State v. Blease
| Citation | 79 S.E. 247,95 S.C. 403 |
| Parties | STATE ex rel. RAY v. BLEASE, Governor, et al. |
| Decision Date | 08 September 1913 |
| Court | South Carolina Supreme Court |
"To be officially reported."
Original action for an injunction by the State, on the relation of W W. Ray, against Cole L. Blease, Governor, and others composing the State Sinking Fund Commission. Ordered in accordance with the opinion.
Weston & Aycock, of Columbia, for petitioner. Attorney General Peeples and J. Fraser Lyon, of Columbia, for respondents.
At the session of 1912 the Legislature passed an act entitled "An act to provide for the exercise by the state of its option to call in and pay the whole or any part of the Brown Bonds and Stocks, issued under an act entitled 'An act to provide for the redemption of that portion of the state debt known as the Brown Consol Bonds and Stocks, by the issue of other bonds and stocks,' approved December 22, A. D 1892." 27 Stat. p. 738. The act provides that the Sinking Fund Commission, which is composed of the Governor, the State Treasurer, the Comptroller General, the Attorney General, the Chairman of the Committee on Finance of the Senate, and the Chairman of the Committee on Ways and Means of the House of Representatives, shall have authority to exercise the option reserved to the state in the refunding act of 1892 (21 Stat. p. 24) to call in and pay, at the expiration of 20 years from the date of issue thereof, the whole or any part of the bonds and stocks issued thereunder, dated January 1, 1893, and known as Redemption Brown Consols, and, for that purpose, that the commission shall be authorized to issue and sell 4 per cent. bonds and stocks, not exceeding the aggregate outstanding amount of the bonds and stocks that have been or may be issued under said act of 1892, and certain previous refunding acts, which are specifically mentioned.
During the year 1912, the commission passed several resolutions, and took some steps preliminary to carry out the provisions of the act. Hon. W. L. Mauldin, who was chairman of the Committee on Finance of the Senate, died before either of the meetings of the commission herein mentioned was held, and thereby a vacancy in the commission was created. On October 30, 1912, the commission passed a resolution that its clerk ascertain what amount of the sinking fund would be available on January 2, 1913, for retiring the Brown Consols, and that, when the amount was ascertained, "the necessary steps be taken for calling in the bonds to collect the amount thereof to be paid off and retired." That resolution was adopted at a meeting of the commission attended by four of its members, and its validity has not been questioned. On December 2, 1912, in pursuance of that resolution, the State Treasurer, who is the secretary and treasurer of the commission, published over his signature, as State Treasurer and treasurer of the commission, in a financial paper in New York and in two daily papers in this state, a notice to the holders of Redemption Brown Bonds, issued under the act of 1892, and numbered from 3,781 to 4,319, both included, to present the same to him, on January 1, 1913, for payment, and that interest accruing thereon after said date would not be paid.
On December 23, 1912, pursuant to a call of the chairman of the commission, due notice of which was given to each member thereof, the Attorney General, the Comptroller General, the State Treasurer, and Hon. L. J. Browning, who had been, and claimed that he was then, chairman of the Committee on Ways and Means of the House of Representatives, met together as the Sinking Fund Commission, and by unanimous vote passed several resolutions relative to the refunding of the state debt, under the act of 1912, the substance of which was as follows: (1) Ratifying the publication of the notice by the treasurer above mentioned. (2) Authorizing the Comptroller General to receive proposals, pursuant to published advertisement or otherwise, for the purchase of the issue of bonds and stocks which the commission was authorized by the act of 1912 to issue. (3) That the Comptroller General report to the commission the proposals received, and that the commission sell the bonds and stocks at the best price obtainable, not less than par flat. (4) That after the completion of said sale, the treasurer call all Redemption Brown Bonds (not already called) for redemption on July 1, 1913, but if said sale should not have been completed by that date, said call should abide the further order of the commission. (5) That the new issue of bonds and stocks should be dated and bear interest from January 1, 1913, specifying the rate of interest, times, and places of payment thereof, and the date of maturity of the bonds and stocks, and the privilege of redemption, according to the terms of the act. The validity of these resolutions is questioned by the petitioner and by some of the respondents, on the ground that, when they were adopted, Mr. Browning's term of office as a member of the House of Representatives had expired, and he was not therefore a member of the commission, and without him there were only three members present, and, as four members were necessary to constitute a quorum, no business could have been lawfully transacted at said meeting. Section 10 of article 3 of the Constitution provides that the terms of office of representatives chosen at a general election shall begin the Monday following such election. Mr. Browning's successor was elected at the general election held on November 5, 1912; therefore it is contended that he was not a lawful member of the commission on December 23, 1912, the date on which the resolutions in question were passed.
On January 6, 1913, this action for injunction was commenced against the former members of the commission to test the constitutionality of the act of 1912, and the authority of the commission thereunder to pay or refund certain outstanding bonds and stocks, which are particularly mentioned in the petition, and the validity of the resolution of December 23, 1912, in order that all questions as to the validity of the bonds and stocks which may be issued by the commission may be finally settled and determined. After the General Assembly had convened, pursuant to the Constitution, and after the state officers, who had been elected at the general election on November 5, 1912, had been inaugurated and qualified, and a Chairman of the Committee on Finance of the Senate and a Chairman of the Committee on Ways and Means of the House of Representatives had been appointed, an order was passed making these new officials parties respondent herein. After returns had been filed on behalf of all the respondents, the case was referred to Halcott P. Green, Esq., as special referee, to take and report the testimony, together with his findings thereupon.
The referee finds that the allegations or suggestions contained in the return of His Excellency, the Governor, are unsustained, in so far as it is therein alleged or suggested that there was any irregularity or fraud in connection with the refunding of bonds under the act of 1892, or any unfairness, impropriety, illegality, or collusion in connection with any understanding or agreement on the part of the former members of the commission, or any of them, with any person, firm, or corporation relative to the purchase or sale of the bonds and stocks to be issued under the act of 1912, or with reference to the bringing of this action. As the matters referred to do not affect the validity of the bonds and stocks to be issued, and as no exception has been taken to the findings of the referee, we deem it unnecessary to prolong this opinion by a more detailed statement or consideration of them .
It appears that the action of the State Treasurer and Treasurer of the Sinking Fund Commission, in advertising the call for the Redemption Brown Bonds, hereinbefore mentioned, to be presented to him on January 1, 1913, for payment, was based upon and authorized by the resolution of the commission passed at its meeting on October 30, 1912, at which there was a quorum of members whose title to office at that time is unquestioned, and that the resolution of December 23, 1912, so far as that call is concerned, was only an attempt to ratify what he had done. As his action was based upon unquestioned and unquestionable authority, it needed no ratification, which is necessary only when it is sought to validate an act done without authority.
As to the other resolutions of that date, the substance of which has been hereinbefore stated, it need only be said that it appears from their nature that they involve matters of detail which are either fixed by the terms of the act, or such as are within the discretion and judgment of the commission in carrying out the provisions of the act, and are therefore still subject to its orders; but as to matters within their discretion the commission is not subject to the control of the court. Furthermore, it appears that the commission as now constituted, refused to revoke these resolutions, and thereby impliedly ratified them. It follows, therefore, that it is unnecessary to decide whether the resolutions passed at the meeting of December 23, 1912, are valid or not; hence any decision or discussion of the questions involved in that issue would be mere obiter dictum.
The validity of the act is questioned under the allegation that it violates section 17 of article 3 of the Constitution which provides that every act shall relate to but one subject, which shall be expressed in its title. The specific objection is that the body of the act provides for the issuance of bonds and stocks, while the title expressed only the subject of providing for the exercise of the state's option to call in and...
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