Williamson v. Richards

• Citation: 155 S.E. 890
• Decision Date: 17 November 1930
• Docket Number: No. 13028.,13028.
• Parties: WILLIAMSON et al. v. RICHARDS, Governor, et al.
• Court: United States State Supreme Court of South Carolina

155 S.E. 890

WILLIAMSON et al.

v.RICHARDS, Governor, et al.

No. 13028.

Supreme Court of South Carolina.

Nov. 17, 1930.

For purpose of assailing constitutionality of act, plaintiffs, in action to declare void a bond issue, offered in evidence legislative history of bill as shown in sepate record filed in office of secretary of state in connection with enrolled act. It was contended that record showed act was not read three times in either house, and that act originated in bill of entirely different nature, which had been changed fundamentally in course of legislative procedure without proper warrant of constitutional authority.

Complaint alleged that issuance of bonds was unwarranted and unnecessary and that manner of proposed sale was illegal in respect to terms of sale under which bonds had been offered. The complaint showed no violation of the State Highway Bond Act (Act March 14, 1929 [36 St. at Large, p. 670]), which governed issuance and sale, and none of matters alleged had relation to validity of proposed bond issue nor could they, if true, make issuance illegal.

Act March 14, 1029 (36 St. at Large, p. 670), provides for construction and maintenance of state highway system and for payment of certain obligations of state highway commission and of counties and highway or bridge districts arising from, construction of highways, authorizes issuance of evidences of indebtedness of state, divides state into highway districts, authorizes issuance of evidences of indebtedness o£ these districts, appropriates and: provides for disposition of gasoline tax and motor vehicle license fees and other revenues, and provides for administration and operation of state highway department.

Act March 21, 1930 (36 St. at Large, p. 1221), requiring plaintiff, in suits affecting issuance or sale of state obligations, to give indemnity bond of not less than $25,-000, was approved during pendency of present suit It was contended that act was subject to objections that it prevented all, except persons of large means, from asserting in courts their rights as citizens and taxpayers.

Appeal from Common Pleas Circuit Court of Richland County; C. J. Ramage, Judge.

Action by S. W. Williamson and others against John G. Richards, Governor, and others. From an order dismissing the complaint, plaintiffs appeal.

Affirmed.

The order of Judge Ramage dismissing the complaint was as follows:

A motion has been made in this case, on five days' notice of such motion served on March 29, 1930, to dismiss the complaint and set aside the action. The stated grounds of the motion are that the complaint does not state facts sufficient to constitute a cause of action, and that an act of the General Assembly, entitled "To Ratify and Validate the Proceedings Relating to the Sale of $10,000,-000.00 State Highway Certificates of Indebtedness of the State of South Carolina, on March 21, 1930, and to Provide for Issuance of Said Obligations, " which act was passed and approved on March 28, 1930 (36 St. at Large, p. 2150), since the complaint was served, ends the jurisdiction of this court to further consider the pending suit.

An amended and supplemental complaint, filed in the cause on the day before the motion was set for hearing, which assails the Validating Act as violating both the state and the federal Constitutions, is met by the objection that the court has no jurisdiction to entertain it, because of the recently enacted statutory requirement relating, as declared by its title, to "Suits Affecting Obligations or Evidences of Indebtedness or Bonds Issued or to be Issued by the State, " and providing that no suit shall be filed or prosecuted, "unless and until the plaintiff, or plaintiffs, shall file * * * a bond in such amount as will adequately protect the State against loss, damage, injury, and costs in an amount of not less than $25,000.00 subscribed by a duly licensed Surety Company or the deposit of a like amount in cash, conditioned to pay all loss, damage, injury, and costs, including attorneys' fees which the State may sustain in any such action." This act was enrolled, ratified, and approved on March 21, 1930, and it was provided therein that it should take effect immediately upon its approval by the Governor.

The motion was brought up for hearing before me on April 4th. The attorneys representing the plaintiffs made the point that there was no procedural warrant under the South Carolina statutes or practice for an objection to be taken to the complaint in this manner.

This position cannot be sustained. The objection to the complaint on the ground that it does not state facts sufficient to constitute a cause of action can be made at any time before the circuit court without the objection having been raised either by demurrer or answer, subject only to the proviso that "the party making such objection shall give at least five days notice, in writing, to the opposite party of the grounds of such objection." Section 405, Code of Civil Procedure, vol. 1, Code 1922. See, also, Garrett v. Weinberg, 50 S. C. 310, 27 S. E, 770; Green v. Green, 50 S. C. 514, 27 S. E. 952, 62 Am. St. Rep. 846. The objection that the court is without jurisdiction to entertain the action can be made at any stage of the proceedings, either in the circuit or in the Supreme Court, even without the requirement of notice. Gibbes v. Morrison, 39 S. C. 369, 17 S. E. 803; Hunter v. D. W. Alderman & Sons Co., 79 S. C. 555, 61 S. E. 202. It is also the well-settled rule, as stated in 7 R. C. L. 1043, that "a court will recognize want of jurisdiction over the subject matter, even if no objection is made, and, therefore, whenever a want of jurisdiction is suggested, by the court's examination of the case or otherwise, it is the duty of the court to consider it, and if the court is without jurisdiction it is powerless to act in the case."

All questions raised in the suit contesting the legality of acts done or proceedings taken by the Governor and state treasurer in connection with the proposed $10,000,-000.00 bond issue, under the provisions of the State Highway Bond Act, are concluded and set at rest by the act which validates the issue and directs the delivery of the bonds. The authorities are so clearly determinative on this point that there seems no room for controversy or doubt. A recent leading case is Green v. City of Rock Hill, 149 S. C. 234, 147 S. E. 346, 352, where, in speaking of the effect of a statute passed during the pendency of the proceeding which was expressly directed to the purpose or re-enacting inoperative statutes with retroactive effect, and of validating the acts of the city of Rock Hill taken during the period of time the statutes were so rendered inoperative.

Mr. Justice Stabler, delivering the opinion of the court said:

"The Acts of February 8, 1929, of which this court takes judicial notice, are plainly curative and remedial in character, and are clearly applicable to the pending controversy, in which no final judgment has been rendered. See note, 25 A. L. R. 1136. It is a well-settled general rule that the Legislature, by a curative or validating statute which is necessarily retrospective in character and retroactive in effect, can 'validate any act which it might originally have authorized.' State v. White-sides, 30 S. C. 579, 9 S. E. 661, 3 L. R. A. 777; State v. Neely, 30 S. C. 587, 9 S. E. 664, 3 L. R. A. 672; Hodge v. School District, 80 S. C. 518, 61 S. E. 1009;.Dove v. Kirkland, 92 S. C. 313, 75 S. E. 503; Lucas v. Barringer, 120 S. C. 68, 112 S. E. 746. Obviously, the General Assembly possessed the same powers to re-enact, with retroactive effect, the act of 1914, and the act of 1921 amendatory thereof, that it had to enact the said statutes originally."

In Cooley's Constitutional Limitations (8th Ed.) at pages 775, 787, cited with approval in Hodge v. School District and Dove v. Kirkland, supra, it is said:

"The rule applicable to cases of this description is substantially the following: If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law. ***

"Nor is it important in any of the cases to which we have referred, that the legislative act which cures the irregularity, defect, or want of original authority, was passed after suit brought, in which such irregularity or defect became matter of importance. The bringing of suit vests in a party no right to a particular decision; and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered."

The only limitation on the power of the Legislature, in a validating act, is that stated in State v. Whitesides, 30 S. C. 579, 586, 9 S. E. 661, 663, 3 L. R. A. 777, where Chief Justice Simpson said:

"The pivotal point in a healing or validating statute is that it must be confined to acts which the legislature could previously have authorized. * * * The legislature can under no circumstances authorize the violation of the constitution or validate an unconstitutional act."

For the purpose of assailing the constitutionality of the Validating Act, the plaintiffs offered in evidence the legislative history of the bill which resulted in the passage of the act, as shown in the separate record which is filed in the office of the secretary of state in connection with the enrolled act. It was contended that this record showed that the act in question was not read three times in either House; and that it originated in a bill of entirely different nature which had been converted in the course of...