Glenn v. County Commissioners

| S.C. | Jul 1, 1874

Dissenting Opinion

Willard, A. J.,

dissenting. The decree of the Circuit Court holds that under the terms of Section 11 of the Act to incorporate the Chester and Lenoir Railroad Company, (15 Stat., 393,) the County Commissioners of York County have authority to subscribe to the capital stock of such company an amount fixed by them for that purpose. The question raised by the appeal involves the correctness of this decision.

The Section of the Act in question is as follows : “ That it shall be lawful for any County or town interested in the construction of the Chester and Lenoir Railroad to subscribe to the capital stock of said company, or of any company with which it may consolidate or unite, such sum, and to be payable in such manner, as the people or proper authorities of such County or town shall deem best, determine and authorize; and in all meetings of stockholders, the County Commissioners of the respective Counties and the Town Council of the respective towns shall appoint some proper person to represent the stock of their respective Counties and towns : Provided, That the property of the said railroad company situated in this State shall be subject to taxation during the existence of their charter.”

The question is, whether in the case of a subscription under the terms of this Section in behalf of a County the County Commissioners of such County are, in the sense of the Act, “proper authorities of such County,” and as such authorized to determine the fact that the County is interested in such improvement, to fix the amount of such subscription, the manner of payment, and to confer authority for the actual making of such subscription.

The question is exclusively one of the proper constructions of the statute and does not involve the constitutional authority of the Legislature to confer upon County Commissioners such powers as they claim to possess in the case under consideration.

The subject of Section 11 is the interest of certain Counties and towns in the construction of a particular work of internal improvement, and the means of advancing that interest, by conferring corporate authority upon any such County or town to acquire, in its corporate capacity, the rights and assume the obligations of a stockholder of the railroad company incorporated by that Act. The object of the provision of Section 11 was to facilitate the construction of the railroad to the extent of such sums as might be acquired to the capital of the company through subscriptions of the character named.

In order to place a proper construction upon the statute, we must apply its language to its proper subject, keeping constantly in view the object of the enactment. The construction of Section 11 cannot be materially aided by special reference to the language of other parts of the Act. On the other hand the proper sense of Section 11 cannot be appreciated without having regard to considerations of public policy, derived from experience under the principles and habits of our representative governments, and which have largely influenced and given form to legislation in cases of a like character.

We are to consider whether the powers in question were intended to be conferred, as it regards Counties, on the body of electors in the modes fixed by law, or upon the Commissioners elected by the people of the County under the authority and1 for the purposes prescribed by the Constitution and the laws creating the office of County Commissioner and fixing its powers and duties.

The first proposition to be brought to aid this inquiry arises out of a view of the subject under the mode in which it has generally been dealt with in legislation of the class to which the statute under consideration is properly referable. It is this: that the powers conferred by Section 11, assuming them to be conferred upon the electors of the County, are ordinary powers frequently given, and such as have been often sanctioned by both direct legislative and judicial authority, while those powers, assuming them to have been conferred upon County Commissioners, are extraordinary and unusual. They are extraordinary because they are in excess of the proper powers of such officers, and unusual in the sense that such large discretion has not generally been conferred on officers of that class.

This consideration would not be entitled to weight if the language of the Act was clear and indisputable; but as it is doubtful, and needs the aid of construction, it becomes important to ascertain whether the proposition just advanced is sound and applicable to the case.

It would not be either necessary or convenient to do more than make a general reference to the legislation of this and other States conferring authority upon Counties to aid in the construction of railroads, in order to show that where power has been conferred on Counties to determine for themselves, as corporate bodies, whether they will advance money or assume obligations in aid of the construction of railroads, the practice has been to confer such power of determination on the body of the electors of the County, to be exercised by voting on the measure proposed. If a single instance has occurred throughout the legislation of the extended system of States where such authority has been conferred exclusively upon the ordinary officers of the County, such instance has not been brought to our notice, and the probability of finding such an instance is not sufficient to warrant so extended a research. We must assume that this is the first instance where that has been attempted, if the statute indeed bears the construction put upon it by the respondents. It is clear, therefore, that, measured by the standard of common legislative practice, the powers claimed for the County Commissioners must be regarded as. extraordinary and unusual.

It may be doubted whether conferring powers of this character and magnitude upon the ordinary County officers could be regarded as a wise and prudent exercise of legislative powers. Where the Legislature, acting within constitutional limits, makes a clear and explicit exposition of its will and intention, it is not for the Courts to call in question the wisdom or prudence of its determinations ; but where the legislative expression is obscure, and public officers, claiming to have derived powers through such obscure expression, come into the Courts to have the limits of those powers made clear and definite through the application of the rules of construction, the Courts are bound to see that the Legislature is not made to speak language that the judgment of the community would condemn as unwise and imprudent.

It is not necessary to elaborate or fortify the proposition that lodging power in the hands of three administrative County officers, chosen without reference to the exercise of such extraordinary powers, and for the purpose of discharging the ordinary duties incident to the corporate business of a County, by which they may bind the County, as stockholders of a railroad corporation, to an unlimited amount, is of questionable propriety, if not dangerous. The simple enunciation of the proposition is sufficient to secure for it general acceptance.

It must then be concluded that the construction contended for by the respondents will have the effect to place in the hands of the County Commissioners extraordinary, unusual and questionable, if not dangerous, powers, and, as such, cannot be admitted while any better construction is possible.

We have, then, to inquire whether the language of Section 11, fairly interpreted, independently of what may or may not be its tendency and effect, -warrants the claims of the respondents. If such is not the conclusive effect of the language of the Act, then we must seek its meaning in accordance with the rules of construction, having regard to the nature of the powers sought to be conferred and the end for which they are called into existence.

The only designation under which the respondents can claim the right of subscription in the name of the County is that of the “proper authorities.” If they answer to that description, then, possibly, the grant of authority to the people or proper authorities is sufficient to enable the County Commissioners to act for the County with conclusive effect and without reference to the people in any case within the provisions of that Section.

It is evident that this Section does not assume to create any new office or to confer any new class of powers on any existing office. The language quoted leaves it as a question to be determined by •some means independent of the Act itself, who are the proper authorities to carry out its provisions conferring on the electors, under the designation of the people, the right to act in the matter when no proper authorities exist for that purpose. We are, then, to inquire what must be the nature of the powers and duties of any particular office to enable it to answer the description “ proper authorities” as it regards the right to act for the County in the case contemplated by Section 11, and then to refer to the Constitution and laws to ascertain whether such powers are vested in the County Commissioners. For this purpose, the precise character of the power in question must be ascertained.

In the first place, the authority conferred is in its nature purely legislative, so far at least as it involves the right to determine the nature and extent of the interest of the County in the improvement and the proper limit of aid under all the circumstances of the case.

Whether determining the mode of payment may not be regarded as a proper subject for the action of administrative officers, need not be considered, as it is a question of subordinate importance as affecting the present case. It would be difficult to find any one exact and concise definition of what constitutes the difference between an act purely legislative and an administrative act, and no exhaustive definition is here attempted. There are, however, certain clearly recognizable attributes of each, about which there can be no mistake, and which will be sufficient to test the present question.

It is not the nature of an administrative act to create new rights or obligations, but to put in exercise such as have already been created by the legislative authority but may be dependent for their practical efficiency on the performance of some official act on the part of an administrative officer. It may be that such right and obligation were created in general terms, and that the persons or other subjects of the Act, or the existence of some fact or state of facts, must be ascertained through the intervention of an administrative officer before the Act can take complete effect according to the intent of the law-maker. On the other hand, the operation of the Act, as it regards such rights and obligations, may be made to depend on some condition involving the discharge of a duty by an administrative officer, — either the performance of an act or the ascertainment of a fact, — which duty may be either discretionary or compulsive. While the principles just stated of themselves give great latitude and importance to the action of administrative officers, still-they do not nor can any view taken of the nature of an administrative office sanction the idea that a public policy on a subject collateral to this constituting the subjects of ordinary legislation, such as affording public aid to railroads, can be determined upon and adopted by administrative officers as an act of administrative duty.

The Act in question does not determine that the County shall subscribe, but permits it to do so or to refrain, according to its own views of interest or duty in the matter.

Thus the question of the propriety of such aid, considered from an economic standpoint, the character of the improvement and its adaptation to the wants of the community, the extent of interest that the County has in its construction and the limit of expenditure or of the obligation assumed, as fixed by the present and prospeetive financial ability of the County, or by more general considerations of economic prudence, are all matters that are left to be considered and acted upon' in an entirely independent manner by the people of the County or those that properly represent them in regard to matters of that sort. It is clear and indisputable that such matters can only be properly determined by those in whom legislative authority is vested by the Constitution, or by proper representatives of the people of the particular localities most interested, clothed with power to legislate in their behalf, or by the people acting as electors under the authority of an Act of the Legislature.

Do the County Commissioners possess authority of that kind and degree? It is clear that they do not possess general authority to exercise all such legislative powers as are, or may be, by the Constitution or laws, permitted to the Counties as bodies politic and corporate.

There is no such grant either in the Constitution or laws, either expressly or by implication conferring any such right.

The County Commissioners are, by the Constitution, administrative officers, and the powers conferred upon them must be deemed as circumscribed by the line that separates administrative from legislative functions.

There are two clear grounds for laying down the proposition just stated — the first is, that all the enumerated powers conferred upon them are of that class; and the seconcj is, that their determinations are declared to be appealable into the Courts. — Constitution, Article IV, Section 19.

If those powers were legislative, it is clear that such an appeal would be meaningless, for the Courts cannot, under the Constitution, examine the merits of legislative acts upon the grounds on which they rest or the motives that prompted them.

Their powers as set forth in the Constitution (Article IV, Section 19,) are “jurisdiction over roads, highways, ferries, bridges and in all matters relating to taxes, disbursements of money for County pnrposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective Counties.” The term that here describes the nature of their powers over the, various subjects enumerated is “jurisdiction.” That term imports authority to expound or apply the laws, and excludes the idea of power to make laws. This word is often used in a broader sense, but when employed for the purpose of indicating a partition of powers among the different departments of the government must be used in a strict sense. If the word jurisdiction, as here used, could be made as including legislative power, the constitutional grant of power to the County Commissioners would assume a magnitude and importance not only unusual and excessive but such as would threaten the balance between the different members constituting the political body and the very integrity of the powers of the supreme legislative body. If the words “and in every other case that may be necessary to the internal improvement and local concerns of the respective Counties ” import a grant of legislative power, it is clearly plenary, and, being constitutional, it would be difficult to understand on what principle the Legislature could control or interfere with its exercise, or even exercise the general legislative function over the same subject as it regards the accomplishment of ends having relation to the internal government and concerns of the Counties. No such anomalous and unprecedented clash of jurisdictions was intended by the Constitution, and we must hold that the word “jurisdiction,” as there employed, was intended to describe either administrative or judicial function, as excluding the idea of legislative power. That the County Commissioners are not, in the strict sense of the term, a judical body, is clear, Notwithstanding that body is created by a Section of the Article relating to the judiciary of the State, the office is characterized by the nature of its powers rather than by the place occupied by the provisions of the Constitution that created it.

This view of the nature of the office in question is fully carried out by the legislation on that subject, (Gen. Stat., Chap. 14,) while the effect of such legislation is to limit the powers of the County Commissioners rather than to enlarge them as affecting the various subjects placed by the Constitution under their jurisdiction.

It is clear, then, that the County Commissioners do not possess any general right to exercise any and all functions of a legislative character that may be vested in or permitted to the Counties as bodies politic and corporate; then, unless they possess special legislative power in regard to a class of subjects embracing or at least analogous to the one under consideration, they are clearly destitute of the powers that would qualify them to be recognized as the proper authorities of the County in the sense of the Act in qüestion.

The only power possessed by them- at all analogous to the present is that of borrowing money for the purchase of lands, the erection of buildings, &e., (Gen. Stat., 149,) but this power is clogged with the following provision : “ Provided, That no such loan shall be created by the County Commissioners until they notify the General Assembly of the necessity thereof and authority be granted to them to create said loan.” This not only shows that they were considered by the Legislature as destitute of the powers claimed in this case, in the only analogous case directly placed within their jurisdiction, but that the Legislature deemed it impolitic to leave in their hands the right to create obligations to bind the County in the most necessary cases. If they cannot be trusted by the Legislature to borrow money to the limited extent necessary for the purpose of supplying County buildings, is it to be supposed that the Legislature intends to confer upon them unlimited power to bind the County by a subscription to a railroad in which the County as a corporation has only an indirect and speculative interest? The only possible answer is in the negative. We must then conclude that in employing the expression “proper authorities,” the view of the powers of the County Commissioners just presented was in the mind of the Legislature, having the effect to exclude County Commissioners from what was intended to be embraced within the terms of that expression.

Arguments have been pressed by both parties, based upon the order in which certain words and expressions stand in the Act, but they can have little right where the construction of the Act turns upon grave questions arising out of the nature of the powers sought to be conferred. It must generally be assumed that the legislative mind was looking to the consequences and effects to flow from its action rather than to the proper grammatical adjustment of the expression through which that intent is conveyed. The ground upon which the present construction rests involves vital and fundamental considerations, before which questions of literal accuracy and elegance must give way. But even these arguments present a view that strengthens the present conclusion. If the views expressed are sound, then the expression “ proper authorities ” applies to corporate bodies represented by municipal legislative bodies, and the expression “ the people” relates to Counties that have no such legislative bodies. Such a construction gives effect to every part of the statute, while the argument of the County Commissioners would leave no case in which the people would have a right to act to the exclusion of the public authorities, and would deprive that provision of the Section of all importance and effect.

It has also been urged that the clause of Section 11 that authorizes the County Commissioners to appoint a person to represent the Counties in the meetings of stockholders when such subscriptions are made evidences an intent to give them like power as it regards the original subscription. The powers exercised in the two cases are in no respect analogous.

The County Commissioners are clearly the proper authority to appoint such representatives, as they are the general custodians of the corporate property and rights,- and, as such, proper parties to look after the interests of the County as affected by the action of the stockholders. On the other hand, the fact that the County Commissioners are named as it regards the lesser and clearly administrative duty, points the omission of their names, as it regards the higher and more important legislative function, as intentional.

The conclusion of the Circuit Court was clearly erroneous. The judgment should be set aside.

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Lead Opinion

Per Curiam.

In this case, it is ordered that the motion be dismissed.

Moses, C. J., and Wright, A. J., concurred.