Buist v. City Council of Charleston

57 S.E. 862, 77 S.C. 260, 1907 S.C. LEXIS 146

Opinions

OPINION. July 2, 1907. The opinion of the Court was delivered by (after stating the facts). The main purpose of the act seems to have been to provide for the exemption of said bonds from taxation, as there was already a general law conferring upon municipalities power to fund their indebtedness. Code of Laws, section 2015 et seq.

The first of said grounds which will be considered is that which raises the question whether the statute is obnoxious to article III, section 34, subdivision III of the Constitution. That section is as follows: Section 34. "The General Assembly of this State shall not enact local or special laws concerning any of the following subjects or for any of the following purposes, to wit: * * * III. To incorporate cities, towns or villages, or change, amend or extend the charter thereof. * * * XI. In all other cases, where a general law can be made applicable, no special law shall be enacted"

It will be observed that the act does not purport to change, amend or extend the charter of the city of Charleston, and the words "change," "amend or extend" might more appropriately be applied to the general law hereinbefore mentioned than to the charter of said city, in which case it would not be a local or special law, but the question would be whether it was a special provision in a general law, which is hereinafter considered.

The next question for consideration is whether the act was unconstitutional, on the ground that it was in violation of article III, section 34, subdivision XI of the Constitution, which provides, that where a general law can be made applicable no special law shall be enacted.

The views which the Court entertains upon this question are thus stated in the opinion of Mr. Justice Gary, in the case of DeHay v. County Commissioners, 66 S.C. 229,44 S.E., 190: "We will lastly discuss the right of the General Assembly to determine whether it was advisable to enact a general or special law. The rule of construction is different for determining whether a special act is obnoxious to the provisions of the Constitution, that where a general law can be made applicable, no special law shall be enacted, and for determining whether such act is unconstitutional, on the ground that it concerns one of the prohibited subjects mentioned in the Constitution. One involves a legislative, the other a judicial question. The following authorities show that whether a general law can be made applicable, is a question to be decided by the legislature. 15 Ency. of Law, 978, which says: `The Constitutions of many States provide that no special or local law shall be passed when a general law can be made applicable. Under such provisions, it is a question for the legislature exclusively, whether a general law can or cannot be made applicable in a certain case,' citing numerous authorities in the note on that page.Guthrie Nat. Bk. v. City of Guthrie, 19 Sup. Ct. Rep., 513, in which the Court uses this language: `It is claimed that it violates the act of Congress, approved July 30, 1886 (24 Stat., 170, c. 818), prohibiting the passage of local or special laws in the territories. The act, among other things, provides that where a general law can be made applicable, no special law shall be enacted in any of the territories of the United States, by the territorial legislatures thereof, and it also provides that the territorial legislatures shall not pass local or special laws in any of the cases therein enumerated, among which is a law to regulate the practice in Courts of justice. Both of these provisions are said to have been violated in the passage of the act in question. Whether a general law can be made applicable to the subject matter, in regard to which a special law is enacted by a territorial legislature, is a matter which we think rests in the judgment of the legislature itself. State v. Hitchcock,1 Kan., 184. That body is especially prohibited from passing any local or special law in regard to certain subject enumerated in the act. Outside and beyond that limitation is the provision above mentioned, and whether or not a general law can be made applicable to the subject, is a matter which is confined to the judgment of the legislature.'

"Terre Haute v. Kolsem, 14 L.R.A. (Ind.), 566. The opinion in this case is entitled to great consideration, because it was written by that eminent jurist and distinguished Chief Justice, Elliott. The Court says: `If the enactment of such a law as the one before us is forbidden, it must be by virtue of section 23, of article IV, of the Constitution, for the subject embraced in the act is not included in the enumeration found in the preceding section. But section 23, as has been again and again decided, does not prohibit the enactment of special laws, where general ones cannot be made applicable. It has also been repeatedly held that whether a general law can be made applicable to a particular subject, is exclusively a legislative question, and it necessarily results, that if the question is legislative, the whole matter, with all its incidents, must be determined by the legislature. If the question is legislative, then it is undisputably true that it is excluded absolutely and entirely from the domination of the judiciary. It is inconceivable that the question can be dissected into fragments, and one part assigned to one department of government and another part to a different department. Under our system of government, the departments are distinct and independent; there is no such thing as a power partly judicial and partly legislative. * * * As the question whether a general law can be made applicable is exclusively legislative, the incidents of the main question are necessarily and entirely legislative. Where the principal subject belongs, there the incidents belong. Means, methods and the like belong to the department that is invested with power over the general subject. It is for that department to make choice of modes and means, and as the Supreme Court of the United States has said, "It is master of its own discretion." The cases, however, which decide that this is a legislative question, nevertheless recognize and approve the doctrine that the question is judicial when the legislation concerns one of the prohibited subjects mentioned in the Constitution.' In the case of Carolina Grocery Co. v. Burnet, 61 S.C. 205,39 S.E., 381, 58 L.R.A., 687, Mr. Justice Jones says: `Such question was treated as a judicial one in State v. Higgins, 51 S.C. 54, 28 S.E., 15; and in Dean v. SpartanburgCo., 59 S.C. 110, 37 S.E., 226, whether compensation to county officers was graded in proportion to population and necessary service, under subdivision 10 above, was treated as a judicial question.' To the foregoing cases should be added Nance v. Anderson County, 60 S.C. 501,39 S.E., 151. We do not regard the question as longer open in this State, after the decisions just mentioned. The reason of the difference in the rule is that in one case the Constitution clearly defines the limitation upon legislative action, while in the other the subject is confined to the discretion of the legislature. There is no rule of law by which the Courts can determine whether a necessity exists for the passage of a general law on the subject, but the Courts can determine whether a special act concerns any of the prohibited subjects mentioned in the Constitution. If the Courts should undertake to decide whether a general law could be enacted, it would only substitute its ideas of expediency for those of the legislature upon a question peculiarly appropriate for the consideration of the legislative department of the government."

We proceed next to consider the objection to the constitutionality of the act on the ground that it cannot operate as a special provision in the general law as provided in sections 2015-2019, Vol I., of the Code of Laws. The case of Grocery Co. v. Burnet, 61 S.C. 205,39 S.E., 381, 58 L.R.A., 687, conclusively shows that this objection cannot be sustained.

The next question is whether the act was in violation of the requirements of Article III., Section 17, of the Constitution, which provides that "every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title." This case falls within the principle that an act is not subject to the objection interposed, when the body is germane to the subject expressed in the title thereof. Connor v. R.R., 23 S.C. 487;Floyd v. Perrin, 30 S.C. 1, 8 S.E., 14; Riley v. Union Station, 71 S.C. 486, 51 S.E., 485; State v.O'Day, 74 S.C. 448; Parks v. Laurens Cotton Mills, 75 S.C. 560.

The objections urged in specifications "E" and "F" cannot be sustained, for the reason that they erroneously assume, that the act under which it is proposed to issue the bonds is invalid.

The objection stated in the eighth paragraph of the petition must be overruled, as such result is incidental to all exemptions of property from taxation. No case has been cited to show that such objection has ever rendered a statute unconstitutional.

It is the judgment of this Court, that the application be refused and the petition dismissed.