McLure v. McElroy

• Decision Date: 03 September 1947
• Docket Number: 15986.
• Citation: 44 S.E.2d 101,211 S.C. 106
• Parties: McLURE v. McELROY et al.
• Court: South Carolina Supreme Court

44 S.E.2d 101

211 S.C. 106

McLURE v. McELROY et al.

No. 15986.

Supreme Court of South Carolina

September 3, 1947

Huger Sinkler, of Charleston, for appellant.

Barron & Barron, of Union, for respondents.

STUKES Justice.

Act No 848 of the Acts of the General Assembly of 1946, approved March 13, 1946, 44 Stat. 2521, created a District of Union County for the construction and operation of a public hospital and authorized the governing board to issue bonds of the district to the extent of $500,000, payable, principal and interest, from the proceeds of property taxes assessed and collected by the county officers under the direction of the Board. The latter was conditioned upon the favorable result of an election to be called by the Board, participated in by the qualified electors resident in the district, upon the question of the issuance of the bonds.

Later at the same session of the General Assembly by Act or Resolution No. 850, approved March 23, 1946, 44 Stat. 2527 it was proposed to amend Sec. 5, Art. 10, of the Constitution of 1895, by adding at the end the following:

'Provided That the limitations imposed by this Section shall not apply to Union Hospital District, Union County, State of South Carolina, said Union Hospital District being hereby expressly authorized to issue bonds to an amount not to exceed twenty (20) per centum of the value of all taxable property embraced in said hospital district, as valued or assessed for taxation by the State, the proceeds of such bonds to be applied solely to the purpose of acquiring property, erecting or enlarging building or buildings and purchasing equipment for the construction, establishing and maintenance of a public hospital and appurtenances in said Union Hospital District or paying any indebtedness incurred for said purposes, under such restrictions and limitation as the General Assembly may prescribe, and where the question of incurring such indebtedness is to be submitted to the qualified electors of said Union Hospital District, as provided in the Constitution upon the question of bonded indebtedness.'

The proposed amendment to the Constitution received a majority favorable vote of the electors of the State at the general election in November 1946. It was ratified at the ensuing session of the General Assembly by enactment No. 19, approved Feb. 27, 1947, 45 Stat. p. 33, and thereby finally and formally became a part of the constitution.

Meanwhile the members of the board had been appointed in accord with the terms of the 1946 act and they organized about June 1st of that year and ordered the bond election which was authorized by the act. It was held July 9, 1946, and resulted favorably for the issuance of the bonds, 659 to 23. But the board did not promptly offer the bonds for sale, in apparent waiting for the final ratification of the constitutional amendment at the legislative session of 1947.

This action was commenced in April last by a resident taxpayer of Union County and, therefore, of Union Hospital District, who alleged that the board was about to issue bonds which he seeks to restrain upon the alleged invalidity of the act upon several constitutional grounds. They will be detailed in our discussion of them. Decision of the circuit court was adverse to all of the contentions, and this appeal followed.

The first and the last points of attack are largely answered by the amendment to the constitution, which has been quoted. They relate to the creation of a hospital district of a county with the delegation of appropriate powers to the governing board, and question the validity of the bond election which was held prior to completion of the constitutional amendment process. We state the first question from the appellant's brief: 'May the General Assembly create one of the counties of South Carolina, into a special purpose district and delegate to the governing body of such district the function of levying and collecting taxes for the purpose of establishing and operating a hospital?'

A public hospital is a proper county purpose. Smith v. Robertson, 210 S.C. 99, 41 S.E.2d 631. A township may be authorized to erect and operate one under the management of a specially created commission. Battle v. Willcox, 128 S.C. 500, 122 S.E. 516. In view of these authorities there is no reason apparent why the legislature cannot, without the aid of constitutional amendment, create of a county, as here, a hospital district for the construction and operation of such an institution. It thereby becomes the corporate purpose of the district which is a governmental subdivision of the State. Parallel is seen in the highway and bridge districts which have been created from time to time by the legislature to accomplish that public and corporate purpose. Bagnall v. Clarendon & Orangeburg Bridge District, 131 S.C. 109, 126, S.E. 644; Briggs v. Greenville County, 137 S.C. 288, 135 S.E. 153; Evans v. Beattie, 137 S.C. 496, 135 S.E. 538. Later mention will be made of appellant's contended differentiation of the cited cases from that in hand.

Included in the quoted first question is the objection that the act improperly delegates to the governing board of the hospital district the power to levy taxes. But upon examination such is not found. It is the legislature itself which levies the taxes and Sec. 16 of the act directs the assessment and collection by the county officers. The fixing of the amount is a ministerial duty of the board and will be regulated by the necessities which in turn will depend upon the maturities of the principal and interest of the bonds which may be issued, within the legislative limit upon the amount of them. There is no attempted delegation of the legislative taxing power. Evans v. Beattie, supra, 137 S.C. 496, 135 S.E. 538. The situation is not unlike that of every county, with respect to the financing of its ordinary functions. The legislature levies the taxes, with the rates often fixed by the county officers in the discharge of their ministerial duties under the applicable special legislative acts.

The last question argued, which is number five, suggests that the bond election was premature, that it should have awaited the ratification at the 1947 legislative session of the constitutional amendment which was proposed by the legislature at the 1946 session and adopted by the people (the qualified electors who participated) at the general election of that year. Stress was laid in argument upon the futurity of the reference in the amendment to the election, as follows: '* * * where the question of incurring such indebtedness is to be submitted to the qualified electors,' etc. But consideration of the several related enactments together, which is proper for the construction of each of them in order to determine the intention, makes plain that the language was used by the legislature in contemplation of the election which was at the same time authorized to follow and not to another election at some other, future time. With this meaning the electors adopted the amendment, which action similarly evidenced their intention.

Moreover, the subsequent approval of the bonds at the polls, the adoption of the constitutional amendment at the general election and, finally, the ratification of the amendment at the ensuing session of the legislature must likewise be considered together, remembering the relation of them to the proposal to amend the constitution and the relation of each to the others, in connection with the act creating the hospital district. In this light they are seen as one composite whole and the final approval of the constitutional amendment was a sort of confirmation of the intervening election. This conclusion is not without analogous precedent. Lucas v. City of Florence, 103 S.C. 169, 87 S.E. 996; Robinson v. Askew, 129 S.C. 188, 123 S.E. 822; Covington v. McInnis, 144 S.C. 391, 142 S.E. 650; Brailsford v. Walker, 205 S.C. 228, 31 S.E.2d 385. Implicit now in the constitution, perforce the amendment, is authorization for the creation and operation of Union Hospital District under applicable enactments of the General Assembly. If there was valid doubt before of the constitutionality of the enterprise, it is removed by the present contents of the constitution itself. Brailsford v. Walker, supra.

The consideration last stated renders unnecessary discussion of appellant's argument that the General Assembly cannot under the constitution (prior to the presently pertinent amendment, we interpolate) create a special district on which taxes are levied except to provide funds for local benefits or improvements where the tax may be accurately likened to a special assessment, which he contends is a foundation stone of our former decisions upon the subject. The soundness of the contention will not be examined for the purpose of this decision (see, however, Ashmore v. Greater Greenville Sewer District et al., S.C., 44 S.E.2d 88) because, as said, it is unnecessary to do so in view of the constitutional amendment whereby this special district is authorized. But it is well to repeat the bedrock rule which governs the determination of the constitutionality of a statute, which is that the State constitution is not the source of the legislative power of the General Assembly but, on the contrary, only contains limitations upon it. In the absence of restraint in the constitution such power is virtually unlimited. Therefore, one who assails the constitutionality of an act of the General Assembly is bound to point out a provision of the constitution which it offends. Because of the amendment, the opposite situation exists here.

Incidentally original provisions of the Constitution of 1895 create of each county an Election District. Art. III, Sec. 3; Art. VII,...