Smith v. Jennings

Decision Date10 September 1903
Citation45 S.E. 821,67 S.C. 324
PartiesSMITH v. JENNINGS, State Treasurer.
CourtSouth Carolina Supreme Court

Petition by H. A. M. Smith, receiver of the president, directors, and company of the State Bank, for an injunction against R. H Jennings, State Treasurer. Injunction refused.

McCradys & Bacot, Julian Mitchell, Jr., and Smythe, Lee & Frost, for petitioner. U. X. Gunter, Jr., Atty. Gen., for respondent.

JONES J.

This is an application in the original jurisdiction of this court for an order restraining the State Treasurer from acting pursuant to a joint resolution of the General Assembly which requires the State Treasurer "to write off of the books in his office and no longer carry on the books as a debt of the state" certain bonds entered on the books of the State Treasurer as, "Old bonds not fundable (act of 1896) Blue Ridge Railroad bonds, $37,000." The petitioner attacks the constitutionality of said joint resolution upon several grounds, issue thereof being made by demurrer of respondent to the petition. We will not undertake to set out in detail the allegations of the petition. It is sufficient to say that the bonds referred to are the "lost bonds" which the receiver of the State Bank unsuccessfully sought to have funded on the case of Samuel Lord, Receiver, v. W. T. C Bates, State Treasurer, 48 S.C. 95, 26 S.E. 213, and that the petitioner H. A. M. Smith, as receiver, succeeds to all the rights of said bank with respect to said lost bonds.

The joint resolution is as follows:

"A joint resolution to authorize and require the State Treasurer to writ off of the books in his office certain bonds entered on said books as 'Old bonds not fundable (Act of 1896), Blue Ridge Railroad Bonds, $37,000.'
Be is resolved by the General Assembly of the state of South Carolina:
Section 1. That whereas by an act of the Legislature of 1896 the Treasurer of this state is forbidden to pay, consolidate or fund any coupon bonds of the state after the expiration of twenty years from the date of maturity of such bonds, and certain bonds entered on the books of the State Treasurer as 'Old bonds not fundable (act of 1896), Blue Ridge Railroad bonds, $37,000,' are still carried on the books of the State Treasurer. Therefore, be it resolved: That the State Treasurer be, and is hereby, authorized and required to write said bonds off of the books in his office, and no longer carry said bonds on the books as a debt of the state."

Acts 1903 (24 St. at Large, p. 266).

It is claimed that this joint resolution has not the force of law, and violates the following constitutional provisions: (1) Section 23, art. 4, of the Constitution of the state of South Carolina, which requires (a) two-thirds of each house (i. e., two-thirds of all the members, not of a constitutional quorum of each house) to pass a bill or joint resolution that has been unapproved and unsigned by the Governor; and (b) a return to and reconsideration by the same--not a new--General Assembly of such bill or joint resolution; (2) section 16, art. 3, of the Constitution of the state of South Carolina, which provides that "The style of all laws shall be: 'Be it enacted by the General Assembly of the state of South Carolina" D'; and (3) section 8, art. 1, of the Constitution of the state of South Carolina, which provides that "no *** law impairing the obligation of contracts *** shall be passed ***," and also the first clause of section 10 of article 1 of the Constitution of the United States of America, which provides that "no state shall *** pass any *** law impairing the obligation of contracts. ***"

1. The question presented under section 23, art. 4, of the Constitution, is whether the language "two-thirds of that house" means two-thirds of the total membership of the Senate, which consists of 41 members, and two-thirds of the total membership of the House of Representatives, which consists of 124 members, or means two-thirds of the members of each of said bodies voting upon the question, a quorum being present. The joint resolution was passed by the General Assembly on February 22, 1902, on which day the regular session of 1902 adjourned sine die. The joint resolution having been presented to the Governor, and the General Assembly having by adjournment prevented its return within three days, the Governor sent it, unapproved and unsigned, and with his objection, to the Senate, where it originated, within two days after the meeting of the General Assembly which convened on Tuesday, the 13th day of January, 1903. On the 19th day of February, 1903, the Senate, by a vote of 25 to 11, out of a membership of 41, passed the joint resolution, the veto of his excellency the Governor to the contrary notwithstanding, but immediately thereupon reconsidered its said action, and on February 20, 1903, passed the joint resolution over the Governor's veto by a vote of 28 to 13. Thereupon the joint resolution, together with the Governor's objection--the veto--was sent to the House of Representatives, which body on same day, February 20, 1903, by a vote of 60 to 25, out of a total membership of 124, passed the joint resolution over the Governor's veto.

Treating a vote upon the passage of the joint resolution over the Governor's veto as upon the reconsideration of the original resolution, it is not a judicial question whether the Senate had the right to reconsider the vote upon such reconsideration. That is merely a matter of parliamentary procedure, which each body, by special rule, may, and usually does, regulate for itself. As a judicial question, we accept the result as shown by the Senate journal of February 20, 1903, and set forth in the petition, as one reached in accordance with the rules of the body. So that it appears that the Senate's action is unquestionable, under either construction of the Constitution. Our further consideration of this question will therefore be confined to the action of the House of Representatives.

While the Constitution, in article 3, § 3, declares that the House of Representatives shall consist of 124 members, it also declares, in section 11, art. 3, that a majority of each house shall constitute a quorum to do business. A quorum, therefore, possesses the power of the whole body in all matters of business wherein the action of a larger proportion of the entire membership is not clearly and expressly required. So, ordinarily, when a quorum is present acting, the House is present, acting in all its potentiality. When the Constitution speaks of "two-thirds of that house" as the vote required to pass a bill or joint resolution over the veto of the Governor, it means two-thirds of the house as then legally constituted, and acting upon the matter. Whenever the framers of the Constitution intended otherwise, the purpose was expressly declared, as in article 15, § 1, "a vote of two-thirds of all members elected shall be required for an impeachment," and in article 16, § 1, where, in proposing amendments to the Constitution, "two-thirds of the members elected to each house" must agree thereto. Questions like this arose under the Constitution of 1868, and were decided in accordance with the view we take. Morton, Bliss & Co. v. Comptroller General, 4 S. C. 462; Bond Debt Cases, 12 S.C. 285. See, also, Cooley's Constitutional Limitations (5th Ed.) p. 170; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636. As the house at the time of the passage of the joint resolution was lawfully constituted, with 85 members present, and, as 60 of these voted for its passage, the vote was "two-thirds of that house," in the sense of section 23, art. 4, of the Constitution.

With respect to the point made under subdivision "b" above, we do not think it tenable. Section 23, art. 4 requires that the Governor shall return a bill or joint resolution, which he does not approve, with his objections, to the house in which it originated, which house shall proceed to reconsider it. "If after such reconsideration two-thirds of that house shall agree to pass it, it shall be sent, together with the objections, to the other house, by which it shall be reconsidered, and if approved by two-thirds of that house, it shall have the same effect as if it had been signed by the Governor." The point is made that the General Assembly of 1903 was a new General Assembly, composed of the members elected in the general election in the fall of 1902, and that the Constitution contemplates a return of bill or joint resolution unapproved by the Governor to the General Assembly which passed it, as that body alone can properly be said to reconsider the same. Such a construction would destroy the effect of the last provision in said section, as follows: "If a bill or joint resolution shall not be returned by the Governor within three days after it shall have been presented to him, Sundays excepted, it shall have the same force and effect as if he had signed it, unless the General Assembly, by adjournment, prevent its return, in which case it shall have such force and effect, unless returned within two days after the next meeting." As the Legislature adjourned sine die on the day the joint resolution passed, the Governor had the right to return the resolution approved within two days after the next meeting of the General Assembly. In the sense of this provision, the Senate and House of Representatives, as composing the General Assembly, are continuing bodies, and, as such entities, are not affected by the changes made in the particular individuals who may be members thereof. It is the "House" which is to reconsider, not the particular members who participated in the original consideration. Furthermore, if petitioner's construction be correct in this regard, then the Governor did not return the joint resolution, as...

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