Cox v. Bates

• Decision Date: 19 October 1960
• Docket Number: No. 17704,17704
• Citation: 116 S.E.2d 828,237 S.C. 198
• Parties: T. Lewis COX, Individually and as a taxpayer on behalf of himself and all others, similarly situated, too numerous to mention, who may join and share in the benefits and burdens of this action, Plaintiff, v. Jeff B. BATES, as Treasurer of the State of South Carolina, and E. C. Rhodes, as Comptroller General of the State of South Carolina, Defendants.
• Court: South Carolina Supreme Court

Page 828

116 S.E.2d 828

237 S.C. 198

T. Lewis COX, Individually and as a taxpayer on behalf of himself and all others, similarly situated, too numerous to mention, who may join and share in the benefits and burdens of this action, Plaintiff, v. Jeff B. BATES, as Treasurer of the State of South Carolina and E. C. Rhodes, as Comptroller General of the State of South Carolina, Defendants.

No. 17704.

Supreme Court of South Carolina.

Oct. 19, 1960.

Edwin W. Johnson, Spartanburg, Alfred F. Burgess, Greenville, Dorcey Lybrand, Aiken, Hugh L. Willcox, Florence, Frank H. Bailey, Charleston, for plaintiffs.

Daniel R. McLeod, Atty. Gen., James S. Verner and Julian L. Johnson, Asst. Attys. Gen., Sinkler, Gibbs & Simons, Charleston, for defendants.

STUKES, Chief Justice.

In this action in the original jurisdiction of the Court plaintiff attacks as unconstitutional the law providing for the creation and maintenance of a State reserve fund and for the distribution of surplus funds to the counties for public school purposes.

Sections 2 and 3 of the Permanent Provisions, Part III, of the State Appropriation Act of 1954, 48 Stat., at pages 1676, 1677, follow:

'Section 2. General Fund Reserve Account created.--There shall be established and maintained a fund which shall hereafter be carried in a special account in the State Treasury, and which shall be known and designated as 'The General Fund Reserve.' The maximum amount of the General Fund Reserve shall be $3,000,000.00.

'On or before September 30, 1954, and of each year thereafter, the State Budget and Control Board shall determine the amount by which the State's revenues, applicable thereto, exceeded the sum of (1) actual expenditures for normal maintenance and operation of the State Government for the fiscal year immediately preceding, including expenditures to political subdivisions of the State based on established percentages of revenues, but not including expenditures for highway purposes, and (2) unexpended balances of continuing appropriations made during the fiscal year immediately preceding. From such excess revenues so determined, if any, there shall be transferred to the General Fund Reserve an amount sufficient to bring the said General Fund Reserve to the sum of $3,000,000.00, but not in excess thereof.

'The General Fund Reserve shall be used, by transfer to the State's General Fund, as directed by the State Budget and Control Board, to cover, or apply to, any annual deficit which may occur by reason of General Fund expenditures in any year, plus other outstanding appropriation liabilities, exceeding revenues applicable thereto, and for no other purpose.

'Section 3. Budget and Control Board to make certain determinations--excess revenues to counties.--On or before September 30, 1954, and of each year thereafter, the State Budget and Control Board shall determine the amount by which the State's revenues, applicable thereto, exceeded the sum of (1) actual expenditures for normal maintenance and operation of the State Government during the next preceding fiscal year, including expenditures to the political subdivisions of the State based on established percentages of revenues, but not including expenditures for highway purposes, (2) unexpended balances of continuing appropriations outstanding at the end of the preceding fiscal year, and (3) whatever amount is found necessary to bring the General Fund Reserve to the prescribed maximum amount.

'All excess revenues so determined are hereby appropriated annually to the counties of the State, to be distributed to the respective counties in the proportion that the pupil enrollment of the public schools of a county bears to the total public school enrollment of the State, as determined by the State Superintendent of Education for the preceding school year. Such funds shall be used for General Public School purposes, including the payment of school debt, as directed by a majority of the respective legislative delegations, including the senator.' (Emphasis added.)

The foregoing enactment was amended by Section 14 of Act No. 333 of 1959, 51 Stat., at pages 617, 618, as follows:

'Notwithstanding the provisions of Section 2, of Part III, of Act No. 644 of the Acts of 1954, on or before September 30, 1960, the State Budget and Control Board shall determine: (1) the actual cost of operation of the State government for the preceding fiscal year; (2) any appropriation liabilities of that year which may be outstanding and unpaid at the time, and (3) any General Fund deficit which may have existed at the beginning of the said fiscal year.

'If it shall be found that the State's General Fund revenue collections for that year exceeded the total of its operating cost and the liabilities enumerated above by the amount of $1,500,000.00, there shall be paid to the respective counties of the State for maintenance and operation of public schools, all such excess above the $1,500,000.00 up to the sum of $1,500,000.00 to be distributed among the counties on the basis of pupil enrollment as now used for other funds allotted for this purpose.

'Thereafter, it further excess funds remain, the General Fund Reserve shall be built up to the statutory amount, and any remaining excess funds shall be distributed to the counties as now provided by statute.'

The latter Act, of 1959, was repealed and the Act of 1954 amended by Section 18 of the Permanent Provisions of the State Appropriation Act of 1960, 51 Stat., Second Part, at page 1901, as follows:

'Notwithstanding the provisions of Section 2, of Part III of Act No. 644, Acts of 1954, the General Fund Reserve to be set aside at the end of the Fiscal Years 1959-60 and 1960-61 shall be $5,000,000.00.

'Section 14 of Act No. 333 of the Acts of 1959, is hereby repealed.'

Plaintiff's attack upon the constitutionality of the law is manifold. His points will be discussed and disposed of in the order in which they are presented in the brief. The first is that the above emphasized provision of the Act of 1954, which provides for the expenditure of the funds under the direction of the respective county legislative delegations, violates Section 14 of Article 1 of the Constitution of 1895 which requires the separation of the powers of the several branches of the government and prohibits the exercise of the functions of one of the departments by a member of another department. Defendants concede the point and that the provision of the statute objected to should be stricken, under the authority of Dean v. Timmerman, 234 S.C. 35, 106 S.E.2d 665, and the earlier decisions there cited. However, they assert that the Act is complete and valid despite the deletion and is capable of enforcement without it. That was the result in the Dean case and we think clearly should be here. The problem was presented in Parker v. Bates, 216 S.C. 52, 56 S.E.2d 723, and discussed at great length. That case involved a distribution of State surplus funds to the counties for hospital and other public health purposes; here it is for public school purposes. The authorities cited in that case relating to the severability of the Act and the validity of the remainder of it after elimination of the unconstitutional portion are applicable here and need not be so soon repeated. The unimportance of the absence of a severability clause was also demonstrated in that case and need not be repeated.

There is here this further consideration which is conclusive of the legislative intention. The amendments of the law in 1959, supra, and in 1960, also supra, were after the decision of Dean v. Timmerman, supra, from which latter it was plain that the objectionable provision in the law for expenditure of the funds under the direction of the county legislative delegations was unconstitutional and invalid. The members of the General Assembly were charged with, and in this instance doubtless actually had, that knowledge and they deliberately twice reconsidered and retained the law, which is convincing that it was the legislative intent that the law should remain in force without the invalid provision. State of Missouri v. Ross, 299 U.S. 72, 57 S.Ct. 60, 81 L.Ed. 46.

The funds will be administered and disbursed in the counties by their respective proper authorities for 'General Public School purposes, including the payment of school debt', which latter are the terms of the statute and the legislative object of the appropriation. It is presumed that the county authorities will observe the law. Parker v. Bates, supra. Plaintiff says in his brief, folio 16, that, quoting, 'Some * * * might decide to use the funds for payment of teachers' salaries, some for the payment of the cost of maintaining buildings, some for new schools and some for payment of school debts.' But surely all of these are 'General Public School purposes' and within the terms of the statute.

In the consideration of the foregoing, and plaintiff's other positions whereby he would have the law adjudged to be unconstitutional, there must be kept in mind these truisms which have been many times enunciated and applied: The supreme legislative power of the State is vested in the General Assembly; the provisions of our State Constitution are not a grant but a limitation of legislative power, so that the General Assembly may enact any law not expressly, or by clear implication, prohibited by the State or Federal Constitution; a statute will, if possible, be construed so as to render it valid; every presumption will be made in favor of the constitutionality of a legislative enactment; and a statute 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. Santee Mills et al. v. Query et al., 122 S.C. 158, 115 S.E. 202; Clarke v. South Carolina Public Service Authority et al., 177 S.C. 427, 181 S.E. 481; Ellerbe v. David et al., 193 S.C. 332, 8 S.E.2d 518; Pickelsimer...