Lillard v. Melton

Citation87 S.E. 421,103 S.C. 10
Decision Date17 December 1915
Docket Number9164,9247.
CourtUnited States State Supreme Court of South Carolina

Suit by John W. Lillard against W. D. Melton, Chairman, and others as the Richland County Commission for Permanent Highways. From a judgment for defendants, plaintiff appeals. Affirmed.

Gary C.J., Fraser and Watts, JJ., and Frank B. Gary, Shipp, and Mauldin, Circuit Judges, dissenting.

H. N Edmunds, of Columbia, for appellant.

Shand, Benet, Shand & McGowan, of Columbia, for respondents.


It appearing that there is involved a question of constitutional law, upon which the determination of the entire court is not agreed: It is therefore ordered that all the circuit judges (except those disqualified) be called to the assistance of the Supreme Court, on Friday, the 20th day of August, 1915, at 10 o'clock.

The writer of this order would call special attention, in so far as he is concerned, to the following questions:

(1) Whether the bonded indebtedness of the city of Columbia exceeds the limit prescribed by the Constitution.

(2) Whether the act is repugnant to the Constitution, in that it creates a commission with a supervisory control over the corporate authorities of Richland county, and thus interferes with local self-government.

(3) Whether the bonded indebtedness for which the act of the General Assembly provides can be created without submitting the question to the qualified electors, in the manner prescribed by the Constitution.

(4) Whether the case of Carrison v. Kershaw, 83 S.C. 88, 64 S.E. 1018, should not be overruled, on the ground that it is against the spirit and provisions of the Constitution.

SMITH Circuit Judge.

This is an action to enjoin the defendants from issuing bonds under an act entitled:

"An act to authorize and provide for the issue of bonds by Richland county for permanent highway improvement, and to provide for the expenditure of the same and for vehicle licenses and a property tax to pay the same, the total issue not to exceed one and one-quarter million dollars." 29 Stat. 493.

The constitutionality of the act is assailed upon numerous grounds, some of which have been so fully considered in previous decisions of the court, in passing upon the constitutionality of other statutes, as to preclude the necessity of an extended consideration of them in this opinion.

It is urged that the provision of the act which penalizes the failure to report a vehicle subject to payment of the license tax imposed is obnoxious to the requirement of the Constitution that every act shall relate to but one subject, which shall be expressed in its title. In many cases, it has been held, in view of the purpose of this provision of the Constitution, that it should have a liberal construction, so as not to defeat or embarrass legislation by compelling separate enactments on every phase of a general subject of legislation, or with regard to every matter incident thereto or promotive thereof. When the general subject is expressed in the title, any details of legislation which provide the means, methods, or instrumentalities which are intended to facilitate the accomplishment of the general purpose, and are germane to it, may be embraced in the body of the act without violating this provision of the Constitution. State v. O'Day, 74 S.C. 449, 54 S.E. 607; Aycock-Little Co. v. Railway, 76 S.C. 331, 57 S.E. 27; Johnson v. Commissioners, 97 S.C. 212, 81 S.E. 502.

The act provides that:

"The commission shall serve for a term of three years, or until the provisions of this act are completely carried out."

It is contended that this violates the provision of the Constitution (article 1, § 11), which declares that "the terms of all officers shall be for some specified period," etc. The term is for a specified period of three years. The words "or until," etc., are not to be construed as extending the term beyond that period without reappointment, but merely as restricting it to the completion of the work, if completed within that time. If an extension of the term beyond three years had been intended, the word "and" would have been used, instead of "or." But we must not be understood as holding that, even if an extension of the term beyond three years had been intended, it would violate the Constitution in this particular. In State v. Bowden, 92 S.C. 400, 75 S.E. 866, the court en banc said:

"It would be most unreasonable to impute to the constitutional convention a purpose to give to the expression 'some specified period' a meaning so narrow as to prohibit any legislative provision against the inconvenience arising from vacancies in public office, which would occur if the encumbent could not be allowed to hold until the appointment or election and qualification of his successor."

Besides, in the event suggested, the question would arise whether appointment for a period of time necessary to complete a specified work is not for a "specified period," within the meaning of the Constitution, and also, if it were not, whether the extension would nullify the whole act, or only the appointment for the illegal excess. 29 Cyc. 1396. But the construction given renders the consideration of these questions unnecessary.

It is provided in section 5 of the act that all laborers to be employed in the construction of the work contemplated therein, with an exception in favor of officers, superintendents, and skilled mechanics, who cannot be obtained in the county, shall be actual residents of the county. It is contended that this provision is in contravention of section 5, article 1, of the state Constitution and the Fourteenth Amendment to the federal Constitution. The objection is clearly untenable. There is an absence of any penalty to enforce this provision, thereby indicating a legislative intent to make the same purely suggestive or directory. Conceding, however, that the provision was mandatory, the objection could not be sustained, as no citizen of one county has the legal right to demand that he shall be employed upon the public works of another, and certainly the Legislature, in directing the use or disposition of the public property or funds of the state or county, raised by taxation upon the people of either, has the power to limit the benefits to be derived therefrom to the residents of either. Such is plainly the conclusion reached by the United States Supreme Court in the case of Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, which is cited by the appellant.

The next question involves the validity of the provision for a license fee on all resident owners of vehicles, which is graduated according to horse power. It is urged that this is in violation of the equality and uniformity clauses of the Constitution.

It is generally held that such provisions are applicable only to a property tax. Cooley, Con. Lim. 713; 21 A. & E. Ency. Law (2d ed.) 802, 803. It is also evident that the license fee referred to is not in any sense a property tax, although such a tax is provided in the act to meet a deficiency in, or failure of, the license fee. The contention cannot be sustained that the license fee is designated a property tax in the title, since both kinds of taxes are mentioned in the title, and, in conformity therewith, both are provided for in the body of the act.

The vehicle license imposed is obviously a tax upon the right to use the improved highways of the county for the purpose of raising revenue to pay the interest on the bonds and provide a sinking fund for the redemption thereof at maturity. No provision in the Constitution can be found prohibiting the Legislature from imposing such a license. That it has the inherent power, in the absence of constitutional inhibition, to impose such a tax directly, or to authorize its imposition by a municipal corporation, either for the purpose of raising revenue, or as a police regulation, is conclusively established by the authorities. Hill v. Abbeville, 59 S.C. 426, 38 S.E. 11; Cooley's Con. Lim. 712, 713; 3 Dill. Mun. Corp. 1164; 4 Dill. Mun. Corp. 1407; Ft. Smith v. Scruggs, 70 Ark. 549, 69 S.W. 679, 58 L. R. A. 921, 91 Am. St. Rep. 100; Harder's Storage Co. v. Chicago, 235 Ill. 70, 85 N.E. 245, 14 Ann. Cas. 536. In his work on Taxation, at page 5, Judge Cooley thus states his conclusion:

"Everything to which the legislative power extends may be the subject of taxation, whether it be person or property, possession, franchise or privilege, or occupation or right. Nothing but express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the Legislature, in its discretion, shall at any time select it for revenue purposes."

The right to levy such a tax is also strongly stated in the case of Harder's Storage Company v. Chicago, 235 Ill. at page 87, 85 N.E. at page 254, 14 Ann. Cas. 536, as follows:

"The law is well settled that the owner of vehicles used upon the public streets and highways may be required to pay an ad valorem tax upon such vehicles as property, and also may be required to pay a tax upon the right or privilege of using such vehicles in his business--that is, an occupation tax. The subject of the ad valorem taxation is property. The subject of the other taxation is a right or privilege--an entirely distinct and different thing. * * * The question which is now to be considered is whether or not, in addition to the ad valorem tax on vehicles, as property, and a license tax on the right to pursue an occupation in which vehicles may be used, there may be imposed also a license tax upon the right or privilege of using vehicles upon the public streets and highways. * * * The taxes which complainant in the case at bar must pay are

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