Moffett v. Traxler, 18470
| Decision Date | 02 March 1966 |
| Docket Number | No. 18470,18470 |
| Citation | 147 S.E.2d 255,247 S.C. 298 |
| Parties | Earle M. MOFFETT, a resident and taxpayer of the City of Greenville, South Carolina, Individually and representing all other persons similarly situate, Appellant, v. David G. TRAXLER, as Mayor, James H. Simkins, John P. Mann, R. C. White, Jr., Gus Smith and William I. Bouton, constituting the City Council of the City ofGreenville and Daniel R. McLeod, as Attorney General for the State of SouthCarolina,Respondents. |
| Court | South Carolina Supreme Court |
Harry A. Chapman, Jr., Calhoun H. Turner, Greenville, for appellant.
Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Victor S. Evans, Columbia, W. H. Arnold, Greenville, Sinkler, Gibbs & Simons, Charleston, for respondents.
This action challenges the right of the defendants, the mayor and council of the City of Greenville, South Carolina, to proceed with the issuance of general obligation bonds of the city to defray the cost of various municipal improvements. The questions at issue concern the validity of a 1965 Act whereby the General Assembly undertook to ratify an amendment to Article II, Section 13, of the South Carolina Constitution; the necessity for subsequent legislative action to implement the said amendment, if it was validly ratified; and whether the provisions of Article II, Section 13, of the South Carolina Constitution, which restrict the voting in municipal bond elections to those electors who have paid all State, County, and municipal taxes for the previous year, constitute an unjust and unlawful discrimination as to poorer electors in violation of due process and equal protection of the laws.
Since there was no dispute as to the facts, the matter was submitted to the lower court for decision on the pleadings. This appeal is from an order of the lower court upholding the right of the defendants to issue the bonds in question.
On August 10, 1965 there were submitted to the qualified electors of the City of Greenville questions regarding the issuance of general obligation bonds of the city in the amount of $4,290,000.00. The election resulted favorably on all of the questions submitted.
Article II, Section 13, of the South Carolina Constitution, as originally adopted, provides that in authorizing a special bond election for a municipality, 'the General Assembly shall prescribe as a condition precedent to the holding of said election a petition from a majority of the freeholders of said city or town as shown by its tax books.' No such petition was presented in this case. Instead, the defendants submitted the question of the issuance of such bonds to the qualified electors of the city, without a prior petition, on the strength of a purported amendment to Article II, Section 13, and its implementation by the provisions of Section 47--835 of the 1962 Code of Laws. The amendment in question is as follows:
The foregoing amendment was purportedly ratified by Act No. 65 of the 1965 Acts of the General Assembly. 54 Stat. 83. The title to this Act is as follows:
'An Act to ratify amendments to Section 22, Article V, of the Constitution of South Carolina, 1895, relating to juries in civil and criminal courts so as to provide that the civil petit jury of the County Court of Greenville County shall consist of twelve men, And to Section 13, Article II, of the Constitution of South Carolina, 1895, relating to special elections for bonding municipalities, so as to provide that, under certain conditions, the General Assembly need not prescribe a petition before holding such elections in the City of Greenville.' (Emphasis added.)
The body of Act No. 65 undertook to ratify, in Section 1, an amendment to Article V, Section 22, of the Constitution and, in Section 2, an amendment to Article II, Section 13, both in accord with the quoted title.
The method used in amending the Constitution in this case was that set forth in Section I of Article XVI of the Constitution. Under it, the General Assembly submits any proposed amendment to the qualified electors for adoption or rejection. If approved by the electors, the amendment must then be ratified by the next General Assembly in order to become effective.
The first question for decision arises under plaintiff's contention that the amendment in question was never validly ratified by the General Assembly after its approval by the people. This argument is based on the fact that the ratifying act undertakes to ratify amendments to two separate and unrelated sections of the Constitution, which it is alleged was in violation of the following provisions of Article III, Section 17, of the Constitution:
'Every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.'
The first question then to be decided is whether the foregoing provision of the Constitution (requiring every Act or resolution having the force of law to relate to but one subject which shall be expressed in the title) applies to the ratifying act in this case so as to render it invalid.
The only methods by which the Constitution may be amended, and the requirements to be met in each, are set forth in Article XVI thereof. This is an independent article, complete within itself. Sections 1 and 2 prescribe the steps and requirements necessary to effect an amendment under the method adopted in this case. While these sections provide that any amendment may be Proposed by the General Assembly, Submitted to the qualified electors and, if approved by the electors, then Ratified by the next General Assembly, no where is any descriptive reference to the nature of the legislative vehicle to be used in either Proposing or Ratifying an amendment. In neither submitting nor ratifying a proposed amendment does Article XVI require the legislature to act by the passage of an 'Act or resolution' within the meaning of Article III, Section 17, here involved. The absence of such is significant and indicates an intent that the proposal and ratification of amendments to the Constitution by the legislature were not to be considered the exercise of ordinary legislative functions.
There is sound reason for the failure to require compliance on the part of the Legislature with Article III, Section 17, in performing the legislative functions incident to the adoption of an amendment to the Constitution.
The purpose of Article III, Section 17, is to prevent log rolling in the passage of legislation and to prevent surprise or fraud upon the legislature or the people. Ordinary legislation becomes effective as a law by the action of the General Assembly and approval by the Governor. The necessity for such a provision as Article III, Section 17, with respect to ordinary legislation, is apparent. For otherwise, the Members of the General Assembly and the people might be deprived of knowledge of proposed legislation until it was finally adopted.
The foregoing arguments do not apply to constitutional amendments. The prevention of surprise or fraud upon the legislature or the people is adequately covered in Article XVI. In fact, Article XVI affords more protection from surprise and fraud in the case of constitutional amendments than Article III, Section 17, provides in the passage of ordinary legislation. In the first place, Section 1 of Article XVI requires three steps to be taken in amending the Constitution: the proposal of the amendment by two-thirds of the Members of the General Assembly; the submission of the proposed amendment to the qualified electors of the State; and, if approved, its ratification by the next General Assembly. There is the further requirement that, in the consideration of the amendment by the General Assembly, it shall be 'read three times, on three several days, in each House.' Secondly, Section 2 of Article XVI provides: 'If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.' Certainly, these provisions provide every safeguard against log rolling, surprise, and fraud in the adoption of constitutional amendments and no doubt explain the failure of the framers of the Constitution to require compliance with Article III, Section 17, as a requisite of the amendatory process.
Our decisions have recognized a difference between the effect of the provisions of Article XVI and other constitutional provisions on the exercise of legislative functions in proposing and adopting amendments to the Constitution.
We have consistently held that strict observance of every substantial requirement of the amendatory process as set forth in Article XVI, Sections 1 and 2, is essential to the validity of a proposed amendment. Duncan v. Record Publishing Co., 145 S.C. 196, 143 S.E. 31; Gebhardt v. McGinty, 243 S.C. 495, 134 S.E.2d 749.
On the other hand, the principle has been recognized that, in matters pertaining solely to legislative procedures in adopting an amendment to the Constitution, apart from the requirements of Article XVI, Sections 1 and 2, the legislature is not subject to the rules controlling ordinary legislative action. Fleming v. Royall, 145 S.C. 438, 143 S.E. 162; Kalber v. Redfearn, 215 S.C. 224, 54 S.E.2d 791.
The foregoing rule is in accord with the general principle recognized in other jurisdictions that legislative action in adopting amendments to the Constitution is not...
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