The opinion of the court was delivered by
Willard, C. J.A fundamental question in this case is-whether the act of 1877, (16 Stat. 302,) entitled “An act to prescribe the mode of proving bills of the bank of the state tendered for taxes, and the rules of evidence applicable thereto,”” gives a new and specific remedy, or is intended and applies to-issues joined in the ordinary remedies. The respondent moved the Circuit Court, by petition, to have issues settled under that act. Such application is a new and independent remedy, claimed to have been allowed by the act in question, and unless such claims can be substantiated the whole jurisdiction below fails, which necessarily affects the result of the present appeal. Thecii’cumstanees that led to the passage of that act are a part of the judicial history of the state, and will help to an understanding of the intent of the act. The question of the right of holders of the bills of the bank of the state to compel the county treasurers to receive such bills in payment of taxes came before the court in State v. Stoll, 2 S. C. 538, and'was- finally decided in the Supreme Court of the United States on appeal. This litigation gave rise to a great number of applications for mandamus throughout the state, involving a similar demand to that made-in State v. Stoll, and presenting issues of fact as to whether the bills of the bank of the state, held by the various relators, were ’genuine and valid obligations. The difficulty that lay in the-way of investigating such issues of fact led the legislature, in. 1877, to pass the act in question, having in view, as its principal object, the establishment of a rule governing the burden of proof in such and similar cases.
*73The act directs the county treasurer to enclose all bills of the bank of the state tendered in payment of taxes by any person in. a package, “ sealed and signed by the party tendering the said bills, and by the treasurer to whom said tender is made.” Such-package is to be deposited by such treasurer with the clerk of the-Court of Common Pleas of the county, who is to give duplicate-certificates of such deposit, one to the party tendering and the other to such county treasurer, and directs that such package- “ abide the decision of the court in any proceeding which may be instituted in regard to said bills.” It then declares that “ in all proceedings by mandamus, or otherwise, to compel the reception of bills of the said corporation as a legal tender for taxes to-the state, and refused, an issue shall be framed under the direction of the judge, and at a regular term of the Court of Common Pleas for the county wherein said bills are tendered, shall be submitted to a jury to inquire and determine by their verdict if the bills so tendered in payment for taxes are genuine and valid bills of the said corporation and have not been funded by the state, and since fraudulently uttered, and are the bills the-payment of which is not .prohibited by the constitution of the-state and by the constitution of the United States. And upon the trial of said issue the burden of proof shall.be upon'the person tendering said bills to establish that the said bills are genuine- and valid bills of the said corporation, and have not been funded by the state, and since fraudulently uttered, and that said bills-are bills the payment of which is not prohibited by the constitution of the state and of the United States.” The act then provides that if such bills shall be found, by the verdict of the jury,, genuine and valid, that they shall then be received by the county treasurer in payment of taxes due the state. If found not to be-genuine and valid the clerk of the court shall cancel such bills-in the presence of the court, and file the packages of canceled, bills with the record of the case in his office.
The respondent alleges that he had tendered bills of the bank of the state to the appellant, as county treasurer, for the payment of taxes due to the state, and that such bills were enclosed, in a' package and deposited with the clerk of the- court in the-manner prescribed by the act, and prayed that an issue might be *74framed in accordance with the provisions of the act in question, ■and, finally, that further proceedings to enforce said taxes “ shall-await the determination of the trial of the issues provided in said act of June 9th, 1877,” &c.
On motion, an order settling issues was made by the Circuit judge, from which the county treasurer has appealed. It is evident that if no such proceeding, as the act contemplated, is pending between the parties, there is no authority for the Circuit Court to proceed to try the issues framed, or any issues whatever, and in that case the whole proceeding would have to be dismissed. Two views of this question have been presented, the first being that the tender of the bills and their deposit with the clerk of the Court of Common Pleas in the manner prescribed by the act was, within the intent and meaning of the act, the commencement of a legal proceeding authorizing the framing and trial of issues of fact of the nature and with the consequences prescribed by the act in question, and, second, that the petition Avas, at all events, such a proceeding as the act contemplated. The first of these grounds is disposed of by the clear language of the act. The act declares that the bills so deposited shall “ abide the decision of the court in any proceeding which may be instituted in regard to said bills.” This contemplated the institution of some proceeding by means other than that of the making of the tender and deposit of the bills. This language would be senseless if the tender and deposit of the bills, in itself, had the effect of instituting such a proceeding. An implication creating a new and summary remedy, without a •definition of its character and incidents, in a case where known .and Avell-understood remedies exist, adequate for the purpose, if capable of being made under any circumstances, could not be ■made as against language so clear and explicit.
Is, then, the filing of the respondent’s petition the institution ■of a remedy such as was contemplated by the act ? If it is such a remedy, it is because the act has made it such, for, independently of the act, such a petition has no legal sanction, and ■can confer no jurisdiction on the Common Pleas.
The provisions of the statute in question, as to the framing of issues, are. the only source from which authority to commence *75such a proceeding can be claimed, if it exists. Do they warrant •such an inference ? These provisions are declared to be applicable to all “ proceedings instituted by mandamus, or otherwise, to compel the reception of bills of the said corporation as a legal tender for taxes.” Whether the language of the statute, the rules of construction, or the object of the statute, as defined by the circumstances under which it became a law, be considered, it is very clear that the proceedings intended by the statute were these •established by law, and in common use for the same or like purposes. The object and end of the proceeding is distinctly stated, namely, “ to compel the reception of the bills,” &c. The petition contains no prayer that the county treasurer may be compelled to receive the bills in payment of taxes. If it had, possibly the petition might have been regarded as a suggestion for a mandamus. That the omission was not accidental may be inferred from the fact that the petition was filed after the passage of the act of December 21st, 1878, prohibiting the issuing of writs of mandamus for such purposes. State v. County Treasurer, 4 S. C. 520.
The only affirmative relief prayed for is in the nature of an injunction to restrain the enforcement of the taxes pendente lite —a remedy prohibited by law. Gen. Stat. 96. The theory of the petition is, that a verdict establishing the genuineness and validity of the bill is, in itself, a complete and perfect remedy, whereas the act distinctly provides that the issues framed, and the verdict taken upon them, shall be an incident merely of a remedy having for its end the compelling of the county treasurer •to receive the bills in payment of the claimants’ taxes. As the respondent does not ask to have his petition treated as a'suggestion for mandamus, we need not consider the effect, of State v. County Treasurer on the question of the validity of such a •demand.
The proceeding on the part of the respondent fails, therefore, to possess the character due to the proceedings in which issues may be framed and tried under the statute. Again, the words “mandamus, or otherwise,” exclude the idea that the statute intended to give a new and specific remedy for the purposes contemplated in it. These words describe a class of remedies, and not a par*76ticular specific-remedy newly created. The leading and characteristic member of that class, selected to represent the nature and kind of remedies intended, is mandamus, a known remedy, and, in' fact, the very remedy then generally employed for that purpose. The remedy particularly specified, according to familiar rules,, characterizes the intention of the legislature so regulating the-proceedings in existing remedies, and not as creating a new, and until then unknown, remedy. A mandamus is a regular and formal remedy, and its mention, in such a connection, excludes the idea that a summary and informal remedy was intended to-be created. In a word, the object of the statute was to create a rule of proof as to existing remedies, to be applied to any known-remedy that might be resorted to for the purpose contemplated, in the act, and “ otherwise ” was inserted to prevent parties from escaping the burden of the rule of proof by selecting some other-remedy in the place of mandamus — such, for instance, as an action for seizing property in satisfaction of the tax after tender alleged to be duly made.
It must, therefore, be concluded that the court was without jurisdiction to proceed upon the respondent's petition, and the-appeal should be sustained, and the order framing issues setasideaud the petition dismissed. The appellant has not objected to the-appeal on the ground that an interlocutory order in a special proceeding is not appealable, and it will not be considered.
Proceedings dismissed.
McIvee and Haskell, A. J.’s, concurred.