Massey v. Glenn

• Decision Date: 14 October 1916
• Docket Number: 9542.
• Parties: MASSEY ET AL. v. GLENN ET AL.
• Court: South Carolina Supreme Court

90 S.E. 321

106 S.C. 53

MASSEY ET AL. v. GLENN ET AL.

No. 9542.

Supreme Court of South Carolina

October 14, 1916

En Banc. Original application by Septimus Massey and others for an injunction against J. L. Glenn and others, Commissioners. Questions referred to Judge of the Sixth Circuit, who concluded that the petitioners were entitled to relief and that the temporary order of injunction should be made perpetual, and the Commissioners appeal. Affirmed.

Fraser and Hydrick, JJ., and Prince, Shipp, Sease, and Gary, Circuit Judges, dissenting.

Marion & Marion, of Chester, McDonald & McDonald, of Winnsboro, and W. W. Lewis, of York, for appellants.

R. H Welch, of Columbia, for respondents.

GARY C.J.

This is an application to the court, in the exercise of its original jurisdiction, for an injunction restraining the respondents from proceeding to take steps preparatory to the holding of an election upon the question of establishing the proposed new county of Catawba.

In order to expedite the final decision in the case, this court referred all questions to the judge of the sixth circuit, who reached the conclusion that the petitioners were entitled to relief, and that the temporary order of injunction should be made perpetual.

The act giving rise to this controversy provides:

"That hereafter the General Assembly of this state shall not establish any new county, the greatest length of which shall be more than four times as long as the least central width thereof, or which will leave the county or counties from which the territory is taken of a length more than four times as long as the least central width thereof: Provided further, the Governor shall not order an election in such an area described." * * * Act Feb. 1912 (27 St. at Large p. 841).

It is not denied that the shape of the proposed new county does not conform to the requirements of the statute.

It is further conceded by the respondents that the injunction should be made perpetual, if the court should reach the conclusion that the Legislature had the power to pass said act; but it is contended that the act is unconstitutional, in that it contravenes the provisions of article 7 of the Constitution, especially sections 1 and 2 thereof, which are as follows:

"Section 1. The General Assembly may establish new counties in the following manner: Whenever one-third of the qualified electors within the area of each section of an old county proposed to be cut off to form a new county shall petition the Governor for the creation of a new county, setting forth the boundaries and showing compliance with the requirements of this article, the Governor shall order an election, within a reasonable time thereafter, by the qualified electors within the proposed area, in which election they shall vote 'Yes' or 'No,' upon the question of creating said new county; and at the same election the question of a name and a county seat * * * shall be submitted to the electors.

Sec. 2. If two-thirds of the qualified electors voting at such election shall vote 'Yes' upon such questions, then the General Assembly at the next session shall establish such new county: Provided, no section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such section; and no county shall be formed without complying with all the conditions imposed in this article. * * *"

The constitutionality of the statute depends upon the question whether the foregoing provisions of the Constitution relative to the power of the General Assembly to create new counties shall be construed as discretionary or mandatory.

The provision in section 1 that the General Assembly may establish new counties, and the provision in section 2 that the General Assembly shall establish new counties, are antagonistic, and both of them cannot be construed as having legal force and effect. If the provision authorizing the Legislature to exercise a discretionary power in the creation of a new county is construed to express the intention of the Constitution, then it necessarily follows that the mandatory provision does not express such intention, and therefore must be regarded as null and void. And, in that event, it cannot be successfully contended that the act is unconstitutional on the ground that it is obnoxious to the mandatory provision. Atkinson v. Express Co., 94 S.C. 444, 78 S.E. 516, 48 L. R. A. (N. S.) 349.

In determining the intention of the Constitution, it is exceedingly important to keep in mind that the Legislature does not derive its power to create new counties from article 7, but from article 3, § 1, of the Constitution, which is as follows:

"The legislative power of this state shall be vested in two distinct branches, the one to be styled the 'Senate' and the other the 'House of Representatives,' and both together the 'General Assembly of the State of South Carolina.' "

This provision was taken verbatim from section 1, art. 2, Constitution of 1868, which was thus construed in the case of State v. Hayne, 4 S. C. 420:

"Although the particular office of this section is to fix certain important features of the body through which the function of legislation is to be exercised, yet it describes in an authoritative way the nature of the power thus vested. It is no less than the legislative power of the state. It is not such and so much of the legislative power of the state as were intended to be used by that particular body, but it was the whole legislative power of this state, its whole capacity of making laws, and providing the means for their enforcement. It was not intended that the Legislature should exercise this power without limitation and restraint, for the Constitution that uses these words of grant imposes many such restrictions and limitations affecting the extent to which it may be effectively exercised."

This language is quoted with approval in State v. Aiken, 42 S.C. 223, 20 S.E. 221, 26 L. R. A. 345; and the principle is recognized in Carrison v. Kershaw, 83 S.C. 88, 64 S.E. 1018, and Lillard v. Melton, 103 S.C. 10, 87 S.E. 421, that the power of the Legislature is plenary, except in so far as it may be restricted by constitutional limitations.

Ordinarily the force and effect of a constitutional provision is to prevent legislation inconsistent with such limitation. These respondents, however, contend that the provisions of article 7 should be construed as being twofold in their nature, to wit, not only that the Legislature is powerless to create a new county, unless there has been a compliance with all the conditions imposed by article 7, but that said article limits the plenary powers of the legislature so that it cannot enact statutes that would otherwise be consistent with the provisions of that article. There is no doubt as to the proposition that there must be a compliance with all the requirements enumerated in said article; but, under a proper construction, it does not limit the powers of the Legislature to impose additional conditions, provided they are not such as, ordinarily, would be construed as inconsistent with those mentioned in the Constitution.

In the case of State v. Parler, 52 S.C. 207, 29 S.E. 651, the court uses this language:

"It is suggested that the legislation had in relation to Dorchester county is unconstitutional and void, because it has attempted to enlarge the direct provisions of the Constitution, in sections 1 and 2 of article 7, by allowing a second and other elections to determine the county seat, after the first election on that matter, which was held at the same time the question as to the creation of the new county was submitted to the electors residing in the territory affected thereby. We cannot accept this view. In the first place, the Convention speaks in the first section of article 7 of the General Assembly establishing new counties. Its only restrictions are set forth in the article, and do not negative the idea that the General Assembly, under

its possession of general legislative power, may do other things than those enumerated in the article 7; but it (the Legislature) must not controvert, in letter or spirit, the provisions of the Constitution itself."

Recurring to section 1, art. 7, we find this provision:

"At the same election the question of a name and a county seat for such county shall be submitted to the electors."

It will thus be seen that, while the Constitution prescribed a particular day on which to submit the question of a county seat, the court held that a statute fixing a different time was constitutional, thus necessarily deciding that the word " shall" was used in a directory or discretionary sense and that it was not mandatory in its meaning.

The word "shall," in section 2, art. 7, which provides that if two-thirds of the qualified electors shall vote "Yes" then the General Assembly at the next session "shall" establish such new county, is in conflict with the word "may" in the first section, which provides that the General Assembly "may" establish new counties, etc., it is also in conflict with the construction necessarily placed on the word "shall" in that part of section 1 which provides that at the same election the question of a county seat shall be submitted to the electors. In such a case the rule is applicable that, when two sections of a Constitution are inconsistent, effect will ordinarily be given to that which is in harmony with other provisions, rather than to that which is inconsistent with more than one provision. Delk v. Zorn, 48 S.C. 149, 26 S.E. 466.

The circumstances under which a legislative enactment should be declared unconstitutional are well expressed by Chancellor Waites, who, in delivering the opinion of the court, in the case of ...