tion, provided each question may be voted on separately so that each may stand or fall upon its own merits. But that is a very different matter from tacking two questions together, to stand or fall upon a single vote. It needs no argument to show the rank injustice of such a mode of submission. By it several interests may be combined and the real will of the people overslaughed. By this combination an unpopular measure may be tacked onto one that is popular and carried through on the strength of the latter. A necessary matter may be made to carry with it some private speculation for the benefit of a few. Things odious and wrong in themselves may receive the popular approval because linked with propositions whose immediate consummation is deemed essential. It is against the very spirit of popular elections that aims to secure freedom of choice, not merely between parties, but also in respect to every office to be filled and every measure to be determined. A voter at a state election would be shocked to be told that because he voted for a person named for governor on one ticket he 147 must vote for all other persons named thereon, or that voting for one person he was to be understood as voting for all. He would feel that his freedom of choice was infringed upon. None the less so it is by such a submission as this." The principle is thus announced in Tolson v. Police Jury, 119 La. 215, 43 S. E. 1011, reported in that valuable publication, American and English Annotated Cases, volume 12, page 847: "The railway company agreed to divide the proposed tax with the public schools in the proportion stated in the petition; and this agreement was incorporated in the ordinance ordering the election, and in the notice of the election. The effect of this was that the taxpayers were not afforded an opportunity of voting for or against the railroad tax, but were compelled to vote upon a hybrid proposition, part railroad and part school tax. It can hardly be necessary to say that a vote cast for such a proposition is not a vote for or against a railroad tax within the intendment of the abovequoted article 270 and of the statute carrying it into effect. These laws clearly contemplate that the distinct propositionfor or against the particular tax in question-shall be submitted to the voters. If the voter cannot vote against the railroad without at the same time voting against the public schools, or vice versa, he is not allowed a free exercise of his judgment. That mode of taking a vote is known in ordinary legislation as 'log-rolling,' and is utterly condemned. Our constitution expressly forbids the legislature from having recourse to it, and a fortiori cannot the police jury use it in consulting the taxpayers upon any tax proposition? After a vote has been taken upon such a double-barreled proposi Am. St. Rep., Vol. 137-51 tion, there is no certainty that a majority of the voters have united upon either of the two taxes. Non constat, in the instant case, that a majority of the voters would have favored the railroad tax if the school interest had not been enlisted in its favor." See, also, the note to that case. 148 In the note to Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400, reported in 2 American and English Annotated Cases, page 367, is the following statement of the rule: "It is well established that a proposition submitted to the voters of a municipal corporation, as to the issuance of bonds by the municipality, must not combine two propositions so that both propositions have to be answered by one expression of the vote, because a voter might thereby be induced to vote for both propositions when he would have voted for only one if the question had been submitted singly." (Citing numerous authorities.) The petitioners in their reply have attacked the constitutionality of the act of 1908, hereinbefore mentioned, but this question cannot be considered, for the following reasons: (1) Because the petition must be dismissed for the reason already stated. The rule is thus stated in Cooley's Constitutional Limitations, at page 163, second edition, and quoted with approval in the case of Ex parte Florence School, 43 S. C. 11, 20 S. E. 794: "Neither will a court, as a general rule, pass upon a constitutional question and decide a statute to be invalid unless a decision upon that very point becomes necessary to the determination of the cause. . . . . In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record presents some other and clear ground upon which the court may rest its judgment and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such a question will be unavoidable." (2) Because section 2009 of the Code of Laws provides that in the town of Gaffney the board of public works shall consist, ex officio, of the mayor, treasurer and clerk of the town council. This provision is still of force, unless repealed by the act of 1908. If that act is unconstitutional, 149 then the respondents are not the lawfully constituted board of public works of Gaffney, and are, therefore, without power to perform the duties which the petitioners are seeking to require them to exercise. A party invoking the provisions of a statute is not in a position to raise the question as to its constitutionality: Port Royal Co. v. Hagood, 30 S. C. 519, 9 S. E. 686, 3 L. R. A. 841; Ex parte Florence School, 43 S. C. 11, 20 S. E. 794; Moore v. Napier, 64 S. C. 564, 42 S. E. 997; State v. Morris, 67 S. C. 153, 45 S. E. 178; State v. Cain, 78 S. C. 348, 58 S. E. 937. The next ground urged against the validity of the bonds is because the town council had no authority to provide that the bonds should be payable in gold. Section 2008 of the Code of Laws provides that such bonds may be made payable in any legal tender money of the United States. As to the eighth ground of objection set out in the answer of the respondents, we deem it only necessary to state that it is plainly untenable. It is the judgment of this court that the petition be dismissed with costs. Mr. Chief Justice Jones and Messrs. Justices Woods and Hydrick concur in the result upon the ground first considered in this opinion. The Validity of Municipal Bonds as Affected by Noncompliance with the law in holding the election when the question of issuing the bonds is submitted to the voters is considered in the notes to Jones v. City of Camden, 51 Am. St. Rep. 844; De Voss v. City of Richmond, 98 Am. Dec. 671. Where the law provides that the system or plan proposed in the acquisition of a public improvement shall be submitted to the people for ratification, a submitting ordinance is insufficient which gives no further information than to recite the advisability of purchasing an existing water system and issuing bonds to pay therefor in a certain sum, but not setting out the plan or system, nor stating the time the bonds are to run, the rate of interest, or the manner of payment: Hansard v. Green, 54 Wash. 161, 132 Am. St. Rep. 1107. BREON v. MILLER LUMBER COMPANY. PROCESS Service by Publication on Nonresident.-Proceedings for the service of summons by publication on a nonresident before attachment of his property are void. (p. 804.) PROCESS Exemption of Nonresident Attending Suit.-A nonresident who comes into the state for the sole purpose of attending, as a party defendant and a witness, a reference in a pending suit, is exempt from service of summons in another action. (p. 805.) PROCESS Service on Nonresident Officer of Corporation.-Service of summons on a domestic corporation may be effected by serving its president, a nonresident, while he is temporarily within the state for the purpose of attending as a party defendant and a witness in a reference being held in another suit. (p. 807.) J. F. Carter and W. H. Townsend, for the appellants. J. O. Patterson & Son and Bates & Simms, contra. 223 GARY, J. The following statement appears in the record: "This is an appeal from an order of the Honorable John S. Wilson, Circuit Judge, presiding in the second circuit in the above-entitled action, made at chambers, in Bamberg, South Carolina, on the twelfth day of November, 1908, refusing two motions, made separately, by the defendants, the Miller Lumber Company and Henry I. Wilson, to set aside the service of the summons in the above-entitled action, which had been made upon each of them, respectively, as follows: On the Miller Lumber Company on or about September 29, 1908, by service, after order for service by publication, on R. C. Gourley, its secretary, without the state of South Carolina, and in Punxsutawney, in the state of Pennsylvania; and on the twentieth day of October, 1908, on Adam Miller, its president, in Barnwell, South Carolina, and on Henry I. Wilson, a nonresident of the state of South Carolina, on or about the twenty-ninth day of September, 1908, in Big Run, Jefferson county, Pennsylvania, and on the twentieth day of October, 1908, in Barnwell, South Carolina. Each of said defendants having appeared separately, specially and only for the purpose of their respective motions. The two motions were, for the convenience of counsel, heard together." The complaint upon which the summons was issued seeks the recovery of damages against the defendants for the sum of four hundred and seventy-nine thousand two hundred and fifty-nine dollars and eighty-two cents. The first question that will be considered is, whether the service of summons, made upon the defendant, Henry I. Wilson, without the state of South Carolina, and within the state of Pennsylvania, in September, 1908, after and pursuant to the order for service by publication, was either void or voidable. This question is concluded by the case of Little v. Christie, 69 S. C. 57, 48 S. E. 89, in which the court ruled 224 that proceedings for the service of summons by publication on a nonresident before attachment of his property are null and void. The next question for consideration is, whether the service of summons, made on Henry I. Wilson, a nonresident of this state and only temporarily within this state for the sole purpose of attending, as a party defendant and a witness, a reference being held at Barnwell, South Carolina, on the 20th of October, 1908, under an order of the court, in another action pending therein, for the foreclosure of a mortgage on specific property, situate within this state, while in attendance on such reference, should have been vacated and set aside. Section 847 of the Code of Laws is as follows: "No person shall be arrested while actually engaged in or attending military or militia duty, or going to, or returning from the same, nor while attending, going to, or returning from any court, as party or witness or by the order of the court, except for treason, felony or breach of the peace; but in such case process may be served, without actual arrest of body or goods." In the case of Cooper v. Wyman, 122 N. C. 784, 65 Am. St. Rep. 731, 25 S. E. 947, it was held that a nonresident who comes into the state, for the sole purpose of attending a litigation, either as suitor or witness, is exempt from service of civil process during his coming, his stay, and a reasonable time for returning. The court in that case used the following language: "As stated in many of the cases, this settled rule is based upon high considerations of public policy, not upon statutory law, since it is the public interest, that suitors and witnesses from other states, who cannot be compelled to attend our courts, may not be deterred from voluntarily appearing by fear of being served with process in other actions; their presence, if obtainable, being calculated to enable the courts to more thoroughly educe the truth of the matters 225 in litigation: Baldwin v. Emerson, 16 R. I. 304, 27 Am. St. Rep. 741, 15 Atl. 83. In some few of the earlier cases it was questioned whether the privilege was not restricted to witnesses, but all the later and better considered cases embrace parties as well as witnesses, more specially since the change, which enables parties to be examined as witnesses: Matthews v. Tufts, 87 N. Y. 568; Juneau Bank v. McSpedan, 5 Bliss. 64, Fed. Cas. No. 7582. No one is hurt by this exemption, since, if it did not exist, the nonresidents would not come here and service of summons on them could not be made anyway: Sherman v. Bundlach, 37 Minn. 118, 33 N. W. 549; Ballinger v. Elliott, 72 N. C. 596. The exemption covers the time of their coming, stay, and reasonable time for returning, eundo, morando et reduendo; but the exemption is strictly restricted to those instances in which the person claiming it is in this state for the purpose of attending the litigation as a party or as a witness, and for no other purpose whatever. If he is here for any other cause besides attendance upon the suit, the ground of the exemption ceases, and he is subject to service of process. There is also an exemption where there is an action, brought against a plaintiff, for maliciously bringing the very action which he comes to the state to prosecute: Mullen v. Sunborn, 79 Md. 364, 47 Am. St. Rep. 421, 29 Atl. 522, 25 L. R. A. 721. The exemption, being long and universally recognized, and not being statutory, could only be repealed by an express statute, which no state has passed." The foregoing states clearly the well-established rule of law, which is fully sustained by the numerous authorities. |