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State ex rel. Shives v.

United States, Article 1, Section 10. Comptroller General, 4 S. Car. 185. The pledge of the State's credit and the provisions for the redemption of the scrip were repealed by the Legislature, and under the fiscal laws of the State the scrip had not been receivable for taxes since 1873.

We are of opinion that the issue of the scrip was forbidden. by the constitution of the State. When the scrip was issued, the constitution of South Carolina, ratified on April 16, 1868, in Article IX, Section 10, provided as follows: "No scrip, certificate or other evidence of state indebtedness shall be issued except for the redemption of stocks, bonds, or other evidence of indebtedness previously issued, or for such debts as are expressly authorized in this constitution." There was also a further provision that "any debt contracted by the State shall be by loan on state bonds, of amounts not less than fifty dollars each, on interest payable within twenty years after the final passage of the law authorizing such debt."

The guaranty from which the scrip was to relieve the State was a guaranty of bonds of the Blue Ridge Railroad Company, which was endorsed upon them by authority of an act approved September 15, 1868. The State long had favored this road, and had held its stock. It had authorized the guaranty of bonds in 1852, and again in 1854 repealing the former act. But the act of 1868 recited that the Comptroller General of the State had not endorsed any of the bonds issued under the act of 1854, and that the conditions imposed upon such endorsement had become impossible and injudicious. So it might be assumed from the face of the statute of 1868 that there was no outstanding liability represented by the guaranty under that statute, and we see no ground for doubt that the guaranty must be considered as a new contract made for the first time, in substance as well as form, after the Constitution of 1868 went into effect.

The guaranty under the act of 1868 cannot be put under the head of "such debts as are expressly authorized in this Constitution," since it was not in the form required for debts

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contracted under the constitution of 1868. We are of opinion that it equally little satisfies the other exception in Article IX, Section 10, quoted above, of a contract made for the redemption of an "evidence of indebtedness previously issued." Whether the word "previously" refers to the date of the constitution or to the date of issuing the guaranty, the guaranty of 1868 is not and does not purport to be made for the redemption of a previous evidence of debt.

It is argued that, whether there was a liability or not, the acts before 1868 having purported to pledge the credit of the State to secure the bonds of the railroad company, as they did, there was color of liability, and the act of 1868, or at any rate the act of 1872, authorizing the bond scrip, was the adjustment of a claim against the State under Article IX, Section 4, of the state constitution. But the act of 1868 did not purport to be an adjustment. On the contrary, it purported, as we have said, to give new aid to the railroad and to authorize an original issue. The act of 1872, again, dealt only with the supposed liability under the act of 1868, and provided for the satisfaction of that. If that liability did not exist the statute no more could ratify it than it could call it into being. The liability for which scrip could be issued was required by the constitution to be one existing before the issue was made. Moreover, the act of 1872 did not purport to be an adjustment of a matter in dispute or an adjustment in any sense. It simply assumed that there was an outstanding liability, and provided for the satisfaction of it. The question is not whether payment of the bond scrip would be valid, but whether the bond scrip was issued under the conditions which the state constitution imposed.

Judgment affirmed.

Statement of the Case.


196 U. S.


No. 56. Argued November 9, 10, 1904.-Decided December 19, 1904.

A husband owes the duty of supporting his wife and children not because of contractual relations with the wife but because of the policy of the law which will enforce the duty if necessary and the bankruptcy act was not intended to be a means of avoiding this obligation. Arrears of alimony awarded to a wife against her husband for the support of herself and their minor children, under a final decree of absolute divorce, is not a provable debt barred by a discharge in bankruptcy, nor does the fact that there is no reservation in the decree of the right to alter or modify it deprive the debt of its character of being for the support of the bankrupt's wife and children.

The amendment of February 5, 1903, excepting decrees of alimony from the discharge in bankruptcy was not new legislation creating a presumption that such decrees were not excepted prior thereto, but was merely declaratory of the true meaning and sense of the statute as originally enacted.

ON June 12, 1890, an action for divorce and alimony was begun by Annette B. W. Wetmore, wife of the plaintiff in error, in the Supreme Court of the State of New York, and on April 1, 1892, at special term, the plaintiff in error was found guilty of adultery as charged in the complaint, and a divorce was granted upon that ground to the defendant in error. The divorce was absolute, and awarded to the wife the custody and care of the three minor children of the marriage, and also, as alimony, the sum of $3,000 per annum so long as she should live, to be paid in quarterly instalments of $750 each on the first day of the months of July, October, January and April of each year. There was also granted to the wife the sum of $3,000 annually, being $1,000 for the education and maintenance of each of the three minor children, to be paid in quarterly instalments, until such children should arrive at the age of twenty-one years respectively. Plaintiff in error was also re

196 U. S.

Argument for Plaintiff in Error.

quired to give security for the payment of the alimony awarded. The decree did not reserve any right of subsequent modification or amendment. On January 13, 1899, there was due to the wife from the plaintiff in error, for arrears in alimony and allowance under the decree, the sum of $19,221.60. Upon that day, upon application to the District Court of the United States for the Eastern District of Pennsylvania, the plaintiff in error was adjudicated a bankrupt. The defendant in error made no proof of her claim for alimony in the bankrupt proceedings. On June 21, 1900, the plaintiff in error was granted a discharge from all debts and claims provable under the bankruptcy act. On December 12, 1901, plaintiff in error sued out a writ in the Supreme Court of the State of New York for an order enjoining and restraining all proceedings on behalf of the defendant in error for the collection of the arrears of alimony and allowance aforesaid. This application was denied, upon the ground, as it appears from the memorandum of the judge who rendered the decision, that the arrears of alimony were not discharged in bankruptcy. From the order denying the application an appeal was taken by the plaintiff in error to the Appellate Division of the Supreme Court of the State of New York, where the order below was affirmed. 72 App. Div. N. Y. 620. The plaintiff in error thereupon appealed to the Court of Appeals of the State of New York, and on June 27, 1902, the appeal was dismissed for want of jurisdiction, without any judgment of affirmance or reversal upon the merits. 171 N. Y. 690. A writ of error was sued out seeking in this court a reversal of the judgment of the Supreme Court of the State of New York.

Mr. William A. Keener for plaintiff in error:

Under the statutes and decisions of the State of New York, the claim of the defendant in error for alimony and allowance was a fixed liability, evidenced by a judgment. The decree of divorce of April 1, 1892, containing no provision by virtue of which it may be modified, altered or amended, became an absolute obligation, beyond the power or control of either the

Argument for Defendant in Error.

196 U. S.

courts or the legislature to modify. Walker v. Walker, 155 N. Y. 77; Livingston v. Livingston, 173 N. Y. 377; § 1759 N. Y. Code of Civ. Pro., as it read in 1892.

So absolute is it that it is not affected by the marriage of the wife. Shepherd v. Shepherd, 1 Hun, 240; S. C., affirmed 58 N. Y. 644. It is an obligation collectible by the levying of an execution. N. Y. Code Civ. Pro. § 1240; Miller v. Miller, 7 Hun, 208. She is regarded as a judgment creditor. Wetmore v. Wetmore, 149 N. Y. 520.

The arrears of alimony which accrued prior to January 13, 1899, were a provable debt within the provisions of the United States Bankruptcy Act, and were released by the discharge in bankruptcy granted to the plaintiff in error. Re Houston, 94 Fed. Rep. 119; Re Van Orden, 96 Fed. Rep. 86.

The cases on brief of defendant in error can be distinguished. The remedy of plaintiff in error was properly sought in the court in which the judgment was entered. Moore v. Upton, 50 N. Y. 593; Palmer v. Hussey, 119 U. S. 96.

The Appellate Division of the Supreme Court is the highest court of the State of New York in which a decision could be had by the plaintiff in error. Bacon v. Texas, 163 U. S. 207; Mo. Kan. & Tex. v. Elliott, 184 U. S. 530.

The alimony awarded to the defendant in error was not given as compensation for a willful and malicious injury to her person or property. An action for divorce is not an action of tort. Mangles v. Mangles, 6 Mo. App. 481; Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463; Matter of Ensign, 103 N. Y. 289.

Mr. Flamen B. Candler, with whom Mr. William Jay and Mr. Robert W. Candler were on the brief, for defendant in error:

Neither the claim for alimony nor for maintenance and education of the infant children was a debt provable in bankruptcy, and the discharge in bankruptcy did not relieve the plaintiff in error from payment of arrears of alimony or arrears for the maintenance and education of the infant children. Audubon v. Shufeldt, 181 U., S. 575; Dunbar v. Dunbar, 190

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