Floyd v. Perrin

2 L.R.A. 242, 8 S.E. 14, 30 S.C. 1, 1888 S.C. LEXIS 170

• Court: Supreme Court of South Carolina
• Decided: November 30, 1888
• Status: Published

Opinions

The opinion of the court was delivered by

Mr. Chiee Justice Simpson.

This case primarily involves the constitutionality of an act entitled “An act to charter the Greenville and Port Royal Railroad Company,” passed December 23, 1882, and of “An act to amend an act entitled ‘An act to charter the Greenville and Port Royal Railroad Company,’ ” passed December 24, 1885. In the body of the act power is given to counties and townships, &c., to subscribe to the stock of the company thereby chartered, and it enacts that for the purpose of the act “townships shall be, and they are hereby declared to be, bodies politic and corporate, and vested with the necessary powers to carry out the provisions of this act.” Under the provisions of this act a township known as Ninety-Six Township, in Abbeville County, subscribed to the stock of said company — the county commissioners as the corporate agents of said township issuing the necessary bonds in payment of said subscription, to meet the interest of which bonds a tax was assessed and collected by the defendant, treasurer of the county.

The action below was brought by the plaintiffs, tax-payers of said township, under section 268, General Statutes, to recover the amount paid by them under protest, to wit, $300.05. Their claim to recover is based mainly upon two propositions- involving, as we have said, the constitutionality of the enactment above referred to, to wit: It is claimed, first, that the act in question, with its amendments, in so far as it purports to incorporate any township or townships in the body of said act, and not mentioned in the'title, is in violation of that section of the Constitution which declares that “Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.” Art. II., § 20. Second, it is claimed that the act violates section 8, of article IX., of the Constitution, which impliedly inhibits the legislature from vesting the corporate authorities of counties, townships, &c., with the power to assess and collect taxes for any purpose other than a corporate purpose, and it is denied that the subscription in question by Ninety-Six Township, and the tax collected thereunder, was for a corporate purpose.

Now assuming, in the first instance, that the subscription by Ninety-Six Township to the Greenville and Port Royal Railroad Company was within its corporate purpose, and therefore if said township had been incorporated and vested with power to assess and collect ,a tax to meet such subscription by a separate act, expressed in its title, such act would not be obnoxious to article IX., section 8, of the Constitution; yet the question still is presented, whether' the incorporation of this township with the power mentioned in the body of the act, which in its title refers only to the chartering of the railroad company, is not obnoxious to section 20, article II., supra, because, as alleged, it refers to a subject distinct and foreign to that expressed in the title. His hon- or, the Circuit Judge, held and ruled that the act was unconstitutional in both particulars.

This court has several times considered and discussed section 20, article II., supra, notably in the cases of Charleston v. Oliver, 16 S. C., 47; Coleman v. Chester, 18 Id., 464; Woodsides v. McDaniel, 19 Id., 116; and Connor v. Railroad Company, 23 Id., 427. In some of these cases, the principle under which the section should be construed and applied was announced. In Charleston v. Oliver, while holding the act under review unconstitutional, because, in the judgment of the court, it was in violation of the section, the court said : “We think there has been and ought to be a general disposition to give a liberal construction to constitutional provisions like this now under consideration, rather than to embarrass legislation by an unnecessary strictness of construction (Cool. Const. Lim., 146); and we fully agree with the Supreme Court of the United States, wdiere (San Antonio v. Mehaffey, 96 U. S., 315, adopting the language of the Texas court in San Antonio v. Lane, 32 Texas, 405) it holds that “when an act of the legislature expresses in its title'the object of the act, the title embraces and expresses any lawffil means to achieve the object, thus fulfilling the constitutional injunction that every law shall embrace but one subject, and that shall be expressed in its title.” In Coleman v. Chester, supra, the court said: “This section, no doubt, contains a wise provision, and, if properly observed, would tend greatly to prevent confusion and doubt as to the exact meaning and intent of legislative enactments, and to this end it should be enforced by the court in all proper cases, due care being exercised lest a too strict construction might defeat its very object and purpose by clogging legislation and loading down our statute books with numberless separate acts, and wholly unnecessary to the end,” etc.

These two cases and others show the spirit in which this court has been disposed to consider this section. And under the influence of this spirit, in Connor v. Railroad Company, supra, where, in “An act to incorporate the Green Pond, Walterboro and Brauchville Railroad Company,” power was conferred upon the county commissioners to issue bonds in subscription to the capital stock of this railway, the court said: “As we have said in Charleston v. Oliver, 16 S. C., 561, upon the authority of Mr. Justice Cooley, ‘There has been and ought to be a general disposition to give a liberal construction to constitutional provisions like this now under consideration, rather than to embarrass legislation by an unnecessary strictness of construction.’ Hence, .when a question under this clause of the constitution is presented for adjudication, we are bound to take a liberal and enlarged view, and, if practicable, bring the legislation which is assailed as unconstitutional within the limits prescribed by the supreme law of the land.” And in this case the section assailed was held constitutional on the ground that it contributed to the object expressed in the title, and could be properly regarded as a lawful means to achieve that object, to wit, the incorporation and construction of the Green Pond, Walterboro & Branchville Railroad Company.

Now, applying these principles announced from our own. court, and especially the decision in the last case, we think the Circuit Judge was in error in holding the acts here unconstitutional because of section 20, article II., Constitution. The only difference between Connor v. Railroad Company, supra, and the case before the court (assuming for the present that Ninety-Six Township had a corporate purpose, and therefore- capable of being invested with the power to subscribe and tax, to the end of carrying out said corporate purpose), was the fact that Colleton County was already a corporate body, with a corporate purpose, at the time the Green Pond Railroad Company was chartered, while in the latter case Ninety-Six Township was incorporated by the acts chartering the railroad. We cannot see that this difference affects the question. The principle upon which it was held, in the first case, that the act was constitutional, was that the authority granted to the county to subscribe to the railw'ay was a means to achieve the object expressed in the title of the act, and therefore was germane to that object. So it appears to us that declaring the township a corporate body, with poiver to tax in aid of the Greenville and Port Royal Railroad, was contributory to and furnished means to achieve the object of the act as expressed in the title, assuming all the time that Ninety-Six Township was really incorporated, with a corporate purpose, and that the power conferred was intended to promote that corporate purpose.

This brings us to this latter question, which, as it appears to us, is the main and vital question in the case, to wit: Was Ninety-Six Township incorporated with a distinct corporate purpose, and was the power to subscribe to the railroad in question, and to assess and collect a tax to meet such subscription, granted with a view to enable it to carry out said corporate purpose, and thus conform to section 8, article IX., Constitution, in which it is provided : “The corporate authorities of counties, townships, school districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes,” &c., &c.

It will be conceded that at the time of the passage of the act chartering the Greenville and Port Royal Railroad Company, Ninety-Six Township was not a corporate body, nor was there any other corporate township. It is true that under an act of the legislature passed in 1868, the counties of the State were divided into townships, which were declared to be corporate bodies, with corporate purposes, and with powers and privileges conferred, and to be organized with various officials, moderators, town clerks, selectmen, constables, &c., &c., and with all the. machinery of a regular corporation; but this act was repealed in 1870, by “An act to repeal an act entitled ‘An act to organize townships and to define their powers and privileges,’ ” excepting, however, that portion of said act fixing the number, names, and boundaries of the respective townships in the respective counties, which were left as territorial divisions, but with no corporate powers, privileges, or purposes.

Has Ninety-Six Township been incorporated with a corporate purpose, sufficiently so as to authorize its being invested with the power to assess and collect taxes in aid thereof? Section 9 of the charter of the railroad provides that, for the purpose of this act, all the counties and townships in said counties along the line of said railroad, or which are interested in its construction, as herein provided for, shall be, and they are hereby declared to be, bodies politic and corporate, and vested with the necessary powers to carry out the provisions of this act,” &e., &c. Minety-Six Township is along the line of said railroad, and in so far as section 9 above has incorporated any township, Ninety-Six is included. But these incorporations are rather singular bodies. No machinery is provided for their organization; they have no officials, no perpetual succession, nothing, in fact, usually belonging and appertaining to corporate bodies, either public or private, municipal or otherwise. Inasmuch, however, as the general assembly has declared them in express words to be bodies politic and corporate, they must be so held here; but where is the corporate purpose upon which, and for the promotion of which, the legislature is authorized by section 8, article IX., Constitution, to grant power to tax the property in said townships by a majority vote of the inhabitants ?

To understand what is meant by a corporate purpose, a distinction must be drawn between the power of a corporation and the end and the purpose intended to be accomplished by it. The two must not be confounded. To illustrate: the counties of the State are corporations, with well defined and distinct purposes, to wit, supervision of roads, bridges, and ferries, and other internal and county matters; and to carry out these ends certain powers are granted, which are distinct and separate from the ends. So, too, municipal governments are provided for cities, towns, and villages, for the purpose of enabling them to preserve peace and order, to construct and repair streets, and for various other corporate objects; and to enable these governments to meet the ends designated certain powers are granted, but these powers and the corporate purposes are widely different. True, the one follows the other, and is necessary thereto, but the corporate purpose must exist before a power can be granted to carry it out.

Now, these townships, after being declared bodies politic and corporate, were authorized to subscribe to the railroad upon a vote of the inhabitants, said subscription to be paid by taxation. But we again ask, for what corporate end and purpose was this power granted ? What matter did the township, after its incorporation, have charge of, the promotion of which was intended by this subscription ? What corporate interest did it control, demanding the taxing power for its advancement ? We can see nothing. It was given power to take stock in the railroad, but for what end, in so far as the township is concerned? Suppose this stock should become largely remunerative, in the way of dividends, in what manner and for what purposes could it be used ? These are questions to which the act incorporating the township affords no reply.

The case referred to by his honor, the Circuit Judge, and also by the counsel, Weightman v. Clark, 103 U. S., 256, 261, presents a striking example of the difference between the powers granted and a corporate purpose, where a school district in Illinois was authorized to subscribe to the capital stock of a raihvay company ; and the case reaching the Supreme Court of the United States, Chief Justice Waite, in delivering the opinion of the court, said: “Taxation by municipal or public corporations must be for a corporate purpose. It is not always easy to decide whether a certain kind of tax is within or without this limitation, but we think it may be safely said that, as a general rule, a corporate purpose must be some purpose which is germane to the general scope of the object for which the corporation was created. * * * Taxation for school purposes only would be germane to such corporations, to wit, school districts.” The Illinois act was declared unconstitutional. So, in the case before this court, while we see a distinct power granted to these incorporated townships, we are at a loss to find a corporate purpose to which the power can be said to be germane, and which it is intended to advance and promote by the exercise of said power.

It is conceded that in this State, and in the other States having a constitutional provision similar to ours, by which counties, &c., &c., may be invested with power to subscribe to railroads, &c., &c., and to tax the inhabitants to meet such subscription, that it is constitutional for the legislature to grant such power to the counties; but this is based upon the position that railroads being highways, are embraced within the corporate purposes of the counties, which have jurisdiction over highways, bridges, and ferries, with pther matters appertaining to the counties. The toAvnships, however, have no such jurisdiction, and therefore the cases relied on in the argument, in Avhich county subscriptions to railroads have been held legal have no application, because in all such cases the subscription and taxation Avere intended to promote and advance a strictly corporate purpose of the county, which is not the fact as to townships.

We would very gladly have come to a different conclusion from that which has been reached in this case, because of the serious effect which this judgment may have; but after patient and mature consideration, we feel compelled to hold with the Circuit Judge that, in so far as the acts in question attempted to confer power upon townships along the line of the railroad, embracing Ninety-Six Township, it was in violation of section 8, article IX., of the Constitution, and therefore void.

From the view which we have taken of this case, it is not necessary to consider the plaintiffs’ (respondents’) grounds of appeal, which impute error to the Circuit Judge in holding as matter of law that plaintiffs were estopped from showing that the conditions precedent to the issue of the bonds, &c., had not been complied with, &c.

We do not think there is anything in the defendant’s ground of appeal as to the jurisdiction of the court, in so far, at least, as the right of plaintiffs’ recovery was based upon the illegality of the tax, because of the unconstitutionality of the act under which it has been imposed. The duty performed by the county commissioners was not one of those duties which appertained to the county commissioners as a constitutional body, having jurisdiction over roads, highways, ferries, and bridges, and in all other matters relating to taxes, disbursement of money for county purposes, with the right of appeal in all eases to the State courts. Nor was said duty imposed of necessity upon said commissioners on account of said jurisdiction. On the contrary, the county commissioners were simply declared the corporate agents of the townships, and as said agents invested with authority to order the election and issue the bonds upon certain conditions, and, as we suppose, any one else might have been declared the agents as well. Under these circumstances we do not think the county commissioners constituted a court in this matter as in matters belonging to their legal jurisdiction, before which it was incumbent upon the plaintiffs as taxpayers to raise the question of the constitutionality of the acts mentioned, at the peril of being estopped from bringing the action below to test the legality of the tax, under the act in such ease especially made and provided, as they have done.

It is the judgment of this court, that the judgment of the Circuit Court holding the acts in question unconstitutional on account of the absence of a corporate purpose in the townships incorporated, and that therefore the tax assessed and collected by the defendant was illegal and should be refunded, should be affirmed and the same is hereby affirmed.