
    The State, Ex Rel. Edward Frost vs. John D. Ashmore, Compt. General.
    Tbe first section of the. Act of 1852, directs in certain contingencies, two subscriptions, of five hundred thousand dollars each, to the Blue Eidge Bailroad Company; and the fifth section directs that the whole subscription shall be paid in bonds, to be countersigned by the comptroller general, “which shall be payable in five instalments of two hundred thousand dollars each.” But one subscription of five hundred thousand dollars was taken, and the two first instalments of that were paid in bonds of two hundred thousand dollars each, but the last instalment of one hundred thousand dollars, the comptroller general refused to pay because he construed the Act to be imperative and to require each instalment to be for two hundred thousand dollars: — Held, that the comptroller general was wrong in his construction of the Act, and that the last instalment, though only for one hundred thousand dollars, should be paid.
    BEFORE MUNRO, J., AT CHAMBEES, CHARLESTON, JANUARY, 1857.
    Tbis was a motion for a rule to sbow canse wiry a writ of mandamus should not issue commanding tbe comptroller general, Jobn D. Ashmore, to countersign such bonds as may be requisite to pay the amount of the subscription of the State to tbe Blue Eidge Eailroad Company. The motion was founded upon affidavit as follows: ■
    The State op South Carolina,
    
      Charleston District.
    
    Personally appeared before me, Edward Erost, and'mates oath, that he is president of the Blue Eidge Eailroad Company in South Carolina, chartered by tbe State on tbe 16th day of December, A. D., 1852; that on the twenty-first day of December, one thousand eight hundred and fifty-four, an Act was passed by the general.assembly, entitled “an Act to authorize aid to the Blue Bidge Bailroad in South Carolina the first section of which provides, among other things, that “whenever satisfactory proof is produced to the comptroller general within two years after the passing of this Act, that one million of dollars has been subscribed by responsible persons or corporations to the capital stock of the Blue Bidge Bailroad Company in South Carolina, he is authorized and required to subscribe on behalf of the State, the sum of five hundred thousand dollarsthat on the 1st day of July, A. D., 1855, within the two years aforesaid, proof satisfactory to the comptroller general was produced, that the condition specified had been complied with, whereupon he subscribed the sum required by the legislature, to wit: five hundred thousand dollars, and took from the company certificates of such an amount of shares, as the State was entitled to by her said subscription; that the Act aforesaid, further provides by section fifth, as follows, to wit: “ That the governor of the State of South Carolina be, and is hereby authorized and directed in the name of the said State, to issue bonds to be countersigned by the comptroller general, not exceeding in all the sum of one million of dollars, which shall be payable in five instal-ments of two hundred thousand dollars each — the first instalment to be payable after the expiration of twenty years, ancl the remaining eight hundred thousand dollars in four equal annual successive instalments thereafter: Provided, That the governor and comptroller general may pay the aforesaid subscription in cash, or in the above bonds at par, as they shall deem best: Provided also, That the interest to be paid on such bonds shall not exceed the rate of six per centum per annum.”
    And by section sixth, the said Act farther provides as follows : “That whenever satisfactory proof shall be produced to the comptroller general, that the sum of two hundred thousand dollars has been paid in by the shareholders,, and expended in tbe construction of tbe road, be shall pay to tbe said company on bebalf of tbe State, a like sum of two hundred thousand dollars; and for every like sum so paid in, and expended by tbe shareholders, be shall pay to tbe company two hundred thousand dollars, and so on, until tbe whole subscription of one million dollars shall be exhausted.”
    That on the first day of July, A. D., 1855, satisfactory proof was produced to the comptroller general, that the sum of two hundred and fifty-seven thousand eight hundred and sixty-five dollars had been paid in by the shareholders, and expended in the construction of the road, and the comptroller general accordingly countersigned certain bonds of the State, issued under authority of the fifth section of the Act above recited, and paid over in said bonds at par two hundred thousand dollars of the amount subscribed by the State.
    That on the first day of January, A; D., 1856, satisfactory proof of the payment in and expenditure of the sum of four hundred and ten thousand nine hundred and fifty-three dollars and ninety-three cents was produced to the comptroller general, and bonds to the amount of two hundred thousand dollars more were countersigned and paid over by him. That, as appears from the statement of the treasurer of the company, hereto annexed, more than six hundred thousand dollars in all has been paid in by the shareholders of the company, and expended in construction of the said road. That affiant, as president of the said Blue Ridge Railroad Company, on the day of December, A. D., 1856, applied to the comptroller general, and requested that he would countersign and pay over to him for said Railroad Company, in behalf of the State, bonds to the amount of one hundred thousand dollars — that is, the residue of the subscription of -the State, remaining unpaid.
    That the said comptroller general altogether refused so to do, and still doth refuse, alleging that he is required to make payments in the sum of Tvjo hundred thousand dollars at a time, and that the whole balance of the subscription remaining due and unpaid, being only one Hundred thousand dollars, be is not authorized to countersign said bonds, or to pay them oyer to said company; that in reply to the last application made by letter from affiant, the said officer returns for answer the following letter:
    
      uAnderson, O. BT.¡ Dec. 25, 1856.
    “Hon. Edward Frost,
    
      President Blue Ridge Railroad.
    
    Dear Sir, — Yours of the 17th, postmarked 23rd inst., reached me to-day. It is dated, however, from Columbia, but bears the Charleston post-mark. This, I presume, accounts for the delay. As you request an early answer, I proceed to give it. I have had no causé or reason to change my opinion as to what is my duty in regard to the signing of the bonds for the remaining one hundred thousand, of the first five hundred thousand dollars subscription to the Blue Eidge Bailroad ; but on the contrary, have had it strengthened by a close examination of the Act granting aid to said company. The fourth section of that Act says, “ That the subscription shall be paid in the manner, and subject to the terms and conditions hereinafter expressed.”
    The fifth section, after providing for the issue of bonds in sums of Two hundred, thousand dollars each in five equal annual instalments, goes on to state, by way of proviso, “ That the governor and comptroller general may pay for the aforesaid subscriptions in cash, or in the above bonds at par, as they shall deem best.”
    The 6th sec. says, that “ Whenever satisfactory proof shall be produced,” &c., &c., “he” (the comptroller general) “shall pay to the said company, on behalf of the State, a like sum of two hundred thousand dollars; and for every like sum so paid in, and expended by the shareholders, he shall pay to the com
      pany two hundred thousand dollars, AND SO ON, until the whole subscription of one million dollars shall be exhausted.”
    
    [Tbe Italics are my own.]
    “In tbe fifth sec. provision is made for tbe payment of these bonds, (to tbe bond holders,) in sums of two hundred thousand dollars each, but there is no provision made for payment in sums of one hundred thousand dollars.
    “In every instance throughout the whole Act the word “shall” is used, which in my judgment is imperative; and again, in every instance where the amount of bonds to be issued, or subscriptions paid, is referred to, the sum of two hundred thousand, and not one hundred thousand dollars, (as you now ask for,) is used, or understood. This leaves no discretion to the comptroller general, in my opinion; and as I have read and understood the decisions of our judges ujeon statute law, a strict construction is to be placed upon the letter of the law.
    “I may be in error, and if so, I trust the court will correct me. For the reasons assigned, I shall decline signing the bonds for one hundred thousand dollars, until so ordered by the court.
    “ As I said to you in Columbia, I will waive all irregularities, accept the service of a mandamus left at my office, and enter no defence, beyond what is expressed in this, and desire with yourself a decision, and with as little delay as possible.
    “ That I may not be misunderstood, [and as I have said, shall not appear by counsel,] I ask the favor at your hands of laying the views herein expressed before the judge and court.
    “I am, &c., &e.,
    “J. D. ASHMOKE,
    “ Comptroller General”
    
    This refusal affiant verily believes to be contrary to the duty prescribed for said officer in the Act herein before referred to, construed according to its true meaning and intent, and is manifestly injurious to the interests of tbe company over which affiant presides.
    Affiant therefore applies for a writ of mandamus directed to the said J. D. Ashmore, comptroller general, requiring said bonds to be countersigned, to the amount of the State subscription still remaining unpaid'; and that the same be paid over in behalf of the State to affiant, as representative of the Blue Bidge Bailroad Company.
    EDWABD EBOST,
    
      President Blue Ridge Railroad Go., in South Carolina.
    
    Sworn to before me, this ninth day of January, A. D., 1857.
    Oh. BiohaRDSON Miles,
    
      Not. Pub. Ex-Offi. Magistrate.
    
    His Honor made the following order:
    “ Upon hearing the affidavit of Edward Frost, president of the Blue Bidge Bailroad Company, and representing said company, on motion of the attorney general, It is ordered, that J. D. Ashmore, comptroller general of the State of South Carolina, do appear before the Court of General Sessions and Common Pleas, to be holden at Charleston on the second Monday of January instant, to show cause .why a writ of mandamus should not issue against the said J. D. Ashmore, from the Court aforesaid, in behalf of the State, and in the name of the attorney general, commanding the said J. D. Ashmore, comptroller general, as aforesaid, to countersign such bonds of the State as may be requisite to pay the amount of the subscription of the State of South Carolina to the stock of the Blue Bidge Bailroad Company; and that said bonds so countersigned, to the amount of the said subscription yet unpaid, shall be paid by him to the said company in behalf of the State, according to the requisitions of the sixth section of the Act, entitled, an Act to authorize aid to the Blue Bidge Bailroad Company in South Carolina.”
    
      The respondent appealed.
    Because bis Honor erred in granting tbe said order, for tbe reasons set fourth in tbe letter of tbis appellant, recited in tbe relator’s affidavit.
    -:— for appellant.
    Hayne, contra.
   Tbe opinion of tbe Court was delivered by

WITHERS, J.

By tbe Act of 1854, p. 271, two several subscriptions by tbe State, to tbe stock of tbe Blue Bidge Bailroad Company, of balf a million eacb, were contemplated, and were authorized to be made by tbe Comptroller General, upon contingencies specified. In a clause subsequent to that (tbe first) wbicb authorized the subscription, at two different times, of one million of dollars, a provision (in tbe fifth clause) is made to raise, on tbe part of tbe State, tbe entire sum by bonds, to be made payable at such periods, that the whole million should be payable in five equal instalments of two hundred thousand dollars, the first to be payable at tbe expiration of twenty years, and one other annually thereafter. But it was provided, that tbe subscriptions by tbe State might be paid in cash, or in said bonds, at tbe par value, according to tbe discretion of tbe Comptroller and tbe Governor.

It is manifest that tbis scheme of paying subscriptions to tbe company, in instalments of two hundred thousand dollars eacb, and raising tbe money upon bonds that should become-payable in different years, in five several amounts, corresponding to tbe payments to be made upon subscriptions, were based upon the presumption that tbe whole million of dollars would be subscribed. It turns out, that but balf that sum has been subscribed, and certificates of stock taken for it, and one hundred thousand dollars of that subscription remains unpaid, and is refused by tbe Comptroller General, upon tbe ground, that as to payments on subscriptions, and as to bonds to be issued for providing tbe means to make them, two hundred thousand dollars, and not one hundred thousand dollars, are the sums imperatively fixed.

As already observed, this scheme of fixed amounts in five several instalments can refer only to the entire liability for one million. It is totally impracticable when (as is the case) the liability to pay is limited to half a million, and the authority and duty to raise the means extends to no more. It can never be assumed, that the State did not mean to pay,, in good faith, the first subscription of half a million, and in fall, pari passu with other subscribers, upon legitimate calls; or that the State meant to retain one-fifth part of its first subscription until the second, of half a million more, should be made. Suppose the authorized discretion to pay in cash had been exercised to the extent of four hundred thousand dollars, it cannot be supposed that the remaining one hundred thousand dollars would not be payable either in cash or in bonds. In such case it appears to us, that the said one hundred thousand dollars could be raised, according to the true intent of the Act by making the bonds, issued for that purpose, payable at such time as would bring them within that instalment, as to the time of payment, to which they would have pertained, if the scheme of paying a million in bonds, in portions of two hundred thousand dollars each, had been carried out. If that had occurred, the last one hundred thousand dollars of the first subscription, and the first one hundred thousand dollars of the second subscription would have required bonds payable in the same year, although it may have happened that they could not have been issued at the same time.

We think, therefore, the Comptroller General, while he should be held meritorious when guarding vigilantly the treasury of the State, is in error upon the present question; and tbat the relator is entitled to the money or the bonds, to which the law has given him a right, and which has been denied to him.

It has been suggested that the defendant seeks only the judgment of this Court, and as this is an appeal from an order to show cause why a mandamus should not issue, we suppose it to be sufficient to dismiss that motion, and it is ordered accordingly.

O’Neall, Wardlaw, WhitNer, and Munro, JJv concurred.

Motion dismissed.  