State of South Carolina, in the Supreme Court, November term, 1876.: a machine-readable transcription.

SUMMONS.

To the defendants the Carolina National Bank, of Columbia, S.C., and the Central National Bank, of Columbia, S.C., and F.L. Cardozo:

You are hereby summoned and required to answer the complaint in this action, of which a copy is herewith served upon you, and to serve a copy of your answer to the said complaint on the subscriber at the office of Messrs. Bachman & Youmans within twenty days after the service hereof, exclusive of the day of such service; and if you fail to answer the complaint within the time aforesaid, the plaintiff in this action will apply to the Court for the relief demanded in the complaint. Dated Columbia, S.C., December 8, 1876. THEODORE G. BARKER, Plaintiffs' Attorney.

0004 3

STATE OF SOUTH CAROLINA,) County of Richland. ) I hereby certify that on the 9th day of December, 1876, at 9:10 o' clock A.M., I served on the above named F. L. Cardozo, at his residence in the city of Columbia, the within summons in this action, by delivering a copy thereof to him personally, and leaving the same with him. J.E. DENT, S.R.C.

We hereby acknowledge due service of a copy of the within summons, complaint and order. December 8, 1876. L.D. CHILDS, President Carolina National Bank, JNO. B. PALMER, President Central National Bank. STATE OF SOUTH CAROLINA, Court Common Pleas, Fifth Circuit County of Richland. The State of South Carolina ex relatione William H. Wallace, John Fisher, Owen Daly, James L. Orr and A. E. Hutchinson vs. the Carolina National Bank, of Columbia, South Carolina, the Central National Bank, of Columbia, South Carolina, and F.L. Cardozo.

The complaint of the State of South Carolina at the relation of William H. Wallace, John Fisher, Owen Daly, James L. Orr and A. E. Hutchinson, by leave of the Court, first had and obtained, respectfully shows:

1. That the plaintiffs are citizens of the State of South Carolina and tax-payers thereof who have paid taxes levied for or on account of the State, as specified in the first, sixth and the eighth Sections of the Act of the General Assembly of said State, passed and approved on the 22nd of December, 1875, entitled “An Act to raise supplies for the fiscal year commencing November 1, 1875,” and as such tax-payers, and as citizens of said State, are interested in the due and lawful appropriation, custody and disbursement of the proceeds of such taxes so levied.

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2. That of the proceeds of the taxes so levied and deposited by the State Treasurer, according to the provisions of Section nine of said Act, certain amounts of money were deposited in the Carolina National Bank, of Columbia, South Carolina, and certain other amounts in the Central National Bank, of Columbia, South Carolina, as depositaries of the public or State funds, said banks having been selected as banks of deposit for that purpose according to law.

3. That such sums of money were deposited in said banks by F.L. Cardozo as the State Treasurer, and placed therein to the credit of the specific appropriations therein named; and such appropriations have been kept by such banks, respectively, exclusively separate, subject to the checks of the State Treasurer, bearing upon their face the appropriation upon which they are drawn, which said checks are required by law to be subscribed by him as Treasurer and countersigned by the Governor.

4. That of the proceeds of such taxes which were thus deposited in the Carolina National Bank, of Columbia, South Carolina, there remain at the time of the filing of this complaint the following amounts, according to their several accounts, viz: General account $771 50 Claims passed 30 92 Certain claims against the State $23,228 10 Certain unpaid appropriations 1,085 59 Deficiencies 35 Free schools 93 43 Interest 1876 84 15 Legislative expenses 11 93 Past indebtedness of State Penitentiary 39 95 Penal, charitable and educational institutions 27 60 Public printing 10 52 —————- Amounting in all to the sum of $25,384 04 twenty-five thousand three hundred and eighty-four dollars and four cents.

5. That of the said proceeds of said taxes which were thus deposited in the Central National Bank, Columbia, South Carolina, there remain at the time of the filing of the complaint the following amounts, according to their several accounts, viz.: 0006 5deficiencies $130 00 Unpaid appropriations 18 00 Certain claims against the State 2,915 00 Free schools 2,451 00 Public printing 97 00 Claims passed 1,683 00 Interest 281 00 Penal, charitable and educational institutions 587 00 Certain unpaid appropriations 1,557 00 Past indebtedness of State Penitentiary 27 00 Salaries, contingent, &c. 856 00 ————- Amounting in all to the sum of $10,602 00 ten thousand six hundred and two dollars.

6. That the term of office of the said F.L. Cardozo, as State Treasurer, ended on the third day of December, A.D. 1876, and the sureties on his official bond are not liable for acts done by him after said day, his said term having begun on the third day of December, A.D. 1872, the day on which the Governor elected was installed in office, and the other State officers elect in that year entered upon the duties of their several offices.

7. That the said F.L. Cardozo claims to exercise the said office of State Treasurer unlawfully, and since said third day of December, A.D. 1876, has signed and filed no lawful bond; and has, since said third day of December, A.D. 1876, drawn and signed checks upon said public or State funds so deposited, and continues, and threatens to continue, to draw and sign such checks; and the same have been honored and paid by said banks, and they threaten to continue to so honor said checks, to the great injury and detriment of the State of South Carolina, and of the citizens and tax-payers thereof.

8. That Daniel H. Chamberlain, conspiring with E.W.M. Mackey, H. E. Hayne, Benjamin I. Boone, Austin Jacksonm Fred Nix, and other persons, have, in violation of the Constitution and laws of the State of South Carolina, assembled in the Hall of the House of Representatives in the State House in Columbia, and have unlawfully seized and possessed them- selves of the returns of the election for Governor and Lieutenant- Governor, transmitted to H.E. Hayne as Secretary of State from the several Counties in the State, and 0007 6have opened said returns, and have thereupon attempted to set up the said Daniel H. Chamberlain as Governor of the State of South Carolina; and the said D.H. Chamberlain, upon the false and illegal declaration of the count of said election contained in said returns, has, in the presence of the said persons, and others conspiring with them in treason against the said State, taken a pretended oath of office as Governor, administered to him by the said Benjamin I. Boone, pretending to have the right to administer such oath, and in violation of the Constitution of said State.

9. That under and by virtue of said pretended inauguration and installation into the office of Governor, the said Daniel H. Chamberlain claims to act as such, and threatens to countersign the cheeks drawn by said F.L. Cardozo as Treasurer upon said banks of deposit, and to draw out from said banks the aforesaid public or State funds, to the great injury and detriment of the State and the citizens thereof.

Wherefore the plaintiff demands payment, and prays that an injunction may issue from this honorable Court, directed to the said Carolina National Bank, of Columbia, South Carolina, and to the said Central National Bank, of Columbia, South Carolina, directing, commanding and enjoining them not to pay out any of said moneys held by them and each of them, respectively, upon the check or cheeks signed by the said F.L. Governor; and, also, an injunction directed to the said F.L. Cardozo, directing, commanding and enjoining him not to sign any check or or checks drawn upon said banks or either of them, or upon the specific deposits above named, or any other public or State funds whatsoever as Treasurer of the State of South Carolina. THEODORE G. BARKER, Attorney for Plaintiff.

0008 7

STATE OF SOUTH CAROLINA,) County of Richland, ) Before me personally appeared W.H. Gibbes, who on oath says that the matters and facts stated in the foregoing complaint are true of his own knowledge, except as to such as are derived from information of others, and, as to such, deponent believes them to be true. W.H. GIBBES,

Sworn to before me at Columbia, in said State, this 8th day of December, A. D. 1876. W.H. LYLES Notary Public.

STATE OF SOUTH CAROLINA,) County of Richland. ) I hereby certify that on the 9th day of December, 1876, at ten minutes past 9 o'clock A.M., at his residence in the city of columbia, S.C. S.C., I served on the within named F.L. Cardozo, one of the defendants, a copy of the within injunction order, by delivering to him personally, and leaving the same with him, and at the same time I exhibited to him the within original order. J.E. DENT, S.R.C.

STATE OF SOUTH CAROLINA,) Court Common Pleas. County of Richland. )The State ex relatione William H. Wallace et al. vs. the Carolina National Bank, of Columbia, South Carolina, the Central National Bank, of Columbia, South Carolina, and F.L. Cardoza.

ORDER TO AMEND.

Upon motion of Thedore G. Barker, Plaintiffs Attorney, and after argument of counsel for the plaintiffs and defendants,

It is ordered, That the Plaintiffs have leave to file an amended complaint in this action, the amended complaint hereto annexed, and that a copy thereof be forthwith served upon the Defendants. R.B. CARPENTER. December 21, 1876.

0009 8

STATE OF SOUTH CAROLINA,) Court Common Pleas. County of Richland. ) The State of South Carolina ex relatione William H. Wallace, John Fisher, Owen Daly, James L. Orr and A.E. Hutchinson vs. the Carolina National Bank, of Columbia, South Carolina, the Central National Bank, of Columbia, South Carolina, and F.L. Cardozo.

The complaint of the State of South Carolina at the relation of William H. Wallace, John Fisher, Owen Daly, James L. Orr and A.E. Hutchinson, by leave of the Court first had and obtained, respectfully shows:

1. That the relators are citizens of the State of South Carolina and tax-payers thereof, who have paid taxes levied for or on account of the State, as specified in the first, sixth and the eighth Sections of the Act of the General Assembly of said State, passed and approved on the 22nd December, 1875, entitled “An Act to raise supplies for the fiscal year commencing November 1, 1875;“ and as such tax-payers and as citizens of said State are interested in the due and lawful appropriation, custody and disbursement of the proceeds of such taxes so levied.

2. That of the proceeds of the taxes so levied and deposited by the State Treasurer according to the provisions of Section nine of said Act, certain amounts of money were deposited in the Carolina National Bank, of Columbia, South Carolina, and certain other amounts in the Central National Bank, of Columbia, South Carolina, as depositaries of the public and State funds, said banks having been selected as banks of deposit for that purpose according to law.

3. That such sums of money were deposited in said banks by F.L. Cardozo, as the State Treasurer, and placed therein to the credit of the specific appropriations therein named; and such appropriations have been kept by such banks, respectively, exclusively separate, and subject to the checks of the State Treasurer, bearing upon their face the appropriations upon which they are drawn, which said checks are required by law to be subscribed by him as Treasurer and countersigned by the Governor.

0010 9

4. That of the proceeds of said taxes which were thus deposited in the Carolina National Bank, of Columbia, South Carolina there remain at the time of the filing of this complaint the following amounts, according to their several accounts, to wit: General account $771 50 Claims passed 30 92 Certain claims against the State 23,228 10 Certain unpaid appropriations 1,085 59 Deficiencies hsep>35 Free Schools 93 43 Interest, 1876 84 15 Legislative expenses 11 93 Past indebtness of State Penitentiary 39 95 Penal, Charitable and Educational Institutions 27 60 Public printing 10 52 ———- Amounting in all to the sum of $25,384 04 Twenty-five thousand three hundred and eighty four dollars and four cents.

5. That of the proceeds of said taxes, which were thus deposited in the Central National Bank, of Columbia, South Carolina, there remain, at the time of the filing of this complaint, the following amount, according to their several accounts, to wit: Deficiencies $130 00 Unpaid appropriations 18 00 Certain claims against the State 2,915 00 Free Schools 2,451 00 Public printing 97 00 Claims passed 1,683 00 Interest 281 00 Penal, Charitable and Educational Institutions 587 00 Certain unpaid appropriations 1,557 00 Past indebtedness State Penitentiary 27 00 Salaries, contingents, &c. 56 00 ————- Amounting in all to the sum of $10,602 00 Ten thousand six hundred and two dollars.

6. That the term of the said F.L. Cardozo as State Treasurer ended on the 3rd day of December, A.D. 1876, and the sureties on his official bond are not liable for acts done by his after said day, his said term having begun on the third day of December, A.D. 1872, the day on which the Governor 0011 10elect was installed in office, and the other State officers, elect in that year, entered upon the duties of their several offices.

7. That the said F.L. Cardoz, claiming to have been re-elected to the said office of State Treasurer at the general election in said State, held on the 7th day of November, 1876, and to have entered upon the performance of the duties of his said new term of office by reason of a pretended installation of David H. Chamberlain as Governor of the said State on the day of December, 1876, has make a pretended official bond, and upon the pretended approval thereof by the said Daniel H. Chamberlain has undertaken and threatens to undertake to exercise the functions of the said office of State Treasurer, and to receive and disburse the public moneys, and to draw and sign checks upon the public or State funds, notwithstanding that, as your relators aver, the said Daniel H. Chamberlain has never been installed as Governor of the said State, and no right or authority to receive, pass upon, or approve of such bond, the said Daniel H. Chamberlain not having been declared to have been elected the Governor of said state, and not having been installed as such Governor in accordance with the Constitution of the State, but on the contrary his said pretended installation having taken place in the following illegal and unauthorized manner, to wit:

On the 28th day of November, 1876, the day fixed by law for the convening of the General Assembly of said State, fifty-nine of the members elect of the House of Representatives of said State, and no more, not being a majority of the said House, and not being a quorum thereof, having, by force of arms, taken possession of the hall of the House of Representatives of said State, unlawfully assumed and pretended to organize themselves as such House of Representatives, and to elect as Speaker of such House one E.W.M. Mackey, pretending to act as Speaker aforesaid, and having unlawfully possessed himself of the returns of the election for Governor and Lieutenant-Governor, forwarded by the Managers of election in the several Counties of the State, to the Secretary of State, pursuant to law, in the presence of the said body 0012 11so pretending to be the House of Representatives, but remaining less than a quorum of said House, and of other persons claiming to be the Senate of said State, proceeded to open the said returns, and the said persons so assembled having resolved to count certain of the said returns, and to refuse to count certain others of the said returns, to wit: the returns from the Counties of Edgefield and Laurens, upon the returns so counted, the said E.W.M. Mackey then proceeded to declare that said D.H. Chamberlain had been elected Governor of the said State. And the said Daniel H. Chamberlain thereupon, colluding and conspiring with the said E.W.M. Mackey and the other persons so illegally assembled as aforesaid, having first taken a pretended oath of office in their presence, then and there pretended to take upon himself the office of Governor of said State.

8. That the lawful House of Representatives of the said State, (to wit, sixty-five of the members elect, being a majority of the whole number of one hundred and twenty-four constituting said House, and a lawful quorum thereof,) did duly convene in city of Columbia, on the said 28th day of November, 1876, to wit, in Carolina Hall in said city, having been forcibly excluded from the State House by the army of the United States, and having duly organized as the House of Representatives of said State elected as Speaker thereof William H. Wallace; and that said last named body is the only lawful House of Representatives of said State, and the said William H. Wallace is the only lawful Speaker of said House.

9. That the said F.L. Cardozo, even if elected to the said office of State Treasurer has not legally entered upon the performance of the duties thereof according to the Constitution State, and has filed no lawful bond as required by the laws of said State.

10. That the said defendants, The Carolina National Bank, of Columbia, South Carolina, have The Central National Bank, of Columbia, South Carolina, have, since said 3rd day of December, 1876, honored and paid the checks drawn upon the public or State State funds so deposited with them as aforesaid, signed by the said F.L. Cardozo as Treasurer, and countersigned by the said Daniel H. Chamberlain as Governor, 0013 12and threaten to continue to honor and pay such checks to the great detriment of the said State of South Carolina, and of the tax-payers and citizens thereof.

Wherefore, the plaintiff demands judgment, and prays that an injunction may issue from this honorable Court directed to the said the Carolina National Bank, of Columbia, South Carolina, and the said the Central National Bank, of Columbia, South Carolina, directing, commanding and enjoining them not to pay out any of said moneys held by them and each of them respectively upon the check or checks signed by the said F.L. Cardozo as Treasurer, and countersigned by D.H. Chamberlain as Governor; and, also, an injunction directed to the said F.L. Cardozo, directing, commanding and enjoining him not to sign any check or checks drawn upon said banks, or either of them, or upon the specific deposits above named, or any other public or State funds whatsoever, as Treasurer of the State of South Carolina. THEODORE G. BARKER, Attorney for Plaintiff.

STATE OF SOUTH CAROLINA,) Richland County. ) John Fisher, being duly sworn, makes oath that the fore-going complaint is true of his own knowledge, except as to matters stated on information and belief, and, as to such matters, he believes it to be true. J. FISHER.

Sworn to before me this 21st day of December, 1876. Julius H. Walker, Notary Public.

0014 13

STATE OF SOUTH CAROLINA,) Court Common Pleas. County of Richland. ) The State ex rel. William H. Wallace, John Fisher, Owen Daly, James L. Orr and A.E. Hutchinson vs. the Carolina National Bank, of Columbia, South Carolina, the Central National Bank, of Columbia, South Carolina, and F.L. Cardozo.

The answer of F.L. Cardozo to the complaint filed in the above entitled cause, shows:

1. That as to the allegations in the first paragraph of the complaint this defendant says, that he admits that the complainants are citizens and tax-payers of the State of South Carolina, and the further allegations therein, as to the levy and collection of taxes, pursuant to the Act of December 22, 1875; but this defendant denies that the complainants, as such citizens and tax-payers, have any special or personal interest in the due and lawful appropriation, custody and disbursement of said taxes levied and collected.

This defendant avers: That they have not any right, title or interest in said funds, or claim thereon, or demand against the State to be paid or discharged therefrom or thereby. That said fund has been and is duly set apart and specifically appropriated by law, and is in the custody of the law for several specific and specified purposes, and the same cannot be diverted lawfully to any other purposes.

2. That this defendant admits the facts stated in the second paragraph of the complaint.

3. That this defendant admits the facts stated in the third paragraph of the complaint.

4. That this defendant admits the fac 1876, and subsequently, to wit, on the 22nd day of November, 1876, was duly declared, by the Board of State Canvassers, elected to said office. That subsequently to said declaration by said Board of State Canvassers of this defendant's election, to wit, December 12, 1876, this defendant was duly commissioned to fill said office of State Treasurer, having taken the oath of office and given the bond required by law. This defendant admits that he has drawn checks upon the public funds deposited in the banks mentioned, as he had a lawful right to do, to pay and discharge the legal and just obligations of the State pursuant to appropriations made by law. This defendant denies that said banks have honored said checks drawn by him to the injury and detriment of the State of South Carolina or of the citizens and tax-payers thereof.

8. That as to the allegations contained in paragraph eight of the complaint this defendant says that he denies the same, except in so far as the same is hereinafter admitted.

That Daniel H. Chamberlain was duly elected Governor of the State of South Carolina on the 7th day of November, A.D. 1874, and, thereupon, on the first day of December, A.D. 1874, said Daniel H. Chamberlain was duly qualified and inaugurated and inducted into office as Governor, and he then duly entered upon and has since that time discharged the duties of the office of Governor of the State of South Carolina, and by the Constitution and laws of the State he was and is entitled to do until his successor is elected and qualified. That at the recent election, held on the 7th day of November, A.D. 1876, said Daniel H. Chamberlain was 0015 15a candidate for re-election to the office of Governor, and was voted for as such candidate, and subsequently was duly declared elected to said office pursuant to Section 4, Article III, of the Constitution.

That thereupon, subsequently, to wit, December 7, 1876, said Daniel H. Chamberlain was duly inaugurated as Governor of the State of South Carolina, taking the oath of office required by the Constitution of the State, and since his said inauguration said Daniel H. Chamberlain has been, and now is, in possession of the office of Governor of the State of South Carolina, and has been, and now is, exercising the functions and performing the duties thereof.

That no other person than himself, Daniel H. Chamberlain, was, at the recent election, duly chosen as the successor of him, said Daniel H. Chamberlain, as Governor of the State of South Carolina, and qualified as such, or assumed or pretended to be elected and qualified and qualified as such Governor. It is admitted that Benjamin I. Boone, Probate Judge for Richland County, in said State, an officer duly qualified by law to administer oaths, did administer the oath of office to said Daniel H. Chamberlain as governor of South Carolina.

And this defendant avers that said Benjamin I. Boone, Probate Judge, had lawful right to administer said oath, and that said Daniel H. Chamberlain had lawful right to take the same.

6. That this defendant denies the allegations contained in the ninth paragraph of the complaint, except as herein admitted. That, by virtue of his election and qualification as Governor, and induction into said office on December 1, 1874, and, by virtue of his election and qualification as Governor, and his induction into office on the 7th day of December, A.D. 1876, said Daniel H. Chamberlain held, and has held, since December 1, A.D. 1874, and now holds and exercises, the functions and duties of the office of Governor and has constitutional and lawful right to do so.

And this defendant says: That he, as State Treasure, as hereinbefore stated, has lawful right to do so, and perform all the functions of said office, and, among others, to draw checks upon the public moneys of the State deposited in the banks 0016 16designated according to law, pursuant to appropriations made by the General Assembly of the State, and he is now and is intending to continue to draw side checks.

That said D.H. Chamberlain, Governor as aforesaid, pursuant to the laws of South Carolina, is authorized and required to endorse the checks drawn by this defendant pursuant to law, upon said public moneys deposited in said banks. And this defendant denies that said checks so drawn upon said public funds are to the injury of the complainants or of the people of South Carolina, but, on the contrary, that they are in pursuance of law and for the benefit of the people of South Carolina, and that to neglect to draw them would be gross dereliction of duty, and to the injury of the people of South Carolina.

And for a defense to this action this defendant says: That the right of himself to hold the office and exercise the duties of State Treasurer cannot be inquired into in this form of proceeding, or in any manner, at the suit of the complainants, and if his right to hold said office or to perform the duties thereof is to be inquired into it must be done by action and at the suit of the party claiming the same as against this defendant.

That the complainants have no right in this Court in this form of action to inquire into the right of Daniel H. Chamberlain to hold the office of Governor and perform the functions and duties thereof. That if his right to hold said office is to be inquired into at all it can only be by the General Assembly of the State of South Carolina in the manner and form provided by the Constitution and laws of the State.

That this Court has no power, authority or jurisdiction to issue the injunction prayed for in the complaint, as the checks drawn and endorsed and to be drawn and endorsed by the said F. L. Cardozo as Treasurer, and said Daniel H. Chamberlain as Governor, are and will be drawn and endorsed according to the statute law of the State and such cannot be enjoined by any Court.

That the complainants have no authority to prosecute this action in the name of the State of South Carolina.

0017 17

That if any such action could or can be maintained, which is denied, it can only be at the instance of the Attorney-General informing on behalf of the State of South Carolina. F.L. CARDOZO.

By leave of Court answer amended so as to make the bond referred to of defendant, F. L. Cardozo, or a copy thereof an exhibit to this answer. It is appended and marked.

The State ex rel. William H. Wallace et al. vs. The Carolina National Bank et al.

Now comes the defendant, F. L. Cardozo, and by leave of the Court amends his answer filed in the above entitled cause by striking out the words “Probate Judge,” as descriptive of Benjamin I. Boone, on page 7 of the answer, and inserting in lieu thereof the words “Notary Public for State of South Carolina.” D.T. CORBIN, Counsel.

Personally appears F.L. Cardozo, who, being duly sworn, says, that the amended answer in said cause in true according to his best knowledge, information and belief. F.L. CARDOZO.

Subscribed and sworn to before me, this 14th of December, 1876. R.B. Carpenter.

STATE OF SOUTH CAROLINA, ) Richland County. ) Personally appears F.L. Cardozo, and being duly sworn, says that the foregoing answer by him subscribed is true according to his best knowledge, information and belief. F.L. CARDOZO.

Before me, this 13th day of December, A.D. 1876. J.E. Hagood, Notary Public for South Carolina.

0018 18

STATE OF SOUTH CAROLINA,) Court Common Pleas. County of Richland. ) The State ex relatione William H. Wallace et al. vs. the Carolina National Bank, of Columbia, South Carolina, the Central National Bank, of Columbia, South Carolina, and F.L. Cardozo.

The motion is for a temporary injunction forbidding the defendants, the Carolina National Bank, of Columbia, South Carolina, and the Central National Bank, of Columbia, South Carolina, a depositories of certain public or State funds, from paying checks drawn upon such funds by their co-defendant, F.L. Cardozo as State Treasurer, and forbidding the said Cardozo from drawing checks upon the funds so deposited, or upon any other public or State funds whatsoever.

Upon the filing of the complaint, on the 8th of December last, an order was made requiring the defendants to show cause before me, on the 13th of December following, why such temporary injunction should not be granted. At the hearing the defendant, Cardozo, appeared and filed his answer to the complaint, and the original complaint and answer having then been amended by leave of the Court, so as to assume their present shape, the motion was argued and submitted for decision upon the amended pleadings. The allegations of the complaint as amended, in so far as they are material to the issues presented upon this motion, are in substance as follows: The relators aver that they are citizens and tax-payers of the State, who have paid their taxes levied under the provisions of an Act to raise supplies for the fiscal year commencing November 1, 1875, that a portion of the proceeds of this tax is now on deposit in the above banks, subject to the checks of the State Treasurer countersigned by the Governor of the State; that the defendant Cardozo entered upon a term of office as State Treasurer on the third day of December, 1872, when the Governor elect in that year was installed, but that this term expired on the third day of 0019 19December, 1876, and that the sureties upon his official bond became on that day absolved from all further liability on account of his acts; that said Cardozo, claiming to have been re-elected to the office of State Treasurer on November 7, 1876, and to have entered upon the performance of the duties of a new term of office by reason of the installation of Daniel H. Chamberlain as Governor of the State on the 7th of December, 1876, has executed a bond purporting to be an official bond for said office, and upon the approval thereof by said Daniel H. Chamberlain, has undertaken to exercise the functions of State Treasurer, whereas the relators aver that said Daniel H. Chamberlain has never been installed, not having been declared to have been elected Governor, and not having been installed in said office in accordance with the Constitution of the State. The complaint then set forth the particular manner in which the said alleged declaration of election and installation took place, alleging in substance that on the 28th of November, 1876, the day fixed by law for the convening of the General Assembly of said State, fifty-nine of the members elect of the House of Representatives, took forcible possession of the Hall of said House, and assumed to organize themselves as the House of Representatives of the State, and to elect E.W. Mackey as the Speaker of said House; that the said E.W.M. Mackey, having possessed himself of the election returns for Governor of the State, proceeded to open said returns in the presence of said body assuming to be the House of Representatives, and the Senate of the State, and the persons so assembled having resolved to count certain of the said returns, and to refuse to count certain others,—upon the returns so counted the said Mackey then proceeded to declare that D.H. Chamberlain had been elected Governor of the State; and that said Daniel H. Chamberlain having taken an oath of office in presence of said bodies, then and there and in that manner assumed to have been installed as Governor of said State. The complaint alleges that since said third of December the said banks have paid, and threaten to continue to pay, checks drawn upon said deposits by the defendant F.L. Cardozo, and that said F.L. Cardozo has drawn, and threatens to continued to draw, such checks, and a final injunction is prayed forbidding the acts 0020 20complained of. The answer does not deny any of these allegations of the complaint, so far as where matters of fact are concerned, but sets up a variety of grounds of defense to the action. These may be briefly stated as follows:

1. That the relators have no interest in the relief sought, and, in capacity as citizens and tax-payers, to maintain the action.

2. That the first term of office of said F.L. Cardozo, admitted to have commenced on the third day of December, 1872, did not expire on the third of December, 1876, but continued until his successor is elected and qualified.

3. That said F.L. Cardozo was duly elected to the office of State Treasurer on the seventh of November, 1876, and has since qualified and given the bond required by law.

4. That the right of said F.L. Cardozo to hold the office and exercise the duties of State Treasurer cannot be collaterally inquired into in this form of proceeding.

5. That the Court has no power or authority to inquire into the right of Daniel H. Chamberlain to hold the office of Governor, such power residing in the General Assembly alone.

6. That the relators have no authority to prosecute an action in the name of the State, such an action being maintainable, if at all only in the name of the attorney informing on behalf of the State.

Of these defenses the first and sixth raise objections to the competency of the relators to maintain the action; the fourth and fifth are directed to the jurisdiction of the Court, while the second and third are properly upon the merits. They will be considered in a different order from that in which they appear in the answer, giving precedence to those which raise preliminary questions as to the parties and the jurisdiction of the Court. Objections to the capacity of the plaintiff to bring and maintain an action, where the objection is based upon the grounds appearing upon the face of the complaint, should be taken by demurrer. Failure to demur is considered a waiver such objection. This I understand to be the proper construction of Sections 167 and 171 of the Code of Procedure. But irrespective of the form in which these objections are presented, I cannot consider them well taken. 0021 21The first ground, as stated in the answer, seems to proceed upon the theory that where taxes have been actually collected and appropriated by law the citizens and tax-payers of the State have lost all interest in their safe custody and lawful disbursement. I cannot assent to this doctrine. Public funds, until actually applied to the purposes for which they may be appriated, must remain the property of the public; and to whomsoever their custody may be entrusted until so applied they are held in trust for the people, every citizen of the State has a direct interest in the faithful and lawful administration of the public funds, and especially does this apply to these citizens who as tax-payers would be compelled to bear the burden of any unlawful administration. (High on Injuctions, Secs. 747, 804.) The objection that the action, if maintainable at all, can only be maintained by the Attorney-General informing on behalf of the State is in the face of the long established practice in this State. Such actions are usually brought with the consent of the Attorney-General, but the consent is formal, and if refused, the Court may dispense with it. The complaint here makes the formal allegation that the action is brought by leave of the Court. It is not necessary that the Attorney-General should be a party to the action.

I shall next consider the fourth and fifth grounds of defense, which call into question the jurisdiction of the Court. As to the fourth ground, it is undoubtedly a general rule of law that courts of justice will not try the right of right to office of a de facto incumbent of a public office in a collateral proceeding. But does the case made by the complaint contravene this rule? The plaintiffs complain that the defendant, F.L. Cardozo, is drawing and disbursing public funds as the Treasurer of the State without the official bond, which the law requires as a condition precedent to the performance of any of the duties of his office. This I understand to be the scope of the complaint. The question whether the facts stated warrant the conclusion that no valid official bond exists under which the people might find a remedy for any wrongful acts on the part of Mr. Cardozo will be hereafter considered. The only question now is whether this Court has jurisdiction in a proper case to intervene at the instance of 0022 22the citizens and tax-payers of the State for the purpose of inquiring into the existence of this safeguard, which is the law declares to be essential to the protection of their rights, and, in its absence, to interpose its process for the protection of these rights. I cannot doubt that the power to entertain such an action and to grant the appropriate relief is within the ordinary jurisdiction of a Court of Equity. The investigation in such cases is not intended to impeach the right to office. It is in no proper sense a trial of the right to office in a collateral proceeding. It is a direct proceeding, founded upon an attempt to exercise the functions of an office in an unlawful manner, and the aid of a court of equity is sought to prevent irremediable mischief, ecause no other adequate remedy exists. So far as the other ground of objection to the jurisdiction of the Court (the fifth) is concerned it is a sufficient answer that this action does not involve an inquiry in “the right of Daniel H. Chamberlain to hold the office of Governor, and perform the functions and duties thereof.” Article III, Section 2, of the Constitution of the State fixes the commencement of the term of office of the State Treasurer as the day upon which the Governor is “installed,” and as the defendant Cardozo claims to have entered upon a term of office by reason of the installation of Daniel H. Chamberlain as Governor, while the plaintiffs deny that such installation has taken place, it becomes necessary to settle certain disputed questions concerning this alleged installation, but the inquiry is made not to adjudge the right to office of Daniel H. Chamberlain, who is not a party to the action, and whose official acts are not in question, but as an incidental inquiry for the purpose of ascertaining whether the term of office, the commencement of which is made by the Constitution contemporaneous with the installation of the Governor, has in fact begun or not. I have now properly come to the consideration of the second and third grounds of defense which go to the merits of the action. The first of these grounds is that the defendant F.L. Cardozo holds the office of State Treasurer by virtue of a term of office which began on the third of December, 1872, and which it is claimed does not expire until his successor has duly qualified.

0023 23

The Constituton fixes the time of office of the State Treasurer, with other officers of State, both as to the duration and the time of its commencement. Article III, Section 23, prescribes the duration of the term: “There shall be elected by the qualified voters of the State, a Comptroller-General, a Treasurer and a Secretary of State, who shall hold their respective offices for the term of four years, and whose duties and compensation shall be provided by law,” and Section 2, of the same Article, fixes the time of its commencement: “The Governor shall be elected by the electors duly qualified to vote for members of the House of Representatives, and shall hold his office for two years and until his successor shall be chosen and qualified, and shall be re eligible; he shall be elected at the first general election held under this Constitution for members of the General Assembly, and at each general election thereafter, and shall be installed during the first session of said General Assembly after his election, on such day as shall be provided for by law. The other State officers elect shall, at the same time, enter upon the performance of their duties.” It seems to have been the intention of this Section of the Constitution that a day should be provided by law for the installation of the successive Governors of the State, so that the terms of office of the several State officers elect might begin, and those of their predecessors expire, on the same day. No such provision of law, however, has been made, the General Assembly having adopted the very questionable practice of providing for the installation of the Governor elect by joint resolution of the Houses. Both sides here admit that the term of office prescribed by Section 23 does not begin until the officer elected has “entered upon the performance of his duties,” under Section 2, and that the first term of office of the defendant, Cardozo, did so begin on the 3rd day of December, 1872. But it is claimed on the part of the plaintiff that this term ceased absolutely on the expiration of the four years prescribed by the Constitution, i.e.: on the 3rd of December, 1876; while the defendant contends that the Constitutional provision should be so construed as to continue the office, if necessary, beyond the four years, if at the end of that time a successor has not been chosen and qualified. The construction contended for by the defendant 0024 24would be in effect to add to the express provision of Section 23, fixing the duration of the term at four years, the words “and until a successor shall have been chosen and qualified.” This would not be to construe, but to amend the Constitution. The Courts, as well as other departments, must regard the organic law as supreme and paramount; each of its provisions as a mandate, and each officer takes a solemn oath to protect, support and defend them all. In reference to the more important office of Governor, the Constitution carefully adds to the limitation of his term the very words, “and until his successor shall have been chosen and qualified.” So that it would seem that a like qualifying clause was purposely omitted in Section 23. but it is sufficient that the Constitutional provision as it stands is perfectly plain and express. The term of office is limited by the Constitution to four years, and nothing but an amendment of that instrument by the people can legally extend it one day beyond the expiration of these four years. Mr. Cardozo's term of office, therefore, which began on the 3rd of December, 1872, expired on the 3rd day of December, 1876. And as a legal consequence of the expiration of the term of office the sureties upon his official bond ceased to be liable for his acts. 12 Wheat., 509.

The next and last ground of defense to be considered is the main defense to the merits set up by the defendant. This is that the defendant, Cardozo, is in the lawful exercise of the functions of the office of State Treasurer, by virtue of his election to the office on the 7th of November, 1876, having qualified and entered upon the performance of the duties of said office on the 7th of December, 1876, whereas he alleges Daniel II. Chamberlain was installed as Governor, and having filed the bond required by law on the 12th day of December following, Mr. Cardozo's election to the office of State Treasurer is not called into question in this action, and the real and only issue in dispute here relates to the alleged installation of Daniel II. Chamberlain, as Governor of the State, on the 7th of December, 1876. Upon the decision of this question depends, under Section 2, Article III, of the Constitution, the commencement of Mr. Cardozo's term of office, and the consequent validity of the bond he has filed. Article III, Section 4, of the Constitution, provides: 0025 25“The returns of every election of Governor shall be sealed by the Managers' of Election, in their respective Counties, and transmitted by mail 'o the seat of Government, directed to the Secretary of State, who shall deliver them to the Speaker of the House of Representatives at the next ensuing session of the General Assembly, and a duplicate of said returns shall be filed with the Clerk of the Court of said Counties, whose duty it shall be to forward to the Secretary of State certified copies thereof, upon being notified that the returns previously forwarded by mail have not been received at his office. * * * * * * * The Secretary of State shall deliver the returns to the Speaker of the House of Representatives at the next ensuing session of the General Assembly, and during the first week of the session, or as soon as the General Assembly shall have organized by the election of the presiding officers of the two Houses, the Speaker shall open and Publish them in the presence of both Houses. The person having the highest number of votes shall be Governor; but if two or more shall be equal and highest in votes, the General Assembly shall, during the same session, in the House of Representatives, choose one of these Governor viva voce. Contested elections for Governor shall be determined by the General Assembly in such manner as shall be prescribed by law.” The installation of the Governor referred to in Section 2 of the said Article, obviously means the formal induction into office of the person ascertained to have been elected, or failing an election by the people, who shall be chosen by the General Assembly, pursuant to the provisions of the Section just quoted. A person not so ascertained to have been elected, and so chosen by the General Assembly, could not be installed as Governor under the Constitution. The facts upon which the defendant founds his claim that Daniel H. Chamberlain has been installed as the Governor of the State are set forth with particularity in the complaint, and not controverted by the answer, and the grave question here presented for the decision of the Court is whether these facts established, within the meaning of the Constitution, at installation of the Governor of the State. It appears from the pleadings that on the day fixed by law for the General 0026 26Assembly to convene (November 28,1876,) certain members elect of the House of Representatives to the number of fifty-nine-that is, less than a majority of the whole number of one hundred and twenty-four, of which the Constitution (Article II, Section 4,) declares that said House shall consist-assumed to organize themselves as the House of Representatives of the State, and to elect E.W.M. Mackey as the Speaker of said House; that thereupon the said Mackey, having obtained possession of the returns of the election for Governor, proceeded on the fifth day of December, 1876, to open the said returns in the presence of the body assuming to be the House of Representatives, and the Senate of the State, and the Assembly so constituted having resolved to count certain of said returns, and not to count others, upon the returns so counted the said E.W.M. Mackey then declared that Daniel H. Chamberlain had been elected Governor of the State, and that upon this declaration being made, Daniel H. Chamberlain, on the seventh day of the same month, took an oath of office in the presence of said Assembly, and assumed thus to have been installed as Governor of the State. As respects the legal character of the body which claimed to act as the House of Representatives in the proceeding above described, and as respects E.W.H. Mackey's title to the office of Speaker of said House, the questions have been decided by the Supreme Court of the State in the case of The State ex relatione W.H. Wallace against H.E. Hayne, Secretary of State, and E.W.M. Mackey.

The issue in that case arose upon an application by Wallace, as Speaker of the House of Representatives, for a writ of Mandamus to compel the delivery to him of the returns of the election for Governor and Lieutenant Governor. The Court unanimously decided that William H. Wallace was the lawful Speaker; that the body over which he presided was the lawful and constitutional House of Representatives; that the body over which Mackey presided was illegal, in defiance of law, and its acts null and void.

It is true that the authority of this decision has been questioned by the learned counsel for the defendant, on the ground that the order passed by the Court in that case might have been made without pronouncing upon these issues. The 0027 27force of this objection is not perceptible. The legality of the Mackey House was directly in question upon the record, and was distinctly involved in the decision that Wallace was the lawful Speaker of the legal House of Representatives, and the granting or refusal of the particular relief asked in no way detracts from the authority of the decision.

When, in a case of great public importance, a decision is made by the highest judicial tribunal of State, I do not think it would become me to seek to avoid the force of the authority by over nice discrimination as to the necessity of the particular decision in view of the order actually made in the case. The decision is authority for all inferior courts, and I accept it as law, and shall follow it. (I Cranch, 137; 4 Hill, 324; 6 Vesey, Jr., 514; 5 How., 308; 5 S.C, new series, 126.) The body then which assumed to act as the House of Representatives, when the proceeding above referred to took place, resulting in the declaration by E.W.M. Mackey that Daniel H. Chamberlain had been elected Governor, and the alleged installation thereupon of said Daniel H. Chamberlain, not being the lawful House of Representatives, but an assembly of private persons, and the said Mackey having no title to the office of Speaker, but being also a “private person,” the proceeding itself cannot be recognized by the Court as having any legal force or effect whatsoever. If private persons can assume to themselves the highest and most responsible functions vested by the Constitution in the representatives of the people, and give color of authority to their acts constitutional government is at an end. The people of the State, in the exercise of their sovereign right, have framed a Constitution to stand as an immutable character of the liberties of the citizen, and as limitations upon the powers of the government. If powers delegated in that instrument to the immediate representatives of the people can be usurped by strangers to this constitutional grant, such usurpation can only gain sanction by the overthrow of the Constitution itself. While the Constitution remains in force and binding upon the courts, no court of Justice can give it recognition. I hold, therefore, that the whole of said proceeding ending in the alleged installation of Daniel H. Chamberlain as Governor of the State was without constitutional 0028 28warrant, null and void, and that said Daniel H. Chamberlain has not been installed as Governor of the State within the meaning of Section 2, Article III, of the Constitution. It follows, necessarily, that the term of office of the defendant F.L. Cardozo, assuming him to have been properly elected on the seventh day of November, 1876, has not yet commenced. The bond which he has made, if otherwise sufficient, can at the utmost bind his sureties to the extent of acts done by him during his term of office, and hence can have no legal efficacy until that term has begun. (United States vs. Eckford's Executors; 1 How, 250.) I have already decided that the attempt of the said defendant to deal with public funds without legal bond for the protection of the public, as required by law, affords a proper ground for the interference of a Court of Equity. I shall, therefore, grant the motion for a temporary injunction.

In conformity with the foregoing opinion it is ordered, That until final decree shall have been entered in this action or the further order of this Court, the defendants, the Carolina National Bank, of Columbia, South Carolina, and the Central National Bank, of Columbia, South Carolina, be, and they and each of them, their officers and agents are hereby, enjoined and restrained from paying out any of the moneys held by them or either of them as depositories of the public or State funds on the check or checks drawn by the said F.L. Cardozo as State Treasurer, and that the said F.L. Cardozo be, and he is hereby, enjoined and restrained from signing or drawing any check or checks upon said banks, or either of them, or upon the specific deposits afore-said, or upon any other public or State funds whatsoever, as Treasurer of the State of South Carolina.

The plaintiffs, or some of them, are required to give bond with one or more good securities in the sum of one thousand dollars, conditioned according to law, within fifteen days, said bond to be approved by the Clerk of this Court. R.B. CARPENTER. February 6, 1877. Filed 6th February, 1877. D.B. Miller, C.C.P.

0029 29

STATE OF SOUTH CAROLINA,) Court Common Pleas. County of Richland. ) The State ex relatione W.H. Wallace, et. al vs. the Carolina National Bank, of Columbia, South Carolina, and the Central National Bank, of Columbia, South Carolina, and F.L. Cardozo.

Whereas a temporary order of injunction was granted in the above entitled action on the 6th day of February, 1877, and by the said order the said plaintiffs, or some of them, are required to give bond as by said order, reference being had thereunto will particularly appear.

Now, therefore, pursuant to the order aforesaid, we, J. Fisher, Owen Daly and Edwin J. Scott do hereby undertake that the said plaintiffs herein mentioned will pay to the said defendants such damages, not to exceed the sum of one thousand dollars, as they may sustain by reason of the injunction, if the Court shall finally decide that the plaintiffs are not entitled thereto.

Witness our hands and seals this 13th day of February, 1877. J. FISHER, [l.s.] OWEN DALY, [l.s.] EDWIN J. SCOTT. [l.s.]

Signed, sealed and delivered in the presence of John Scoffin. Filed February 13, 1877. D.B. Miller, C.C.P.

0030 30

STATE OF SOUTH CAROLINA,) Court Common Pleas. County of Richland. ) The State of South Carolina ex relatione William H. Wallace et al. vs. the Carolina National Bank, of Columbia, South Carolina, the Central National Bank, of Columbia, South Carolina, and F.L. Cardozo.

Please take notice that the defendant, F. L. Cardozo, appeals to the Supreme Court of South Carolina from the judgment and order of the Hon. R. B. Carpenter, Judge of the Fifth Judicial Circuit, filed in the office of the Clerk of the Court of Common Pleas for Richland County, on the 6th day of February, 1877. B. ELLIOTT, Attorney-General, Defendants' Attorney.

To Theodore G. Barker, Esq., Plaintiffs' Attorney, and D. B. Miller, Esq., Clerk of the Court of Common Pleas for Richland County. Filed February 7, 1877. D.B. Miller, C.C.P.

0031 31

STATE OF SOUTH CAROLINA,) County of Richland. ) I, D.B. Miller, Clerk of the Court of Common Pleas in and for the County aforesaid, do certify that the foregoing pages contain a true copy of the record in the case of the State ex rel. William H. Wallace et al vs. the Carolina National Bank, of Columbia, S.C., the Central National Bank, of Columbia, S.C., and F.L. Cardozo, as will appear by reference to the original thereof remaining on file in my office.

In testimony whereof I have hereunto set by hand and [L. S.] affixed the seal of the said Court this 14th day of February, A.D. 1877. D.B. MILLER, C.C.P.