Summary
Before REED, J., at Charleston, April, 1875.
This was a petition in the Circuit Court of Charleston County, entitled “Ex parte Thomas C. Dunn, Comptroller General of South Carolina, in re Daniel Hand vs. The Savannah and Charleston Railroad Company and others.”
The case may be thus stated:
On April 28th, 1874, after the decision of the Supreme Court in the above entitled case of Hand vs. The Savannah and Charleston Railroad Company, dismissing the appeal which had been taken therein, (See 4 S. C.,) had been rendered, the following decree was made in said case by His Honor Judge Graham:
This cause is now before this Court for such further orders and decrees as the Court may be authorized to make, and the rights and interests of all the parties thereto may require. From the former order of this Court, -fiied October 3, 1872, the defendant, the Savannah and Charleston Railroad Company, appealed to the Supreme Court, and the Supreme Court has now sent down its judgment dismissing said appeal for irregularity, without prejudice.
The plaintiff, as a creditor of the defendant company, seeks, on behalf of himself and other creditors of like character, the payment and satisfaction of his demands, as a holder of certain past due coupons, for interest on bonds for which the defendant company is alleged to be liable. The complaint prays that an account may be taken of the amount due the plaintiff; that, in default of payment by a certain day, an order of sale and foreclosure of the mortgage, created by the Act of 1856, may be made; that a Receiver may be appointed; and that the plaintiff may have such other relief “as the nature and circumstances of this case may require.”
The opinion of the Supreme Court, already referred, to, uses these words: “ Nor do we intend to define the nature of the issues which may properly arise under the pleadings, or to limit the control of the Circuit Court over the case.”
In this condition of the cause, a projet of a decree, designed to harmonize and secure the rights and interests of all parties, has been submitted to the Court by the several'counsel engaged in the cause, and the Court has carefully and maturely considered the same, with a view to do full justice and to secure the best practical results to all interested. The leading feature of this projet is the appointment of a Receiver to hold and operate the railroad of the defendant company and to apply the net profits to the payment of its debts. The plaintiff, in his complaint, seems to have had in mind such an alternative mode of payment, in praying, as he does, for the appointment of a Receiver to “ take charge of’the said road, with its appurtenances, until the amounts due to himself and the other creditors, whose claims are secured by the said mortgage created by the Act ratified December 20, 1856, with the interest thereon, have been paid and satisfied, or until the said road has been sold and disposed of as prayed for.” :
The power of a Court of equity to mould its decree to all the equitable exigencies of a cause is wide and clear, and has at all times been considered one of its most beneficent offices. Moreover, by Section 299 of our present Code of Procedure, the Court may grant “ any relief consistent with the case made by the complaint and embraced within the issue.”
The proposed decree is, therefore, considered by the Court to.be within its jurisdiction in the present cause.
It appears, in the light of all information available to the Court,to be likewise adapted to secure the payment of the debts of the defendant company, and at the same time to avoid a probably disastrous result to both parties from a present sale of the railroad and property of the company.
It is now, therefore, ordered, adjudged and decreed, that until the maturity of the six per cent, interest-bearing bonds of the Charleston and Savannah Railroad Company, secured by the mortgage of the road and its appurtenances, now the property of the defendant company, created by the provisions of the Act of the General Assembly of December 20th, 1856, the railroad of the said defendant company, together with all its rolling stock, its whole outfit and property of every kind whatsoever, be, and hereby, is transferred and delivered into the possession of, and to be held by, a. Receiver hereinafter to be named by the Court, and an Advisory Board of management to be appointed as follows: Two to be appointed by the holders of the bonds of the Charleston and Savannah Railroad Company, and of the defendant company, guaranteed by the State of South Carolina, or a majority of them in amount; two to be appointed by the holders of the seven per cent, interest-bearing bonds of the defendant company, or a majority of them in amount; one to be appointed by the holders of the eight per cent, interest-bearing bonds of the defendant company, or a majority of them in amount; one to be appointed by the Court to represent the State of South Carolina; one to be appointed by the other and unsecured creditors of the defendant company, or a majority of them in amount; and two to be appointed by the said defendant company; and in case the said Advisory Board shall not be appointed as above provided, within a reasonable time, then the members thereof shall be named and appointed by the Court.
The said railroad, stock, outfit and property of the defendant company shall be held, worked and managed by the said Receiver and Advisory Board with the greatest possible skill and economy, and the results be reported quarterly to the Court in this cause, and the net profits, after paying all necessary expenses, including such amounts, if any, as may be due the employees and officers for services, shall be applied quarterly to the payment:
1. Of the six per cent, coupons reported as proved in this case by W. J. Gayer, Referee, in his report, .filed on the 18th day of December, 1872, with interest on said coupons from September 1, 1869.
2. Of all other outstanding, unpaid or unsatisfied coupons for interest now due and payable, or to fall due and payable, in the order of their rank and right of payment, all questions arising as to such rank and right of payment or priority of lien to be referred to and determined by the Court whenever they may arise and after full hearing.
3. Whenever it shall happen that the interest coupons thus as aforesaid to be paid shall have been paid, and provision shall also have been made for the payment of those to fall due, satisfactory to the Receiver and Advisory Board, and any surplus of net profits shall remain or arise, the same shall be applied to the payment of any other liens, if any there are, and then to the payment ratably of the unsecured debts of the defendant company.
The costs and disbursements of this cause shall be taxed and paid by the Receiver and charged to and as expenses. The proper expenses and counsel fees paid or due by the plaintiff, and the like expenses and counsel fees due by the defendants, shall be ascertained by a Referee, to be appointed by the Court, on motion, and reported to the Court, to be paid and charged as may be hereafter ordered,
Charles T. Mitchell is hereby named and appointed Receiver, with such salary as shall be fixed by the Advisory Board, and he shall hold his office until the maturity of the said six per cent, bonds and the further order of the Court, unless sooner removed by order of the Court, upon the recommendation only of the Advisory Board, and not otherwise.
The defendant company, the Savannah and Charleston Railroad Company, at any time pending this cause, upon showing that they have paid all the interest coupons in arrear, and that they have paid, or satisfactorily secured to be paid, all other and unsecured debts due by them, shall have leave to move for and be entitled-to have their said railroad and property .restored to them,.and the Receiver shall further hold the said railroad and property open at all times at private sale upon favorable terms, such terms to be first reported to the Court and submitted to. the counsel representing parties in this cause.
All creditors of the defendant company not now represented in the cause shall have leave by petition' to come in and become parties to the cause. '
To avoid multiplicity of suits and prevent waste, it is hereby ordered that each and all of the creditors and claimants against the said railroad and property of the defendant company, in anywise, and who may not voluntarily become a party to this cause, be, and hereby is and are, strictly enjoined from bringing or prosecuting any suit, action or proceeding against said company or its property, otherwise than in this cause, and from intermeddling with the possession and management of the said railroad and property by the said Receiver and Advisory Board in the due execution of their trust and duty under this order and, decree.
It is further adjudged that the foregoing order is without prejudice to the right of the plaintiff, and other like holders of coupons of the Charleston and Savannah’Railroad Company, to the assertion of their lien by way of mortgage on the road and its appurtenances, for the payment and satisfaction of their claims in the event that their said claims are not paid and discharged out of the income' as herein provided for.
No appeal was taken from said decree, and on March 1st, 1875, the above entitled petition was filed by Solomon L. Hoge, then Comptroller General of the State, in which he stated that, on the 18th day of February, 1875, it was officially brought to his attention that the said Savannah and Charleston Railroad Company had failed to pay the interest upon its debt within six months after it became due; that the said company did not on the 1st day of March, 1874, pay the interest coupons upon their bonds which fell due on that day, — the payment of which bonds and coupons had been guaranteed by the State; and that said company has continued to fail, up to the present time, to pay the said interest, though payments had been demanded by the holders of the bonds.
That the petitioner had attempted to take possession of said railroad pursuant to the provisions of Section 5 of the Act entitled “ An Act to enable the Savannah and Charleston Railroad Company to complete their road,” which was ratified on March 2d, 1869; that on February 24th, 1875, he made a formal demand upon Charles T. Mitchell, President of said railroad company, to turn over to the petitioner the said railroad with all its appurtenances; that the said Mitchell refused to do so, and, in stating his reasons for said refusal, claimed to be in possession of said road as Receiver under the above recited order or decree of April 28th, 1874.
That, as Comptroller General of the State, it is made the duty of the petitioner, by'the said Act of March, 1869, to take possession of the said road, with all its appurtenances, upon the happening of the contingency above recited, and the petition prayed that the Court would rescind so much of said order or decree of April 28, 1874, as placed said road in the possession of the said Charles T. Mitchell, as Receiver, and thus enable the petitioner to take possession thereof; and should the Court deem it advisable that said Receivership should be continued under said order or decree, then that the petitioner be allowed to perform the duties of said Receivership under the orders and direction of the Court.
On March 1st, 1875, an order was signed by his Honor Judge Reed requiring the said Charles T. Mitchell to show cause why the prayer of the petitioner should not be granted.
On the 30th day of March, 1875, an order was made that the petition be amended by inserting therein the name of Thomas C. Dunn, who, in the meantime, had become Comptroller General of the State in the place and stead of Solomon L. Hoge, the late Comptroller General of the State.
Daniel Hand filed an answer to the petition, wherein, after reciting the prayer of the petition and the decree above recited of April 28th, 1874, and stating that the petitioner is not a party to the suit of Daniel Hand against the Savannah and Charleston Railroad Company, and others, and setting forth who were the parties to ■ said suit, he proceeded as follows: .
4. That the said Charles T. Mitchell, Receiver, and the Advisory Board created by said decree, are thereunder in possession of said road and its appurtenances, and the corporation referred to in the Act of 1869 is out of possession.
5. That the said decree met the approbation of all the parties in the cause, and no appeal ever was taken from it; and that the projet of said decree referred to therein was prepared and submitted by the Attorney General in behalf of the State.
6. That by a provision of the Act of 1869. it is provided and made the duty of the Comptroller General, upon the happening of a certain contingency, to take immediate possession of the road and appurtenances, and to lease the same to responsible parties, who shall have control thereof until the General Assembly shall by law provide for the settlement of the affairs of said company in the interest of all its creditors. That by this provision the petitioner was to do a single administrative act and no more. He was to dispossess the corporation and lease, but the Court did this before he had the opportunity. If the petitioner-were in possession under said provision, he could not hold, but must lease, and his functions would then terminate, and the lessee would hold until the General Assembly should legislate.
7. That this provision of the Act of 1869 contemplated having done no more than that which the Court by its decree has already done,'namely, taking the property from the insolvent corporation and causing it to be properly administered by responsible persons.
8. That afterwards the said General Assembly, by an Act approved March 7, 1871, (Statutes at Large, vol. T4, p. 612,) did provide by law for the contingency contemplated by the Act of 1869, and thereby superseded the provision of said Act wherein the petitioner claims; and, in fact, that the Attorney General, pursuant to the provisions of said Act of 1871, did commence proceedings thereunder, on which this Court made its decree, from which an appeal was duly taken, which said appeal is now pending before the Supreme Court.
9. That the said Charles T. Mitchell, Receiver, is not alone in possession of the said road and its appurtenances, but conjointly with the Advisory Board duly appointed, pursuant to the provisions of the decree above recited, and his and their possession is lawful and proper; and he, the said Daniel Hand, denies that either the said Charles T. Mitchell, Receiver, or the Advisory Board can be lawfully disturbed or dispossessed upon a proceeding such as the present rule to show cause, which is unusual, irregular and illegal.
10. That he, the said Daniel Hand, is a creditor of the said Savannah and Charleston Railroad Company to the extent of about fifty thousand dollars, including the principal and interest of the coupons held by him, and, under the decree, is to be first paid out of the income of the said road, without any prejudice to the lien on the property of the said the Savannah and Charleston Railroad Company held by him for the satisfaction of the principal and interest of his said coupons, and objects to the removal by this Court of the said Charles T. Mitchell, Receiver, and the Advisory Board.
11. That he understands and believes that a large majority of the creditors of the said Savannah and Charleston Railroad Company who have liens by way of mortgage on the property of the said road are well content with the decree filed on the 28th day of April, 1874,- and are opposed to the removal of the said Charles T. Mitchell, Receiver, and the said Advisory Board and the substitution as Receiver of the said petitioner or any one else; and it is respectfully submitted that the opinion of these said creditors, who are alone and substantially interested in the property of the said road, are entitled to favorable consideration on this question.
12. That the said petitioner is no longer the Comptroller General of the State of South Carolina, having ceased to hold the said office on the 4th day of March, 1874.
13. That the State of South Carolina, by its then Attorney General, Hon. D. H. Chamberlain, became a party to the suit of him, the said Daniel Hand, against the Savannah and Charleston Railroad Company, and, having answered the complaint filed by him, and submitted itself to the jurisdiction of the Court, is bound by all the proceedings therein, and more especially by the decree filed on the 28th day of April, 1874, and all persons holding office under the said State are absolutely bound and concluded by the said decree as long as the same remains unreversed.
14. That the said petitioner 'is a resident of the city of Columbia, in the County of Richland, in the State of South Carolina, and it is impossible for any one to properly discharge the duties of Receiver of the said Savannah and Charleston Railroad unless he-resides, as does the said Charles T. Mitchell, in the city of Charleston, and, like him, devoted his whole time, to the interest of the said road.
15. That it is contrary to the course and practice of the Court to remove or displace a Receiver acceptable to the large majority of the creditors interested in a fund which is the subject of suit without some allegation as to the unreliableness of the said Receiver for the office held by him, or that he is unfaithful to his trusts, or that, the property in his hands and under his control can be more successfully and judiciously managed bj7 another Receiver, to be appointed in his lieu and stead, and no such pretenses are set up here for the removal of the said Charles T. Mitchell.
Charles T. Mitchell also filed an answer, wherein, after reciting the prayer of the petition and the decree of April 28th, 1874, he proceeded as follows:
4. That this respondent and the Advisory Board created by said decree are thereunder in possession of said road and its appurtenances, and the corporation referred to in the Act of 1869 is out of possession.
5. This respondent has understood, and believes it to be true, that said decree met the approbation of all the parties in the cause, and no appeal ever was taken from it.
He has also understood aud believes that the projet of said decree, referred to therein, was prepared and submitted by the Attorney General in behalf of the State.
6. This respondent has understood, and believes it to be true, that, by a provision of the Act of 1869, it was provided and niade the duty of the Comptroller General, upon the happening of a certain contingency, to take immediate possession of the road and appurtenances, and to lease the same to responsible parties, who shall have control thereof until the General Assembly shall, by law, provide for the settlement of the affairs of said company in the interest of all its creditors.
It will be seen by this that the petitioner was to do a single administrative act, and no more. He was to dispossess the corporation, and to lease, but the Court was in possession when the contingency happened. .
If the petitioner were to take possession under said provision, he could not hold, but must lease, and his functions would then terminate.
7. This respondent is advised and instructed that the provisions of the Act of 1869 do not contemplate that the Comptroller General shall dispossess this Court or supersede its functions, and more especially when it is manifest that the parties beneficially interested under said Act prefer, their affairs to be administered and settled by the judicial department of the government, having agreed to or acquiesced in the decree of this Court.
8. This respondent further says that he is advised and understands that afterwards, the General Assembly by an Act approved March 7, 1871, (Statutes at Large, vol. 14, p. 612,) did repeal the Act of 1869, and thereby superseded the provisions of said Act, wherein the petitioner claims, and in fact that the Attorney General, pursuant to the provisions of said Act' of 1871, did commence proceedings thereunder, on which this Court made its decree, from which an appeal was duly taken, which said appeal .is now, after argument, pending undecided before the Supreme Court.
9. This respondent says that .he is not alone in possession of the said road and appurtenances, but conjointly with the Advisory Board duly appointed pursuant to the provisions of the decree above recited, and this, and their possession is lawful and proper, and he denies that he or they can lawfully be disturbed or dispossessed upon a proceeding such as this rule to shew cause, which is unusual and irregular, for the purpose of changing title and possession. ■
10. And he further says that since the date of this order to shew cause the petitioner has-gone out of office and is no longer the Comptroller General.
11. That the Act of 1869 is a contract between the Savannah and Charleston Railroad Company and the State, and the same has been disregarded and virtually waived by the State- in respect of this matter and various others therein.
On April 2d, 1875, the petition was heard by His Honor Judge Reed, who made an order that the petition be dismissed, that the prayer thereof be refused, and the rule be discharged.
appealed.
We maintain in this case that the Court below should have granted the petition of the Comptroller General, so as to enable him to take possession of the Savannah and Charleston Railroad Company’s road and appurtenances, pursuant to the provisions of the Act of March 2, 1869, entitled “An Act to enable the Savannah and Charleston Railroad Company to' complete their road.”
The respondents admit that the Act of’ March 2, 1869, was part of the charter of the Savannah and Charleston Railroad Company ; that it was duly accepted by the-said company on the 7th day of March, 1869, and that it is still binding between the State and said corporation, unless repealed or modified by the Act of March, 1871.
The Act of 1871 is a general Act, applying to all railroad corporations, and directs the Attorney General to cause to be instituted, immediately after the expiration' of'thirty days after the final passage of the Act, actions against railroad companies which have failed to pay the interest on the .bonds issued by them and guaranteed by the State, unless before the expiration of said thirty days such railroad company or companies shall fully pay and dis.charge such interest.
There is nothing in this Act which expressly repeals the provisions of Section 5 of the Act of .1869, and we contend that it does not repeal them by implication.
1. The Act, while general in its application to all railroads whose bonds were guaranteed by the State, is limited as to time, for it does not contemplate proceedings under it,' unless taken immediately after the expiration of thirty days after its passage, and such proceedings were to be had for the purpose of enforcing the payment of all interest due and unpaid at the time of the passage of said Act. If a company, the interest on whose bonds was not in de' fault at the time of the passage of said Act, should subsequently thereto be in default as to interest, the provisions of this statute would not be of force, but the State would be left to pursue any remedy which might be proper for it.
2. There is no inconsistency in the provisions of the two Acts. The one furnished a summary remedy in favor of the State, which it could enforce so long as the contract existed between the State and the corporation. The other provided for the immediate action, on the part of the Attorney General, to enforce the claims of the State in the ordinary mode of legal procedure.
The later Act, not being inconsistent with the earlier, both could stand; and, as the later Act has virtually expired by its own limitation, the earlier one remains in full force and effect. — Sedgwick on Stat. and Const. Law, 361; Potter’s Dwarris on Stat., 154-157; State vs. Alexander, 14 Rich., 247; MeCool vs. Smith, 1 Black, 459; Henderson’s Tobacco, 11 Wall., 652.
Though the provisions of two Acts be different, a general statute without negative words will not repeal a previous one which is particular. — Potter’s Dwarris on Stat., 73, note 5, citing Brown vs. County Commissioners, 9 Harris, (Pa.,) 37.
It is a rule that special laws are not abrogated by general ones unless the intent to do it be very clear. — Steamboat Company vs. Collector, 18 Wall., 478; dissenting opinion of Bradley, J., 493; Sedgwick on Stat. and Const. Law, 361.
3. If, then, the statute of 1869 is of force, there can be no question as to the duty and authority of the Comptroller General in the premises. By the terms of this Act, which forms a part of the contract between the State and the corporation, if the corporation fails to pay the interest on its debt within six months after it shall become due, or fail to pay or provide for the payment of its debt within six months after it shall have become due, it becomes the duty of the Comptroller General of the State, and he shall have the power, to take immediate possession of the road, with all its appurtenances, and lease the same to responsible parties, who shall have control thereof until the General Assembly shall, by law, provide for the settlement of the affairs of said company in the interest of all its creditors.
The contingency provided for in the charter has happened. The company failed to pay the interest on its debt within six months after it became due. This fact was duly brought to the attention of the Comptroller General. His duty then was imperative. He must take possession of the road, and the company must necessarily yield possession to him.
The statute is remedial. It gives the State a remedy to protect itself, which it would not have had otherwise: — Potter’s Dwarris on .Statutes, 73; Sedgwick on Stat. and Const. Law, 308.
The statute must be liberally construed in favor of the State and against the corporation.— Gillett vs. Moody, 3 N. Y., 479, 487.
Where by statute a new right is given and a specific remedy provided, the power can be executed and thé right vindicated in no other way than that prescribed by statute. — Sedgwick on Stat. and Const. Law, 343; State vs. Bank of State of South Carolina, 1 S. C., (N. S.) 63.
It is hardly necessary to say that the statute is one which the State had power to make, since it contravenes no provision of the State Constitution. — Potter’s Dwarris on Statutes, 79, 80, 81; Calder vs. Bull, 3 Dali., 386, 399.
The duty of the Comptroller General in the premises would be perfectly clear were the road still under the entire control of the corporation.
But now arises an apparent difficulty. The corporation and certain of its creditors say the road is no longer in the possession of the corporation. The Court has-intervenéd and has appointed a Receiver, who has now charge of the entire property of the concern. But it can make no difference in whose hands the road and property of the corporation may be, so long as the corporation has the equity of redemption. The possession of the Receiver is not such a possession as ousts the State of its rights, and the corporation cannot be permitted, under the guise of a Receiver, to defeat the rights of the Comptroller General to take possession of the road and its appurtenances and dispose of them as directed by law.
The Comptroller General bases bis right to the possession of the road on the ground that he has the paramount right to it under the contract — the Act of March, 1869.
His position is like that of a first mortgagee who claims a fund in Court realized from sale of mortgaged property on proceedings for foreclosure instituted by a second or subsequent mortgagee, or like that of a lien creditor of a bankrupt, whose claim must be first settled before the general creditors can be paid.
To him the State and the corporation have given the right, and on him imposed the duty, of taking possession of the road on the failure by the corporation to provide for the payment of its bonded debt or the interest thereon. This right neither the company nor the Court can take away; and when the attention of the Court is called to this right vested in him, it is its duty to remove every obstacle imposed by its orders and decrees in the way of the exercise thereof.
It is no sufficient answer to this proposition to say that the estate is a fund in Court, and that the Court will protect the rights of the State as the guarantor of the bonds. The State has a right, under the law and by its contract, not to the fund, but to the possession, of the property, to dispose of it, not as the Court may direct, but as the Legislature may provide.
And as a Court would order the payment of a fund in its keeping to him who had the prior right, so it should allow the estate to go into the hands of him whom the law has designated as the person to take charge of it.— Wiswall vs. Sampson, 14 H., 52; Oooeh vs. Haworth, 3 Beav., 428 : Russell vs. East Anglican Railway Company, 3 Mac. & G., 104; Kerr on Receivers, 174.
Again, the Comptroller General has a paramount right to the possession of this road and all its property for the following reasons :
1. The statute gives it and the corporation has assented to it.
2. The, statute confers authority only on the Comptroller General to take possession in the event of a failure to comply with the terms of the contract. Power thus given to one person excludes the exercise of a like power by any other person. — Dwarris on St., 275, and note, with authorities.
3. The Comptroller General is not bound by the decree of the Court in this case; (a) because he is not a party .to the proceedings; (b) because even if he were a party he could not consent to a proceeding which, so far as he is concerned, the law forbids; (c) because the appearance by the Attorney General on the part of th.e State in this case cannot be regarded as a waiver by the State of its rights under the contract set forth in the Act of 1869, when the enforcement of those rights does not rest with the Attorney General but with the Comptroller General; (d) because it is n,ot shown that the Comptroller General knew of the order appointing a Receiver in this case until he demanded possession of the road.
(a.) The decree in this case not only appoints a Receiver but forbids everybody, by a general injunction order, from bringing or prosecuting any suit, action or proceeding against the company or its property otherwise than in this cause, &c., without prejudice, however, to the right of the plaintiff and other like holders of coupons of the Charleston and Savannah Railroad Company-to the assertion of their lien by way of mortgage on the road and its appurtenances, for the payment and satisfaction of their claims in the event that their said claims are not paid and discharged out of the income provided for in said order.
Now, while this decree may be binding on all creditors of the road who are or may choose to become parties to the suit, it can have no effect on parties who are outside of the territorial jurisdiction of the Court, or who have been given special privileges under the grant by the State to the corporation, which the Court was not asked to and has not passed upon. As to such persons the decree is not binding.
An injunction will not be allowed against a party not a defendant to the bill or not properly before the Court. — Fellows vs. Fellows, 4 Johns. Ch., 25; High on Injunctions, § 747; Waller vs. Harris, 7 Paige, 168.
(b.) The Comptroller General could not, if he had been a party to the case of Daniel Hand vs. Savannah and Charleston Railroad Company, have consented to any order which would relieve him from a duty imposed on him by law.
When the duty is clearly defined, he must execute it as an executive officer of the State, and the judiciary department of the government could not, by its decrees, work a repeal of a positive constitutional statute. — Marbury vs. Madison, 1 Cr., 137, (171); Grier vs. Taylor, 4 McC., 206.
To do so would be to usurp legislative or political power.— Cherohee Nation vs. Georgia, 5 Pet., 1, (20, 28, 75.)
(c.) The State has not lost its right to enforce its contract with the corporation because of the appearance of the Attorney General on behalf of the State in the case of Daniel Hand.
The question in the cases of Hand vs. Savannah and Charleston Railroad Company, and State vs. Savannah and Charleston Railroad Company was whether the corporation was or was not liable for coupons of bonds issued by the Charleston and Savannah Railroad Company under the Act of December 20, 1856. If the defendant corporation were not liable for payment of said coupons, then it was not in default, and the Comptroller General had no right to the possession of the road so long as the company paid the interest on the coupons for which it was undeniably liable. This interest it did pay until the 1st day of September, 1873, so far as the Comptroller General is informed.
But as to the coupons or the bonds of 1856, the Comptroller General could properly decline to take action, since the State was itself seeking a judicial determination of the question of the liability of the defendant corporation thereon.
(d ) The order appointing a Receiver was not made with the knowledge or consent of the Comptroller General. So far, then, as it abridged the powers conferred on him by statute, or interfered with him in the performance of his duties, it is a nullity, and the Court below should have so held.
But the Court having made the order, and the Receiver appointed by it being in possession, the Comptroller General, out of respect to the Court, and to avoid any conflict of jurisdiction between' the executive and judicial departments of the government, comes in by petition and asks the Court to modify its order forbidding all persons from meddling with the possession of said road, so as to permit the Comptroller General to perform his duty under the law without coming in conflict with the officers of the Court.
Of the regularity of this mode of proceeding there is no question raised. It is strictly in accordance with the established practice in equity and under the Code of Procedure.— Wiswall vs. Sampson, 14 H., 66; Kerr on Receivers, 172-4; Story’s Eq. Prac., 267, 377; Hoffman’s Prov. Rem., 508.
The Court, then, should have granted the prayer of the petition, because it is evident that by its decree it was infringing upon the duties devolved by law on the executive department of the government and usurping functions which did not belong to it.
A Court can compel an executive officer to perform duties required of him by law, but it cannot constitutionally enjoin or prevent him from performing duties which the law says he must do, and which he is willing to undertake. — Marbury vs. Madison, 1 Cr.. 137, p. 164.
All that the Court is asked to do, as a matter of strict law, is to allow its own officer to place in the hands of the person entitled to it under the charter the possession of this road and all its appurtenances, so that the State, the chief creditor of the corporation, and the guarantor of its bonds, may protect its interests, as provided by law, while it sees that no harm is done to other creditors.
. This request is reasonable. To the bondholder it can make no difference who has the road so long as he-gets his money. ' In the economical administration of its affairs, he has little interest, as he has the State guaranty to fall back on when the road’s assets are exhausted.
The corporation has no right to object, because it is bound by its charter to give possession to the Comptroller General whenever it fails to comply with the terms of its charter.
The Receiver has no right to object, because he is surrendering possession to one having paramount right.
The State, which is ultimately liable for the payment of the bonded debt, has the right to have the road administered by the officers whom it has designated.for the purpose, so that it may not be compelled to pay a larger bonded debt than is just and right.
It.was a matter of legislative discretion by whom possession of the road should be taken. The Legislature, in the exercise of its discretion, put this duty on the Comptroller General, and the Courts have no constitutional power to thwart this discretion by appointing a Receiver, and upholding him in hi's refusal to permit the law to be carried out as directed by the statute of 1869.
Daniel Hand, the plaintiff, being a holder of a large amount of bonds and past due coupons of bonds of the Charleston and Savannah Railroad Company, issued under the provisions of the Act of the General Assembly of South Carolina ratified on the twentieth day of December, 1856, and guaranteed by the State, filed his complaint on the 12th April, 1870, against the following parties as defendants, to wit: The Savannah and Charleston Railroad Company, William Aiken, George W. Williams and James Robb, trustees, and D. H. Chamberlain, Attorney General of South Carolina.
At the same time there was filed a notice of Us pendens as prescribed in Section 155 of Title IV, p. 600, of the General Statutes, it being provided thereby “ that every person whose conveyance or encumbrance is subsequently executed, or subsequently recorded, shall be deemed a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the action.”
The complaint, among other things, sets forth that the Charleston- and Savannah Railroad Company having become insolvent by reason of the casualties of the war a new company had been incorporated by Act of the General Assembly, ratified on the 20th December, 1866, and that the said company thereby formed had become invested, with all the rights, powers, privileges and franchises of the Charleston and Savannah Railroad Company, and had assumed and become liable for the payment of the six per cent, interest-bearing bonds of the said Charleston and Savannah Railroad Company, guaranteed by the State, held by the plaintiff and others.
It likewise set forth that the defendants, the Savannah and Charleston Railroad Company, by Act of the General Assembly, which became a law, in due form, on the 6th March, 1869, had been empowered to borrow and raise a sum not exceeding $500,000, secured by a mortgage of the road, and that under the provisions of the said Act the said bonds had been issued, and a mortgage to secure the same executed by the said Savannah and Charleston Railroad Company to the defendants, William Aiken, George W. Williams and James Robb, trustees.
The prayer of the complaint was for judgment against the said Savannah and Charleston Railroad Company for the amount of the principal and interest of the coupons held by the said plaintiff, and for the assertion of the lien which he held as security for the payment of the same under the Act of 20th December, 1856, and for. the foreclosure- and sale of the mortgaged ¡premises and distribution of the proceeds of the sale among the parties equitably and of right entitled to the same.
To this complaint all the defendants duly answered, — the answer of the defendant D. H. Chamberlain, Attorney General of South Carolina, having been filed on the 28th March, 1870, and in and by the said answer the said Attorney General, “for and on behalf of the said State of South Carolina, which had guaranteed' the payment of the principal of the bonds issued under the Act of 20th December, 1856, and of the coupons thereof, submitted the rights of the State in the ease to the judgment and protection of the Court, being content with the relief, if any, which may be afforded to the plaintiff suing on behalf of himself and all other creditors, the Charleston and Savannah Railroad Company standing in the same plight and condition with himself.” '
His Honor Judge Graham, of the First Circuit, filed his judgment sustaining the claim of the plaintiff on the 3d October, 1872.
From this judgment the defendants, the Savannah and Charleston Railroad Company, and Aiken, Williams and Robb, trustees, appealed, and, the case having been twice argued before this Court, judgment was pronounced on the-day of-, 1874, and by this judgment the appeal was dismissed for irregularity without prejudice.
■ The case having thus been again remitted to the Circuit Court, Judge Graham, on the 28th April, 1874, filed a judgment, from which no appeal has been taken by any of the parties.
By this judgment all the property of the road, the subject of the suit, with its appurtenances, together with all its rolling stock, its whole outfit and property of every kind whatsoever, was transferred and delivered into the possession of the Receiver named and an Advisory Board of management, until the maturity of the six per cent, interest-bearing bonds of the Charleston and Savannah Railroad Company, and provision was made that it should be worked and managed by the said Receiver and Advisory Board, and the net profits, after paying all necessary expenses, applied to the payment of the coupons of the outstanding bonds.
It was further provided that all the creditors of the defendant company not then represented in the cause should have leave, by petition, to come in and become parties to the cause, and the creditors and claimants against the said railroad in anywise, and who may. not voluntarily become parties to the cause, should be enjoined from bringing or presenting any suit,' action or proceeding against said company or its property, otherwise than in the said cause, and from intermeddling with the possession and management of the said railroad and property by the said Receiver and Advisory Board in the due execution of their trust and duty under the said decree.
The petition of the Comptroller General sets forth that; as Comptroller General of the State, it is made his duty, and he is given the power, by the Act ratified on the 2d March, 1869, to take immediate possession of the said Savannah and Charleston Railroad, with all its appurtenances, and the prayer is that so much of the. decree of 28th April, 1874, as places the said railroad in the possession of the said Charles T. Mitchell, as Receiver, be rescinded, and “ thus that your petitioner be enabled to take possession thereof; and should it be deemed advisable that said Receivership should be continued, then, he, the said petitioner, suggests that, with the othér duties imposed upon him by law, he may also perform that duty.”
The State, having submitted itself to the jurisdiction of the Court,became bound by the judgment of Judge Graham, filed on 28th April, 1874.
Associate Justice Willard, in the case of the State, ex relatione the Attorney General, vs. the President and Directors of the Bank of the State of South Carolina, (1 S. C., 71,) states the law as it stands on this question: “Butit is equally clear that the Court of Chancery has possession of the controversy both as it regards the questions at issue and the parties. The State has intervened in the person of its Attorney General and submitted its right to that Court by answer.”
And at page 72: “ In the present case, however, the State, is a real and not a nominal party; and this is claimed as placing the case in a peculiar attitude to the rule in question. The State can neither be sued nor compelled to appear in its own Courts or elsewhere. Where it enters the Courts, it does so voluntarily, and, it is to be presumed, for the reason that some important object canno.t be attained except through the aid of the judicial arm of the government. But no proposition is more clear than that when the State places itself in the attitude of a suitor in its Courts, it subjects itself to all the rules that bind the jurisdiction from which it seeks relief.”
When it enters the Court of Chancery, it conforms to every requirement that binds the humblest citizen.
When it claims the aid of the writ of mandamus, it takes it subject to all the rules that control its employment. Tt follows, therefore, that the same rule must be applied in the present case that would govern in a case of private-rights, and, accordingly, that, regarding the State as a claimant to the fund in question, an insuperable objection exists to the exercise of the jurisdiction claimed in these proceedings.
If the petitioner claims the road as a public officer, his claim must rest upon the provisions of .the Act of March 2, 1869, and he can only claim and hold for the purposes and objects contemplated by this Act.
The Act provides, in Section "5, that, upon a contingency specified, it shall be his duty, and he shall have the power, to take immediate possession of said road, with all its appurtenances, and lease the same to responsible parties, who shall have control thereof until the General Assembly shall by law provide for the settlement -of the affairs of said company in the interests of all its creditors.
Under this provision of the Act of 1869 it. was contemplated that nothing more should be done than that which has been already done, to wit, the transfer of the property from the insolvent corporation, causing it to be regularly administered by responsible persons.
So long as the judgment of Judge Graham, filed on 28th April, 1874, remains without modification or reversal, its provisions, which are obligatory on the State as much as on any of the other parties defendants, render it impossible that the petitioner should discharge the duties imposed upon him as a public officer by the Act of 1869.
The practical result of placing the petitioner as a public officer in the custody of the road under the Act would be to deprive the Court of Common Pleas of the County of Charleston, which now has control of all the property of-the road, it being a fund in Court, of all jurisdiction in the matter, and give him supreme power, only to be interfered with by the General Assembly of the State.
If the petitioner, as a private citizen or an individual, desires to install himself as the Receiver, under the judgment of Judge.Graham, he has made no shewing, either by affidavit' or otherwise, to entitle him to receive the appointment.
It is the will of all the creditors that the management of the road should remain as it is.
It is incumbent on the petitioner to shew that the present Receiver, Mr. Mitchell, and the Advisory Board have acted either indiscreetly or to the injury of the creditors, and this he has not attempted.
All the creditors have confidence in the administration of the affairs of the road and are unanimous in opposing a transfer of the property.
In Kerr on Receivers, p. 149, it is said: “Where a Receiver has been appointed, the Court will not remove him on the mere ground of his being an illiterate person, unless some other reason can be given, such as mismanagement, dishonesty or incompetency to manage the estate.”
The fifth Section of the Act of 1869 is repealed by the provisions of the Act approved March 7th, 1871, entitled “An Act to protect, the interests of the State whenever payment of interest now due remains unpaid on bonds issued by any railroad company, and whereon the guaranty of the State is endorsed.”
By the first Section of this Act it is provided as follows, to wit: “That the Attorney General be, and he is hereby, required and authorized to cause to be instituted immediately after the expiration of thirty days after the final passage of this Act, for and on behalf of, and in the name of, the State, an action, suit or other legal proceeding in any Court of this State, or of the United States, against each railroad company which has, also against all railroad companies which have heretofore, issued bonds upon which the guaranty of the State is endorsed, and on which interest is now due and unpaid, unless within thirty days after the final passage of this Act such railroad company or railroad companies shall fully pay and discharge such interest, for the purpose of enforcing the payment of all interest due on the bonds of such railroad company and protecting and securing the State against loss or damage by reason of said guaranty, and to this end to enforce the rights of the State by virtue of the statutory or other lien or mortgage held by the State or held to secure the payment of said bond or bonds on all or any of the property, assets or effects of such company or companies.”
By the second Section the Attorney General was authorized to appear for, on behalf of, and in the name of the State, in any action, suit or proceeding on behalf of any other party or parties against any such railroad company or railroad companies, and to bind the State in such action, suit or proceeding, and to protect the interest of the State therein.
By the seventh Section all Acts and parts of Acts inconsistent with the said Act were repealed.
It is submitted that it was the design and purpose of the General Assembly, by the Act of Mareh'7th, 1871, to supersede the remedy provided in the Act of 1869 against defaulting railroads.
A new, complete and more comprehensive system was engrafted on the law by the Act of March 7, 1871; and the Act of 1869, in so far as it authorized the Comptroller to take possession of and lease the Savannah and Charleston Railroad, was virtually abrogated.
This conclusion results from the proper construction of the Act and of the law applicable thereto.
The provisions of the two Acts are so repugnant that they cannot stand together or be consistently reconciled.
In Daviees vs. Fairbain, (3 Howard, 636,) it is ruled that “ if a subsequent statute be not repugnant in all its provisions to a prior one, yet if the later statute clearly intended to prescribe the only rules which should govern, it repeals the prior one.”
In the following cases, to wit, West vs. Pine, (4 Washington Circuit Court Reports,) Milne vs. Súber, (3 McLean’s Reports,) and United States vs. Irwin, (5 McL., 178,) it was ruled that a later statute repugnant to a former one on the same subject matter, so that they cannot stand together, repeals it by implication.
In Norris vs. Oroher, (13 Howard’s Reports, 429,) it is ruled that “when a new statute covers the whole subject matter of an old one, and adds offenses and prescribes different penalties from those enumerated in the old law, it is by necessary implication a repeal of the former statute.”
There is another and very serious view of this matter. It goes to the heart of it.
Is the Act of 1869, so far as it gives the Legislature judicial powers, within the Constitution ? ,
Article I, Section 26, of the Constitution declares that “in the government of- this Commonwealth the legislative, executive and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the function of one of said departments shall assume or discharge the duties of any other.”
The Act of 1869 undertakes to charge the Legislature with judicial functions.
If there may be any doubt of this, then the very question made here proves it.
This proceeding not only asks judicial functions for the Legislature, but.it seeks for that purpose to take them from the Courts, — to take away from their jurisdiction after being'possessed of the whole matter.
Again, it may be said the Act of 1869 is a contract between the parties, namely, the State and the corporation.
That by such contract the corporation contracted with the State that the General Assembly should have the administration of its affairs in case of failure, instead of the Courts provided by the Constitution for such jurisdiction.
This may be true; but if it is, Daniel Hand was no party to it. The holders of the bonds of 1856, secured by the statutory lien, were not parties to it. Neither Hand nor other holders are bound by such contract.
Again, jurisdiction cannot be given and cannot be taken away by consent or by contract.
This contract, if there be one, takes from the judiciary department of the government a jurisdiction imposed upon it by the Constitution, and it gives to the legislative department judicial functions, which are withheld from it by the Constitution.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
