Poulnot v. Cantwell

• Decision Date: 09 June 1924
• Docket Number: 11525.
• Parties: POULNOT v. CANTWELL ET AL.
• Court: South Carolina Supreme Court

123 S.E. 651

129 S.C. 171

POULNOT v. CANTWELL ET AL.

No. 11525.

Supreme Court of South Carolina

June 9, 1924

Action in the original jurisdiction of the Supreme Court by E. H Poulnot, on behalf of himself and all other taxpayers in the county of Charleston in like plight, who may join in this action and share in the cost thereof, against W. P. Cantwell and others, constituting the County Board of Commissioners of Charleston county, and John P. Deveaux and others constituting the Cooper River Ferry Commission. Petition dismissed.

The title and preamble of the resolution referred to in the opinion follows:

"The State of South Carolina.

At a General Assembly begun to be holden at Columbia, on the second Tuesday in January, in the year of our Lord one thousand nine hundred and twenty-four, and thence continued by divers adjournments to the _____ day of _____. In the year of our Lord one thousand nine hundred and twenty-four.

A Joint Resolution.

To create a Cooper River Ferry Commission and to authorize empower, and direct them to operate a public ferry in Charleston county, from the city of Charleston to Mount Pleasant or to the mainland to the west therefrom at or near Hog Island and to Sullivan's Island, all of which places are in Charleston county; to provide for the construction and maintenance of vehicular communication from

the eastern terminus of said ferry to Mount Pleasant and between Sullivan's Island and Mount Pleasant; to provide for the borrowing of money by the county of Charleston for the purchase and construction of wharves, landings, boats roads, approaches, embankments, trestles, and bridges adjacent and appurtenant thereto and for the maintenance and operation of same; and for the carrying out such projects to arrange for the borrowing of money by the county of Charleston and to provide for a tax levy to meet the interest and create a sinking fund.

Whereas, the entire mainland of Charleston county east of the Cooper river is cut off from regular and reliable communication with the remainder of the said county; and

Whereas, Sullivan's Island in Charleston is also cut off from regular and reliable communication with the mainland of Charleston county; and,

Whereas, the purchase and construction of the necessary wharves, landings, boats, approaches, embankments, trestles, and bridges necessary to the establishment of a public ferry across the Cooper river, with wharves or landings in the city of Charleston, the town of Mount Pleasant, or on the mainland to the west therefrom at or near Hog Island and Sullivan's Island and a public thoroughfare from the eastern terminus thereof to Mount Pleasant, South Carolina, and a public thoroughfare crossing the Cove Inlet from Mount Pleasant, South Carolina, to Sullivan's Island, South Carolina, will cost Five Hundred Thousand ($500,000,00) Dollars.

Whereas, the proposed public ferry will be a part of the highway system of this state, and the establishment, maintenance, and operation thereof is an ordinary county purpose; therefore," etc.

J. N. Nathans, of Charleston, for petitioner.

Whaley, Barnwell & Grimball, of Charleston, for John B. Reeves, intervener.

John I. Cosgrove and James Allan, both of Charleston, for respondents.

MARION J.

Action in the original jurisdiction of this court to enjoin the county board of commissioners of Charleston county and the Cooper river ferry commission from issuing certain notes as obligations of Charleston county, pursuant to the enabling provisions of a Joint Resolution of the General Assembly, approved the 5th day of March, 1924, creating the Cooper river ferry commission, vesting it with certain powers, imposing certain duties, and authorizing the creation of certain indebtedness, etc. The plaintiff, Poulnot, and an intervener, Reeves, as resident taxpayers, base their right to injunctive relief upon the alleged unconstitutionality of the foregoing Joint Resolution.

The questions raised, which will be considered in the order presented by counsel, are to be resolved in the light of the familiar and well-settled general rule that every presumption must be indulged in favor of the constitutionality of an act of the Legislature, and that courts should not declare a statute unconstitutional unless the invalidity is manifest beyond a reasonable doubt. Battle v. Willcox (S. C.) 122 S.E. 516.

First, it is urged that said Joint Resolution is violative of section 17, article 3, of the Constitution, providing that "every act or resolution * * * shall relate to but one subject, and that shall be expressed in the title." The title and preamble of this Resolution should be set out in the report of the case.

It is suggested (a) that the Resolution relates to more than one subject, in that it provides for the operation of a ferry from the city of Charleston to Mount Pleasant and to Sullivan's Island, which is one subject, and also provides for the construction and maintenance of vehicular communication from the eastern terminus of said ferry to Mount Pleasant and between Sullivan's Island and Mount Pleasant, which is another subject. Strictly in rhetoric, and more often in general use, "subject" is the broad word for anything written or spoken about. Century Dictionary. As used in this section of the Constitution, "subject" is the thing legislated about, or the matter or matters upon which the legislation operates, to accomplish a definite object, or objects reasonably related one to the other. Obviously, we think, the subject of the Resolution here in question is "communication," connoting travel and transportation, between one part of Charleston county and another. The definite object of the legislation is to provide the means of such communication. The means, broadly, is that of a highway for travel and transportation over land and water between the points sought to be put into that kind of communication with each other. From the facts recited in the preamble of the Resolution, which facts are here undisputed, it appears that the establishment of the form of communication contemplated necessarily involves the provision of means of travel and transportation over both land and water. Hence it would seem clear that the provisions contained in the Resolution as to ferriage over water and vehicular communication by land do not relate to different subjects, but are closely connected, if not essential, parts of the one subject of legislation.

It is further objected that the Resolution gives (b) power of condemnation to the county board of commissioners, and (c) requires the operation of the ferry as a toll ferry, "without the title showing" that power and requirement. In Verner v. Muller, 89 S.C. 117, 71 S.E. 654, it is said:

"The mandate of the Constitution is complied with if the title states the general subject of legislation, and the provisions in the body of the act are germane thereto as means to accomplish the objects expressed in the title. Conner v. Railroad, 23 S.C. 327; State v. O'Day, 74 S.C. 448, 54 S.E. 607."

The same view, in somewhat amplified form, is thus stated in Lillard v. Melton, 103 S.C. 10, 14, 87 S.E. 421, 423.

"When the general subject is expressed in the title, any details of legislation which provide the means, methods, or instrumentalities which are intended to facilitate the accomplishment of the general purpose, and are germane to it, may be embraced in the body of the act without violating this provision of the Constitution."

Express reference is made in the title to the creation of a ferry commission, to be empowered to operate a public ferry, to "the construction and maintenance of vehicular communication" between certain points, to the "purchase and construction of wharves, landings, boats, roads, approaches, embankments, trestles and bridges," etc., and to "the maintenance and operation of same," and, in the preamble, to the establishment of said "public ferry" and "public thoroughfare" between designated points. The provisions in the body of the Resolution as to the powers of condemnation conferred and as to power of the ferry commission to make rules and regulations as to the use of the property under its control, subject to the limitation that tolls in excess of a fixed amount should not be charged, relate to details which are obviously intended to facilitate the accomplishment of the general purpose, and which are clearly germane to the subject of the legislation.

For the reasons stated, the contention that the Resolution infringes section 17, article 3, in the particulars referred to, cannot be sustained.

The second objection is that the Resolution violated section 6, article 10, of the Constitution, in that it authorizes the levying of a tax and the issuance of bonds for the purchase and construction of wharves, landings, boats, and, for the operation of a ferry, which are not purposes for which a county under the provisions of said section is authorized to levy a tax or issue bonds.

The pertinent portion of the provision invoked is as follows:

"The General Assembly shall not have power to authorize any county or township to levy a tax or issue bonds for any purpose except for educational purposes, to build and repair public roads, buildings and bridges * * * and for ordinary county purposes," etc.

In this Resolution it is recited as a fact found by the General Assembly that "the proposed public ferry will be a part of the highway system of the state, and the establishment maintenance and operation thereof is an ordinary county purpose." The determination of questions of fact upon which the constitutionality of statutes may depend is primarily for the Legislature, and the general rule is that the courts will acquiesce in the legislative decision, unless it is clearly...