Kalber v. Redfearn

• Decision Date: 29 July 1949
• Docket Number: 16242.
• Parties: KALBER v. REDFEARN et al.
• Court: South Carolina Supreme Court

54 S.E.2d 791

215 S.C. 224

KALBER v. REDFEARN et al.

No. 16242.

Supreme Court of South Carolina

July 29, 1949

Appeal from Court of Common Pleas of Darlington County; J. Woodrow Lewis, Judge.

Action by G. A. Kalber against J. B. Redfearn and others constituting the Board of Trustees of Hartsville School District No. 32 of Darlington County, the State of South Carolina, for determination of whether joint resolution proposing amendment to constitution was required to be presented to Governor before becoming effective. From an adverse judgment, plaintiff appeals.

Order of Judge Lewis follows:

This matter comes before me on motion of the plaintiff to overrule the demurrer to his complaint.

The plaintiff is a resident and taxpayer of Hartsville School District No. 32, of Darlington County, the State of South Carolina. The defendants constitute the Board of Trustees of said School District.

The issue here requires the determination of a constitutional question, novel in this jurisdiction. It is the question of whether it is required that there be presented to the Governor, in the manner contemplated by Section 23, Article IV, of the Constitution, Joint Resolutions adopted by the General Assembly pursuant to Section 1 of Article XVI, proposing amendments to the Constitution of the State.

The 1948 session of the General Assembly sembly adjourned sine die on Thursday, April 15th, 1948. On that date, three Joint Resolutions, each proposing Amendments to the Constitution were duly enrolled, ratified, and signed by the President of the Sentate and Speaker of the House or Representatives. Each of these contained proposals that Section 5 of Article X of the Constitution be amended by enlarging the then existing debt limits of three school districts (See Permanent Senate Journal for 1948, pages 1473, 1479 and 1481). The Joint Resolution, which is concerned in this litigation, 45 Stat at Large, page 2586, proposed that the original provisions of Section 5, Article X, imposing a limit on Hartsville School District No. 32 be stricken therefrom and in lieu of the original provisions that said School District be authorized to issue bonds to an amount not exceeding fifteen per centum (15%) of the assessed value of all taxable property therein. Section 3 of the Joint Resolution provided that the Resolution should take effect upon its approval by the Governor.

It appears that after the original Joint Resolution was enrolled and ratified by the action of the two Houses, and signed by the President of the Senate and Speaker of the House, it was delivered on the same day by the Clerk of the Senate to the Governor, in accordance with Rule 7 of the Joint Rules of the Sentate and House. Thereafter, the Governor wrote across the cover of the Joint Resolution:

'Amendment to Constitution--Governor's Signature not required. J Strom Thurmond, April 17, 1948.'

Governor Thurmond's action in respect to this Resolution was similar to his action on every Joint Resolution proposing amendments to the Constitution that were adopted by the General Assembly during his term of office. But in all cases, except with respect to the three Resolutions enrolled on this particular day (April 15th, 1948), his failure to return them to the House in which they originated within the time limit presecribed by Section 23 of Article IV, had the same effect upon these other Joint Resolutions, as though he had signed them. Cf. Goree v. Greenwood County Supervisor, 93 S.C. 312, 76 S.E. 705.

Notwithstanding the fact that the Governor failed to approve the Joint Resolution, the Secretary of State submitted the question proposed by the Joint Resolution in the General Election held on November 2nd, 1948, on which occasion the same was approved by a vote of 3,392 to 605. During its 1949 session, the General Assembly ratified the proposed amendment as a part of the State Constitution.

The Governor's action in refusing to approve this Joint Resolution squarely raises the question of whether his approval was necessary, for it is seen from the foregoing recitation of facts that the General Assembly's adjournment on the day that the Joint Resolution was presented to him prevented the running of the three-day period provided for in Section 23, Article IV of the Constitution. His action also raises the subordinate question as to whether this particular Resolution became effective in time to justify the submission of the question at the 1948 Election, notwithstanding that it might be unnecessary for the Governor to sign Resolutions of this sort, because by its own terms it provided that it should not take effect until it had been signed by the Governor. If the answer to this question be the negative, then the Joint Resolution did not finally become effective until two days following the convening of the 1949 General Assembly, to wit, on January 13th, 1949, with the result that the proposal submitted at the election held in November, 1948, was prematurely submitted. I shall discuss these questions in the order presented.

Question 1

Do Joint Resolutions proposing Amendments to the Constitution of this State and agreed to by two-thirds of the members elected to each House fall within the purview of Section 23, Article IV of the Constitution, which provides that 'Every Bill or Joint Resolution which shall have passed the General Assembly, except on a question of adjournment, shall, before it becomes a Law, be presented to the Governor * * *.'

It is of course, a recognized principle of American constitutional law that questions relating to the Constitution of the several States must be interpreted by the Courts of each State.

'The conformity with the State Constitution of the proceedings in the enactment of the law is a question for the determination of the State Court and its judgment is final.' Smith, Rec'r. v. Jennings, 206 U.S. 276, 27 S.Ct. 610, 611, 51 L.Ed. 1061.

For this reason, decisions of other courts interpreting questions arising under the Constitution of their respective States are interesting and, perhaps, persuasive, but they are not controlling. Consequently, it occurred to me that I should first examine this question from the standpoint of the present Constitution of South Carolina, and former Constitutions of this State, and decide the question, if possible, by reference to those documents, and afterwards determine if my views found support in the Courts of other jurisdictions. With that in mind, I have examined not only the provisions of our present Constitution, but I have referred also to our former Constitutions.

Since its disavowance of allegiance to the British Crown, South Carolina has had five Constitutions. The first is that adopted by the Congress held in Charleston over the period beginning November 1st, 1775, and ending March 26th, 1776. This document is referred to as the 'Constitution of South Carolina, 26th of March, 1776'. Two matters, of interest to this question, appear in this document.

In the first place, there is no provision in the document for its amendment. In this respect, the document is statutory in nature, for its alteration could take place by subsequent statutory enactments. Just such an alteration did take place with the enactment of March 19, 1778, which was the Act of the General Assembly establishing the Constitution of 1778.

A second matter of interest in the 1776 document is the provision of Article VII, which vested the legislative authority of the Colony, as this State was referred to in that document, in the President (of the Colony), the General Assembly (a body comparable to the present House of Representatives) and the Legislative Council (a body whose modern counterpart with enlarged powers is the Senate). Article VIII provided that all bills must be presented to the President and that they would not become law without his assent.

The Constitution established in 1778 vested the legislative authority in a General Assembly to consist of two distinct bodies, a Senate and a House of Representatives. It thus removed the veto power which existed under the Constitution of 1776. It also provided that the document itself might not be amended without 90 days notice and unless a majority of the members of the House of Representatives and the Senate consent. The Constitution of 1778 remained in force until that adopted in 1790, which, because of the fact that it is our first Constitution adopted subsequent to the adoption of the Constitution of the United States and afterwards remained in effect for 78 years, makes it a document of considerable significance. Under this document there was no power of veto, the applicable Section providing merely that Bills and Ordinances should have the force of law when the same had been read three times on three several days in each House, had the Great Seal affixed to it, and had been signed in the Senate House by the President of the Senate and the Speaker of the House of Representatives (Section 16, Article I). Article XI provided for the amendment of the Constitution and because there exists a significant difference between this provision and those appearing in the Constitutions of 1868 and 1895, I shall make reference to it. It states, in part:

'No part of this constitution shall be altered, unless a bill to alter the same shall have been read three times in the house of representatives, and three times in the senate, and agreed to by two-thirds of both branches of the whole representation * * *.'

I shall later emphasize that those writing this document contemplated that the vehicle proposing amendments to it be in the form of a Bill.

The Constitution of 1868 restored the veto power of the State's Chief Executive. Section 22, Article III. The provisions of this...