90 S.E. 321 | S.C. | 1916
Lead Opinion
October 14, 1916. The Circuit Judges having been called to the assistance of the Supreme Court, the judgment of the Court en banc was delivered by This is an application to the Court, in the exercise of its original jurisdiction, for an injunction restraining the respondents from proceeding to take steps preparatory to the holding of an election upon the question of establishing the proposed new county of Catawba.
In order to expedite the final decision in this case, this Court referred all questions to the Judge of the Sixth Circuit, who reached the conclusion that the petitioners were entitled to relief, and that the temporary order of injunction should be made perpetual.
The act giving rise to this controversy provides:
"That hereafter the General Assembly of this State shall not establish any new county, the greatest length of which shall be more than four times as long as the least central width thereof, or which will leave the county or counties from which the territory is taken of a length more than four times as long as the least central width thereof: Provided, further, The Governor shall not order an election in such an area described." * * * Act February, 1912 (27 St. at Large, p. 841).
It is not denied that the shape of the proposed new county does not conform to the requirements of the statute.
It is further conceded by the respondents that the injunction should be made perpetual, if the Court should reach the conclusion that the legislature had the power to pass said act; but it is contended that the act is unconstitutional, in that it contravenes the provisions of article VII of the Constitution, especially sections 1 and 2 thereof, which are as follows:
"Section 1. The General Assembly may establish new counties in the following manner: Whenever one-third of the qualified electors within the area of each section of an old county proposed to be cut off to form a new county shall petition the Governor for the creation of a new county, setting forth the boundaries and showing compliance with the requirements of this article, the Governor shall order an *70 election, within a reasonable time thereafter, by the qualified electors within the proposed area, in which election they shall vote `Yes' or `No,' upon the question of creating said new county; and at the same election the question of a name and a county seat * * * shall be submitted to the electors.
"Sec. 2. If two-thirds of the qualified electors voting at such election shall vote `Yes' upon such questions, then the General Assembly at the next session shall establish such new county: Provided, No section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such section; and no county shall be formed without complying with all the conditions imposed in this article. * * *"
The constitutionality of the statute depends upon the question whether the foregoing provision of the Constitution relative to the power of the General Assembly to create new counties shall be construed as discretionary or mandatory.
The provision in section 1 that the General Assembly may establish new counties, and the provision in section 2 that the General Assembly shall establish new counties, are antagonistic, and both of them cannot be construed as having legal force and effect. If the provision authorizing the legislature to exercise a discretionary power in the creation of a new county is construed to express the intention of the Constitution, then it necessarily follows that the mandatory provision does not express such intention, and therefore must be regarded as null and void. And, in that event, it cannot be successfully contended that the act is unconstitutional on the ground that it is obnoxious to the mandatory provision.Atkinson v. Express Co.,
In determining the intention of the Constitution, it is exceedingly important to keep in mind that the legislature does not derive its power to create new counties from *71 article VI, but from article III, section 1, of the Constitution, which is as follows:
"The legislative power of this State shall be vested in two distinct branches, the one to be styled the `Senate' and the other the `House of Representatives,' and both together the `General Assembly of the State of South Carolina.'"
This provision was taken verbatim from section 1, art. II, Constitution of 1868, which was thus construed in the case of State v. Hayne,
"Although the particular office of this section is to fix certain important features of the body through which the function of legislation is to be exercised, yet it describes in an authoritative way the nature of the power thus vested. It is no less than the legislative power of the State. It is not such and so much of the legislative power of the State as were intended to be used by that particular body, but it was the whole legislative power of this State, its whole capacity of making laws and providing the means for their enforcement. It was not intended that the legislature should exercise this power without limitation and restraint, for the Constitution that uses these words of grant imposes many such restrictions and limitations affecting the extent to which it may be effectively exercised."
This language is quoted with approval in State v. Aiken,
Ordinarily the force and effect of a constitutional provision is to prevent legislation inconsistent with such limitation. These respondents, however, contend that the provisions of article VII should be construed as being twofold in their nature, to wit, not only that the legislature is powerless to create a new county, unless there has been a compliance with all the conditions imposed by article VII, but that said *72 article limits the plenary powers of the legislature so that it cannot enact statutes that would otherwise be consistent with the provisions of that article. There is no doubt as to the proposition that there must be a compliance with all the requirements enumerated in said article; but, under a proper construction, it does not limit the powers of the legislature to impose additional conditions, provided they are not such as, ordinarily, would be construed as inconsistent with those mentioned in the Constitution.
In the case of State v. Parler,
"It is suggested that the legislation had in relation to Dorchester county is unconstitutional and void, because it has attempted to enlarge the direct provisions of the Constitution, in sections 1 and 2 of article VII, by allowing a second and other elections to determine the county seat, after the first election on that matter, which was held at the same time the question as to the creation of the new county was submitted to the electors residing in the territory affected thereby. We cannot accept this view. In the first place, the convention speaks in the first section of article VII of the General Assembly establishing new counties. Its only restrictions are set forth in the article, and do not negative the idea that the General Assembly, under its possession of general legislative power, may do other things than those enumerated in the article VII; but it (the legislature) must not controvert, in letter or spirit, the provisions of the Constitution itself."
Recurring to section 1, art. VII, we find this provision:
"At the same election the question of a name and a county seat for such county shall be submitted to the electors."
It will thus be seen that, while the Constitution prescribes a particular day on which to submit the question of a county seat, the Court held that a statute fixing a different time was constitutional, thus necessarily deciding that the word *73 "shall" was used in a directory or discretionary sense and that it was not mandatory in its meaning.
The word "shall," in section 2, art. VII, which provides that if two-thirds of the qualified electors shall vote "Yes" then the General Assembly at the next session "shall" establish such new county, is in conflict with the word "may" in the first section, which provides that the General Assembly "may" establish new counties, etc., it is also in conflict with the construction necessarily placed on the word "shall" in that part of section 1 which provides that at the same election the question of a county seat shall be submitted to the electors. In such a case the rule is applicable that, when two sections of a Constitution are inconsistent, effect will ordinarily be given to that which is in harmony with other provisions, rather than to that which is inconsistent with more than one provision. Delk v. Zorn,
The circumstances under which a legislative enactment should be declared unconstitutional are well expressed by Chancellor Waites, who, in delivering the opinion of the Court, in the case of Byrne's Adm'rs v. Stewart'sAdm'rs, 3 DeSaus. 476, says:
"If legislative authority is supreme in all cases in which it is not restrained by the Constitution, and as it is the duty of the legislators as well as of the Judges to consult this, and conform their acts to it, so it ought to be presumed that all their acts are conformable to it, unless the contrary is manifest. This confidence in the wisdom and integrity of the legislature is necessary to insure a due obedience to its authority; for, if this is frequently questioned, it must tend to diminish that reverence for the laws which is essential to the public safety and happiness. I am not, therefore, disposed to examine with scrupulous exactness the validity of a law. It would be unwise to do so on another account. The interference of the judicial power with legislative acts, if frequent or on dubious grounds, might occasion so great *74 a jealousy of this power, and so general a prejudice against it, as to lead to measures which might end in the total overthrow of the independence of the judiciary, and with it this best preservative of the Constitution. The validity of a law ought not, then, to be questioned, unless it is so obviously repugnant to the Constitution that, when pointed out by the Judges, all men of sense and reflection in the community may perceive the repugnancy."
Tested by this rule the act in question must be held to be constitutional.
Judgment affirmed.
MR. JUSTICE WATTS and CIRCUIT JUDGES MEMMINGER, WILSON, RICE, BOWMAN, MAULDIN, SMITH and PEURIFOY concur in the opinion of the Court.
Dissenting Opinion
This is known as the "Catawba" county case. There has been a petition presented to the Governor for an election within certain limits there described, looking to the establishment of a new county to be called Catawba county. The Governor has appointed the respondents as commissioners and they have organized for the purpose of carrying out this work.
The petition asks for an injunction against the commissioners on the ground that the proposed new county would be in violation of the statute of 1912, forbidding the formation of ill-shaped counties. The petition does not claim that there is any want of compliance with the provisions of the Constitution, but that the form of the proposed county is forbidden by the statute. The return of the respondents admits that the form of the proposed new county is in conflict with the statute, but claims that the statute is in conflict with the provisions of the Constitution. This, it will be seen that the sole question is as to the validity of the statute of 1912. *75
Learned and exhaustive arguments have been delivered by able counsel on both sides, but the question at issue is on the surface.
The statute is as follows:
"An act to prevent the establishment of ill-shaped counties.
"Section 1. Be it enacted by the General Assembly of the State of South Carolina, that hereafter the General Assembly of this State shall not establish any new county, the greatest length of which shall be more than four times as long as the least central width thereof, or which will leave the county or counties from which the territory is taken of a length more than four times as long as the least central width thereof: Provided, further, The Governor shall not order an election in such an area described.
"Sec. 2. That the term `central width' shall be construed to mean any width of such proposed new county not entirely within eight miles of the ends thereof.
"Sec. 3. That this act shall go into effect immediately upon its approval by the Governor.
"Sec. 4. That all acts or parts of acts inconsistent herewith be, and the same are hereby, repealed." Act February, 1912 (27 St. at Large, p. 841).
The Constitution provides:
"Article VII. Counties and County Government.
"Section 1. Formation of New Counties — County Seatand Name. — The General Assembly may establish new counties in the following manner: Whenever one-third of the qualified electors within the area of each section of an old county proposed to be cut off to form a new county shall petition the Governor for the creation of a new county, setting forth the boundaries and showing compliance with the requirements of this article, the Governor shall order an election, within a reasonable time thereafter, by the qualified electors within the proposed area, in which election they shall *76 vote `Yes' or `No' upon the question of creating said new county; and at the same election the question of a name and a county seat for such county shall be submitted to the electors.
"Sec. 2. Section of Old County to Be Cut Off. — If two-thirds of the qualified electors voting at such election shall vote `Yes' upon such questions, then the General Assembly at the next session shall establish such new county: Provided, No section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such section; and no county shall be formed without complying with all the conditions imposed in this article. An election upon the question of forming the same proposed new county shall not be held oftener than once in four years."
It is said that the Constitution says "the General Assemblymay establish new counties," and, if it may, it may not. That is true. The General Assembly may establish one new county and may not establish another. If the provision had stopped here, then, under the well known undisputed and indisputable power of the legislature, it would have been free to act in accordance with its best judgment in each case as it arose. The Constitution does not stop here. It goes on to say that, when certain conditions are complied with, the Governor "shall" order the election, and the General Assembly, at its next session, "shall" establish such new county.
New counties may or may not be formed, but, when the conditions are found to exist, the election "shall" be held and the new county "shall" be established. It is not denied that the constitutional requirements exist and neither the executive, legislative, nor judicial department of government have the right to say it shall not be established, or to do any act to prevent it without a violation of the constitutional command. Much has been said about the doctrine of implied prohibition. That doctrine has nothing to do with this case. A consideration of that doctrine and the authorities cited tend *77 only to obscure the question. This is a plain, simple command of the Constitution. If the conditions exist (not disputed), the election "shall" be held, and, if other conditions shall be shown to exist, the new county "shall" be established. If the Constitution has said before an election can be held that certain conditions must be shown to exist, then it might have been pertinent to inquire whether the legislature could add other conditions. That is not the provision for our construction. The provision is, when certain conditions exist, the election "shall" be held; when other conditions exist, the county "shall" be established. To add any condition is to disobey the command. If the Constitution says when eight conditions appear, the new county shall be established, and the legislature says there shall be nine, then the legislature says, notwithstanding the eight appear, the county shall not be established, this is certainly a violation of the Constitution.
When the Governor found in his judgment as Governor, that the constitutional conditions existed (not disputed), he was bound to order the election and this Court is bound not to enjoin his appointees.
The Court en banc in Robinson v. McCown,
"By the terms of the Constitution the intention as clearly appears that, on compliance with the specified conditions, the people interested should have the right to an election on the question of creating the new county so that they should not be annoyed by the agitation of that question oftener than once in four years. They complied with the conditions. They were entitled to an election."
See, also, Fraser v. James, 65 S.C. page 86,
"The Constitution imposed upon the legislature the duty of creating a new county when the specified conditions existed." *78
It is said that State v. Parler,
In that case the provision under consideration reads:
"At the same election the question of a name and a county seat for such county shall be submitted to the electors."
The question was submitted to the electors at the "same election;" but, inasmuch as neither of the county seats voted for received two-thirds majority, the election was declared to have failed to establish a county seat, and the legislature ordered a new election as to county seat and declared that a majority vote should locate the county seat. The Constitution does not forbid the holding of another election for a county seat in case the first election failed to locate the county seat. The legislature has the unquestionable power to do anything not forbidden by the Constitution; therefore the legislature had the right to order a second election as to the county seat. The Constitution does not say that two-thirds vote is necessary to locate the county seat; therefore the legislature had the right to say a majority vote is sufficient.
It is said, however, that the Constitution uses two words, "may" and "shall," and these are in conflict. If they are, then the word "shall" is used last, and in constitutions, statutes and wills, where there is a conflict, the last provision governs. This needs no citation to sustain it.
Again, it is said the "spirit of the Constitution" shall govern. The constitutional convention anticipated the question and said (article I, section 29):
"The provisions of the Constitution shall be taken, deemed and construed to be mandatory and prohibitory, and not merely directory, except where expressly made directory or permissory by its own terms."
"Shall" is mandatory by its "own terms."
2. There is another reason why this statute cannot be sustained. If this statute had said "no new county shall be established of a certain shape," there might have been at least *79 a plausible ground for maintaining that, until it was declared unconstitutional, it was entitled to obedience. It does not say that. It says "hereafter, the General Assembly shall not establish any new county," etc. It makes no difference what follows. On its face it forbids a subsequent legislature to pass an inconsistent act. Make the power of the legislature as great and unrestrained as you please, there is no one who can claim that the legislature of 1912 had the right to abridge the power of any succeeding legislature (except in a contract, which is not before us) to pass any act it deemed best. It is said that, when a part of an act is unconstitutional, the rest, if inseparable, may stand. Strike out the prohibition to succeeding legislatures and nothing is left except the attempt to forbid the Governor to exercise his constitutional powers, and the second is, of course, as futile as the first.
This act (1912) is clearly invalid even if the legislature has the right to add conditions. This, we have seen, they have no right to do.
The judgment appealed from should be reversed, and the order of injunction vacated.
MR. JUSTICE HYDRICK and CIRCUIT JUDGES PRINCE, SHIPP, SEASE and GARY concur in the dissenting opinion of MR. JUSTICE FRASER.
MR. JUSTICE GAGE did not participate in the consideration of this case. *80