56 S.E.2d 723 | S.C. | 1949
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *54 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *55 November 18, 1949. This action was brought in the original jurisdiction, in accord with prior permission, and heard at a special term in September 1949. It embodies attack by a Greenville citizen and taxpayer upon the validity of Act No. 344 of the Acts of the General Assembly of 1949, 46 Stat. 768.
It was entitled, "An Act to allocate funds to the counties of the State for the construction of health centers, hospitals or for other public purposes; and further relating to the fiscal affairs of the State." Section 1 appropriated from the general funds of the State, admittedly surplus, $2,584,000.00 to the respective counties at the rate of $40,000.00 per county plus $6,000.00 for each member of the House of Representatives. It was provided that the appropriations were, quoting, "for use in: (a) the erection of hospitals and/or health centers *58 and/or for matching grants by the Federal Government for the erection of hospital and/or health centers, (b) for the purpose of paying off existing bonds sold for the erection and/or equipping of hospital and/or health centers. (c) for operation of county hospitals and/or health centers, (d) for purchase of equipment and supplies for hospitals and/or health centers, (e) for hospitalization of indigent citizens, (f) for any other eleemosynary hospitals in said counties whether or not such hospital is a county or municipal owned institution, (g) or in the event any health center or hospital has been erected and/or equipped with county funds, the sums herein provided may be used as reimbursement to such county of costs of such erecting and equipping thereof, and (h) and/or for other public uses."
Upon passage the Governor vetoed original provisions which gave control of expenditures in the counties to the respective legislative delegations, and these vetoes were sustained. Item (h) above was also vetoed by the Executive but the veto was overridden and it is a part of the law before us. The mechanics of this procedure were followed as outlined in the State Constitution of 1895, Art. IV, sec. 23. The veto power is a part of the legislative process. Doran v. Robertson,
In the brief of plaintiff the constitutionality of the act is challenged as follows:
I. The provision of the Act permitting the money to be used for privately owned eleemosynary hospitals is invalid because it is a grant of public funds for a sectarian purpose.
II. The provisions of the Act permitting the money to be used "for other public uses" is invalid because it fails to specify the uses.
III. The hospital and health center provisions of the Act are invalid because they constitute a use of State funds for a county purpose.
Our consideration might well be limited to the foregoing but other relatively minor points arose in oral argument, to *59 which we shall also make brief reference. General observations which are applicable will be first stated and then plaintiff's specifications of alleged unconstitutionality, reproduced above, will be discussed and decided seriatim.
Of primary importance are the long established rules which were concisely set forth in Moseley v. Welch,
"We approach the consideration of the various constitutional grounds upon which this legislation is challenged with the following well settled principles in mind: The supreme legislative power of the State is vested in the General Assembly; the provisions of our State Constitution are not a grant but a limitation of legislative power, so that the General Assembly may enact any law not expressly, or by clear implication, prohibited by the State or Federal Constitution; a statute will, if possible, be construed so as to render it valid; every presumption will be made in favor of the constitutionality of a legislative enactment; and a statute will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution. Santee Mills et al. v. Queryet al.,
Counties are subdivisions of the State, subordinate and subject to legislative control, created and existing with a view to the policy of the State and serving as its agencies. Generally speaking they function as such and as instrumentalities of the State for purposes of political organization and local administration. 14 Am. Jur. 185, 186, 188, Counties, §§ 3, 5. This conception of a county is supported by our decisions and many others which are cited in the footnotes to the text. Chesterfield County v. State Highway *60 Department,
"Generally, where a surplus remains after the accomplishment of the purpose for which an appropriation is made, it may be diverted to other causes," which means "causes" for which taxes may have originally been levied. 42 Am. Jur. 776, Public Funds, § 80. Annotation, Ann. Cas. 1917B, 867. Manifestly there can be no unconstitutional diversion of surplus funds, as there was in the legislation condemned in State ex rel. Edwards v. Osborne,
There is no established segregation of tax sources between State and counties. Both may levy ad valorem taxes on property but the State has found it unnecessary to do so in recent years, depending upon excises, income taxes and the like. Likewise the counties may, and do, derive income from licenses of various kinds, road taxes, etc. In impressive amounts the proceeds of numerous levies by the State are in part divided annually among the counties by varying formulae, which proves the inaccuracy of the argument that the counties are confined in the accomplishment of their constitutional purposes to "county taxes." The following *61 is from the State appropriation act of 1948, sec. 69, 45 Stat. at Large, page 2178:
"Item 1. Aid to Counties:
Income Tax ............................ $ 1,875,000.00
Alcoholic Liquors Tax ................. 2,546,000.00
Beer and Wine Tax ..................... 378,000.00
Insurance Tax .........................
475,000.00 Bank Tax .............................. 120,000.00
Motor Vehicle Dealers' Licenses ....... 40,000.00
Gasoline Tax .......................... 3,400,000.00
Game Protection Fund .................. 110,000.00
--------------
Total (Item 1) Aid to Counties ........ $ 8,944,000.00"
Hospitalization and other aid to the sick have constituted approved governmental activities for many generations and this court had recent occasion to expressly declare that expenditures therefor by state and county may be validly made under our constitution. Smith v. Robertson,Since hospitalization and other aid to indigent sick is a proper state purpose there is no constitutional or other legal reason why the State could not from its tax funds erect and maintain a hospital in every county, of uniform size and expense. This will hardly be done for the needs vary in the counties on account of their respective populations and available existing hospitals and other health conditions and facilities. However, the consideration demonstrates the validity of the lump sum appropriation of $40,000.00 per county. The legislature went further, in recognition of the larger needs of the heavier populated counties, and provided $6,000.00 additional to each county per member of the House of Representatives, and the number of members per county is measured by relative county population. Const., Art. III, sec. 3. This partial uniformity in the distribution among the counties is not embraced in plaintiff's *62 "questions involved" but it was referred to in oral argument and has been considered without avail to plaintiff. It cannot fairly be said to be arbitrary or capricious.
There is a compelling, practical reason for a uniform starting sum for each county, here $40,000.00. A health center building is apt to cost as much to build in a small, poor county as in a comparatively large, rich one; and as much to equip and maintain. Administrative expense is also likely to vary little, compensation of skilled personnel, etc. Health centers have been here referred to rather than hospitals because the aggregate sum which will accrue to the largest county is pitifully inadequate in relation to the present-day cost of a hospital. It can be best be but a modest contribution to such an institution. The statement went unchallenged in argument that the current construction cost of hospitals is about $10,000.00 per patient-bed.
Plaintiff's first point of attack anticipates use of the appropriated funds for the aid of sectarian hospitals but no instance of attempt or intention to so apply any part of the funds is specified. The pertinent constitutional provision is quite broad. Art. XI, sec. 9, as follows: "The property or credit of the State of South Carolina, or of any county,. city, town, township, school district, or other subdivision of the said State, or any public money, from whatever source derived, shall not, by gift, donation, loan, contract, appropriation, or otherwise, be used, directly or indirectly, in aid or maintenance of any college, school, hospital, orphan house, or other institution, society or organization, of whatever kind, which is wholly or in part under the direction or control of any church or of any religious or sectarian denomination, society or organization."
The following is quoted from 42 Am. Jur. 767, Public Funds, § 66: "Under a constitutional prohibition that no appropriations shall be made for charitable purposes to any denominational or sectarian institution, it has been held that the department of welfare cannot contract, or expend funds appropriated for its use, for the treatment of indigent sick in *63 sectarian hospitals. The fact that a sectarian hospital makes no profit from treatment of indigent sick does not prevent the operation of the constitutional provision that no appropriations shall be made for charitable purposes to any denominational or sectarian institution." See also, annotation, 142 A.L.R. 1083.
In the recent (1949) case of Kentucky Building Commissionv. Effron,
However, as indicated, no attempted or intended violation is alleged as in view and it may not be assumed that the governing board of any county will violate the constitution in the application of funds. If such situation should arise in the future in any county, the courts are open for appropriate preventive action.
The second point made by plaintiff has given more concern. It avers the unconstitutionality of item (h) which, quoted above, is an alternative appropriation for other public uses. We have seen that the seven preceding *64 items all relate to public health, hospitals and health centers and payment or refund of the cost of construction, equipment and maintenance of them. It is argued by the defendants that item (h) constitutes a valid grant of state funds in aid of the counties for county purposes, to wit, any purposes within the constitutional sphere of the county. However, we are constrained to hold that the argument is untenable in view of the expressed public health purpose of the act which is evidenced by the numerous preceding provisions all closely knit to that end. The legislative purpose is not evident to make a blanket grant in aid of the counties as is regularly done in the general appropriation acts, to which we have adverted, and the appropriation here cannot fairly be taken to be such, but is one, as seen, for aid of the counties in solution of the problem of public health. Item (h) is foreign to the manifest purpose of the act, and for that reason invalid. If allowed to stand, it might cause defeat of the purpose in one or more counties.
Plaintiff particularly invokes an excerpt from sec. 23 of Art. IV of the constitution, constituting one sentence of a lengthy paragraph, as follows: "Bills appropriating money out of the Treasury shall specify the objects and purposes for which the same are made, and appropriate to them respectively their several amounts in distinct items and Sections." More will be later said concerning the section from which the quoted sentence is taken and the context will clarify the intent of it. This final item (h) is, as has been said, a departure from the scheme of the act and, in that setting, does not comport with the cited provision, which was undertaken in this instance to be followed by the legislature, and should, we think, be stricken as unconstitutional. This holding should not be construed to question the ordinary grants in unspecified aid to the counties contained in the State general appropriation acts. Plaintiff conceded the propriety of the latter which his counsel denominated in argument "kickbacks" to the counties.
Reason for the distinction exists in the fact that the now customary grants in aid to the counties are taken into account *65 in the general State appropriation acts (see quotation from that of 1948, supra), and are also regularly anticipated in the several county supply acts which provide for the expenditure of the grants and other county funds in conformity with the constitutional plan of State appropriations upon which plaintiff relies. In the act before us the legislature set out to itemize. which was done to include seven kindred, specified public uses or purposes, but all of that careful handiwork would be undone by sustention of the alternative, incongruous appropriation for "other public use."
The Governor accurately appraised the legislation and said in his veto message, in part, as follows: "I am in entire agreement with the fundamental purpose of this legislation, which is to encourage the development of South Carolina's health program by furnishing State funds to assist the counties of the State in providing hospital and health center facilities, as a means of giving the people of every section of South Carolina an opportunity to obtain better medical and surgical care and treatment.
"Because of the importance of this health program to our people, I approve this Act with the exception of the following items, which I hereby veto: * * *"
Part of plaintiff's attack upon this item, which is based upon the foregoing quotation from Art. IV, sec. 23, of the constitution, is attempted to be also related by him to sec. 3 of Art. X which is: "No tax shall be levied except in pursuance of a law which shall distinctly state the object of the same; to which object the tax shall be applied." This provision was successfully invoked in the gasoline tax diversion cases of State v. Osborne, supra, but is irrelevant here because the funds appropriated are surplus funds. The point is elaborated in the outset observations, supra. To the authorities there cited to that point may be added the opinion of Justice McIver in State ex rel. Branch v. Leaphart,
In view of the foregoing sustention of plaintiff's point II his point III may properly be disposed of almost as briefly as he states it. The contention is that the entire appropriation is invalid because it would constitute a use of State funds for county purposes. But hospitals and health centers, to which the appropriation will be limited under this decision, are a State purpose as well as a county purpose and there is no constitutional or other legal barrier of which we know that prevents the State from dealing with the problem through the agency of its governmental subdivisions, to wit, the counties. There is no comfort to plaintiff in this contention to be found in Smith v. Robertson,supra,
Equality of the burden of taxation is, we agree, a fundamental requirement of the constitution. Art. X. And further we recognize the existence of the principle that the rule of equality and uniformity may be violated by a discriminatory method of distribution of the proceeds of taxation. 51 Am. Jur. 219, 220, Taxation, sec. 165.Commonwealth v. Alden Coal Co.,
There arises the question whether the conclusion that item (h) is invalid vitiates the whole law or it subsists with that elimination. There are two independent and equally sound reasons for the decision we reach that the law survives the striking out of item (h). First, it falls within the general rule which was last applied in Gaud v. Walker, supra,
Many other similar decisions from this court may be found by reference to 30 S.E. Dig. 717 et seq. and pocket part supplement, Statutes, Par. 64. The subject is there captioned as follows: "Although a statute may be invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part which is void." Here the legislature itself has separated the item which we hold void and without it the Act is entirely complete and capable of being executed in accordance with the legislative intent. It will be noted from a reading of the decisions which have been cited and referred to that the rule is not dependent upon the modern legislative device of a saving clause, mentioned above. The rule originated *69 long before such clause came into occasional use. 11 Am.Jur. 834 et seq., 846 et seq.
Indeed, the doctrine of partial invalidity very soon followed the recognition of the power of a court to void legislation for unconstitutionality at all. The establishment of this very delicate judicial power was gradual because of regard for the constitutional plan of equality and independence of the three separate departments of government, namely, the legislative, the executive and the judicial. The doctrine under discussion, to wit, partial invalidity, naturally and quickly followed because of the ideal of separation and independence of each of the several branches of government and the reluctance of the courts to encroach upon it. It is universally held that a court should proceed most carefully in the exercise of this, its highest, prerogative, and go no further than it deems absolutely necessary in declaring unconstitutional and void the considered action of the legislature which is composed of the people's popularly elected representatives; but it is justified in going that far, and no further, in order to uphold the constitution because it is the charter of government adopted by the people directly or through their representatives. Properly hesitant to proceed at all in such cases, a court will go no further than it feels impelled in order to uphold the constitution. Invalidation of a separable part of a legislative act without impairment of the remainder logically results. Illustrative cases from our courts which are much older than the invention of the saving clause are the following: State v. Carew, 13 Rich. 498, 91 Am. Dec. 245; and Wardlaw v. Buzzard, 15 Rich. 158, 94 Am. Dec. 148, where it was said: "It was not contended seriously that if one part of an Act was unconstitutional, it vitiated the whole * * *."
Plaintiff argues that the stated rule is not applicable to this Act because the fact that the legislature overrode the veto of item (h) shows that the body would not have passed the Act without inclusion of it and therefore *70 sustention of the remainder would violate the legislative intent. We think this is an assumption without supporting fact or reason and no precedent is cited. On the contrary, in the case of appropriation acts the legislature is quite used to executive vetoes and support or defeat of a veto has never been considered of importance in determining the legislative intent concerning passage of such an act, regardless of the fate of the vetoes. Impotence of the argument is seen in the light of the consideration that the legislative intent is thwarted in part in every case of invalidation of a portion of an act for unconstitutionality, yet validity of the remainder is the rule rather than the exception as is seen by the results of the cases collected in 30 S.E. Dig. and supplement, cited supra.
The second consideration which we apply to the question whether the act is a valid law sans item (h) is likewise conclusive in itself of validity. It is the effect of the provisions of section 23 of Art. IV of the constitution. They are in much detail with reference to the participation of the Executive in legislation, his power of veto and how such shall be handled by the legislature. It is plain with respect to the authorization of the veto of any item or section of an appropriation bill, which that before us is. The pertinent portion of the constitution is here quoted from the cited section: "Bills appropriating money out of the Treasury shall specify the objects and purposes for which the same are made, and appropriate to them respectively their several amounts in distinct items and Sections. If the Governor shall not approve any one or more of the items or Sections contained in any Bill, but shall approve of the residue thereof, it shall become a law as to the residue in like manner as if he had signed it. The Governor shall then return the Bill with his objections to the items or Sections of the same not approved by him to the House in which the Bill originated, which House shall enter the objections at large upon its Journal and proceed to reconsider so much of said Bill as is not approved by the Governor. The same proceedings *71 shall be had in both Houses in reconsidering the same as is provided in case of an entire Bill returned by the Governor with his objections; and if any item or Section of Said Bill not approved by the Governor shall be passed by two thirds of each House of the General Assembly, it shall become a part of said law notwithstanding the objections of the Governor."
If the residue of an appropriation bill is a valid act after veto of items or sections, and the veto or vetoes upheld, it should follow that the court is ordinarily bound to similarly uphold an appropriation act after voiding an item or section for unconstitutionality. This course seems to be dictated by the provisions of the constitution, to which of course the courts are subject. This difference between a bill or act appropriating money from the State treasury and other bills or acts was noted in the opinion in Doran v. Robertson, supra,
It was alleged in the complaint and suggested in oral argument that the questioned appropriation is invalid for lack of designated administrators in the counties to discreetly expend the funds, but no authority was cited and we know of none which would sustain the objection. Certainly an appropriation by the State to a county implies the right of expenditure in accord with the terms of the appropriation act, and they are rather detailed here. Every county has a governing board or commission, by whatever name called. Chapter 116, Civil Code of 1942, Vol. 2, p. *72
1042 et seq. It happens that the broad powers of the governing board of plaintiff's county were discussed in Ex parteGreenville County,
It may be noted that the problems presented by this litigation are not apt to often recur. A sizable State surplus is something new under the sun in South Carolina and at the rate illustrated by this Act will not long survive.
Our judgment is that the act under attack, No. 344 of 1949, is valid except the appropriation item (h) which is stricken as unconstitutional; injunction is denied with respect to the other, valid provisions of the act, and the temporary restraining order heretofore issued is dissolved.
BAKER, C.J., and FISHBURNE, J., concur.
TAYLOR and OXNER, JJ., dissent.
Dissenting Opinion
The Court holds (1) that the provision of the Act (Item h) authorizing the expenditure of the amounts appropriated to the respective counties "for other public uses" is unconstitutional; and (2) that although Item (f) permits the use of public funds to aid sectarian hospitals which is found to be an unconstitutional purpose, this provision is valid because the assumption is that the funds will not be so used by the governing authorities of the respective counties. After *73 undertaking to separate the unconstitutional part of the Act, the Court then declares the remaining portion valid, which I think is clearly judicial legislation.
I am in accord with the conclusion that Item (h) is invalid but do not agree that it can be stricken upon the ground that it "is foreign to the manifest purpose of the Act", and "if allowed to stand * * * might cause defeat of the purpose in one or more counties." Nor can this provision be eliminated by characterizing it as "incongruous". "A court is not permitted to adopt a restrictive construction which would be the mere arbitrary decision of the court, and in effect would amount to a redrafting of the law, in order to make it conform to that which in the view of the court should have been originally enacted by the legislative body." 11 Am. Jur. Constitutional Law § 100, page 735. Item (h) is invalid, I think, because it fails to specify "the objects and purposes" for which the appropriation is made. The power, and with it the correlative duty and responsibility, of designating the objects for which public funds are to be expended rests upon the General Assembly except where that power has been delegated under applicable constitutional provisions. It has not been delegated to the corporate authorities of any county in this State except Charleston. Gaud v. Walker et al.,
"The principle that a statute may be constitutional and valid in part and unconstitutional and invalid in part is generally recognized. The rule is that where a part of a statute is unconstitutional, if such part is so connected with the other parts as that they mutually depend upon each other as conditions and considerations for each other, so as to warrant the belief that the Legislature intended them as a whole, and if they cannot be carried into effect, the Legislature would not have passed the residue independently of that which is void, the whole act is void. On the other hand, where a part of the statute is unconstitutional, and that which remains is complete in itself, capable of being executed, *74
wholly independent of that which is rejected, and is of such a character as that it may fairly be presumed that the Legislature would have passed it independent of that which is in conflict with the Constitution, then the courts will reject that which is void and enforce the remainder." Townsendv. Richland County et al.,
The Act under consideration contains no saving clause. "The principles which underlie the application of the saving clause have been well established. In the absence of a legislative declaration that invalidity of a portion of a statute shall not affect the remainder, the presumption is that the legislature intends the act to be effective as an entirety. The effect of such a statutory declaration is to create, not the presumption of entirety in effect ordinarily accorded to statutes, but an opposite presumption of separability." 11 Am.Jur., Constitutional Law, § 156, page 847. Of course, those presumptions are rebuttable and the rule mentioned is merely an aid to interpretation. The ultimate inquiry is the intent of the lawmakers.
The foregoing principles will first be applied to Item (h). When this provision is eliminated, is the remaining portion of the Act "capable of being executed in accordance with the legislative intent, wholly independent of that which has been rejected"? Gaud v. Walker, supra. In determining this *75 question, it is important to consider the purpose of Item (h). The following explanation of this provision in the brief of defendants' counsel stands unchallenged on the record: "Some of the counties have no hospitals, or health centers; others amply possess such facilities and further extensive expenditures for their support would amount to a duplication of effort and consequent waste of funds, whereas there may at the same time be `other public uses' to which the apportionment of funds would be of inestimable value. In this view the objects and purposes of the appropriation are clearly shown within the meaning of the constitutional provision." It appears from this statement that Item (h) instead of being "incongruous", is inextricably connected with the general plan contemplated by the Act for the distribution of the state surplus, and was included for the definite and specific purpose of compensating those counties not in need of additional hospital facilities. If, as defendants' counsel concede, there are some counties now adequately furnished with health centers and hospital facilities, I am at a loss to understand the basis of the factual conclusion in the majority opinion that "there is a compelling, practical reason for a uniform starting sum for each county, here $40,000." The purpose of this legislation was not solely to provide additional health and hospital facilities because it expressly authorizes the use of the funds to reimburse a county for the cost of those already erected and equipped. If the Act had not contained Item (h), could the proponents of this legislation have secured the requisite number of votes to override the Governor's veto? If the General Assembly had not authorized the use of the funds for any public purpose, can we say the amount of the lump sum appropriated would have been the same, or can we be assured that the basis of the allotment to the respective counties would have been the same? It seems entirely unreasonable to conclude that the General Assembly would have passed this act if it had perceived the invalidity of the part which we have held to be unconstitutional, particularly when *76 that body failed to incorporate a saving clause. We are not empowered to amend a solemn enactment of the General Assembly as is proposed to be done in this case.
The foregoing conclusion is strengthened by the action of the General Assembly in overriding the Governor's veto of Item (h). In his veto message, the Governor stated: "Under this item, the State funds appropriated in the Act for health purposes could be used by the local authorities of a county for any other public purpose. It is not proper to permit State funds appropriated for the development of the health program to be diverted to other purposes. State funds for health should be earmarked for health purposes alone, and this item should not be permitted to remain in the Act." The effect of the provision under consideration was thus strikingly brought to the attention of the General Assembly. The importance which it attached to this feature of the Act is irrefutably shown by its action in promptly overriding the Governor's veto of Item (h). Undoubtedly the authority to use the funds allocated to the counties for any public purpose was deemed vital by the members of the General Assembly and was a material inducement for distributing these funds among the counties.
The statute is not one appropriating distinct amounts for several purposes, one of which is invalid. If a particular amount had been appropriated for hospital and health centers and another for other public purposes, there would be more force in the argument for separability. Here we have a lump sum appropriation of $2,584,000.00 which may be used for several purposes, one of which is conceded to be invalid.
Gaud v. Walker, supra, and Moseley et al. v. Welch et al.,
I am unable to see how the question of separability as presented in this case is affected by Section 23, Article 4 of the Constitution. We are not concerned here with the question of whether the Governor was empowered to veto Item (h). Certainly it was never contemplated that this section of the Constitution should have the effect of rendering an act passed over the Governor's veto immune from attack on the ground that the invalid part is inseparable from the remainder. I see no basis for the analogy sought to be made in the majority opinion between the elimination of an item in an appropriation bill by the veto of the Governor and its elimination by the Court on the ground of unconstitutionality. As pointed out in Doran et al. v. Robertson et al.,
I shall next consider the construction placed by the Court on Item (f) and its effect upon the other portions of the Act. This item authorizes the use of the funds appropriated to the respective counties "for any other eleemosynary hospitals in said counties whether or not such hospital is a county or municipal owned institution." It is conceded in the majority opinion that this language is sufficiently broad and comprehensive to include aid to sectarian hospitals and that the Constitution forbids the use of public funds for such a purpose, but the Court concludes that there is no allegation in the complaint that the governing authority of any county intends to use these funds to aid sectarian hospitals and that it will be assumed that the corporate authorities of the counties *78 will not do so. I do not think the Court is at liberty to thus restrict the language used in this provision. "It has * * * been said that a statute which by general language includes in a single class those within and those without a class as to which legislation is constitutionally permitted may not be limited by judicial construction to the latter class and then sustained; and that where the legislature of a state has made no limitation or exception, the legal presumption is that it is intended to make none, and it would be judicial legislation for a court to do so." 11 Am. Jur., Constitutional Law, § 100, page 735.
It is unreasonable and impractical to say that the plaintiff must rest upon the assumption stated by the Court and can take no action to prevent an unlawful expenditure of these funds until some overt act toward this end is committed or threatened by the governing board of a county. It would be just as plausible, and in practice perhaps more so, to argue that since everybody knows that a legislative act is presumed to be constitutional, the governing board of a county will do the natural thing and follow the authority given it by the legislative act. "When courts are considering the constitutionality of an act, they should take into consideration the things which the act affirmatively permits, and not what action an administrative officer may or may not take."Northern Cedar Co. v. French,
A somewhat similar situation arose in Moseley et al. v.Welch et al., supra,
My conclusion is that Item (f) should also be declared invalid. For the reasons stated in the consideration of Item (h), I do not think Item (f) is separable from that which remains. It and the other provisions are mutually dependent upon each other.
I would declare the entire act void upon the ground that the invalid parts (Items h and f) are inseparable from the remainder. It would serve no useful purpose for me to discuss or express an opinion upon the other questions decided in the majority opinion. Some of them are of major public importance upon which I prefer to reserve my decision.
TAYLOR, J., concurs.