Clarke v. South Carolina Public Service Authority

• Decision Date: 10 September 1935
• Docket Number: 14137.
• Citation: 181 S.E. 481,177 S.C. 427
• Parties: CLARKE v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY et al.
• Court: South Carolina Supreme Court

181 S.E. 481

177 S.C. 427

CLARKE v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY et al.

No. 14137.

Supreme Court of South Carolina

September 10, 1935

Original suit for injunction by Frank K. Clarke against the South Carolina Public Service Authority and others.

Injunction refused, and complaint dismissed.

Shepard K. Nash, of Sumter, for plaintiff.

Jefferies & McLeod, of Walterboro (Robert McC. Figg, Jr., of Charleston, W. L. Daniel, of Greenwood, and Jas. H. Fowles of Columbia, of counsel), for defendants.

FISHBURNE Justice.

The plaintiff, a citizen and taxpayer of the county of Sumter and of the state of South Carolina, instituted this proceeding in the original jurisdiction of this court for the purpose of having declared unconstitutional Act No. 887 (38 Statutes at Large, p. 1507) passed by the Legislature at its 1934 Session, which is hereinafter referred to as the Act.

The matter now comes before this court upon the order of the Chief Justice dated August 7, 1935, based upon the verified amended complaint, requiring the defendants to show cause, if any they can, why the Act should not be declared unconstitutional and why the defendants should not be enjoined from exercising the powers granted to them under said Act. The defendants have answered and made a return to the rule to show cause in which they put at issue all allegations of unconstitutionality.

The General Assembly, by the Act, created a body politic and corporate called South Carolina Public Service Authority (hereinafter called the Authority), and therein authorized and empowered it, among other things, to build and construct a hydroelectric and navigation project by diverting the waters of the Santee river into the Cooper river. Said Act also authorized the Authority to provide for health betterment, flood control, and reforestation, and improvement of navigation in the territory contemplated in the project. The Authority was likewise authorized, without in any way pledging the faith, credit, and taxing power of the state, to finance the construction of said project by borrowing money to be evidence by bonds secured by a foreclosable mortgage on the project. The directors of the Authority have been appointed and propose to enter into a loan and grant agreement with the United States of America acting by and through the Federal Emergency Administration of Public Works (hereinafter called the Government), in substantially the form of the loan and grant agreement incorporated in this case as "Exhibit A" of the amended complaint, for the construction of said project under the terms of which loan and grant agreement the Government is to make to the Authority a grant of not exceeding $16,875,000 which will not have to be repaid by the Authority and will lend to the Authority not exceeding $20,625,000, to be evidenced by bonds of the Authority secured by a mortgage on the property to be acquired with the proceeds of the grant and loan. The plaintiff in this cause seeks to enjoin the Authority from proceeding with the execution of the loan and grant agreement, the issuance of the bonds, the execution of the mortgage, and the construction of the project.

It appears from the record that this project is one which has been contemplated in various forms for more than one hundred years by citizens of South Carolina. As early as 1786 a company was incorporated, including among its directors many of the most famous personages of that time, to construct the Santee Canal between the Santee and Cooper rivers for the purpose of aiding in navigation from the upper and central parts of the state to the Atlantic Ocean at Charleston. This development was aided, among others, by General George Washington before he became President and Marquis de Lafayette. See A. S. Salley's appendix to Porcher's History of the Santee Canal. It also appears that this canal was actually completed and for a half century constituted one of the main arteries of commerce in South Carolina. The Act gives the Authority the power to restore navigation through the Santee Canal and up to Columbia and Camden as well as to construct a gigantic hydroelectric development and to provide for the betterment of the public health and flood control and reforestation. The Act gives to the Authority the power to sell its electric energy in other states as well as in South Carolina.

Acts Nos. 821 and 823 of the Acts of 1928 (35 Stats. at Large, pages 1765 and 1770) amended the Charter of the Columbia Railway & Navigation Company (the original charter having been dated November 1, 1913, and having been amended on April 8, 1921). Said acts give to the Columbia Railway & Navigation Company, a private corporation, the right to build the project which the Authority is now empowered to build. The private corporation also owns a license from the Federal Power Commission originally issued in 1926 permitting the construction of the project, which license the Authority proposes to acquire.

The court in this case is called upon to pass upon the constitutionality of the act. In determining this question it is to be observed that it is a well-settled rule in South Carolina that: A statute will, if possible, be construed so as to render it valid; that a legislative act will not be declared unconstitutional unless its repugnance to the Constitution is clear and beyond reasonable doubt; that every presumption will be made in favor of the constitutionality of a legislative enactment; that it 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; that all reasonable presumptions must be made in favor of the validity of the Act; and that the Constitution of South Carolina is a limitation upon, rather than a grant of, legislative power.

See State v. Moorer, 152 S.C. 455, 150 S.E. 269; Wingfield v. Tax Commission, 147 S.C. 116, 144 S.E. 846; Battle v. Willcox, 128 S.C. 500, 122 S.E. 516; Xepapas v. Richardson, 149 S.C. 52, 146 S.E. 686; Scroggie v. Scarborough, 162 S.C. 218, 160 S.E. 596; Santee Mills v. Query, 122 S.C. 158, 115 S.E. 202; Duke Power Company v. Bell, 156 S.C. 299, 152 S.E. 865; Fripp v. Coburn, 101 S.C. 312, 85 S.E. 774; Cathcart v. Columbia, 170 S.C. 362, 170 S.E. 435; Park v. Greenwood County, 174 S.C. 35, 176 S.E. 870.

I. It is contended that the Act violates section 17 of article 3 of the Constitution, in that it relates to more than one subject not expressed in the title, in violation of said section. This question has been before the court on numerous occasions. It is concluded adversely to the position of the plaintiff by the case of State v. Moorer, 152 S.C. 455, 150 S.E. 269, 272, in which case the court speaking through Mr. Chief Justice Stabler said:

"It is contended that the act in question is violative of section 17 of article 3 of the state 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.'

In Verner v. Muller, 89 S.C. 117, 71 S.E. 654, 655, with regard to this provision, the court 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 object expressed in the title. Connor v. Railroad, 23 S.C. 427; State v. O'Day, 74 S.C. 448, 54 S.E. 607.' * * *

'It is not necessary that the title should be an index of the contents of the statute.' Briggs v. Greenville County, 137 S.C. 288, 135 S.E. 153, 163. See, also, Means v. Highway Department, 146 S.C. 19, 143 S.E. 360; McKiever v. City of Sumter, 137 S.C. 266, 135 S.E. 60."

This objection is clearly untenable and the same is overruled.

II. It is also contended that the Act is unconstitutional in permitting the expenditure of money from the contingent fund of the Governor to pay traveling expenses of the board of directors of the Authority.

As this court has so many times held that the Legislature has full authority to make such appropriations as it deems wise in the absence of any specific constitutional prohibition against such appropriation, this contention of the plaintiff requires no extended discussion and the court holds that such appropriation was constitutional and proper. See State v. Moorer, supra; Briggs v. Greenville County, 137 S.C. 288, 135 S.E. 153.

It is well to observe, however, that in section 2 of the Act it is provided that the funds paid from the contingent fund shall be in the nature of an advance which will be repaid.

III. By paragraph 5 of the amended complaint it is alleged that the bonds proposed to be issued, and the mortgage to be executed by the said Authority under said act and loan and grant agreement, will be invalid for the reason that the South Carolina Public Service Authority is not legally constituted, in that the position of director is an office of honor and profit as defined by the Constitution of South Carolina, and at least three members of the board of directors held at the time of their appointment, and still hold, other offices of honor and profit.

It is conceded by the defendants in the return and answer that at the time of their appointment as members of the board of directors three members thereof held, and still hold, public offices in South Carolina.

For the purposes of this case we deem is unnecessary to decide whether membership on the board of directors amounts to the holding of a public office, for the reason that the only question necessary now to be decided by this court is whether the bonds proposed to be issued and the mortgage and loan and grant agreement to be executed by the Authority will be invalid and null and...