McElveen v. Stokes

• Decision Date: 09 March 1962
• Docket Number: No. 17882,17882
• Parties: S. E. McELVEEN, Sr., Marion E. Carter, Robert D. Pate and Julian Rembert, Appellants, v. J. C. STOKES, R. J. Makela, Claude Berry and B. B. Davis, and The State of South Carolina, Respondents.
• Court: South Carolina Supreme Court

Page 592

124 S.E.2d 592

240 S.C. 1

S. E. McELVEEN, Sr., Marion E. Carter, Robert D. Pate and Julian Rembert, Appellants, v. J. C. STOKES, R. J. Makela, Claude Berry and B. B. Davis, and The State of South Carolina, Respondents.

No. 17882.

Supreme Court of South Carolina.

March 9, 1962.

Baskin & Cothran, Jennings & Jennings, Bishopville, for appellants.

Wister D. Stuckey, Bishopville, L. Marion Gressette, St. Matthews, Atty. Gen., Daniel R. McLeod, Asst. Atty. Gen., J. C. Coleman, Jr., for respondents.

BUSSEY, Justice.

This is an action brought by appellants against the respondents to declare unconstitutional an Act passed by the General Assembly of South Carolina entitled 'An Act to Provide for the Appointment and Terms of Office of the Members of the Lee County Forestry Board.' (Act No. 601 of the Acts of 1961); to declare the appellants to be lawfully constituted members of the board; to enjoin the respondents J. C. Stokes, R. J. Makela, Claude Berry and B. B. Davis from acting as members of said board, and to declare the said Act null and void.

The circuit judge issued a temporary injunction and rule to show cause. Upon motion of the individual respondents, the South Carolina Forestry Commission was made a party respondent. Following returns by all respondents and a hearing before the circuit judge, an order was issued dissolving the temporary injunction and holding the aforementioned Act constitutional. The appeal here is from that order.

The respondents appealed from the order of the resident judge settling the case on appeal and urge additional sustaining grounds.

Before reciting the factual situation here involved, and for a better understanding of the issues raised by the pleadings, it is necessary to revert to the history of forest fire protection legislation in South Carolina. Prior to 1945 many, but not all, of the counties of this State, realizing the need for the protection of forest, had passed as local legislation separate acts dealing with forest protection in those counties.

In 1945 the legislature apparently realized and concluded that there was a definite need for a state-wide forest fire protection act, which was enacted at that session of the legislature, being now Sections 29-51 through 29-61 of the 1952 Code of Laws. None of said sections was amended until 1961.

Section 29-55 provides for the appointment in each county of a County Forestry Board consisting of five members to be appointed by the State Commission of Forestry on the recommendation of a majority of the County Delegation in the House of Representatives and the Senator of each such county and, inter alia, contains the following language:

'In case of a vacancy or termination of appointment on a county forestry board, such vacancy shall be filled in the same manner as provided for in the appointment of members thereof, except that if a vacancy shall exist in the office of member of a county forestry board for more than two months the then existing members of the county forestry board may recommend for appointment some suitable person to fill such vacancy and the State Commission of Forestry shall make the appointment on such recommendations.'

It appears that in Lee County, due to political differences of opinions between the occupant of the office of Senator and the occupant of the office of House of Representatives from that county over a period of several years, considerable difficulty was experinced in agreeing upon recommendations of persons to fill vacancies on the County Forestry Board when and as they occurred. As a result of these political differences, during the early part of 1961 the Lee County Forestry Board, with one exception, was composed of the appellants here, all of whom had been appointed by the State Commission of Forestry pursuant to recommendations of the members of the Lee County Forestry Board, at least in prima facie accordance with the above quoted language from Section 29-55 of the Code. The one exception was one Grady Skinner who had been appointed by the State Commission of Forestry upon recommendation of the legislative delegation. Mr. Skinner is not a party to this action and the title to his office is not in question.

This was the situation when the legislature passed Act No. 601, the constitutionality of which is here in question. The pertinent portion of said Act is as follows:

'SECTION 1. Lee County Forestry Board--members--terms--vacancies.--The County Forestry Board for Lee County shall be composed of the following members who shall assume office upon the effective date of this act, and whose terms of office shall expire at the times indicated following their names:

'(a) Grady Skinner for a term to expire June 30, 1961;

'(b) Claude Berry for a term to expire June 30, 1962;

'(c) J. C. Stokes for a term to expire June 30, 1963;

'(d) R. J. Makela for a term to expire June 30, 1964; and

'(e) B. B. Davis for a term to expire June 30, 1965.

'Thereafter vacancies upon the Board shall be filled in the manner provided in Section 29-55, of Code of Laws of South Carolina, 1952. Each of the terms, after the initial terms herein provided, shall be for a period of five years.'

While the exceptions raise other questions, it is only necessary for us to determine whether the quoted Act is (as contended by the appellants) unconstitutional in contravention of Article III, Section 34, Subdivision IX of the Constitution, or whether it is constitutional (as contended by the respondents) as a special provision in a general law pursuant to Article III, Section 34, Subdivision X. The pertinent portion of Subdivision IX is as follows:

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

The pertinent language of subdivision X is as follows:

'Provided, That nothing contained in this Section shall prohibit the General Assembly from enacting special provisions in general laws.'

The circuit judge concluded tha the Act in question was an amendment to a general law and constitutional as a special provision in a general law within the purview of Article III, Section 34, Subdivision X.

By way of additional sustaining grounds the respondents urge that the decision of the circuit judge was correct in that there is need and justification for the Act and that a general law cannot be and is not applicable in this specific case.

In considering any question as to the constitutionality of a statute, we are not unmindful that it is a grave matter to overturn and to declare an enactment of the General Assembly to be unconstitutional. The applicable rule of law was well stated in Thomas v. Macklen, 186 S.C. 290, 195 S.E. 539, as follows:

'All presumptions are in favor of the power of that body to enact the law. All considerations involving the wisdom, the policy, or the expediency of the act are addressed exclusively to that branch of the state government. Its power to enact the law is the sole question addressed to this court. So long as doubts concerning this power remain, it is our plain duty to resolve them in favor of the validity of the act. But when the unconstitutionality of an act is clear to this court, beyond a reasonable doubt, then it is its plain duty to say so.'

It is therefore, out duty only to determine whether or not the act in question is clearly unconstitutional, beyond a reasonable doubt.

There are many prior decisions of this court dealing with various acts wherein te question was whether the particular act was permissive under Subdivision X, or prohibited under Subdivision IX of Section 34 of Article III of the Constitution. This court, in the case of Tisdale v. Scarborough, 99 S.C. 377, 83 S.E. 594, had the following to say with reference to Subdivision IX:

'There had grown up in the General Assemblies of the entire Union a disposition for legislation by delegation. That kind of legislation was deemed pernicious; it lacked the settled consideration and consent of the lawmaking body; it evaded state-wide responsibility; it encouraged local activity; it discouraged the attrition of minds and the consideration of those problems which make for a wise public policy. The ninth paragraph was the fruit of this large conviction of the convention.'

In Salley v. McCoy, 182 S.C. 249, 189 S.E. 196, with reference to the said subdivision, this court had the following to say:

'The clear intention of the framers of the Constitution of 1895 was by section 34 of article 3, to prohibit the enactment of special laws in all cases where a general law can be made applicable. In addition, it was desired to expressly prohibit special laws on certain named subjects. This intention was effectuated by naming the expressly prohibited subjects, and then providing that in all other cases no special law should be passed if a general law could be made applicable. The words 'in all other cases' were not intended to limit the scope of subsection 9, but rather to extend the scope of section 34 as to include any subject on which a general law can be made applicable.'

In the case of Shillito v. City of spartanburg, 214 S.C. 11, 51 S.E.2d 95, 5 A.L.R.2d 863, this court had the following to say:

'The language of the Constitution which prohibits special law where a general law can be made applicable, plainly implies that there are or may be cases where a special Act will best meet the exigencies of a particular case, and in no wise be promotive of those evils which result from a general and indiscriminate resort to local and special legislation. There must, however, be a substantial distinction having reference to the subject matter of the proposed legislation, between the objects or places embraced in such legislation and the objects and places excluded. The marks of distinction upon which the classification is founded must be such, in the nature of things, as will in some reasonable degree, at least, account for or justify the restriction of the legislation. Sansing v....