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STATE v. STOLL.

October 1, 1873

STATE
v.
STOLL.



ERROR to the Supreme Court of the State of South Carolina; the case being thus: Between the years 1801 and 1812 the legislature of South Carolina incorporated five banks, viz., the Bank of South Carolina, in 1801; the State Bank of South Carolina, in 1802; the Union Bank, and the Planters' and Mechanics' Bank, in 1810, and 'the President and Directors of the Bank of South Carolina,' called for brevity THE BANK OF THE STATE OF SOUTH CAROLINA, and sometimes THE BANK OF THE STATE, in 1812. The preamble to the act of incorporation of this last-named bank set forth that 'it is deemed expedient and beneficial to the State and the citizens thereof to establish a bank on the funds of the State, for the purpose of discounting paper and making loans for longer periods than has heretofore been customary, and on security different from what has hitherto been required.' The charter then declared that certain stocks, which were designated, should constitute and form the capital of the said bank, and be vested in the president and directors, who should be appointed in a manner there provided, and then adds: 'And the faith of the State is hereby pledged for the support of the said bank, and to supply any deficiency in the funds specially pledged, and to make good all losses arising from such deficiency.' The sixteenth section of the charter to this bank provided, as did also the same section in the charters of the four other banks above referred to, as incorporated in previous years, 'That the bills or notes of the said corporation, originally made payable, or which shall have become payable, on demand, in gold or silver coin, shall be receivable at the treasury of this State, and by all tax collectors and other public officers, in all payments for taxes or other moneys due to the State.' In 1832 the bank last named (the Bank of the State), and of which we are principally to speak, was rechartered by an enactment, 'That an act entitled an act to establish a bank in behalf of, and for the benefit of the State, passed on the 19th December, in the year of our Lord 1812, and all other acts now of force relating to the conduct and operations of the said bank, be, and they are hereby, re-enacted and continued of force until the 1st May, 1856.' In 1852 the charter was again renewed in these terms: 'That from and after the expiration of the present charter of the Bank of the State of South Carolina, the same shall be, and is hereby extended until the 1st of January, which will be in the year of our Lord, 1871.' So the charters of the four other banks were at different times extended, and among the times of the first two in 1822 and 1833; and of the last two in 1830; and in all these extensions or recharters the privileges of the sixteenth section of making the notes receivable in payment of taxes, irrespectively of the fact whether the notes were redeemable in specie, were retained. We speak hereafter of a recharter of these four banks in 1852 and 1853, when these privileges were not retained. In 1857, in the act to raise supplies for the year commencing in October, 1857, it is provided: 'That the comptroller-general shall direct the tax collectors and treasurers to receive the taxes and other dues to the State only in notes of the Bank of the State, OR of specie-paying banks of this State, or in coin of the United States.' In 1865 the legislature declared, that the branches and agencies of the Bank of the State of South Carolina should be closed, and the principal bank in Charleston cease to be a bank of issue, and continue to act as a bank of deposit until further orders of the legislature. In 1868 the legislature passed an act to close the operations of the bank; and by the fourth section of the act enacted 'that the sixteenth section of the act, ratified the 19th December, 1812, entitled 'An act to establish, a bank on behalf of and for the benefit of the State,' and all acts and parts of acts which render the bills of said corporation receivable in payment of taxes and all other dues to the State, be, and the same are hereby repealed.' In the year 1843, that is to say, before the date of the second recharter above mentioned of the Bank of the State, the legislature passed an act 'prescribing the duties of certain officers in the collection of supplies, payment of salaries, and for other purposes,' and the first section of this act enacted, 'That all taxes for the use and service of the State shall be paid in specie, 'paper medium,'*fn1 or the notes of specie-paying banks.' This was a permanent act. But in all previous years, with the exception of the year 1837, of which we speak directly, as far back at least as 1826, the same enactment had been introduced into each annual appropriation bill as a special enactment. In 1837, in which year there was a general suspension of specie payments throughout the United States, the enactment was:*fn2 'That the taxes be paid in specie . . . or the bills of the banks of the State. And if any bank shall in the opinion of the comptroller-general become unsafe, it shall be his duty to order their reception to be discontinued by the tax collectors.' So far as regards the Bank of the State of South Carolina and the four other banks named in connection with it. We now pass to certain banks incorporated in years of later date. Between the year 1831 and the year 1836, seven of these banks were incorporated by the State, to wit: the Commercial Bank of Columbia, in 1831; the Merchants' Bank for South Carolina at Cheraw, in 1833; the Bank of Charleston, in 1834; the Bank of Camden, in 1835; the Bank of Hamburg, in the same year; the Bank of Georgetown, and the Southwestern Railroad Bank, in 1836. Except in the case of the one last named, the charters of each of these banks contained a section in the words following, viz.:

The opinion of the court was delivered by: 'The bills or notes of the said corporation, originally made payable on demand, or which shall have become payable, in gold or silver, current coin, shall be receivable by the treasurers, tax collectors, solicitors, and other public officers, in all payments for taxes, or other moneys due to the State, so long as the said bank shall pay gold and silver, current coin, for their notes; but whenever there shall be a protest on any of the bills or notes of the said bank for non-payment of specie, the comptroller-general shall be authorized, and he is hereby required, to countermand the receipt of the bills and notes of the said bank in payment of taxes or debts due to the State, unless good and satisfactory cause shall be shown him, by the said corporation, for protesting in a court of justice the payment thereof.'

The charter of the remaining bank was to the same effect, omitting the direction to the comptroller-general and his action thereon.

Reverting now to the five earlier banks and to recharters of them, the reader will remember that in the recharters of the Bank of the State of South Carolina, made, first in 1832 and again in 1852, 'the same,' the old charter of 1812–including, of course, the sixteenth section–was continued. And that the same thing was true of the four other banks, so far as related to their recharters as made in 1822, 1830, and 1833. But while in regard to the Bank of the State of South Carolina, no variation was made on the old charter during the active existence of the bank, nor until the legislature in 1868 passed the act to close its operations, the same was not true of the other four early banks which we have spoken of chiefly in connection with it. A variation was finally made on them. And when, after their recharters of 1822, 1830, and 1833, they were again rechartered in 1852 and 1853, the old sixteenth section was not re-enacted in regard to them, but they were made subject to the last above-quoted restriction of the later banks; the banks, namely, incorporated between the years 1831 and 1836.

In this condition of State legislation, one Wagner, who was indebted to the State for taxes for the year 1870, tendered to a certain Stoll, a collector of taxes, whose duty it was to collect and receive such taxes, in payment of his taxes, bills of the already mentioned 'the President and Directors of the Bank of the State of South Carolina,' or as more briefly called the Bank of the State of South Carolina, or Bank of the State. The bills were issued after December 20th, 1860, though not in aid of the rebellion. At the time of their presentation the bank did not redeem its notes in specie. The officer refused to receive them, and Wagner presented his petition to the court below for a mandamus to compel him to receive the same.

The question in the case was the nature and extent of the obligation of the contract which, under the sixteenth section of the charter of the Bank of the State, arose between the State of South Carolina and the holder of bills of the bank to receive the bills in payment of taxes due the State.

It was asserted by Stoll, the tax collector, that the sixteenth section of the charter of the bank had been repealed or so far modified by the act passed in 1843–enacting*fn3 that 'all taxes for the use and service of the State shall be paid in specie, paper medium, or the notes of specie-paying banks of this State'–that thereafter the bills of the bank in question were not receivable for taxes due to the State, unless the bank was in fact at the time the taxes became payable a bank that redeemed its notes in specie; the argument being that although by this sixteenth section of the charter of the bank the receivability of its notes in payment of taxes or other moneys due to the State, was guaranteed, whether they were or were not in fact redeemed in coin when presented for payment; yet that the act of 1843 prohibited the receipt in payment of taxes of the notes of any bank which did not in fact redeem its notes in specie when presented for payment, and that the latter act being inconsistent with the former effected its repeal or modification.

The Supreme Court of the State thought this argument sound, and adjudged that the tax collector of the State was not bound to receive them, and refused the mandamus.

To reverse that judgment this writ of error was taken. The case was twice argued: first at the last term, and now, again, much more fully at this.

Messrs. W. W. Boyce, A. G. Magrath, and B. R. Curtis, for the plaintiff in error; Mr. D. H. Chamberlain, contra.

Mr. Justice HUNT delivered the opinion of the court.

It is evident from a comparison of the different statutes incorporating the banks–1st, that as to all the banks, the statutory description of their notes to be received in payment of taxes, referred to the form of the notes, viz., those expressed upon their face to be payable in gold or silver, and which are originally or by lapse of time had become payable on demand, and not to the fact that specie was actually paid when the notes were presented for payment; and 2dly, that the legislature intended to provide that a different rule should be applied to the two classes of banks. In the case of the banks chartered between 1801 and 1812, it was simply provided that their bills should be received in payment of taxes and other moneys due to the State. In the case of those chartered between the years 1831 and 1836, it was provided that their bills should be thus receivable so long only as they should pay gold and silver, current coin, for their notes. The two classes of banks were thus confessedly placed upon a different basis, and so remained when the act of 1843 was passed.

To justify this court in holding that the act passed in that year repealed or modified the sixteenth section of the charter of the bank in question, it must appear that the later provision is certainly and clearly in hostility to the former. If, by any reasonable construction, the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part or wholly, as the case may be.*fn4 The principle is thus expressed in Daviess v. Fairbairn:*fn5 'If a subsequent statute be not repugnant in all of its provisions to a prior one, yet if the latter statute clearly intend to prescribe the only rule which shall govern, it repeals the prior one.'

Is it clear and certain that the act of 1843 was intended to prescribe the only rule to govern the receivability of bank notes, and that a different rule was not intended to be applied to the banks chartered before 1812, and those chartered after 1831? Were not the words 'the specie-paying banks,' in the act of 1843, intended as a description of the banks then in existence, and which then actually paid specie on their notes, as if the act had said 'all taxes . . . shall be paid in specie, . . . or the notes of the banks of the State now paying specie in conformity with their charter, to wit: the notes of the Bank of the State of South Carolina, the Union Bank, &c.?'

The statute-book shows that for many years prior to 1843, at each successive session, the legislature passed an annual supply bill, in which was regularly re-enacted the provision, that the taxes due to the State for that year should be paid in specie, paper medium (a currency now at an end), or in the notes of specie-paying banks. This was a temporary and annual act, and was enacted yearly at least as early as the year 1826, until and including the year 1842, with the exception of the year 1837. In the year 1837, it is said the banks were in a state of suspension, and the legislature enacted that the taxes should 'be paid in specie, . . . or the bills of the banks of the State, and if any bank shall, in the opinion of the ...


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