Dean v. Timmerman
| Decision Date | 13 January 1959 |
| Docket Number | No. 17490,17490 |
| Citation | 106 S.E.2d 665,234 S.C. 35 |
| Court | South Carolina Supreme Court |
| Parties | P. L. DEAN, Petitioner, v. George Bell TIMMERMAN, Jr., Governor of the State of South Carolina, Jeff B. Bates, Treasurer of the State of South Carolina, and South Carolina State Highway Department, Respondents. |
T. B. Bryant, Jr., Orangeburg, for petitioner.
Atty. Gen. T. C. Callison, Asst. Attys. Gen. James S. Verner and Daniel R. McLeod, Huger Sinkler, Charleston, for respondents.
With permission this action was brought in the Original Jurisdiction where Petition was filed alleging the invalidity and unconstitutionality of a provision of Section 7 of the Statute enacted at the 1958 Session of the General Assembly commonly referred to as the State Appropriation Bill.
The 1958 General Assembly found itself faced with an apparent deficit in revenues for the fiscal year beginning July 1, 1958, and ending June 30, 1959. To avoid that deficit, the General Assembly determined to renew the so-called '7th cent' of the gasoline tax, which, in the absence of such legislation, would have expired as of June 30, 1958. The revenue to be raised thereby for the fiscal year beginning July 1, 1958, and ending June 30, 1959, was appropriated to the General Fund of the State, as distinguished from the so-called 'Highway Fund' into which five of the remaining six cents of the gasoline tax goes. (The other cent goes directly to the counties.) At the same time, the General Assembly evidenced its desire to continue the program of enlarging and improving the Secondary Highway System, sometimes called the Farm-to-Market roads. This program had been initiated pursuant to Act 565, Acts of 1946, March 28, 44 St. at Large, p. 1519, and continued under subsequent acts which placed the additional 7th cent tax on gasoline. Act 824, of the Acts of 1952, March 12, 47 St. at Large, p. 2031, was instrumental to the carrying out of the program in that it provided for adding roads to the Secondary System in those counties where there was insufficient mileage of unpaved roads already in the Secondary System. Funds to meet the costs of this program came from the so-called '7th cent' of the gasoline tax.
Following its use of the 7th cent of the gasoline tax for general purposes for the fiscal year beginning July 1, 1958, the General Assembly appropriated the proceeds of that 7th cent to the Secondary Highway Program for the fiscal years to end June 30, 1972; and in order that there would be no departure from the program during the fiscal year beginning July 1, 1958, it directed the issuance of $6,500,000 of bonds, the proceeds of which with other available funds, would carry out the program during the fiscal year beginning July 1, 1958.
The Act under attack, denominated Section 7 of part 2 of the 1958 State Appropriation Bill (Act No. 855), April 4, 1958, 50 St. at Large, p. 1829, is as follows:
'Sections 65-1062 and 65-1081, 1952 Code, amended--additional tax of one cent per gallon on gasoline--Highway Department may issue bonds for secondary system--Section 33-107, 1952 Code amended--establishment of belt lines and spurs by Highway Commission further restricted.
'(A). Section 65-1062 Code of Laws of South Carolina, 1952, is amended by adding the following paragraph:
"In addition to the tax imposed by this section, every such oil company shall pay to the State an additional amount of money equal to one cent per gallon on all gasoline, combinations thereof or substitutes therefor, sold or consigned, used, shipped or distributed for the purpose of sale within this State.'
'(B). Section 65-1081, Code of Laws of South Carolina, 1952, is amended by adding the following paragraph:
"In addition to the tax imposed by this section, every such person, firm, corporation, municipality or county, or any subdivision thereof, shall pay an additional tax of one cent per gallon for every gallon of gasoline or other like product of petroleum, under whatever name designated, on which a tax is imposed by this section.'
'(C). All the provisions of Chapter 12 of Title 65, Code of Laws for South Carolina for 1952, as amended, shall apply with equal force and effect to the additional tax on gasoline levied by this Act.
'(D). For the fiscal year commencing July 1, 1958, and ending June 30, 1959, the monies collected by South Carolina Tax Commission, pursuant to the provisions of this Act, shall be deposited with the State Treasurer to the credit of the General Fund of the State.
'(E). In order that the program of improvement of highways in the State Highway Secondary System shall be continued throughout the fiscal year beginning July 1, 1958, in the manner now provided by Act 371 of the Acts of the General Assembly for the year 1953, the State Highway Department shall make request to the State Treasurer for the issuance of Six Million Five Hundred Thousand Dollars ($6,500,000) of State Highway Bonds, whose proceeds shall be expended on the State Highway Secondary System and apportioned among the several counties of the State in the manner provided by paragraph (G) hereof. Upon receipt of such request the State Treasurer shall issue State Highway Bonds under the conditions prescribed by Chapter 4 of Title 33, Code of Laws of South Carolina for 1952, as amended, except that the last of said bonds shall mature not later than June 30, 1972, and, notwithstanding that they shall be secured in the manner prescribed by Section 33-284, said bonds shall be additionally secured and payable from the revenues derived from the tax levied by paragraphs (A), (B) and (C) supra.
'(F). In determining the amount of the sinking fund payments required by Section 33-265, Code of Laws of South Carolina, 1952, the additional revenue accruing to the State Highway Department, as provided hereby, shall not be considered.
'(G). For the fiscal years commencing July 1, 1959 and ending June 30, 1972, the monies collected by the South Carolina Tax Commission, pursuant to the provisions of this section, shall be deposited with the State Treasurer and applied to the payment of principal and interest on the bonds authorized by paragraph (E). Any sum that shall remain after effecting such payment shall be expended on the State Highway Secondary System and, together with any other funds made available for the purpose, shall be apportioned among the counties of the State in the following manner: one-third in the ratio which the land area of the county bears to the total land area of the State, one-third in the ratio which the population of the county bears to the total population of the State as shown by the latest official decennial census, and one-third in the ratio which the mileage of all rural public roads in the county bears to the total rural road mileage in the State as shown by the latest official records of the State Highway Department. Notwithstanding any provision of law to the contrary, all roads designated for hard surfacing in the State Secondary Highway System in any fiscal year shall be selected from a list submitted during such year in writing by the Senator and at least one-half of the House Legislative Delegation of the county in which such roads may be located.
'(H). That during the 14 year period of this act the Farm to Market Program or State Secondary Highway Program shall each year be at least equal to the amount of revenue derived from the tax of 1cents on motor fuel.
'(I). Section 33-107 Code of Laws of South Carolina, 1952, is hereby amended so that the said section will read as follows:
It will be noted that Subsection G of the Act contains the following language...
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