be applied to the payment of the consolidated bonds and certificates of stocks, commonly called 'Brown Consols' and to no other purpose." (3) That your petitioner has been informed by the governor and treasurer aforesaid, and he believes the same to be true, that they have entered into, or are about to enter into, a contract with parties unknown to petitioner, which contains, among other stipulations, the following, to wit. "The said bonds and stocks so purchased shall bear date January 1, 1893, and shall carry interest from January 1, 1893, payable semiannually. They shall be sold by the parties of the first part, and purchased by the party of the second part, at par flat; that is to say, nothing additional shall be paid for any interest which may have accured at the time of delivery," etc. (See copy of contract in the record.) (4) That deponent is informed that said contract is without authority of law, as provided in the act aforesaid, in that the governor and treasurer are not authorized, under the terms of said act, permitting said bonds to be sold at par or "face value," to sell the same for less than principal and accrued interest. Wherefore petitioner prays that a writ of this court do issue, requiring the said B. R. Tillman, governor, and W. T. C. Bates, treasurer, as aforesaid, to appear and show cause why they should not be perpetually enjoined, etc. The parties were summoned before the court, and made return admitting the material facts, but demurring that the allegations were not sufficient to authorize the court to grant the injunction prayed for. The state in her sovereign capacity is not complaining, but a taxpayer, who alleges that the aforesaid agents of the state are about to exceed the powers granted them by the act referred to. No other point was suggested or argued.

When an agency is created by a written instrument, and grows wholly out of it, the nature and extent of the authority must be ascertained from the instrument itself. Here the principal is the state of South Carolina, and the act of the legislature is, as it were, the power of attorney. In giving interpretation to the refunding act, consisting as it does of many various provisions in the same act and upon the same general subject, they must all, as far as practicable, be construed together, in order to ascertain the intention which must control. In his Interpretation of Statutes (section 35) Mr. Endlich says "that it is an elementary rule that construction is to be made of all the parts together, and not of one part only by itself: A survey of the entire statute is almost always indispensable, even when the words are the plainest, for the true meaning of every passage is that which best harmonizes with the subject and with every other passage of the act." In the effort to reach...