The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-14

junction. 1t has already, by, anticipation, de
voted it to certain uses. 1t has leo up every
hand that could intermeddle WIN II. anu
against it, The assets OF the bank are no
longer either capital or profits, but a fund IN
equity. as completely and actually as II IN tne
hands of receiver. The president and dlrec-
TORS. if not receivers, have their responsloln,
ties. and, in the language above clteo, are at
least "custodees." AS 1t regards Tue Iuliu, .ne9
ore but the hands Of the Court OF Chancery.
But it is equally c!ctr that the Court OF Chan-
cery has possession of the controversy both as
il regards the questions at issue and t1e n, pur,
ties. The State has lntcrvenea IN ehs d pr &c
or its Attornev-General and submitted us
RIGHT to that c urt by answer. IF that demand
is 100 narrow it can be made larger; the courI
ia tound to respect and maintain whateper
claim the State may rightfully make upon the
fund. The rights of the State, as they eAlsI,
under Act OF 1868 ere the same thai eAlsteu nV
the time it interroscd Its answer ~ nis rs ,e-
uuired no new tirle or grant OF authorltS III r.
lation to the fund. 1t could have c!almca D!
it's answer unlimited control over the asSctS II
il can do so nov. 1t advances no CAIN tnaI
could not be considered by tn It court, anu II
to be presumed that taat court, deriving us
mowers from the constitution, will give due Ell
feet to all rights. public and private. PLAIN
cr case could not be conceived, Ior holdlne
that so far as the question Of coor Innate Jurls-
dict1on is involved, The right to proceed IN lu-
dicature had private rights been alone concern
ed, rests with the Court of Chancery.
RULE APPLICABLE TO CASE WHERE STATE IS
PARTY.
But can this rule be extended to contest
where the State claims, by the extraordinary
| remedy of na1nddmuS the performance OF III
act OF public nature, imposed py S9alu'e a'i-
thority?
The writ of mandtnluS is rem dy appcr,
tanning to the judicial exercise OF Jud clai
power and as such is subject to all the fules
that govern procedure in the courts. lf sued
out by citizen for the purpose OF cIs:hiuS -
purely priva.e right depending on the action
of public officer, it C Iuld rot be contendea
with any propriety. that as peculiar remedy IL
was exenpt from the operation of 1u.o IN
tended to biud together all ju.is licdons ana
remedies into harmonious whole. II certain
" would not be allowed to oust the Court Oh
Chanccry of its appropriate jurisdiction over
specified fund in controversy.
In the present case, however, the State IS
real aud not nominal party, and this is CLAIM
ed as placing the case III peculiar attitude 10
the rule in question. The State can neither be
sued nor compelled to appear in lts own courts
as elsewhere. Where it enters the courts II
| does so voluntarily, and 1t Is TO be presumed
for the reason that some important object can
not be attained except through the aid ol the
judicial arm of the government. But no propo-
| sition is more clear than that when the Stato
places itself in the attitude of sultor IN lis
courts, it subjects itself to all the rules that
bind the jurisdiction from which 1t seeks re-
lief. When it enters the Court OF Chancery II
| conforms to every requirement that Dlnus 5hs
humbest citizen. When 1t claims the ald OF
tho witt of na1ndamus it takes it subject all
| the rules that control its employment. IL lol-
lows, therefore, that the same rule must be ap-
Piled in the present case that would govern IN
a case of private rights, and, accordingly, TINT
regarding the State as claimant to the tunu
in Question. an insuperable objection exists to
the exercise OF the jurisdiction claimed ID
these proceedings.
mand of the State is to tue absolute control OF
the fund in its own right, and for such uses as
it may see fit to declare. Another view OF inc
consideration. II Is contcuded that the act
merely contemplates change in the custodian
| of the fund without necessarily divertlng 1t from
any uses to which it may have become appro-
priated by law. It is said that the Legislature
may righttuliy designate the proper persons TO
have the custody of funds in suits pending III
the courts, aud tnat in the present instance
they have fairly exercised that power. TDat IN
such case the courts have no more right TO
complain than they would 1t the writ Of nsandd-
mus was sought to compel q Master in Equity
to surrender to the Clerk OF the Common pIcas
funds in his possession on the legal transfer OF
the duties Of bis Office to the last name;i oihcer.
That in such event the fund still remains sub
ject to the older OF the court, though actually
held in different hands.
On this supposltion tue statute OF 1858 would
have to be regarded as remedial rather than as
au assertion of right to control the dcdlca-
| tion of tue fund.
This question is one of delicacy and import
ancc, and as such has received full and serious
CO: sidcrutlon. Time allows only statement
Of the conclusion arrived at.
ACT OF 1868 NOT REMEDIAL.
A careful examination OF the statute, 10th as
To it's terms and general scope allowing IN IA
vor of. tho Legislative action every reasonaDlo
intendmeut, affords no sufficient ground for
holding it to be intended as u remedial statute.
Tue Governor could find in it no authority to
make any other disposition OF the Iund than
such as might be prescribed by appro r:atlons
made by the Legislature. The designation OF
the Governor, in his name of Office as the Gus.
todiau, an officer who cannot, in his ohclal
character as Executive OF the State, be re1ched
by the process of the Courts, ems to
include the idea that 1t was not the lnsen-
ton OF the act to rcmose tho fund from tha
cont: :ol Of the court. Governor Georgia Vs.
Madrazo, Pet, 110.l The direction to sell at
public auction with direct reference to the IN
tercsts OF the State, Is inconsistent with the
principles governing the disposition ot equl-
taDlo 1unuS. Viewing luo pfONISlull inuuS ~.
the statute for funding portion of the bills OF
the bank in connection with the clauses en-
powerns the Governor to sc:zc the fund, aud
the inevitable inference is that the Legislature
fairly concluded that such provision ratified all
legal and moral claims upon the fund, and lett
it at liberty to employ it as means OF satisfy
ing the general indebtedness of the State. part
of which arises from tho issue OF bonds to
satisfy the demands OF the bllholders OF the
bank. In this viuw the statute can only be re-
garded rs an assertion Of q proprietary clam
to the fund, and as such we have seen that the
appropriate tribunal before whom that claim
should be asserted is the Court OF Chanccry
that Las possession of tie fund.
The respondents hare urged various othel
J matters in bar OF the proceedings, Which,
under the view taken OF the case, orc no. I'M
} portant to bo considered. Among the objec.
tions urged is that the Act OF 1868 ls invalid
under the Constitution of the United States as
impairing the Obligations OF tho contracts o.
the bank aud the State with tho creditors o.
the bank. As I nisy be called upon at some
future time, as a member OF the supreme
Court, to pass upon the question, it is mani
festly appropriate that no expression of views
: on that subject should lie made when not ln'
peratively demanded by the case before ME.
The rule to show cause will be discharged
Items Of State News.