Bramlette v. Stringer

• Decision Date: 08 February 1938
• Docket Number: 14616.
• Parties: BRAMLETTE v. STRINGER et al.
• Court: South Carolina Supreme Court

195 S.E. 257

186 S.C. 134

BRAMLETTE v. STRINGER et al.

No. 14616.

Supreme Court of South Carolina

February 8, 1938

Appeal from Common Pleas Circuit Court of Greenville County; Philip H. Stoll, Judge.

Action by T. N. Bramlette, as a resident and taxpayer of Greenville County, in his own behalf and in behalf of others similarly situated, to restrain Dr. L. H. Stringer and others, as the Board of County Commissioners of Greenville County, from issuing certain bonds. From an order granting a permanent injunction, the defendants appeal.

Affirmed.

The order of Judge Stoll follows:

The plaintiff in this action, as a taxpayer of Greenville county seeks to enjoin the defendants from issuing and selling certain bonds under an act of the legislature entitled "An Act to Authorize and Empower the County of Greenville to Issue Bonds or Other Evidences of Indebtedness in the Sum Not Exceeding Three Hundred Fifty Thousand ($350,000.00) Dollars and Accrued Interest, For the Purpose of Road Construction" etc. Approved by the Governor May 21, 1937.

In his complaint, the plaintiff specifies several grounds on which he contends the act is unconstitutional, but the most serious objections seem to be raised in sections (c) and (h) of the third paragraph thereof, wherein it is contended that section 2 of the act, imposing upon the legislative delegation of Greenville county the duty of determining the amount, and method of selling, the bonds, and section 11 of said act imposing upon said delegation the duty of selecting the roads to be constructed and improved, are unconstitutional. In considering these points the following portions of said statutory sections are pertinent, to wit:

"§ 2: * * * The bonds may be sold and delivered in one lump sum, or may be sold in a lump sum, and delivered in installments, or may be sold and delivered in installments according to such instructions in writing with respect thereto, as may be filed with the County Board of Commissioners by the Legislative Delegation of Greenville County and the certificate of the Board of County Commissioners as to the instructions filed with it, or the sale and delivery of the bonds in any such manner by it, shall be conclusive evidence that the instructions were given, as stated in the certificate."

"§ 11: The designation of the roads for construction and improvement, or re-construction and improvement under the terms of this Act, * * * shall be by the Greenville County Legislative Delegation in the General Assembly."

The plaintiff makes the further contention that the act does not specify any definite amount of debt to be contracted, but merely provides in section 1 thereof for a bonded indebtedness, "in the principal sum of not exceeding Three Hundred Fifty Thousand ($350,000.00) Dollars," and that makes it optional with the said delegation, through their instructions, what amount of indebtedness, not exceeding $350,000, shall be created.

It is conceded that the Legislature itself, in the act, could have specified the amount, and method of selling the bonds, and designated the roads to be constructed and improved with the funds. Gaston v. State Highway Department, 134 S.C. 402, 132 S.E. 680. It is well settled that the Legislature may pass any act which is not prohibited by the State or Federal Constitutions. But the act must be complete when it comes from the hands of the Legislature; nothing can be added to, or taken away from, the act after it leaves the lawmaking body. State v. Moorer, 152 S.C. 455, 150 S.E. 269-279. No county legislative delegation can be clothed with power to enact laws during vacation. Article 3 of the State Constitution prescribes the procedure for enacting laws. Among other requirements, the act must be passed during a session of the Legislature, by a majority vote of both branches of that body, after having been read three times, and approved by the Governor. All such requirements are mandatory. Smith v. Jennings, 67 S.C. 324, 45 S.E. 821. So any action now on the part of the Greenville County Legislative Delegation, pursuant to said act, cannot amount to the enactment of legislation, and if said act was incomplete when it came from the hands of the Legislature, it cannot be finished by the Greenville County Legislative Delegation in the manner provided for in said act.

The only other view is that the performance of those duties are in efficient enforcement and execution of a complete law. It has been held that (1) the granting or refusing of a mining license (State ex rel. Port Royal Min. Co. v. Hagood, 30 S.C. 519, 9 S.E. 686, 3 L.R.A. 841); (2) choice of one of two specified plans of financing ( State v. Moorer, 152 S.C. 455, 150 S.E. 269); and (3) approval of bonds by the Sinking Fund Commission ( Cathcart v. City of Columbia, 170 S.C. 362, 170 S.E. 435), were all executive and administrative acts in the enforcement and execution of complete laws.

Under the latter view, difficulty is encountered in that members of the Legislature are ineligible to enforce and execute the law. Section 14, of article 1, State Constitution, provides: "In the government of this State the legislative, executive and judicial powers of the Government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other."

In Spartanburg County v. Miller, 135 S.C. 348, 132 S.E. 673, the court held that a county legislative delegation could, in the enforcement of the law, engage to the extent, and to the extent only, that such enforcement was incidental to the lawmaking duties. There is no apparent reason why the performance of the duties imposed by the act in question will enable the Greenville County Legislative Delegation to better perform their duties as lawmakers, and under the authority just cited, said delegation is incompetent to undertake the enforcement of this Act in the particulars it imposes upon them (and in those particulars the act is unconstitutional and void).

This case is not governed by the case of Little v. Willimon, 103 S.C. 50, 87 S.E. 435, for the reason that the statutes are different. In the Little Case the county commissioners were required to meet and confer with the County Delegation, but the county commissioners were free to decide all matters coming before them as they saw best. Under the statute here, however, the board of county commissioners are ordered by the delegation to do certain things, and the commissioners, under the act, are bound to do as instructed, they having no discretion in the matter.

The case of Ruff v. Boulware, 133 S.C. 420, 131 S.E. 29, is not controlling. The statute in that case authorized the establishment of a chain gang in the county upon approval by the county legislative delegation. The approval was a contingency upon the happening of which the act would become effective. The Legislature could have made the operation of the act dependent upon the happening of any one of many other contingencies. The delegation in that case had nothing to do with the enforcement and execution of the law after it went into effect.

The conclusion that those parts of the act above discussed are invalid necessitates determining the effect of that decision on the other parts of said act. The rule is well settled that where invalid parts of an act are severable (State v. Johnson, 76 S.C. 39, 56 S.E. 544, 11 Ann. Cas. 721), or separable (People's Bank v. People's Bank, 122 S.C. 476, 115 S.E. 736), the declaring of the invalid parts to be invalid does not impair the other parts of the act. But if what is left as valid cannot be carried out consistent with the legislative intent, the whole act is void. In Dean v. Spartanburg County, 59 S.C. 110, 37 S.E. 226, 227, the Legislature passed an Act with a clause exempting from its provisions about one-half of the counties in the state, and that clause was declared invalid, thus leaving the statute, if it stood, applicable to every county in the state, and the court, in holding the whole act void, said: "We cannot accept this construction, as it would make the provisions of the act applicable to those counties which the legislature, in express language, had shown it was intended to exempt from the operation of said act. This is not a case where effect can be given to a portion of an unconstitutional act."

The act in question cannot be carried out in accordance with the legislative intent, even though, just as in the Dean Case supra, the intent is found in invalid parts of the act. The Legislature has expressly indicated that certain things in the enforcement and execution of the act shall be done by the Greenville County Legislative Delegation, and any attempt on the part of any person or board to do those things would be an ineffectual usurpation of authority. The giving of instructions as to how to sell the bonds is a condition precedent to all other things embraced in said act, and unless the condition precedent could be complied with, all the residue of the act is ineffectual. The other parts of the act are so connected with, and dependent upon, those parts declared invalid that none can operate, and the whole act is for that reason void.

The act contains a clause that if some parts are declared void the residue shall remain unimpaired. That provision is little more than declaratory of the common law. Statutes, 59 C.J. § 207. The presumption is that such clause itself would not have been passed had the Legislature known that the valid parts could not be carried out in accordance with the legislative intent.

The conclusion reached on the grounds above discussed makes consideration of the other grounds alleged in the complaint unnecessary.

While ...