Summary
In Williamson v. Richards, Governor, 158 S.C. 534, 155 S.E., 890, 891, we find the following: "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.
Summary of this case from Hundley Hudgens Co. v. WatsonOpinion
13028
November 17, 1930.
Before RAMAGE, J., Richland, April, 1930. Affirmed.
Action by S.W. Williamson and others against John G. Richards, Governor, and others. From an order dismissing the complaint plaintiffs appeal.
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, page 2150), since the complaint was served in 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. Gibbs 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. Whitesides, 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 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 legislative procedure, without proper warrant of constitutional authority, into the Validating Act, which is now relied upon to conclude the questions raised by the plaintiffs. It was also contended that the same objection applied to the Act of March 21, 1930, and therefore that the cause of action stated in the amended and supplemental complaint could be filed and prosecuted without the requirement of any bond to protect the State against loss, damage, injury, or costs, which the State may sustain in the action.
The introduction of this proffered evidence was objected to by the defendants, who took the position that the Acts having been duly enrolled, certified, and approved, and filed in the office of the Secretary of State with the great seal of State attached thereto, could not be impeached by extrinsic evidence of irregularities furnished by Journal entries or otherwise.
The Court agrees on this point with the position taken by the defendants. The recent case of Wingfield v. South Carolina Tax Commission, 147 S.C. 116, 144 S.E., 846, 860, is authoritative. The doctrine of the Wingfield case is recognized and reaffirmed without dissent in the opinion of the en banc Court. which approves the constitutionality of the State Highway Bond Act. Johnson v. State Highway Commission, 152 S.C. 455, 150 S.E., 269.
The Act involved in the Wingfield case was a revenue measure and, in addition to objections similar to those made in the present case, it was contended that the bill, in the revenue-producing form in which it was finally passed did, not originate in the House of Representative as required by the State Constitution. The legislative history of the Act is set out at considerable length in the dissenting opinion of Mr. Justice Cothran which is mainly devoted to a discussion of the changes made in the Senate and Free Conference, after the second Senate reading of a bill originally introduced in the House as a Bill to repeal a license tax on certain specified articles. The Senate amended the House Bill by adding provisions for a license tax on soft drinks and similarly amended the title. Concerning the later history of the bill, Mr. Justice Cothran says:
"These amendments were rejected by the House; but if they had been accepted (or, in legislative parlance, had been concurred in) by the House, it seems to me clear that the amendments amounting to a Bill for Raising Revenue, must have been invalid as not having originated in the House.
"The Free Conference Report was upon its face styled `Revenue Measure,' and the original Bill was, by the adoption of the Free Conference Report, amended as to its title and body, by adding an entirely new and complete system of revenue-producing provisions, a subject not touched upon in the House Bill which it purported to amend."
The conditions pointed out in the foregoing excerpts obviously make a stronger case than now presented, for the Bills here involved are such as might have been introduced in either House. The opinion of the Court, with all members except Justice Cothran concurring, applied, however, the rule declared in State ex rel. Hoover v. Chester, 39 S.C. 307, 17 S.E., 752; and, in giving effect thereto, Mr. Justice Stabler, delivering the opinion of the Court, said:
"Public policy, certainly as to what the law is, convenience, and that respect due by the Courts to the wisdom and integrity of the Legislature, a co-ordinate branch of the government, all require that the enrolled Bill, when fair upon its face, should be accepted without question by the Courts. * * *
The enrolled bill appears regular upon its face: It was duly signed by the President of the Senate and the Speaker of the House of Representatives, approved by the Governor, and filed in the office of the Secretary of State with the Great Seal of the State affixed. Having been properly authenticated as required by the Constitution, it became the `sole expository of its own contents and the conclusive evidence of its existence and valid enactment,' and this Court cannot look to the Journals of either House, or to other extrinsic evidence, in order to ascertain its history or its provisions, or to inquire into the manner of its enactment."
Mr. Justice Blease, in his separate concurring opinion, said:
"If the view of Mr. Justice Cothran should prevail in this case, it would mean that the holding in the Hoover case would be overruled, and the `Journal Entry Rule' would govern hereafter. * * *
"I am in favor of adhering to the principle declared in the Hoover case, decided unanimously in 1893 by Justices McIver, McGowan, and Pope. To change the rule there stated would, as I conceive it, at this time more than ever before `produce disastrous results.' In brief, some of the reasons for my opinion are these: (1) The Court should hesitate long before upsetting a rule of law recognized continuously for 35 years; (2) the `enrolled bill' is a fair, and to me seems fairer, than the `Journal Entry Rule'; and (3) this Court should at all times be disposed to accept, if possible, within the constitutional limitations, without the least question, the properly certified Acts of the General Assembly, a co-ordinate branch of our state Government, and a branch of our Government as high in its authority as this Court is high in the power possessed by it."
With this definite and final pronouncement in the Wingfield case, and the doctrine of the "Enrolled Bill Rule" again reaffirmed by the en banc Court in the State Highway Bond case, the contention made by the plaintiffs here, concerning the validity of the Acts that are now in question, must be regarded as utterly baseless.
It was said in argument, however, that the Act requiring plaintiffs to file an indemnity bond was subject to objection, in that it prevented all except persons of large means from asserting in the Courts of this State their rights as citizens and taxpayers. But the interest of the State, rather than the personal interest or authority of the individual defendants, are necessarily involved in any suit affecting the sale of the securities of the State; and the State has unquestionably the right to protect the public interests and to prescribe the terms upon which an action may be brought where it involves such interests. This is a legislative function and there is no constitutional limitation upon its exercise.
Entirely aside, however, from the jurisdictional objection which requires the dismissal of the complaint as above pointed out, it is clear, to my mind, that the complaint does not state facts sufficient to constitute a cause of action — either in its original or in its amended and supplemental form — and the objection to the complaint is accordingly sustained on the further grounds stated in the motion to wit, that none of the matters alleged in the complaint have relation to the validity of the proposed bond issue nor could any of the averments contained in such complaint, even if they were true, make the issuance of the bonds illegal.
It is therefore ordered and adjudged that the complaint be dismissed.
Messrs. D.W. Robinson and D.W. Robinson, Jr., for appellants, cite: Question should have been raised by demurrer under Sec. 401, subd. 6; 139 S.C. 113; 137 S.E., 211; 149 S.C. 411; 147 S.E., 444; 154 S.C. 62; 151 S.E., 220; 138 S.C. 378; 136 S.E., 487. Curative act cannot be sustained as valid legislation: 152 S.C. 456; 39 S.C. 316; 17 S.E., 752; 143 U.S. 672; Const. S.C. 1895, Art. 3, Sec. 18; 25 S.E., 968; 31 S.E., 482. Intent to impose unreasonable penalties or forfeitures for asserting rights in Court is unconstitutional: 209 U.S. 147; 131 U.S. 473. Effect of demurrer: 153 S.C. 486; 151 S.E., 60; 150 S.C. 480; 148 S.E., 476; 149 S.C. 171; 145 S.E., 818; 148 S.C. 448; 146 S.E., 420. Defendants could only exercise power given by statutes: 147 S.C. 439; 145 S.E., 186; 25 R.C.L., 961-3, 1006-7. Printing cost under the statutes: 2 Page Contracts, Sec. 1038; 123 S.E., 447; 139 U.S. 59.
Messrs. John M. Daniel, Attorney General, Cordie Page and J. Ivey Humphrey, Assistant to the Attorney General, C.T. Graydon and R.E. Whiting, for respondent, cite: Bonds having been sold question is academic: 2 R.C.L., 169; 106 S.C. 351; 29 F.2d 60; 149 U.S. 308; 116 U.S. 138; 134 U.S. 547; 174 U.S. 158; 261 U.S. 216; 253 U.S. 113; 249 U.S. 200; 22 A.L.R., 754; 23 A.L.R., 1282. What suits against public officers may be sustained: 92 U.S. 531; 123 U.S. 490; 200 U.S. 284; 221 U.S. 642; 44 S.C. 256; 78 S.C. 211; 78 S.C. 269; 87 S.C. 270; 25 R.C.L., 413; 117 U.S. 52. Motion to dismiss proper: Code Proc. 1922, Secs. 400, 401, 409. State real party: 170 U.S. 52. Bond requirement under Act No. 982 valid: 155 S.C. 77; 155 S.C. 219. Repealing Act stops suits already brought: 101 U.S. 433; 183 U.S. 62; 258 U.S. 13. When discretion is conferred by the State, Court cannot substitute its discretion: 79 S.C. 316.
November 17, 1930. The opinion of the Court was delivered by
This action was commenced on March 19, 1930, by certain citizens and taxpayers of the State, against the Governor, State Treasurer, and State Highway Commission, to have a sale of $10,000,000.00 of bonds, known as State Highway Certificates of Indebtedness of the State of South Carolina, proposed to be made at the office of the Governor in Columbia, on the 21st day of March, 1930, declared null and void and the issuance of said bonds illegal. The complaint alleged that the issuance of the bonds at that time was entirely unwarranted and unnecessary, and that the manner of the proposed sale was illegal in respect to the terms of sale under which the bonds had been offered. It was not sought, however, to enjoin the defendants or to hold them to personal accountability for a judgment against them.
On March 29, 1930, the defendants served notice of a motion to dismiss the complaint, upon the ground that no one of the matters alleged in the complaint, in relation to the validity of the proposed bond issue, even if true, made such issuance and sale of the bonds illegal, in that: (1) There is no restriction on the exercise of discretion by the defendants, in regard to the issuance of the bonds authorized by the State Bond Act (Act March 14, 1929 [36 St. at Large, page 670]), except as set forth in the provisions of that Act itself, and does not appear from the allegations of the complaint that the proposed sale of bonds was authorized or failed to comply with the provisions of the Bond Act authorizing such issuance; (2) the condition in the notice of sale that all charges and expenses of attorneys' fees and printing costs should be taken care of by the purchasers of bonds was not contrary to the provisions of the Highway Bond Act, but merely required the purchasers to make payment of the costs of the approving attorney's opinion and of the bonds, that would otherwise have to be paid out of the proceeds of the sale of the bonds or from other funds of the State Highway Commission; (3) the allegations of the complaint do not show any violation of the terms of the State Highway Bond Act which is the law of the State, having been tested in the Supreme Court of the State and held by that Court to be constitutional in every respect; and (4) since the offer of the bonds for sale, and with full knowledge of all the terms and conditions of the sale and offer, the Legislature of South Carolina has passed in due form a law ratifying and confirming all and sundry the acts of the defendants in relation thereto, and completely foreclosing the plaintiffs and all other persons whomsoever from questioning the validity and sale of the bonds.
On April 2, the plaintiffs served on the defendants an amended and supplemental complaint, the first cause of action therein being identical with the original complaint, the second cause alleging the unconstitutionality of the Validating Act, and the prayer being the same as that of the original complaint.
The motion was heard by his Honor, Judge Ramage, who, on April 16, 1930, passed an order dismissing the complaint. The plaintiffs appeal. From a very careful examination of the record, this Court is satisfied with the order of the Circuit Judge, which fully and correctly disposes of all questions involved in the appeal. Let the order be reported.
In addition to what has been said by Judge Ramage, it may be observed that, following his order dismissing the complaint, the bonds were turned over to the purchasers and the price paid. In the prosecution of the appeal subsequently taken, the contention is nevertheless presented that the plaintiffs as citizens and taxpayers have the right to question the validity and/or legality of the sale of the bonds. As the State's interests must suffer if any cloud whatever be permitted to exist concerning the legality of bonds offered for sale, or in the hands of purchasers, we deem it proper to reiterate here the ruling made by the en banc Court in declaring the constitutionality of the Highway Bond Act — a ruling which was intended to be conclusive of all questions that might be raised by any taxpayers of the State concerning the validity of State certificates of indebtedness that might be issued under the authority of the provisions of the Act, and brought under attack. In that decision, State ex rel. Richards v. Moore, 152 S.C. 455, 150 S.E., 269, 289, it was said:
"The judgment of this Court is that the Act in question, including all of its articles, sections, provisions, sentences, and clauses, be and is hereby declared constitutional and valid, and of full force and effect, and that, the injunction prayed for, in each of the said cases be denied and the petition dismissed."
This adjudication of the Highway Bond Act we are bound to follow. The en banc Court, in construing that Act, held that, as payment of the bonds to be issued under its provisions was to be made primarily from a special fund, the gasoline and license taxes which might reasonably be expected to be sufficient for that purpose, the question of the issuance and sale of the bonds was not required by the Constitution to be submitted to the people. However, although the bonds are payable primarily from the special fund, by express provision (Section 4) of the Act, the full faith, credit, and taxing power of the State, including its power to levy property taxes, stand pledged to the payment of the bonds to be issued. And this applies, of course, to the $10,000,000.00 issue of bonds offered for sale on March 21, 1930, under the administrative provisions of the Act. Any question as to the validity of bonds issued and sold under the Act — unless issued and sold in distinct violation of its provisions — is no longer open to our consideration.
Furthermore, in the case at bar, the plaintiffs did not ask for an injunction or a writ mandamus, to prevent the sale of the bonds or to control or direct the action of the defendants in any manner whatsoever. Hence the defendants could legally proceed with the sale, which they did. Consequently, it would be impossible for the Court to restore the status quo ante, even if it desired to do so. Also, it was within the province of the Legislature to declare, as a matter of public policy, the conditions upon which suits of this kind, pending or to be brought, might be prosecuted (36 Statutes at Large, page 1221). This Act requiring the plaintiff to give an indemnity bond of not less than $25,000.00, in the manner and for the purposes named in the Act was approved March 21, 1930, during the pendency of this suit; it is admitted that the plaintiffs did not, after the passage of the Act, make application to the Court for leave to prosecute the action, nor did they file a bond as required by the Act. For these reasons, also, it would have been proper for the Circuit Judge to have dismissed the action.
The order appealed from is affirmed.
MESSRS. JUSTICES BLEASE and CARTER concur.
I concur in the result of this opinion, basing my concurrence upon the conclusion stated in the last paragraph of the opinion beginning with the word "furthermore" and ending with the word "action." In other respects I do not agree with the conclusions announced. I recognize, of course, that the decision of the Court en banc in the case of State ex rel. Richards v. Moore, 152 S.C. 455, 150 S.E., 269, is binding upon this Court, the finality of which decision I have not the slightest disposition to question; and upon this point I concur fully in the concurring opinion of Mr. Justice Blease.
In the case of State ex rel. Richards v. Moore et al., 152 S.C. 455, 150 S.E., 269, the Supreme Court had before it for determination questions pertaining to the constitutionality of Act No. 297 of the General Assembly of the year 1929, commonly referred to as "The State Highway Bond Act" (36 Stats., page 670). The late Chief Justice, Honorable R.C. Watts, Mr. Justice Cothran, and I were of the opinion that the Act was in conflict with the Constitution of the State. Mr. Justice Stabler and Mr. Justice Carter were of the opinion that the Act was constitutional. Under the provisions of Section 12 of Article 5 of the Constitution, there being "involved a question of constitutional law * * * upon the determination of which the entire Court" was "not agreed," the Chief Justice, as required of him by the Constitution, called "to the assistance of the Supreme Court all of the Judges of the Circuit Court." Upon the hearing of the cause by the Justices of the Supreme Court and the Circuit Judges, as the Constitution plainly required to be done, the Court as then constituted, commonly called the Court en banc, by a majority of the Judges assembled, declared the Act under consideration in conformity with all the provisions of the Constitution of the State.
In the case of Citizens Bank v. Heyward, 144 S.C. 365, 142 S.E., 651, 652, the Court en banc held, under the provisions of the Constitution to which I have referred, that the decision of the Court en banc in a cause was "final and conclusive."
I am bound by the decisions of the Court en banc in the two cases mentioned above, to hold that the Act of the General Assembly mentioned before is constitutional. I have no right at this time, under the Constitution of the State, to question the correctness of the decision of the Court en banc. Being so bound, I must, and do concur in the opinion of Mr. Justice Stabler in this case.