« ForrigeFortsett »
stitutional, and the township bonds were invalid. For 10 years prior to this decision a number of similar acts had been passed by the Legislature of the state in pursuance of which township bonds were issued in aid of railroads, and placed upon the market, and until the decision in the case supra there had been no question or doubt as to the validity of these bonds. At the next session of the Legislature an act was passed declaring that, when the railroad had been completed through the township, the township bonds issued in aid thereof should be paid by taxation as provided in the original act. 20 St. at Large S. C. p. 12. This statute was held to be constitutional, and that a mandamus could be issued by that court to compel the collection of this tax. State v. Whitesides, 30 S. C. 579, 9 S. E. 661, 3 L. R. A. 777; State v. Harper, 30 S. C. 586, 9 S. E. 664; State v. Neely, 30 S. C. 587, 9 S. E. 664, 3 L. R. A. 672. The decisions in these cases practically settled the question in so far as the townships were concerned through which the railroad had been completed, and the interest was paid without further contest. On the other hand, the bonds of the townships through which the railroad had not been completed were not paid. On the 10th day of February, 1893, George W. Folsom brought suit against township Ninety-Six upon certain coupons clipped from its bonds. A demurrer was filed in behalf of the township, and Judge Simonton, in an opinion dated December 27, 1893, sustained the demurrer and dismissed the complaint. This case was carried to the Circuit Court of Appeals, and that court certified certain questions of law to the Supreme Court of the United States. The Supreme Court, in the fall of 1885, rendered a decision, which is reported in 159 U. S., at page 611, 16 Sup. Ct. 174, 40 L. Ed. 278, in which it is held that the decision in Floyd v. Perrin, having been rendered subsequently to the issue of the bonds in question, was not binding on the federal courts, and, considering the question upon its merits, the court held the statute was constitutional, and the bonds were valid, unless there was some other defense. The demurrer was overruled, and the defendant was allowed to file an answer. When the case came on for trial in the Circuit Court it resulted in a verdict for the plaintiff. The case was carried to the Circuit Court of Appeals, and the judgment below was affirmed. Ninety-Six Township v. Folsom, 30 C. C. A. 657, 87 Fed. 304. In the meantime other cases had been instituted against various townships, and judgment was obtained against the township in each case. A writ of error was sued out in one of them, and the judgment below was affirmed. Dunklin Township v. Wells, 31 C. C. A. 593, 87 Fed. 1004. These decisions terminated the litigation of this class of cases on the merits. In 1897 and 1899 acts were passed by the Legislature forbidding township commissioners, county commissioners, and all other officers from assessing any tax to pay these bonds, and forbidding the county treasurer and all other officers from collecting such tax. 22 St. at Large S. C. p. 534; 23 St. at Large S. C. p. 78. After these statutes were enacted, the auditor and treasurer declined to levy and collect the taxes as required by the statutes of 1882 and 1885, and the plaintiff in one of the cases filed a petition for a writ of mandamus. Judge Simonton, who delivered the opinion in Hicks v. Cleve-. land, 45 C. C. A. 429, 106 Fed. 459, among other things, said:
"The purpose of the General Assembly in passing the act to amend the charter of the Greenville & Port Royal Railroad Company, approved December 24, 1885 (19 St. at Large S. C. p. 237), was to promote the construction of that road. To accomplish this, it authorized and encouraged townships along the proposed line of road to subscribe bonds towards this construction. In order to give character and credit to these bonds, and to induce the public to invest in them, the ninth section of the act provides a careful, full, and sure mode of provid ing for the interest. And an amendment to the same charter, made in 1887, provided (19 St. at Large S. C. p. 921) in the same way for the payment of the principal by taxation. These provisions of the act went into and formed a part of the contract moving to the bondholders, who invested their money trusting to the provisions. The contract could not be impaired by any subsequent act on the part of the state of South Carolina."
In this opinion Judge Simonton held that the acts of the Legislature which undertook to prevent the collection of the taxes in accordance with the provisions of section 9 of the acts of 1882 and 1885 were unconstitutional, and the judgment of the lower court directing the issuance of the writ of mandamus was affirmed. In the fall of 1891 an application was filed in the Supreme Court of South Carolina in behalf of certain taxpayers in the township of Dunklin, in which that court was asked to enjoin the county auditor and treasurer from levying and collecting the tax to pay the judgment which had been rendered. That court, on the 16th day of April, 1892, rendered its decision, in which it was held that a mandamus was in the nature of an execution to enforce a judgment of the federal court, and, among other things, it declared this "was an end of the argument, as it cannot be contended that a state court can enjoin any process of a federal court." McCullough v. Hicks, 63 S. C. 542, 41 S. E. 761.
Section 11 of article 7 of the Constitution of 1895 provided:
"Each of the several townships of this state, with names and boundaries as now established by law, shall constitute a body politic and corporate, but this act shall not prevent the General Assembly from organizing other townships or changing the boundaries of those already established; and the General Assembly may provide such system of township government as it shall think proper in any and all the counties, and may make special provision for municipal government and for the protection of chartered rights and powers of municipalities."
The following amendment to this section was proposed by a concurrent resolution of the Legislature of February 28, 1902:
"That this section shall not apply to the following townships in the following counties: Dunklin and Oaklawn in the county of Greenville; the townships of Cokesbury, Ninety Six and Cooper in the county of Greenwood; Sullivan in the county of Laurens; Huitt and Pine Grove in the county of Saluda. The corporate existence of the said townships be, and the same is hereby destroyed, and all officers in said townships are abolished and all corporate agents removed." 23 St. at Large S. C. p. 1227.
This amendment was voted upon favorably at a general election held in November, 1902, and in February, 1903, was adopted by the General Assembly by a concurrent resolution. Thus it became a part of the Constitution of South Carolina.
The petition upon which the writ of mandamus is based is as follows: "That George W. Folsom, the plaintiff in the above-entitled cause, was a citizen and resident of the state of Tennessee, and the defendant a territorial division of the state of South Carolina, situate formerly in the county of Ab
beville, but now included within the county of Greenwood under and by virtue of the laws of said state, and was incorporated under an act of the General Assembly entitled 'An act to charter the Greenville & Port Royal Railroad Company,' approved December 23, 1882, amended on December 24, 1885, by an act entitled 'An act to amend an act entitled "An act to charter the Greenville & Port Royal Railroad Company."
"That on February 10, 1893, the said George W. Folsom brought his action in this honorable court, entitled 'George W. Folsom v. Township of Ninety-Six in the County of Abbeville, S. C.,' alleging, among other things, that the defendant, through its corporate agents, had, on March 25, 1886, duly executed and issued bonds of said township aggregating twenty-eight thousand dollars, with attached interest coupons at the rate of seven per cent. per annum, and of the denominations specified in said bonds, and that said George W. Folsom had purchased certain of said past-due coupons clipped therefrom, amounting in the aggregate to the sum of five thousand one hundred and ten dollars, being specifically set forth in said complaint, and alleging that no part of said coupons had been paid, and that defendant and its agents had refused and neglected to collect said taxes for the payment of said coupons and interest, and demanding judgment to the amount of said coupons, together with interest thereon, and for the cost of said action, and for the issue of a writ of mandamus directed to the proper officers to levy and collect taxes to pay said coupons.
"That, said action being pending, a verdict was rendered in favor of the plaintiff for the sum of seven thousand one hundred and eighteen and 78/100 dollars and for one hundred ninety-three and 15/100 dollars on August 14, 1896. The judgment was duly entered thereon and execution issued on August 28, 1896, and the same was lodged in the office of the marshal for said district, but said execution has been returned wholly unsatisfied, and no part of the said judgment has been paid, and the full amount is now due and payable.
"That by the act of the Legislature under which said bonds were issued it was provided: 'Sec. 9. That for the payment of the interest on such bonds as may be issued by said counties, cities, towns, or townships, the county auditor or other officer discharging such duties, or the city or town treasurer, as the case may be, shall be authorized and required to assess annually upon the property of the said county, city, town or township, such per centum as may be necessary to pay the said interest of said sum of money subscribed, which shall be known and styled in the tax books as said railroad tax, which shall be collected by the treasurer under the same regulations as are provided by law for the collection of taxes in any of the counties, cities, towns or townships so subscribing, and which shall be paid over by the treasurer to the holders of said bonds as the said interest shall become due on presentation of the coupons,' etc. 19 St. at Large S. C. p. 240.
"That at the time of the execution of the said bonds said township was situate in Abbeville county, but that thereafter, to wit, in the year 1896, the county of Greenwood was organized, in pursuance of the laws of said state, out of portions of Abbeville and Edgefield counties, and the township of Ninety-Six was included in the county of Greenwood.
"That demand has been made upon the proper officers of Greenwood county to assess and collect taxes for the payment of said judgment, but said officers have neglected and failed to make such assessment.
"That since said bonds have been executed the Legislature of said state has passed several acts forbidding under heavy penalty the levy and collection of taxes for the payment of said township bonds.
"That said acts are in violation of section 10 of article 1 of the Constitution of the United States of America, but the officers charged with the duty of levying and collecting taxes to pay said bonds have obeyed the mandate in said acts, and have failed to assess or collect taxes. That petitioner is advised and believes that any further effort to procure voluntary action on the part of said officers would be idle, and without effect. That the auditor for Greenwood county is T. A. Graham, and the treasurer of said county is J. A. Marshall. "That petitioners are now the owners of said judgment, and all moneys due thereon are payable to them.
"Wherefore your petitioners pray:
"(1) That a writ of mandamus be issued directed to said auditor and said treasurer directing and demanding the said auditor to assess upon all property
of said township a sufficient per centum to pay said judgment, with costs, and commanding the treasurer of said county to collect the taxes so assessed, and pay over the same upon the said judgment until the same be wholly satisfied. "(2) For the costs of this proceeding, and for such other and further relief as in the premises may be just."
The auditor and treasurer of Greenwood county, for their return to the rule to show cause, submit the following answer:
"T. A. Graham, as auditor of the county of Greenwood, and J. A. Marshall, as treasurer for the same county, for return to the rule to show cause why the writ of mandamus should not issue requiring these respondents respectively to assess and collect a tax as prayed for by the petition in the cause why such a writ should not issue before this court, respectfully show:
"(1) That the respondents admit the allegations of paragraph one except the allegations thereof which allege that Ninety-Six township is a subdivision of the state of South Carolina, and is now included in Greenwood county, which allegation is denied.
"(2) That respondents deny any knowledge or information sufficient to form a belief as to the matters contained in paragraph two of the said petition. "(3) That neither of said respondents have knowledge or information to form a belief as to the allegations of paragraph three of the said petition, and deny any knowledge or information sufficient to form a belief as to the allegations of said paragraph three, and require strict proof of the same.
"(4) Respondents admit the allegations of paragraph four of the petition. "(5) Respondents admit the allegations of paragraph five, except that they allege that Greenwood was formed in 1897 under the provisions of the Constitution of 1895.
"(6) Respondent T. A. Graham admits demand upon him to assess said tax, and that he refused to do so, and alleges that he had no power so to do.
"(7) Respondents admit the allegations of paragraph seven of the petition. "(8) Respondents admit the allegations of paragraph eight of the petition, except the allegations that allege that said acts are in violation of the Constitution of the United States of America, which allegation is denied.
"(9) That these respondents further show and submit that neither of them is an officer of the county of Greenwood, nor the agent, under the law of the state of South Carolina, of either the holders of township bonds or the townships themselves. They are officers of the state of South Carolina, appointed by the Governor of the said state under the provisions of law, and, although termed county officers, are so styled because assigned to duty in that county; and they therefore submit they cannot exercise any function of these respective officers except as authorized by the laws of the said state.
"(10) That the General Assembly of the said state, by its act approved on day of —, 190, and now of force, has forbidden the respondents and all other like officers to assess or collect a tax for the payment of subscriptions by townships to the building of railroads which have not been built.
"(11) That the railroad, for the building and construction of which the bonds alleged in the said petition to have been issued, has not been built.
"(12) That the township of Ninety-Six, described in the said petition, does not exist as a corporation, because by an amendment of the Constitution of the state of South Carolina voted by the people in the year 1902, and adopted by the General Assembly of the said state in the year 1903, the corporate existence of the said township was destroyed, and all officers in said township abolished, and all corporate agents removed long prior to the petition herein.
"(13) That the said township of Ninety-Six never owned any property whatever; that it never had any officers or agents of its affairs with the single exception that the county commissioners of the county of Abbeville were authorized to hold an election for the subscription of bonds described in the petition, and to issue bonds for the amount to be subscribed.
"(14) That respondents are officers under and by virtue of the provisions of the Constitution of 1895 and the law pursuant thereto, which fixes and determines their duties and power, and under the terms and provisions of the said Constitution and the acts of the Legislature pursuant thereto these respondents are without power to levy or collect any tax for the purpose set out
in the said petition, and are forbidden by the express terms of the said Constitution from so doing, under which said Constitution they hold their appointment as officers of the state of South Carolina; that these respondents are required to give a heavy bond conditioned to faithfully discharge and perform the duties of their office in accordance with the requirements of the law of their appointment, which prohibits and forbids doing the acts mentioned in the petition herein.
"(15) The respondents further submit that section 9 of the act incorporating Ninety-Six township does not make it the duty of the county auditor and county treasurer to assess and collect any tax whatever. It provides in plain terms that the said auditor and treasurer shall be authorized and required to assess and collect a certain tax mentioned therein on the property owned by the township, and it makes no provision whatever for an assessment of the property or fixing the valuation for taxation of any property within the said territory and could not so provide, this matter being regulated and fixed by the Constitution of 1868, which makes it incumbent on the Legislature to provide a regular way applicable alike to all counties for said purpose.
“(16) That at the time the bonds and coupons mentioned in the petition herein are alleged to have been issued the township of Ninety-Six was a territorial subdivision of the county of Abbeville, and whatever duty was imposed on the county auditor and treasurer had reference entirely to those officers acting for Abbeville county, and Abbeville county is still in existence, and still has a county auditor and county treasurer; that the respondents are the county auditor and county treasurer, respectively, for Greenwood county, which was formed under the provisions of the Constitution of 1895 and acts of the Legislature of 1897, and they are not officers or agents of Ninety-Six township for any purpose whatever, and are not officers or agents of the holders of the said bonds or judgment mentioned in the petition, and have no desire to act as such officers or agents; that they can and do exercise the duties of county auditor and county treasurer, respectively, in compliance with the law of the state under which they were appointed and commissioned, without reference to any duty or obligation of what was known as Ninety-Six township as a township, and in accepting the office of county auditor and county treasurer they did so under the laws then in existence and of force and afterwards to be enacted, fixing their duties and defining their power, and not as officers or agents of the said township, which position each of them declines to accept and exercise.
"Wherefore, because it is doubtful that the petitioner ever obtained the alleged judgment, and because it is impossible for the respondents to determine what property is subject to taxation on account of the demand alleged to be in judgment, and because the respondents do not possess or control any property ever belonging to the said township, and because the said county of Greenwood never succeeded to any right of property of the said township, and because the collection of the taxes prayed for is beyond the scope of authority and duty of the respondents, and because the said respondents cannot, under the law of their appointment, comply with the writ without violating their oath of office and the law appointing them, and because the township of Ninety-Six has no corporate existence, agents, or officers, and for the other good and sufficient reasons shown herein, they pray that the said rule be discharged.”
From an examination of the record it will be seen that every question in this litigation from its inception has been settled by former adjudications, except such questions as may have arisen by virtue of the constitutional amendment which was adopted in 1903. Such being the case, we are to consider, first, the question whether the legal entity of the township of Ninety-Six has been abolished; second, and, if it shall appear that the corporate existence of the township has been abolished, what is the effect of the acts of 1882 and 1885, which provide the means for the assessment and collection of the taxes to pay the interest and principal of the bonds? The language of the statute of 1885 is so plain. and direct that there can be no question as to its meaning. It provides in plain and unmistakable terms the means as well as the mode of pro