Butler v. Ellerbe

The opinion of the court was delivered by

Mr. Justice Gary.

This action was instituted in this court, in its original jurisdiction, for an injunction against the defendants, as State officers, to restrain them from applying the public funds in the State treasury to the payment of certain appropriations made by the legislature, which, it is claimed, are illegal. The appropriations alleged to be illegal are those made in the appropriation act of 1893 for the pay of supervisors of registration, and for the pay of commissioners, managers, and messengers of elections for the fiscal year commencing 1st November, 1893. The complaint concludes with the following allegations: “And your petitioner avers, on information anu belief, that portions of said appropriations are still in the treasury, undrawn and unpaid, as is also a portion of a previous appropriation for payment of supervisors of registration; that by reason of the premises these appropriations are made for compensation for the performance of illegal and unconstitutional services, and are ultra vires on the part of the General Assembly, and illegal, unconstitutional, null, and void, and it is illegal and violative of the said Constitutions for the comptroller general of the State to draw his warrant on the State treasurer for payment of said appropriations or for the said treasurer to pay them. (11) That, notwithstanding the premises, the said Wm. H. Ellerbe, comptroller general of said State, has heretofore unlawfully drawn, and is now unlawfully drawing, and intends to continue in future unlawfully to draw, warrants upon the said Wm. T. C. Bates, treasurer of said State, for the payment of said appropriations, and that the said treasurer, Wm. T. C. Bates, has heretofore unlawfully paid, is now unlawfully páying, and intends to continue in future unlawfully to pay, all such warrants so drawn or to be drawn by said comptroller general for payment of said appropriations. (12) And your petitioner further shows that the foregoing has worked and will work manifest wrong and irreparable injury to your petitioner and other citizens and resident taxpayers of the State of South Carolina, unless restrained by this court, and that he and they are without adequate remedy of law in this behalf. Wherefore your petitioner prays that said section of said act, and the entire act, as it appears in the Acts of 1882, in the General Statutes of 1882, and the Revised Statutes of 1893, be declared unconstitutional, null, and void; that defendants, and the successors in office of the defendants, 6 e restrained from any further violation of the rights of your petitioner; and that this court may grant its writ of injunction, issuing out of and under the seal of this honorable court, perpetually enjoining the defendants, their clerks, agents, servants, or attorneys, to. wit: William H. Ellerbe, said comptroller general, and his successors in office, from drawing any warrants upon the said treasurer and his successors in office, for the payment of any amount of said appropriations, and William T. C. Bates, said treasurer, and his successors in office, from making any payment of any of said warrants drawn or to be drawn. And your petitioner prays for such other and further relief as to this honorable court may seem meet and proper.”

Waiving the question as to the right of the petitioner to equitable relief, when the only injury complained of is that which does not affect him differently from all other resident taxpayers of the State (Mauldin v. City Council, 33 S. C., 1); also waiving the question that an adequate remedy is provided by the Eevised Statutes (section 343 of which is as follows: “If any taxes shall be illegally assessed or collected when the same shall become known to the county auditor, he shall on demand of the party interested submit the matter to the comptroller general, and if the comptroller general approve thereof in writing, the amount so illegally collected shall be repaid to the party paying the same out of the county treasury on the order of the county auditor; and so much of said taxes as shall have been paid into the State treasury shall be refunded to the county treasury, and the county auditor shall retain the same in his next annual settlement, and charge the State therewith”); and waiving the question as to the right of the petitioner to equitable relief when the only ground for such relief is the illegality of the acts of the legislature mentioned in the petition (Cool. Tax., 760; 10 Am. & Eng. Enc. L., 857, 859; Dows v. Chicago, 11 Wall., 108; Hannewinkle v. Georgetown, 15 Id., 547; Union Pac. Railway Co. v. Cheyenne, 113 U. S., 516; City of Milwaukee v. Koeffler, 116 Id., 219; Taylor v. Secor, 92 Id., 575; Carroll v. Safford, 3 How., 442; State Railroad Tax Cases, 92 U. S., 613), we are of the opinion that there are other objections to the petition, apparent upon its face, which show that the prayer thereof cannot be granted: First, the proceeding is in effect a suit against the State; second, the State is an indispensable party; third, the question as to the constitutionality of the acts cannot properly arise, as there are other grounds upon which the court can rest its judgment; fourth, if the State could be sued, she would be estopped from interposing the objection that the services rendered at her instance and for her benefit were illegal. The appropriations show that the State desires the payment of such services. Equity will not, therefore, lend its aid to compel the State indirectly, through the defendants as her fiscal officers, to do that which the State could not be compelled to do in a direct proceeding.

In proceeding to consider these several objections to the petition, it will be well to keep in mind that the defendants are not proceeded against as individuals, but in their representative capacity as State officials, and their successors in office; that there is no allegation in the petition that any act of the defendants is attributable to them as individuals, but only in their representative capacity as State officers; that the funds sought to be affected by this proceeding have already been collected and paid into the State treasury, and are now the property of the State, and that the possession thereof by the treasurer of the State is the possession of the State itself; that the petitioner in this proceeding does not seek to enjoin the doing of any act under the registration acts; that the rights which this proceeding seeks to affect are not those of the defendants, but those of the State.

1 The objections that the action herein is, in effect, a suit against the State, and that the State is an indispensable party, will be considered together. These objections are jurisdictional in their nature, and may be interposed at any time, as shown by the case of Lowry v. Thompson, 25 S. C., 416, in which this court, of its own motion, raised such objection. The case of Lowry v. Thompson, supra, it seems to us, is decisive of this case. That was abaction by James M. Lowry againstjllugh S. Thompson, governor, W. E. Stoney, comptroller general, and [others, as commissioners of the sinking fund, for the recovery of a title deed. Mr. Justice Mclver, delivering the opinion of the divided court, says: <lIt will be necessary first to dispose of the question of jurisdiction, for if it shall be determined that the court has no jurisdiction, then it would be, not only unnecessary, but improper to undertake to decide any of the other questions in the case. That a State cannot be sued in any of its courts without its express consent, which can only be given by the legislative authority, is a proposition so universally conceded as to render any argument or authority to support it wholly unnecessary. If, however, authority should be asked for, it will be found in almost every case which will be hereinafter cited, where it will be found that the proposition has been distinctly decided or expressly recognized, and we are not aware of any authority to the contrary. As it is not pretended that any such consent was given in this case, the first inquiry is, whether this is really an action against the State. The fact that the State is not named as a party to the record is not conclusive of this inquiry, though at one time it seems to have been so held in the case of Osborn v. Bank, 9 Wheat., 738, followed by Davis v. Gray, 16 Wall., 203; but these cases, so far as this particular point is concerned, are entirely inconsistent with the more recent decisions of the Supreme Court of the United States, where the rule seems now to be well settled that an action, though in form against an officer of a State, if it is in fact a suit against the State itself, cannot be maintained, even though the State is not made a party on the record. Louisiana v. Jumel, 107 U. S., 711; Cunningham v. Railroad Co., 109 Id., 446; Hagood v. Southern, 117 Id., 52. Indeed, it being universally conceded that a State cannot be sued without its consent, * * * it is only in. cases where the State is not named as a party defendant in the record, that any real question of jurisdiction can arise; for if the State is named as a party defendant in the record, that precludes further inquiry, and the court, it is universally conceded, cannot take jurisdiction. * * * The action is not brought against the defendants, as individuals, for a tort, from which they are seeking to defend themselves by some act or order of the State government, but the action is brought against them as commissioners of the sinking fund, to recover property alleged to be in their possession officially. * * * If, then, the property is to be regarded as in the official possession of the secretary of State, held and claimed as the property of the State, and as such subject to the control of the commisioners of the sinking fund, it would seem to be clear that the action is, in fact though not in form, an action against the State itself; for, in such case, as the State can only hold possession of personal property by or through an agent, the possession of the officer or agent is the possession of the State, and the State is an indispensable party to any contest for the right of possession. Even if the possession of the State was originally acquired by some wrongful act of some of its officers or agents (though it is difficult to see how this could be judicially determined until the question of jurisdiction is first disposed of), still no action could be maintained by the rightful owner to recover possession against an officer of the State government, holding and claiming the property as the property of the State, when sued as such, because in such case the State, beiug the real party in interest, would be an indispensable party to the action, and as she could not be made a party without her consent, the action could not be maintained in any court, and the claimant would be remitted to his remedy by petition to the legislature, just as in the case of all other claims against the State, where, if his claim be well founded, it is not permissible to doubt he would receive ample justice. If, however, the action should be brought against the person in possession as an individual, and he in his defence seeks to justify his possession by alleging title to or right of possession in the State, then, as in the case of U. S. v. Lee, 106 U. S., 196, he must establish such title or right of possession, and, if he fails to do so, judgment goes against him as an individual. The reason for the distinction is obvious. In the former case, the party in possession being sued as an officer, judgment can only go against him as such, and not against him as an individual, and as the only property he holds as an officer is the property of the State, it is clear that the State is the real party in interest, as it is out of her property alone that the judgment sought to be recovered can be satisfied. But in the latter case, where the party in possession is sued as an individual, the judgment can only be enforced against theindividual property of the defendant, and the State is not necessarily interested, and is not, therefore, the real party in interest.” The foregoing case is cited with - approval in the case of Columbia Water Power Co. v. Columbia etc. Light & Power Co., 43 S. C., 154; and see the case of Green v. Niver, Ibid., 359, more recently decided by this court. The following authorities are cited in support of these views: Louisiana v. Jumel, 107 U. S., 711; In re Ayers, 123 Id., 443; Pennoyer v. McConnaughy, 140 Id., 1; Reagan v. Trust Co., 154 Id., 418.

There is no difference in principle whether the proceeding against the officers of the State in their representative capacity is to affect the control of the money already in the treasury or a title deed in her possession. This is an equity case, while that of Lowry v. Thompson, supra, was an action at law. There is, therefore, stronger reason for interposing objection to the jurisdiction of the court in this case than there was in that case. Columbia Water Power Co. v. Columbia etc. Light & Power Co., supra. In the case of Louisiana v. Jumel, 107 U. S., 711, Chief Justice Waite, in behalf of the court, said: “The treasurer of the State is the keeper of the treasury, and in that way is the keeper of the money collected from this tax, just as he is the keeper of other public moneys. The taxes were collected by the collectors and paid over to the State treasurer — that is to say, into the State treasury — just as other taxes were when collected. The treasurer is no more a trustee of these moneys than he is of all other public moneys. He holds them, but only as the agent of the State. If there is any trust, the State is the trustee, and unless the State can be sued, the trustee cannot be enjoined. The officers owe duty to the State alone, and have no contract relations with the bondholders. They can only act as the State directs them to act, and. hold as the State allows them to hold. It was never agreed that their relations to the bondholders should be any other than as officers of the State, or that they should have any control over this fund, except to keep it, like other funds, in the treasury, and pay it out according to law. They can be moved through the State, but not the State through them.

“In this connection there is much that is instructive in the case of Regina v. Lords Corners, etc., L. R. 7 Q. B., 387. There money had been appropriated by parliament for the payment of costs of a particular character, and an application was made for a mandamus to compel the lords commissioners of the treasury to pay certain bills which had been properly taxed; but, although the court was emphatic in its declaration that payment ought to be made, the writ was refused, because the lords commissioners held the money as the servants of the crown, and no duty was imposed upon them as between them and the persons to whom the money was payable. Lord Chief Justice Cockburn, in his opinion, said (page 394): ‘Though I quite agree that, according to the appropriation act, they (the lords commissioners) were bound to apply the money upon the vouchers being produced, and had no authority to retax these bills, still I cannot say that there is any duty which makes it incumbent on them to do what I cannot hesitate to say they ought to have done, except as servants of the crown; because in that character they have received the money, and in no other.’ And Blackburn, J. (page 399): ‘It seems to me that the obligation, such as it is, is upon her majesty, to be discharged through her servants, and you cannot proceed, therefore, against her servants.’ So here the obligation is all on the State, to be discharged through its servants, and the money is held by the officers proceeded against in their character as servants of the State, and no other.”

After stating the facts in the famous case of Osborn v. Bank, 9 Wheat., 738, the chief justice, in the case of Louisiana v. Jumel, supra, then said: “Under this state of facts, the order for its return involved no question of power to interfere with what was actually in the treasury. The officers stood in the place of a sheriff who had levied an execution on goods, and was sued to test his right to keep them, and the principle applied in the decision is thus stated in the head note of the report: (A court of equity will interpose by injunction to prevent the transfer of a specific thing, which, if transferred, will be irretrievably lost to the owner, such as negotiable stocks and securities.’ Thus the money seized was kept out of the treasury, because, if it got in, it would be irretrievably lost to the bank, since the State could not be sued to recover it back. No one pretended that if money had been actually paid into the treasury, and had become mixed with the other money there, it •could have been got back from the State by a suit against the officers. They would have been individually liable for the unlawful seizure and conversion, but the recovery would be against them individually for the wrongs they had personally done, and could have no effect on the money which was held by the State. Certainly, no one would ever suppose that, by a proceeding against the officers alone, they could be held as trustees for the bank, and required to set apart from the moneys in the treasury an amount equal to that which had been improperly put there, and hold it for the discharge of the liability which the State incurred by reason of the unlawful exaction.”

Mr. Justice Mathews, delivering the opinion of the court in In re Ayers, 123 U. S., 443, uses this language: “The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons, whether .citizens of other States or aliens, or that the course of their public policy and the administration of their public affairs should be subject to, and controlled by, the mandates of judicial tribunals, without their consent and in favor of individual interests. To secure the manifest purposes of the constitutional exemption guaranteed by the eleventh amendment, requires that it should be interpreted, not literally and too narrowly, but fairly and with such breadth and largeness as effectually to accomplish the substance of its purpose. In this spirit, it must be held to cover not only suits brought against a State by name, but those also against its officers, agents, and representatives, where the State, though not named as such, is nevertheless the only real party, against which alone, in fact, the relief is asked, and against which the judgment or decree effectively operates.”

2 We come now to a consideration of the objection, that the question as to the constitutionality of the acts cannot properly arise, as there are other grounds upon which the court can rest its judgment. In Cooley’s Constitutional Limitations (159 and 160), the following language is used: “It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously, and, with due regard to duty and official oath, decline the responsibility. The legislative and judicial are co-ordinate departments of the government, of equal dignity. Each is alike supreme in the exercise of its proper functions, and cannot, directly or indirectly, while within the limits of its authority, be subjected to the control or supervision of the other without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. * * * The task is, therefore, a delicate one, and only to be entered upon with reluctance and hesitation. It is a solemn act, in any case, to declare that that body of men, to whom the people have committed the sovereign fuuction of making the laws for the commonwealth, have deliberately disregarded the limitations imposed upon this delegated authority, and usurped power which the people have been careful to withhold; and it is almost equally so when the act which is adjudged to be unconstitutional appears to be chargeable rather to careless and improvident action, or error in judgment, than to an intentional disregard of obligation.”

In the case of Ex parte Florence Schools, 43 S. C., 11, Chief Justice McIver, for the court, said: “We do not think that the question of the constitutionality of so much of the act of 4th January, 1894, as authorizes the board of commissioners of the Florence graded schools to assess upon each scholar supplementary tuition fees, except in certain cases, can properly be considered or determined in this proceeding, for two reasons: (1) It is a well settled and most salutary rule, that a court should never undertake to pass upon the constitutionality of an act of the legislature — an ordinate branch of the government — -unless it is necessary to the determination of the case in which such a question is presented; * * * for, as is said in Cooley’s Constitutional Limitations (2d ed.), at page 163: ‘Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decisión upon that very point becomes necessary to the determination of the cause. * * * In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration, until a case arises which cannot be disposed of without considering it, and when, consequently, a decision' upon such question will be unavoidable.’ But, in addition to this, it seems to us more than questionable whether it is competent for respondent to raise the constitutional question in this case; for, as it is said in Cooley’s Constitutional Limitations, at pages 163,164: ‘Nor will a court listen to an objection made to the constitutionality of an act, by a party whose rights it does not affect, and who has, therefore, no interest in defeating it. * * * The statute is assumed to be valid until some one complains, whose rights it invades. Prima facie, and on the face of the act itself, nothing will generally appear to show that the act is not valid, and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his propérty, or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the legislature, therefore, concurs with well established principles of law in the conclusion that such an act is not voidable only; and it follows, as a necessarylegal inference from this position, that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of the act, and not by strangers.’ In this case, it appears that petitioners are doing nothing more than what they are expressly authorized to do by the sixth section of the act of 4th January, 1894, * * * and if it is claimed that such provision is unconstitutional, and invades or infringes upon the constitutional rights of any citizen, it is for such citizen to raise the question by some proper proceeding against the petitioners, and not for the respondent, whose constitutional rights, so far as we can discover from anything appearing in this case, have neither been invaded nor infringed upon by said act or the action of the petitioner thereunder.”

3 We will now consider the fourth objection, which is as follows: If the State could be sued, she would be estopped from interposing the objection that the services rendered at her instance and for her benefit were illegal. The appropriations show that the State desires the payment of such services. Equity will not, therefore, lend its aid to compel the State indirectly, through the defendants as her fiscal officers, to do that which the State could not be compelled to do in a direct proceeding. In support of this objection we quote from Cooley’s Constitutional Limitations, page 488: “It must always be conceded that the proper authority to determine what should and what should not properly constitute a public burden, is the legislative department of the State. * * * And in determining this question the legislature cannot be held to any narrow or technical rule. Certain expenditures are not only necessary to the continued existence of the government, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely on considerations of honor, gratitude or charity. The officers of government must be paid, the laws printed, roads constructed, and public buildings erected; but, with a view to the general well-being of society, it may also be important that the children of the State should be educated, the poor kept from starvation, losses in the public service indemnified, and incentives held out to faithful and fearless discharge of duty in the future by the payment of pensions to those who have been faithful public servants in the past. There will, therefore, be necessary expenditures, and expenditures which rest upon consideration of policy alone, and in regard to the one as much as the other, the decision of that department to which alone questions of State policy are addressed must be accepted as conclusive.” See, also, State v. Whitesides, 30 S. C., 585.

The acts of the legislature making appropriations for the payment of services performed by the supervisors of registration are separate and distinct from the registration acts, and the legality of the acts making such appropriations does not depend upon the constitutionality of the registration acts. Time and again the legislature has made appropriations for the payment of services which had not been performed, as when an officer dies before the expiration of his term of office. In the case of Daniels v. Tearney, 102 U. S., 415, the court says: “It is well settled as a general proposition, subject to certain exceptions not necessary to be here noted, that where a party has availed himself for his benefit of an unconstitutional law, he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defence, although such unconstitutionality may have been pronounced by a competent judicial tribunal in another suit. In such cases the principle of estoppel applies with full force and conclusive effect.” * * * In the case first cited, an injunction was applied for, to prevent the collection of a tax authorized by an act of the legislature, passed during the late civil war, to enable the people of a county to raise volunteers and thus avoid a draft for soldiers, and that'object had been accomplished. In disposing of the case, the court well asked: “"Upon what principle of exalted equity shall a man be permitted to receive a valuable consideration through a statute, procured by his own consent or subsequently sanctioned by him, or from which he derived an interest and consideration, and then keep the consideratioAand repudiate the statute?” See, also, Tompkins v. Railroad Co., 21 Fed. Rep., 382.

It is the judgment of this court, that the petition be dismissed.

Mr. Justice Pore.

This is an application to this court, in its original jurisdiction, for a writ of injunction, whereby the respondents, as State officers, shall be perpetually enjoined from paying to the supervisors of registration in each county of this State'.their respective salaries, provided for them in the act of the General Assembly of this State making appropriations to be paid to such officers for their services as such during the fiscal year beginning on the 1st day of November, 1893, and ending on the 31st day of October, 1894, and also from paying to the messengers of elections, commissioners of elections, and managers and clerks of elections in this State, the amounts appropriated under the same act for such purposes and for the same fiscal year. A preliminary restraining order was granted by this court, on the 26th November, 1894, forbidding the comptroller general from drawing his warrrnts on the State treasurer, and likewise the State treasurer from paying any warrants drawn by the comptroller general upon such State treasurer, in favor of any supervisor of registration in this State for services rendered during the fiscal year beginning 1st November, 1893, and ending on the 31st of October, 1894. The grounds upon which the petitioner based his application for the remedy invoked were that the act of the General Assembly of this State, whereby a registration of the voters of this State should be made by such supervisors of election, was in sundry particulars in violation of the Constitution of this State, as well as that of the United States, and that such violations were so interwoven with all the other provisions of said act for registration of voters that the whole act was void, and, being void, such salaries were illegal, and the payment thereof should be enjoined.

In order to insure accuracy in our statements of the pleadings, we will reproduce the allegations of the pleadings both as to parties and facts. The petitioner is M. O. Butler, who sets out in his petition that he is a citizen and resident taxpayer of the county of Edgefield, in the State aforesaid, possessing all the qualifications and laboring under none of the disqualifications provided in the Constitution and laws of this State for the electors and officeholders thereof, and this action is brought “on behalf of himself and others, citizens and resident taxpayers of said State, in the like plight and condition as himself as to qualifications and disqualifications, too numerous to be made parties to this action, and of others, citizen and resident taxpayers of said State, possessing the same constitutional qualifications as himself, and laboring under do disqualifications save those imposed by the acts of assembly hereinafter mentioned, alleged hereinafter to have been enacted in violation of the said Constitution.” The petitioner next alleges that William H. Ellerbe and William T. C. Bates are now, and have been for some time last past, the former the comptroller general and the latter the treasurer of the State of South Carolina.

The petitioner, in the third paragraph of his petition, alleges “that on the 9th day of February, A. D. 1882, there was enacted by the General Assembly of this State, and approved by the governor thereof, an act entitled ‘An act to amend title 2, entitiled ‘Of Elections,’ of part I., entitled ‘Of the Internal Administration of the Government,’ of the General Statutes, which has been incorporated into the General Statutes of South Carolina of 1882, and the Revised Statutes of South Carolina, approved by the General Assembly of 1893. That section 2 of said act is in these words: ‘All electors of the State shall be registered as hereinafter provided; and no person shall be allowed to vote at any election hereafter to be held unless registered as herein required.’ The corresponding section of the General Statutes of 1882 is 890, and the corresponding section of the Revised Statutes of 1893 is 132. And that section 5 of said act provides (as does also the corresponding section 93 of the General Statutes of 1882) that, in the months of May and June, 1882, the supervisors of registration should make a full and complete registration of all qualified voters in the manner therein prescibed.”

The petitioner, in the fourth paragraph of his petition, alleges: “That section 6 of said act provides (as does the corresponding section 94 of the General Statutes of 1882): ‘When the said registration shall have been completed, the books shall be closed, and not reopened for registration, except for the purposes and as hereinafter mentioned, until after the next general election for State officers. After the said next general election the said books shall be reopened for registration of such persons as shall thereafter become entitled to registration, on the first Monday in each month, to and until the first Monday of July, inclusive, preceding the following general election, upon which last named day the same shall be closed, and not reopened for registration until after the said general election; and ever after the said books shall be opened for registration of such electors on the days above mentioned, until the first day of July preceding a general election, when the same shall be closed as aforesaid, until the general election shall have taken place.”

The petitioner, in the fifth paragraph of his petition, alleges: . “That section 9 of said act provides (as does, also, the corresponding section 97 of the General Statutes of 1882), that any person coming of age, and becoming qualified as an elector, may appear before the supervisor of registration, on any day on which the books are opened as aforesaid, and take oath as to his age and qualifications as hereinbefore provided, and if the supervisor finds he is qualified, he shall enter his name upon the registration book of the precinct wherein he resides. The corresponding section of the Revised Statutes of 1893 is 140.”

The petitioner, in the sixth paragraph of his petition, alleges: ‘ ‘Tha,t section 10 of said act provides that each elector registered shall be furnished with a certificate by the supervisor, and that no person shall be allowed to vote at any other precinct than the one for which he is registered, nor unless he produces and exhibits to the managers of election such certificate. The corresponding section of the General Statutes of 1882 is 98; of the Revised Statutes of 1893 is 142.”

The petitioner, in the seventh paragraph of his petition, alleges: “That section 12 of said act is: ‘In the case of removal of an elector from one residence to another in the same precinct, such elector shall notify the supervisor of registration, and shall surrender his certificate of registration to the said supervisor of registration, who shall enter the fact upon the registration book, and shall give such elector a new certificate in accordance with such change of residence.’ The corresponding section of General Statutes of 1882 is 100; of Revised Statutes of 1893 is 146. And that section 15 of said act is: ‘No elector moving from one residence, precinct, parish, ward, or county to another, shall be allowed to register or vote without a transfer of registration as above provided.’ The corresponding section of General Statutes of 1882 is section 103; of Revised Statutes of 1893 is section 149.”

The petitioner, in the ninth paragraph of his petition, alleges: “That the aforesaid provisions and sections of said act, and section 16 thereof, and divers others of said act, are in violation of the following sections: 14, 21, 34, 36, and 41 of article 1, and sections 2, 8, and 10 of article 2, and of section 10 of article 8 of the Constitution of this State, and section 2 of article 1, article 10 of the amendments, and section 1 of article 14, and section 1 of article 15 of amendments of the Constitution of the United States of America, and divers other sections of the latter Constitution, and are such essential and main features of said act, and so interwoven with its letter and spirit, as to make said act not a reasonable, uniform, and impartial regulation of the electoral franchise, but a denial and abridgement of the constitutional right of the citizen to vote, an impediment, hindrance, and obstruction of the exercise of that right, and so utterly subversive of the constitutional provisions in regard to elections by the people as to render the entire act unconstitutional, null, and void.”

The petitioner, in the tenth paragraph of his petition, alleges: “That by an act of the General Assembly of this State, approved December 23,1893, entitled ‘An act to make appropriations to meet the ordinary expenses of the State government for the fiscal year commencing November 1, 1893,’ there was appropriated, by the ninth subdivision of section 9 thereof, for the salaries of the supervisors of registration, $7,050; that is to say, to pay the supervisors of registration for each county in the State, except Charleston County, the sum of $200 for the services to be rendered during the fiscal year commencing November 1,1893, and to the supervisor of registration for Charleston County the sum of $250, for services to be rendered during the same period; said amounts to be paid, one-half on the 1st day of June, 1894, and the remaining one-half on the 1st day of November, 1894, out of any money in the treasury not otherwise appropriated. And there was appropriated by the eighteenth subdivision of said section 9 of said act, ‘for the pay of messengers of election, $1,200; < and by the twenty-first subdivision of said section, ‘for the pay of commissioners and managers of election, $15,000; to pay for advertising notices of election, $2,000.’ And your petitioner avers, on information and belief, that portions of said appropriations are still in the treasury, undrawn and unpaid, as is also a portion of a previous appropriation for payment of supervisors of registration; that by reason of the premises, these appropriations are made for compensation for the performance of illegal and unconstitutional services, and are ultra vires on the part of the General Assembly, and illegal, unconstitutional, null, and void, and it is illegal and violative of the said Constitutions for the comptroller general of the State to draw his warrant upon the State treasurer for payment of said appropriations, or for the said treasurer to pay them.”

The petitioner, in the eleventh paragraph of his petition, alleges: “That notwithstanding the premises, the said William H. Ellerbe, comptroller general of said State, has heretofore unlawfully drawn, and is now unlawfully drawing, and intends to continue in future to unlawfully draw, warrants upon the said William T. G. Bates, treasurer of said State, for the payment of said appropriations, and that the said treasurer, William T. O. Bates, has heretofore unlawfully paid, is now unlawfully paying, and intends in future to unlawfully pay, all such warrants so drawn or to be drawn by said comptroller general for payment of said appropriations.”

And the twelfth paragraph of petitioner’s petition alleges: “And your petitioner further shows, that the foregoing has worked, and will work, manifest wrong and irreparable injury to your petitioner and other citizens and resident taxpayers of the State of South Carolina, unless restrained by this court, and that he and they are without adequate remedy at law in this behalf.

“Wherefore, your petitioner prays that said sections of said act, and the entire act, as it appears in the acts of 1882, in the General Statutes of 1882, and the Revised Statutes of 1893, be declared unconstitutional, null, and void; that defendants be restrained from any further violation of the rights of your petitioner; and that this court grant its writ of injunction, issuing out of and under the seal of this honorable court, perpetually enjoining the defendants, their clerks, agents, servants, or attorneys, to wit: William H. Ellerbe, said comptroller general, from drawing any warrants upon the said treasurer for the payment of any amount of said appropriations, and William T. C. Bates, said treasurer, from making any payment of any of said warrants drawn or to be drawn. And your petitioner prays for such other and further relief as to this honorable court may seem meet and proper.”

By the order of this court, passed on the 3d of December, 1894, the Honorable James Norton, as the successor in office of the Honorable William H. Ellerbe, as comptroller general of this State, was, by his consent, substituted as a defendant or respondent herein.

The return of the comptroller general and treasurer was on that day submitted to this court, and by its terms it denies petitioner’s right to maintain this proceeding, and also denies that the act of 9th of February, 1882, is unconstitutional, in whole or in part, and also denies that the petitioner has correctly set forth the provisions of said act in his petition herein; and further avers that the petitioner is estopped from raising this question as to the constitutionality of the registration laws of this State, because be has been twice elected to the United States Senate by the General Assembly of this State, whose members were all elected by and under the registration laws of this commonwealth, receiving as his salary the sum of $6,000, and has not returned, or offered to return, one dollar of this salary before he brought this action.

I am unable to agree with my brethren, and hence this separate opinion. The delay in rendering the judgment of this court is owing to my failure to prepare this separate opinion at an earlier day. Let it be understood, however, that when a grave constitutional question is to be passed upon, unless it is imperatively necessary that there shall be no delay, I am disposed to view it as my duty to pause and consider thoroughly what is presented. All respectable authority in this country agrees that there can be no graver demand made upon the Supreme Court of the general government or of the State government, respectively, than to pass upon the action of a co-ordinate branch of the government, when such action is alleged to be in violation of the Constitution of one or both. Primarily the court should see that it possesses jurisdiction in such special instance. This is absolutely necessary; for, if a court passes upon a contest in which it has no jurisdiction, its judgment is a nullity.

1 I said I could not agree with my brethren. Let me explain. Chiee Justice McIver has prepared an opinion in which he reaches the conclusion that the entire act in question is unconstitutional, but he does not pass upon but one phase of the question of jurisdiction. If this court is without jurisdiction to hear and determine these issues here presented, involving as they do questions of constitutional law, his error is potent. Associate Justice Gary, however, believing that the action is without equity, etc., concludes that the proceeding should be dismissed. I agree with him that the proceeding should be dismissed. But I am unwilling to base such a conclusion upon the views he presents with rare ability, that this is virtually an action against the State, and that, inasmuch as the State cannot be sued without her consent, which latter she has not given, the proceeding by plaintiff should be dismissed.

I cannot agree that this is an action against the State. In my judgment, a citizen taxpayer, if he has sufficient equities therefor, can assail the action of either State or municipal officers, if they are proceeding to dispose of public property, including public money, under an act that is unconstitutional. Otherwise, I fail to see where the citizen is completely protected in his rights. I know that Mr. Justice Gary points to the case of Lowy v. Thompson, 25 S. C., 416, as a case in point. But twice in the year 1893, at a grave exigency, this court asserted its right in equity to grant relief to the citizen, if he could show himself entitled thereto. I refer to the cases of Evans v. Tillman, 38 S. C., 238, and Robertson v. Tillman, 39 S. C., 298, in regard to the $5,250,000 of State bonds then in process of being issued to redeem the State bonds which would mature on the 1st July, 1893. In each of those cases an injunction was prayed for. This relief was denied, not upon any question of jurisdiction, but because, upon the merits disclosed at the hearing, the petitioner in each case was found not to be entitled to the writ of injunction prayed for. Other cases might be cited on the same line, in. this State and from other States. As I have already stated, in my view, the recognition of this right of a citizen or citizens to invoke the power of the Court of Equity to prevent the despoliation of his property by officers acting under an illegal, because unconstitutional, act of the General Assembly, is necessary to his complete protection, a right guaranteed to him in and under the organic law of the State and general governments. Hence, I announce myself as unable to agree to so much of the opinion of Mr. Justice Gary as contravenes this doctrine.

I have taken the pains to copy into my opinion the exact paragraphs of the plaintiff’s complaint, in order that it may be seen at a glance, that any references by me to the complaint are fully supported by the text. First and foremost, I wish to call attention to the fact that the plaintiff has not reproduced the text of the act in question, so far as some of its provisions are concerned, when he quotes the same in his complaint. For instance, take section 5 of the act of February, 1882. Here is that section in its integrity: “After the approval of the act, the supervisor of registration, in the months of May and June next, shall make a full and complete registration of all qualified voters in the following manner: He shall give three weeks’ notice of the time and place of registration by advertising in one or more county papers, or by posting in a public place in each voting precint where no paper is published in the county. The time for registration shall not be less than one nor more than three days at each registration precinct. Immediately after the closing of the registration at the precincts, he shall open his books at the county seat to correct errors in registration, and to register such electors who failed to register at their respective precincts and who shall then and there present themselves for that purpose, entering the names of such voters in his book for their proper precincts. At the conclusion of the registration herein-before provided for, the supervisor of registration shall revise the list, and in case it be made to appear to his satisfaction that there is a qualified voter in a precinct who has failed to register, he may, upon such evidence as he may think necessary, in his discretion, permit the name of such voter to he placed on said list and issue a certificate therefor. That for the purpose of registration, each township as now laid out and defined be, and is hereby, declared a registration precinct, and in those counties in which there are no such townships, that the parish as formerly known and defined be, and is hereby, declared such precinct, and in the cities of Columbia and Charleston each ward shall be a registration precinct” [italics mine].

Thus it is made manifest that, by the express terms of this act, every voter who possesses the constitutional qualifications is declared to be entitled to registration; that the supervisor of registration is imperatively commanded to register each of such voters, and, to enable him to do so, he is required to give public notice of the time and place of registration for three weeks in one or more county newspapers, or, if none such, by posting notices in the precincts; then, first, he is to keep, his books open for such registration from one to three days at each precinct, and, second, thereafter, at the county seat, he is required to register such as failed to register at their respective precincts, and, third, thereafter any voter’s name may be entered upon such books upon proper notice. But these are not all of the provisions in behalf of the voters entitled, in May and June of 1882, to be registered. Upon a demand by one entitled to be registered, if the supervisor refuses for any cause to do so, an appeal is provided to a board of supervisors, composed of the supervisor himself and two assistant supervisors, who are required to pass upon the voter’s right to be registered, and if the decision of this board is adverse to the voter, such voter may apply by appeal therefrom to a Circuit Judge. See section 3 and also section 8 of the act of 1882.

Let it be borne in mind that this system of registration is believed to be peculiar to this State, and is an innovation upon the old plans for that purpose. In other States, registration is a temporary arrangement, and dependence for the enforcement of such provisions is had to temporary boards appointed for that purpose. With us, the supervisors of registration are regularly appointed officers, whose services extend throughout the year, and from year to year. It is a salaried office. The two assistant supervisors for each county are also appointed by the governor, and are also commissioned officers. The provisions of this act also supply the machinery for the registration of all those who attain the full age of twenty-one after May and June, 1882, and also of all those who shall move into the State after the months of May and June, 1882. See sections 6, 8, 9, and 10, as well as last subdivision of section 3..

4 Now, where is there any allegation in the complaint here in question, that any one or more citizens of this State, whether white or black, or colored, has or have been deprived of their right to vote, by or under any one or more of the provisions of the registration laws of this State? T challenge any one to point out one or more instances, set out in the complaint, of a practical denial of the right of suffrage in this State, under the enforcement of our registration laws, whose constitutionality is here assailed. The only paragraph of the complaint that even squints at any such allegation is the ninth, wherein, by a reference to the text of such paragraph herein-before quoted, it is asserted that certain sections of the registration law are contrary, in letter and spirit, to certain sections of the Constitution of this State and that of the United States. Then follows this language: “And are such essential and main features of said act, and so interwoven with its letter and spirit, as to make said act not a reasonable, uniform, and impartial regulation of the electoral franchise, but a denial and abridgement of the constitutional right of the citizen to vote, an impediment, hindrance, and obstruction of the exercise of that right, and so utterly subversive of the constitutional provisions in regard to elections by the people, as to render the entire act unconstitutional, null, and void.”

It must be obvious to every thoughtful mind that, in the quotation just made, there is an entire absence of any charge that any elector, who was of full age in May or June, 1882, or who has since attained his full age, or who has since removed from another State to this State, all or any of whom were possessed of all the constitutional rights to vote, has been denied his right to vote at elections in this State. From the beginning to the end of the complaint here being considered, there is an entire absence of the charge, that the petitioner or plaintiff is not duly registered as a voter. Can the existence óf a statute on our statute book, alleged to be contrary to the State or Federal Constitution, furnish any justification to a court of equity, or any other court, for entering upon a consideration of such questions, unless such alleged unconstitutional legislation is set out in the pleadings, as affecting the rights of some citizen or class of citizens? To state the question, is to answer it. Certainly this court has not been slow in announcing, in positive terms, that it will not engage in the discussion and decision of abstract questions of law, which have no reference to, or are not based upon, a concrete case before us. State v. Gathers, 15 S. C., 370, and several eases since that case was decided, which hold the same views. It must be patent to every one that this is an effort to place upon this court a political duty — to have this court pass upon the labors of a co-ordinate branch of the government, set up by the people of this State. I admit it is the duty of this court to do so, when a citizen or citizens have their rights invaded by a statute that is unconstitutional, but I deny that it is the duty of this court in an equity suit, when the question as presented is an abstract principle of law.

5 Besides all this, it is an admitted principle in our jurisprudence, and the same principle is enforced in the courts of equity of the United States, that when there is a plain and adequate remedy at law, there is no jurisdiction in equity. As was well said by the late Chief Justice Dunkin, in the case of Eno v. Calder, 14 Rich. Eq., 154: “It is an original principle in the administration of equity jurisprudence, that the aid of the court cannot be successfully invoked, when adequate relief may be afforded in the ordinary forum. But the legislature of South Carolina has not thought proper to leave this to inference, or to the authority of usage, which might be changed by the court. It was, therefore, provided by the act of the assembly, that suits in equity should not be maintained where the party had a plain and adequate remedy at law.” To the same effect, and in express recognition of the authority of this case just cited, and this, too, since the adoption of our present Constitution, Mr. Justice Willard, in Hall v. Joiner & McCallister, 1 S. C., 190, said: “In this State the exclusion of courts of equity from jurisdiction in cases in which an adequate remedy is conferred at law, rests on the statute.” * * * In the case at bar the plaintiff seeks in equity to enjoin the payment of salaries to certain officers of the State, because he says the officers in question are created by a statute of the State which is unconstitutional. In other words, these supervisors of registration are attempting to exercise the duties of, and receive compensation for, public offices that do .not exist, because the legislation providing the same is unconstitutional. Is there not a plain remedy at law to test the terms of office? Certainly there is. Is there not a plain and adequate remedy of a taxpayer to test the constitutionality of any tax imposed by the General Assembly? Instead of one, there are at least two. If this court is without jurisdiction in the premises, this should be the end of the matter.

The judgment of this court is, that the petitioner or plaintiff is not entitled to the relief prayed for, and that the petition or complaint be and is hereby dismissed.