State v. Neely
| Decision Date | 15 April 1889 |
| Parties | STATE ex rel. DICKINSON v. NEELY, County Treasurer, et al. |
| Court | South Carolina Supreme Court |
Petition for mandamus by the state of South Carolina, ex relatione P P Dickinson, against H. A. D. Neely, county treasurer of York county, and Robert W. Whitesides, James B Allison, and E. R. Mills, county commissioners of York county.
C. E Spencer, Wilson & Wilson & McDow, W B. McCaw, N.W. Hardin and D. E. Finley, for respondents.
This is an application, addressed to this court in its original jurisdiction, for a writ of mandamus to compel the respondents to apply funds alleged to be in the hands of the respondent Neely, as county treasurer, to the payment of a coupon which matured on 1st of January, 1889, on a bond held by the relator, purporting to have been issued by the county commissioners of York county, as the corporate agents of Cherokee township, under the provisions of an act of the general assembly of this state, approved 21st December, 1883 as well as under the provisions of an act approved 22d December, 1888, entitled "An act to provide for the payment of township bonds issued in aid of railroads in this state." There are other appropriate allegations in the petition, which it is not deemed necessary to repeat here, as we think it would be well for the reporter, in preparing the report in this case, to set out the petition as well as the return, of which we shall make only a brief statement. The term of office of the persons named as county commissioners in the title of this case having expired, the return is made by their successors in office to-wit, T. G. Culp, Robert W. Whitesides, and William Ross, together with the respondent Neely. The return sets forth, among other things, as reasons for declining to comply with the demand of the relator, that Cherokee township has never been constituted a township in accordance with law, inasmuch as certain provisions of the act defining the powers and duties of county commissioners have never been complied with, to-wit, that the lines and boundaries of the townships in York county have never been established "by the erection of permanent monuments of stone, brick, or iron to designate the respective boundary lines of said townships 'at every angle thereof,' nor have the county commissioners of York county in any other way definitely established the territory and boundary lines of any of the townships in said county;" that the circuit court never made "any order or directed any measure looking to the division of said county into townships," as provided for by law, nor did the county commissioners ever report their acts and doings to the general assembly for confirmation. It is also alleged that the act of 1883, above referred to, has been adjudged unconstitutional by this court, and respondents say that they have been advised that the attempt of the legislature, by the recent act of 22d of December, 1888, to validate the bonds issued under the act of 1883, and to provide for the levy of a tax to pay the same, is likewise unconstitutional and void. It is further alleged that the Charleston, Cincinnati & Chicago Railroad, in aid of which the bonds in question purport to have been issued, was not completed through Cherokee township and accepted by the railroad commissioners until the 21st of December, 1888; and that, even under the provisions of the act of 22d of December, 1888, no taxes in the hands of respondent Neely, as county treasurer, can be applied to the payment of the coupon held by the relator, though it is admitted that there are certain sums, the amounts of which are stated in the return, in the hands of Neely as county treasurer, arising from taxes levied and collected prior to the completion of the road through Cherokee township, which, for the reasons stated in the return, cannot be applied to the coupon held by the relator. This brief and condensed statement of the allegations in the petition and return is deemed sufficient, under the view which we take of the case, to present the real questions involved, though there are several other matters mentioned which we do not think it material to notice, as we shall confine ourselves to what we regard the real questions in the case.
The material questions raised by the pleadings in this case are: First. Whether Cherokee township has ever been created a township according to law. Second. Whether the act of 22d December, 1888, entitled "An act to provide for the payment of township bonds issued in aid of railroads in this state," is constitutional. Third. If so, whether the respondent Neely has in his hands, as county treasurer of York county, any funds applicable to the payment of the coupon held by the relator. As to the first question, in view of the repeated instances in which the legislature has recognized the division of counties into townships, and especially in view of the legislation in which the particular township of Cherokee has been recognized as such, it seems to us too late now to inquire whether the regulations in respect to the marking the corners of the townships, reporting to the court and to the legislature the action of the county commissioners, have all been complied with. Indeed, the counsel for the respondents have laid so little stress upon this point that we do not deem it necessary to consider it further.
The real question in the case is the second, as to the constitutionality of the act of 1888. This question having just been considered and...
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