Knight v. Hollings

• Decision Date: 12 February 1963
• Docket Number: No. 18027,18027
• Citation: 129 S.E.2d 746,242 S.C. 1
• Court: South Carolina Supreme Court
• Parties: John Henry KNIGHT, Respondent, v. Ernest F. HOLLINGS, Governor of the State of South Carolina, Jeff B. Bates, Treasurer of the State of South Carolina, South Carolina State Highway Department, B. E. Myers, et al., Board of Directors of Dorchester County, and Marvin R. Chinners, Road Supervisor of Dorchester County, Appellants.

Page 746

129 S.E.2d 746

242 S.C. 1

John Henry KNIGHT, Respondent, v. Ernest F. HOLLINGS, Governor of the State of South Carolina Jeff B. Bates, Treasurer of the State of South Carolina South Carolina State Highway Department, B. E. Myers, et al., Board of Directors of Dorchester County, and Marvin R Chinners, Road Supervisor of Dorchester County, Appellants.

No. 18027.

Supreme Court of South Carolina.

Feb. 12, 1963.

Daniel R. McLeod, Atty. Gen., James S. Verner and William L. Pope, Asst. Attys. Gen., Columbia, Sidney B. Jones, Jr., Summerville, Charlton B. Horger, Orangeburg, for appellants.

Edens & Hammer, Columbia, for respondent.

LEGGE, Acting Justice.

Act No. 1086 of 1962 (52 Stat. at L. 2648) provides as follows:

'Notwithstanding any provisions of law to the contrary, all roads designated for hard-surfacing in the State Highway Secondary Construction Program as provided for under the provisions of Act No. 855, Acts of 1958, as amended by Act No. 312, Acts of 1959, in Dorchester County in any fiscal year shall be selected from a list submitted during such year in writing by the Board of Directors of Dorchester County and the Road Supervisor of Dorchester County, or a majority thereof.'

Respondent brought this action for the purpose of having this act declared unconstitutional as special legislation prohibited under Article III, Section 34, Subdivision IX of the Constitution of 1895, which (following enumeration of certain subjects concerning which the General Assembly is forbidden to enact local or special laws) provides that '[i]n all other cases, where a general law can be made applicable, no special law shall be enacted.' Appellants demurred upon the ground that the complaint failed to set forth facts constituting a cause of action, by reason of Article II of Amendments to the Constitution, which declares:

'The General Assembly of this State may enact local or special laws concerning the laying out, opening, altering or working roads or highways, and concerning the providing for the age at which citizens shall be subject to road duty, and concerning drainage.'

This appeal is from an order overruling the demurrer.

Appellants concede that the act here challenged is a special law where a general one (Code 1952, § 33-21 et seq., detailing the powers and duties of the State Highway Department) can be, and has been made applicable, and that it is therefore invalid unless Article II of the Amendments rescues it from the prohibition of Article III, Section 34, Subdivision IX.

The issue, then, is whether Article II of the Amendments should be construed as enabling special legislation whereby officials of a particular county may control the State Highway Department's allocation for hard-surfacing of roads of the State Highway System within that county. No categorical answer is to be found in the express language of the Article; and we may therefore, in seeking to ascertain its meaning, look to its historical background. For while a constitutional provision of doubtful import is not to be viewed solely in the light of conditions existing at the time of its adoption, being intended not to obstruct the progress of the state but rather to meet and be applied to new conditions and circumstances as they may arise, consideration of the history of the times in which it was framed and adopted, and of the object sought to be accomplished by it, is an appropriate inquiry in the judicial effort to determine the intent of its framers and of the people who adopted it. Reese v. Talbert, 237 S.C. 356, 117 S.E.2d 375; City of Cleveland v. Board of Tax Appeals (Ohio 1950), 153 Ohio St. 97, 91 N.E.2d 480, 16 A.L.R.2d 1354.

Also applicable to our problem here is the fundamental rule that all sections of the Constitution must be considered together and harmonized if possible. Gaud v. Walker, 214 S.C. 451, 53 S.E.2d 316; Owens v. Smith, 216 S.C. 382, 58 S.E.2d 332. And corollary to that rule, and especially pertinent here, is the obvious necessity of construing an amendatory provision with particular regard to the provision that it purports to amend.

Article III, Section 34, of the Constitution of 1895, as originally adopted, read as follows:

'The General Assembly of this State shall not enact local or special laws concerning any of the following subjects or for any of the following purposes, to wit:

'I. To change the names of persons or places.

'II. To lay out, open, alter or work roads or highways.

'III. To incorporate cities, towns or villages, or change, amend or extend the charter thereof.

'IV. To incorporate educational, religious, charitable, social, manufacturing or banking institutions not under the control of the State, or amend or extend the charters thereof.

'V. To incorporate school districts.

'VI. To authorize the adoption or legitimation of children.

'VII. To provide for the protection of game.

'VIII. To summon and empanel grand or petit jurors.

'IX. To provide for the age at which citizens shall be subject to road or other public duty.

'X. To fix the amount or manner of compensation to be paid to any County officer, except that the laws may be so made as to the grade the compensation in proportion to the population and necessary service required.

'XI. In all other cases, where a general law can be made applicable, no special law shall be enacted.

'XII. The General Assembly shall forthwith enact general laws concerning said subjects for said purposes, which shall be uniform in their operations: Provided, That nothing contained in this Section shall prohibit the General Assembly from enacting special provisions in general laws.'

It is thus seen that the first ten subdivisions of Article III, Section 34, as originally adopted, absolutely prohibited local or special legislation on certain enumerated subjects; and that Subdivision XI prohibited such legislation 'where a general law can be made applicable.' As pointed out in McElveen v. Stokes, 240 S.C. 1, 124 S.E.2d 592, where many of our earlier decisions relating to Article III, Section 34 were reviewed, there had, prior to the adoption of the Constitution of 1895, developed in our General Assembly, as in the legislative bodies of the other states, a disposition toward general and indiscriminate enactment of local and special laws, a legislative habit that was deemed pernicious; and it was to prohibit such legislation except where a general law could not be made applicable that Subdivision XI was incorporated in Article III, Section 34.

As pointed out in the circuit decree under review, construction and maintenance of roads were problems of the counties when the Constitution of 1895 was adopted; the State Highway System was not established until 1924. With certain exceptions, all males between the ages of eighteen and fifty were subject to road duty for a specified number of days in each year, in lieu of which payment of a 'commutation tax' was permitted. In 1904, Governor Heyward, in his message to the legislature (House Journal of January 12, 1904, p. 30) commented on the poor state of roads...