Robertson v. Tillman

• Decision Date: 15 May 1893
• Parties: ROBERTSON v. TILLMAN, Governor, et al.
• Court: South Carolina Supreme Court

17 S.E. 678

39 S.C. 298

ROBERTSON v. TILLMAN, Governor, et al.

Supreme Court of South Carolina

May 15, 1893

Original petition in the name of the state on the relation of Edwin W Robertson against B. R. Tillman, as governor, and W. T. C Bates, as treasurer, of the state of South Carolian, for an injunction. Judgment for defendants.

Robertson & Moore, for petitioner.

Atty Gen. Townsend and John N. Steele, for respondents.

McIVER C.J.

This is an application addressed to this court in the exercise of its original jurisdiction, instituted by the plaintiff as a citizen and taxpayer of this state to enjoin and restrain the defendant from issuing the bonds of this state to the amount of $5,250,000 to the Baltimore Trust & Guaranty Company under a contract between said company and the defendants, heretofore adjudged to be valid by this court, in the case of Evans v. Tillman, 17 S.E. Rep. 49, upon the ground that the act of the general assembly, purporting to authorize such issue is unconstitutional and void. The defendants have demurred to the petition presented by the plaintiff, and thereby admit all the material allegations of fact made by the plaintiff. So that the only question presented for our determination is purely one of law, viz. whether the act above referred to is unconstitutional. This act is entitled "An act to provide for the redemption of that part of the state debt known as the 'Brown Consol Bonds and Stocks' by issue of other bonds and stocks," and was duly approved by the governor on the 22d of December, 1892. 21 St. 24. And, it being admitted by the pleadings that said act "was not passed by a vote of two-thirds of the members of each branch of the general assembly, recorded by years and nays on the journal of each house, respectively," it is claimed by the plaintiff that it was not passed in conformity to the requirements of section 7, art. 9, of the constitution of this state, and has not, therefore, the force of law. That section of the constitution reads as follows: "For the purpose of defraying extraordinary expenditures the state may contract public debts, but such debts shall be authorized by law for some single object, to be distinctly specified therein; and no such law shall take effect until it shall have been passed by a vote of two-thirds of the members of each branch of the general assembly, to be recorded by yeas and nays on the journal of each house, respectively; and every such law shall levy a tax annually, sufficient to pay the annual interest of such debt." It is very clear that if the act in question can properly be regarded as authorizing the issue of bonds for the purpose of defraying extraordinary expenditures it would be unconstitutional, because not passed in the mode prescribed by the above-quoted section of the constitution. The material inquiry, therefore, is whether the act in question is to be tested by the provisions of section 7, art. 9, of the constitution, or by the provisions of section 10 of the same article, which reads as follows: "No scrip, certificate, or other evidence of state indebtedness shall be issued except for the redemption of stock, bonds, or other evidences of indebtedness previously issued, or for such debts as are expressly authorized in this constitution." For, while the language used in section 10 is negative in form, yet it is clearly a negative pregnant, and necessarily implies that scrip, etc., may be issued in the cases excepted from the prohibition, to wit, "for the redemption of stock, bonds," etc., "previously issued," or "for such debts as are expressly authorized in this constitution." It seems to us very clear that these two sections of the constitution (the seventh and tenth) relate to two entirely distinct and different matters. The former authorizes the contracting of a public debt for the purpose of obtaining money to defray extraordinary expenditures, while the latter authorizes the issue of scrip or other evidences of indebtedness for the purpose of redeeming bonds or stocks previously issued; and we think it equally clear that the bonds authorized to be issued by the act of 22d December, 1892, are intended to be, and can only be, issued for the purpose of redeeming bonds and stocks previously issued, and not for the purpose of obtaining money to defray extraordinary expenditures. The terms "extraordinary expenditures" necessarily imply new obligations or debts which had not been previously incurred, over and above the ordinary current expenses of the government; and hence it was wisely provided in the seventh section of the constitution that every law authorizing the contracting of a new debt should distinctly state the object for which it was to be contracted, and that it should not take effect unless it was passed by a two-thirds vote, to be recorded by years and nays on the journal, in order that the taxpayers might be able to understand distinctly what was the purpose of contracting such debt, and who of their representatives voted for the same; and as a further protection to the taxpayers it was subsequently provided by the amendment of 1873, incorporated as article 16 of the constitution, (the terms of which will be hereinafter more particularly considered,) as a still further safeguard, that no new debt should be contracted without a vote of the people. But, the scrip or other evidences of indebtedness authorized to be issued by section 10 of article 9 of the constitution being for the purpose of redeeming bonds or other evidences of indebtedness previously issued, and not for the purpose of creating any new debt, there was no necessity for providing any such safeguards as are found in section 7 of article 9 and in article 16 of the constitution, because the bonds issued under the authority of section 10, would be practically nothing more than a change in the form of the evidences of debt previously contracted by proper authority.

It is further urged by the plaintiff that the act of 1892 authorizing the issue of bonds now in question, violates article 16 of the constitution, above referred to. That article reads as follows: "To the end that the public debt of South Carolina may not hereafter be increased without the due consideration and free consent of the people of the state, the general assembly is hereby forbidden to create any further debt or obligation, either by the loan of the credit of the state, by guaranty, indorsement, or otherwise, except for the ordinary and current business of the state, without first submitting the question as to the creation of any such new debt, guaranty, indorsement, or loan of its credit to the people of this state at a general state election; and, unless two-thirds of the qualified voters of the state voting on the question shall be in favor of a further debt, guaranty, indorsement, or loan of its credit, none such shall be created or made." It is very manifest that the object of this constitutional provision was to prevent the general assembly from creating any new debt of the state, "except for the ordinary and current business of the state," unless the mode therein prescribed shall be...