The news and herald. (Winnsboro, S.C.) 1877-1900, 1895-07-11


woven with other provisions that the
whole act must be declared unconsti-
tutienal.A y
Justice McIver continues: "Since
the preparation of the foregoing opin-
ion, which was as usual, submitted to
my associates for their Consideration,
and they have both prepared separate
opinions, in which, while not consid-
cring or declining what I regard as the
real question in the case, they both
concur in holding, though differing on
one point, that the action cannot hs
maintained on jurisdictional grounds,
and hence concur in rendering judg-
ment that the complaint or petitioner,
rs it is called, must be dismissed.
"Of course, if these jurisdictional
grounds are tenable and this court is
without jurisdiction in the case, that is
an end of the matter; and any con-
sideration of the merits Of the case
would be, at least superhuous, if not
absolutely improper.
''But as I do not think any OF these
jurisdictional grounds are tenable, and
on the contrary, am entirely satisfied
that this court has jurisdiction, and is
therefore bound to decide the issue
presented, 7 must adhere to the views
hereinbefore expressed.
ga proper respect, however, for the
views OF my associates. which it is al
ways pleasure for me to pay them,
rs we'll as due regard for the gravity
Of the issue presented, require that [
should not content myself with SIM
pie declaration that do not consider
the jG-isdictional objection tenable,
but should go on and consider the
ground upon which these objections
are based, and this I propose to do as
briefly as the importance OF the in
qniry will permit.
'sFirst, it is objected that this Is
practically an action against the State,
aud to which she is an indispensable
part. II this be the true nature of the
action, then it is clear that this court
has no jurisdiction, in the absence of
any consent of which there is no pre-
tense on the part of the State. The
important inqnity, therefore, is if this
action can in any proper sense be re-
gar1ed as an action against the State.
do not think so, for the following
reasons: The object of this action is
not to affect injuriously any property
or rights of property of the State. If
the plaintiff should obtain judgment in
the case 20 interests of the State could
possibly be affected injuriously thereby.
In this respect the present case differs
widely from the cases of Lowry VS..
Thompson, supra; La. VS.. Jumnel, 1O7
u. S., and the Columbia Water Power
Company vs. Columbia Electric Street
Railroad, Light and Power Company,
20 S. C. Rep, LOOP, which seem to be
principally relied upon, for in each of
these cases some interest of the prop
erty right Of the State was sought to
hA-efected, while such is not the case
IN the present action. ] think i Is
clear, therefore, without going further
into the authorities, that-this case can
not possibly be regarded as an action
against the State to which she is an in
dispensble paarty.
"While it isquite true that the ques-
ton of the constitutionality of an act
of the Legislature should not be con-
sidered in case where such case can
be decided upon other grounds, as
that is in fact nothing more than say
ing that the copstitutionality of an act
of the Legislature should not be un-
necessarily assailed for considerations
of comfy and respect, which should
always exist among the different de-
partments of the government, would
forbid the judiciary department Of the
government from unnecessarily assail-
ing the action of it's coordinate de-
partment. But when case is pre-
sented to a court for its decision, in
which it is necessary for a proper de-
cision that the question of the con-
stitutionality of an act of the Legisla-
ture should be considered and deter
mined, then it is not only the right,
but the duty of the court to consider
such questions, and if the act in ques-
ton is found to be in conflict with the
Constitution the court must say So.
That, in my Judgment, is precisely
the attitude of the case now under
consideration. The object of the action
lis to restrain and enjoin certain public
officers OF the State, who are the GUS
todians of the public funds from ap-
plying any part thereof to an illegal
purpose, to-wit, the payment Of the sell
aries of certain so-called public Off
GERS, supervisors of registration, upon
the ground that there is no valid law
for the appointment of such officers.
So that the vital question in the case,
and the one that lies at the very foun-
dation of it, is whether there is any
valid law providing for the appoint
ment of supervisors of registration; for
if there is no such valid law. then it is
clear that the public funds cannot
properly be applied to the payment Of
:he salaries of persons claiming to hold
offices not established by law. Now,
IS there is no doubt of the fact that
What purports to be an act Of the
Legislature has been spread upon the
;tatute books providing for the estab-
ishment of such officers and fixing the
salaries thereof, and the only claim is
hat such so-called act is without con-
;titutional authority, and for that rea-
ION only has not the force of law, 1t
follows conclusively that the question
| is to the constitutionality of what has
,een termed for convenience the regis
ration law, necessarily arises in this
.ase, and the solution of that question
| sabsolntely essential to the decision of