State ex rel. Brown v. C. & L. R. R.

The opinion of the court was delivered by Willard, C. J. The leading question in this case involves the estoppels resulting from a previous action arising out of the same transactions. The action is in the name of the state, upon the relation of citizens and taxpayers of York county, to have certain bonds for the payment of money issued in the name of the county of York declared null and void, as issued without due authority of law. The defendants are the - Chester and Lenoir Railroad Company, to whom the bonds in question were issued, certain parties claiming to have some right or interest in the said bonds derived from the railroad company subsequent to their delivery by the county commissioners to such railroad company and the county commissioners of said county. It is alleged that a suit was brought prior to the issue of such bonds by the county commissioners, and while such issue was in contemplation, by Glenn and others, as citizens and taxpayers of York county, to test the authority of the county commissioners to issue said bonds, and an injunction prayed to restrict them from issuing the same; that the Circuit • Court refused such injunction and dismissed the complaint, and that such judgment was affirmed on appeal to this court; that under the decision of that case and deeming it authority for so doing, the said county commissioners issued said bonds, and they came to the possession of the parties holding them as to bona fide purchasers for a valuable consideration and without notice of any defect. The question of the effect of the judgment in the case of Glenn v. County Commissioners, 6 S. C. 412, upon the present case, involves two inquiries. First, as to its effect on the right of the present plaintiffs to maintain their action, which is alleged to be upon the same cause of action, and substantially between the same parties. Second. What right, if any, the present defendants acquired in virtue of the fact of having, since the rendition — 306 — of such judgment, become invested with the rights that were the subject of controversy therein. The first of these questions is substantially identical with that which would have been raised by a former plea of a former recovery between the same parties, on the same'cause of action, while the second inquiry has a large scope and involves the whole effect by way of estoppel of the judgment in the case of Glenn v. County Commissioners, in sustaining tlié rights which they claim to have acquired under that judgment. We will'consider, in the first place, whether the action of Glenn «. County Commissioners is to be regarded as a former recoveiy upon the same cause of action and between the same parties as those involved in the present case. If this had been an' action in the nature of a suit at common law, and the defence of a former recovery made upon the record of a judgment in an action at common law, the question would have had a more restricted'character than in the present case, as it would have to be determined in view of the legal effect of a judgment record at common law. The action of Glenn v. County Commissioners was in the nature of a bill in equity, and the present action is of the sanie nature. Equity will not permit a matter once formally adjudicated to be re-opened between the same parties or those holding under them under its decree in a collateral proceeding. The remedy of parties and privies for any errors of fact or law that'may be found in a decree, is by appeal or petition or bill of review. A' formal proceeding by way of review is, in substance, a prolongation of the original bill, and not in any sense a collateral proceeding. But this action is, in form and substance, a collateral proceeding. The complaint does not seek to re-open a decree and point out its errors for correction, but treats the former suits as void in toto for certain reasons therein assigned. Is there, then, that degree of identity between the two actions that would authorize them to be regarded, as in substance and effect, between the same parties and concerning the same cause of action? As this question arises in equity, substance, rather than form, is to be looked at, as a consequence of the prevailing habit of equity. Is there, then, identity between the causes of action in the two cases? The question in the Glenn case was whether, — 307 — under the act of the legislature, which was claimed as authority for issuing the bonds, the county commissioners had a right to make the subscription to the stock of the Chester and Lenoir Railroad Company, and to issue the bonds of the county of York in payment therefor, without first submitting the question to a vote of the people or electors of the county, whether such subscription should be made? If that question was decided in the affirmative, then it would follow, as a consequence, that the prayer of the complaint for an injunction would be denied, and the county commissioners would be free to proceed and issue the bonds at their discretion. The question in the present case is identical with that just stated. The difference between the two cases, as far as it concerns the cause of action, is in the nature of the relief demanded. Glenn’s case only sought an injunction, as no rights had been acquired at that time under the intended action of the county commissioners, but at the time of 'the commencement of the present action such right had matured, and the relief could not, to be effectual, fall short of a decree declaring such right to be invalid. It may be contended that the prayer for relief is not a test of the identity of the causes of action; it is enough to say that it is not in the present case. The controversy is the same throughout, resting on the same facts and views of the law. At one stage of the controversy one measure of relief is called for, while at another and more advanced stage that measure of relief may be inappropriate and different relief demanded. It cannot be questioned that two actions, brought at different stages of the same controversy, although moulded to the special circumstances existing at the respective times of their commencement, yet each tending to the same general result, must be regarded as involving the same cause of action. If the contrary was admitted, there would be no stability of rights under judgments, for the moment a transaction, even judicially sustained, passed into a new stage of development, it would be thrown open to question from its very origin. As applied to proceedings in equity, this view is sustained by the principles on which equity administers justice. The contrary would tend to deprive equity of that characteristic power of adapting itself to courts contemporaneous and successive, which is the ground on — 308 — which it has maintained itself, side by side, with the courts of common law. It must be concluded-that in substance and effect, and therefore in the view of equity, the two causes of action are identical. It becomes necessary, then, to inquire whether there is a substantial identity as to parties. The formal record in the case of Glenn v. County Commissioners, is not before us, so that we are compelled to take the title of that cause as it is reported in 6 S. C. 412. It is there stated to be an action by E. L. Glenn and others, alleging themselves to be citizens and taxpayers of York county, against H. K. Roberts and others, as county commissioners. The present action is in the name of the state upon the relation of certain other persons, alleging themselves to be citizens and taxpayers of York county, against the county commissioners of that county and parties who, since the case of Glenn was decided, have become holders of, or interested in, the bonds issued by the county commissioners. As far as it regards the defendants, the identity is complete, as the addition of parties who have acquired an interest in the controversy since the judgment in the first case, is a circumstance consistent with the fact of the identity of the controversy in the two cases. Had the case of Glenn continuéd undecided to the present time, and were the plaintiffs in that case seeking still the general results sought by the complaint in that case in some form to suit the condition of matters that have arisen since that suit was commenced, it would be a matter of prudence to make the persons who had acquired rights after the commencement of that suit parties, so that a direct decision upon their individual rights could be reached, which should act immediately, and not merely indirectly, upon them. Parties acquiring an interest in the subject matter of a suit after action commenced, from or under the parties to such action, apart from the question of notice, are privies, and it certainly cannot be contended that there is a want of identity between, the suits in equity merely because persons who are privies under the one are made parties to the other. Are, then, the plaintiffs in the two cases to be regarded as, substantially, and in the view of equity, identical ? It is necessary to look to the character of suits like the present in order to309 understand fully the nature of this question. This belongs to the class of remedies proceeding, nominally, in the right of the state, but, actually, in the interest of a class of individuals having ■common rights that need protection. It is,.therefore, related to that more general class where individuals possess the right to represent the class to which they belong in respect of rights either common to the class, or competing as to a certain subject of property. A bill to enjoin a common nuisance is an instance of this class, based on common rights, and a creditor’s bill another, based on competitive rights. This jurisdiction, in some respects, rests on the principles of a proceeding in rem, as the court of equity, through it, lays its hands upon a fund at the instance of some of the parties interested in it, and, by a proper proceeding, administers it with a conclusive effect upon the rights of all others having similar rights thereto. Although equity, as a system, proceeds upon the ground of personal duty, and hence against persons rather than things, yet there are many instances where proceedings in equity partake of the nature of an action in rem. Another principle that appears to be fundamental to such jurisdiction by means of class representation, has an analogy to the familiar principle of the law that where rights of a certain nature are common to large classes of persons, individuals may acquire, by prior occupancy, a superior right, whether temporary or permanent, over all others of that class in respect of such right. The strict illustration of this principle is where such ■common right has its origin from the law of nature, as in the case of waste and unoccupied lands never subjected to individual right, and animals fercenaturce, and the like. Where many have a common right to the means of protection by a legal proceeding, this principle is suggested and would enable such as seek the remedy, with the advantage of priority, to have a superior right to prosecute such remedy. Where there are competing rights in a single subject, equity recognizes and protects the priority by injunction, as in the case of a creditor’s bill. This right of representation is, however, from its nature, subject to the restriction that the door of controversy must be opened to all of the class represented, who may, on certain conditions, unite in exercising control over the prosecution of the remedy. — 310 — Common or public rights having their origin in the municipal law, are usually protected by the action of the public authority. In England that right of procedure is in the King or his attorney-general, while with us it is in the state. It is customary to allow private individuals having a personal interest in the protection of such rights, to ,use the name of the state for the purpose of protecting them, and, applying the principles of class representation, a portion of the persons of the community are-enabled to become relators, such a proceeding being, in reality,, the representatives of the class to which such relators belong. Such is the nature of the present action. Whether the name-of the state is indispensable in such proceedings need not be considered. If it is not, then in the present case its use may be treated with surplusage, and the nature of the case regarded as the same as if the action had proceeded wholly in the names of' the persons here styled relators, as was the case in Glenn v.. County Commissioners. If, on the other hand, the name of the state is indispensable, then the want of such name would have-constituted a ground of defence in Glenn’s case. As no such objection was made in that case, it must be treated as if it had been properly brought in the name of the state. ■ In this view, the difference between the two cases would be resolved to that of a misnomer alone, and that equity, at least, Would overlook. - We come, then, to the main question involved, as it regards-the identity of the- plaintiffs in the two cases. It is easy to see, from the principles already stated, that the rights that were-represented in the former case are here attempted to be represented again for the same general purpose. The principle of representation is embodied in Section 142 of the code, as follows: “Where the question is one of a common or general interest of many persons, or where the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” It is clear that this language contemplated cases where the results of such an action would affect, finally and conclusively, a larger number of persons than those who are immediate parties, for the object of the section was to enable some of a class to act in a manner conclusive to others of the same class, by representing — 311 — them. Without the aid of this provision of the code, or the principles on which it was founded, the immediate, parties could bind themselves; that in which they needed the aid of the statute, or the principles that existed prior to, it, was that the subject of the controversy might be exclusively ¡affected in such a way as to bind others not' parties, but merely represented by others as such. The code, evidently, was not intended to .exclude others who might choose to come in with those who assume to act as their representatives, but is consistent with the idea .that if they stand out they will be bound by what js done in their name. It would follow that when plaintiffs, or relators.standing in the place of plaintiffs representing a class of persons, bring an action based on such class rights and are defeated in such action on the merits, no subsequent action can be effectually brought by the same parties or by other parties of the class thus represented. This would dispose of the present appeal if it shall appear that the case of Glenn v. County Commissioners was decided finally and on the merits, provided the use of the name of the state does not interfere with the application of the principles that would apply had the present suit been maintainable and actually brought in the name of the relators without that of the state. This last proposition will be first considered. It is not reasonable to suppose that the state, in lending its name to individuals for the protection of their rights, intended to subvert the principles governing controversies of the class to which this belongs. We need not consider what would be the result if the state, having a substantial interest in this action, should claim that it was not affected by the case of Glenn, for that is not the case here. The state, as such, has no interest in the suit beyond the indirect interest of having protection afforded to the common and public rights represented by the relators. . It must then be considered that the same principles apply to the present case that would apply had the relators been the only plaintiffs and capable of prosecuting as such. Then all that remains is the inquiry whether the case of Glenn v. County Commissioners appears to have been finally and conclusively decided upon the merits. — 312 — We will consider, in another place, the matters of fact and law decided in that case, but at present, the question is whether the disposition must be regarded as upon the merits of the controversy. If it appears that the bill was dismissed for lack of proper parties, for the want of a slatement of a sufficient cause of action, or for defect of proof leading to a non-suit, then nothing would prevent its renewal in the form in which it appears in the present case. But can such a conclusion be drawn ? It is stated in the report of the case, (6 S. C. 415,) that “on August 16th, 1873, the cause was heard upon its merits before the Hon. Judge Mackey, who, on September 12th, 1873, filed the following order and decree.” The opinion of the Circuit judge is confirmed as to the merits of the case. He says: “ I have considered the questions at issue solely upon their merits, and without interposing those technical rules of practice which would have justified the court, sua sponte, in dismissing the complaint.” What would have justified the court sua sponte in dismissing the complaint is not stated, and as no defect of jurisdiction has been suggested as appears, cannot be conjectured, but it is quite apparent that no objection had been taken to matters of form, as then it would have been unnecessary to suggest the possibility of the dismissal of the complaint sua sponte. The decree was, then, clearly on the merits. The plaintiffs appealed from the decree, and, of course, only raised by way of appeal, questions of substance. The appeal was dismissed by this court, and that left the decree of the Circuit Court standing on the ground on which it was originally pronounced. It is true that the majority of this court did hot state- the grounds for dismissing the appeal, but that, though of-.interest in an aspect not at present under consideration, is of no importance to the present question. If it is assumed' that the appeal was dismissed for irregularity and not upon the merits, that would not alter its effect, for it left the Circuit decree standing with the same force and effect that it had when first pronounced. It must be concluded that the Circuit decree in the case of Glenn v. County Commissioners was — 313 — a decision upon the merits, and in its nature final and conclusive and a bar to the present action. Although it may not be necessary in order to dispose of the present appeal to go beyond the matters already discussed, yet the importance of the principles and the magnitude of the interests involved, render it appropriate that certain other questions raised in the ease should receive consideration. Among these, one already noticed, is entitled to a place, namely, what is the effect, by way of estoppel, of the decree in Glenn v. County Commissioners, considered apart from the question of the bar of a future action created by such decree?' Assuming that there was no formal objection to the maintenance of the present action, must the matters decided in the Glenn case be regarded as so far settled between the present parties that the record in that case is conclusive of all the allegations of fact and law in the present complaint ? It is clear that the county commissioners, being parties to both suits, have a right to rely on the conclusive character of the decree in that case. If they had not, they might be placed in the position of having unlawfully issued the bonds in controversy, although at the time of issuing them they had the sanction of a decree of the Circuit Court in a suit to which they were parties, affirmed as the result of an appeal to the Supreme Court. The other defendants stand in the position of having acquired rights under the decree in question, and upon the faith of such decree. By the acquisition of such rights they became privies to the decree, and had a right to rely on its estoppels and were bound by its consequences. As such, they may allege the bar of the decree to any further agitation of the questions involved, as they would be precluded from averring against such decree, as it regards its effect upon the property acquired by them under the decree, had it gone against their interest, as effectually as if they had beeu parties to the suit in which the decree was rendered. It would not be questioned, if the subject of the former action was the title to land, that a decision thereon would conclude all parties becoming purchasers after judgment from parties bound by such judgment. In the present instance, the subject of the action was a poioer to issue bonds, and the question was its legal — 314 — validity, and the defendants, who have taken bonds under such power, may well contend that their titles were conclusively passed upon when the power under which it has arisen was judicially sanctioned. It would follow that in the present case they have the right to set up the decree as a bar and estoppel to any attempt to disturb the decision on which their title rests. We have said in State v. County Treasurer, (MS., Dec., Nov., 1877,) that as the majority of the court who decided Glenn’s case did not disclose the grounds of their decision, that this court is not committed to any view of the questions discussed in that case, and that the court deems all questions of law that arose therein as open and undecided, except so far as relates to the parties in that action. Parties here should be taken to include privies; indeed, privies are always intended when a general reference is made to parties. This court concurs in the' positions taken in the dissenting opinion in the Glenn case, and if the question was open before us would have no hesitation in placing the case upon such grounds. This extension of the protection of a decree to those deriving their rights under it at any time subsequent to such decree, when in harmony with the technical rules that govern remedies and their effects, is demanded by a principle that has received its most unqualified statement in the case of Gelpcke v. City, 1 Wall. 175. It is there held that if at the time when municipal bonds are issued, the law, as expounded by the highest court of a state, sanctions the validity of such issue, no subsequent decision of the court can impugn the validity of such bonds by overruling its former decision. This principle is applied in that case in the most general manner, and without regard to whether the former decision was upon the power or authority to issue the particular bonds in question. It is, therefore, in effect placing the principle of stare deeisis upon higher ground than it has ever before occupied. We are now compelled by the language of the case to believe that the Supreme Court of the United States intended to hold that a decision of a state court overruling a former decision, under such circumstances, becomes, in effect, a law of a state impairing the obligation of a contract, so as to become involved under the constitution of the United — 315 — States. We cannot assume that that court intended to expand the constitutional sense of the word “ law ” so as to become a guaranty that no state court should violate the rule of stare decisis so as to affect contract rights. Whatever difficulty may suggest itself as to the possibility of safely applying the principle in question in the naked form in which it is presented in the case just cited, it is easy to recognize the principle itself as just and suitable to be applied whenever the nature of our remedial system will admit of it. In the present case its application is consistent with the rules governing the proper effect of remedies, and therefore justifiable. It only remains to notice the objection that was raised upon the argument of the appeal, that the county of York, not being a corporation, bonds issued in its name are without validity. The question of the right of the county commissioners to issue the bonds of the county of York, that was presented in Glenn’s case, necessarily involved the further question, whether the county of York is capable, legally, of making a valid bond, and therefore, it is manifest that the question cannot be re-opened in the present case. If it could be, it Avould not be necessary to consider the broad question whether the county of York is a corporation. It Avould be sufficient to ask whether it had legal power to contract obligations Avithin the scope of its legitimate interests. If it possesses such capacity, the only question would be whether the legislature had authorized its exercise, and that question is disposed of, as between the present parties, by the decree in Glenn’s case. It will be conceded, without difficulty, that it is competent for the legislature to confer upon the people of a county power to incur obligations binding upon them, as a community, unless forbidden by the constitution. The argument before us has been mainly addressed to the question whether the constitution has created the counties into corporations, or so arranged their character and powers as to amount to exhaustive legislation on the subject, thus, impliedly, excluding the legislature from legislating either antagonistically or cumulatively on the same subject. This vieAAr ig not a necessary one to the matters at issue in the present case. The true inquiry is, whether there is anything in the constitution that precludes the legislature from — 316 — permitting the counties to incur any obligation whatever in the nature of a contract; for the objection is such as would apply to any contract obligation whatsoever. It is impossible to find any clause in the constitution that admits of the construction contended for; but, on the contrary, there are provisions of a positive character from which it is reasonable to infer that the counties were intended either to have originally or from the legislature capacity to contract obligations necessary to the transaction of their local business. Section 19, Article IV. of the constitution provides that “ the qualified electors of each county shall elect three persons, for the term of two years, who shall constitute a board of county commissioners, which shall have jurisdiction over roads, highways, ferries, bridges, and in all matters- relating to taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvements and local concern of the respective counties.” Here is an express recognition of the capacity of the communities styled counties to have interests peculiar to themselves and not common with all other citizens of the state. The terms “ local concerns ” are of the most general character, and, that they are not intended to be confined to such matters of state administration as ’ may happen to fall for execution within the territorial limits of the respective counties, is evinced by the provision for “internal improvements ; ” clearly internal improvements of a general character as affecting the state at large, or one or more counties were not here referred to as the administration of such improvements would not be committed to boards circumscribed by county lines, but to more general bodies, whose jurisdiction would be commensurate with the local extension of such internal improvements. It must then be understood that what may be called county-improvements may be brought within the capacity of the counties , as local communities. The words internal improvements admit, naturally, of an extended signification. It is left to the legislature to fix the character of the improvements that may be thus undertaken within the scope of the sense of the constitution. The right of improvement embraces power to create facilities that do not exist. The right to make improvements of a local — 317 — character implies power to acquire and hold property and to renew obligations and make contracts in relation to such property as ordinary means for that purpose. It cannot be doubted that if the legislature should authorize a county to purchase the road and franchises of a turnpike company and throw the road open to the public, that such a transaction would be an improvement in the sense of the constitution. To allow such a transaction is, impliedly, to allow an obligation to be contracted for-that purpose. Section 8, Article IX. of the constitution speaks of the “ corporate purposes ” of counties as objects for raising and expending county taxes, thus strengthening the view already presented, that these communites are capable of acquiring interests distinct and apart from such as concern the state at large; the limit is put by the constitution to the extent or character of such corporate purposes. That the community may have local interests calling for the expenditure of money is clearly recognized and provided for, and that implies the power of incurring obligations and of satisfying them. It must be concluded that there is no constitutional restriction depriving the legislature of the power of authorizing counties to incur obligations, and that is decisive of the question under consideration. The judgment must be affirmed and the appeal dimissed. McIver and McGowan, A. J.’s, concurred.