State ex rel. Edwards v. Osborne
| Decision Date | 21 October 1940 |
| Docket Number | 15148. |
| Citation | 11 S.E.2d 260,195 S.C. 295 |
| Parties | STATE ex rel. EDWARDS (McCULLOUGH et al., Interveners) v. OSBORNE et al. |
| Court | South Carolina Supreme Court |
Samuel Want, James S. Verner, Sam Rogol, and E. C. Dennis, Jr., all of Darlington (George Bell Timmerman, of Lexington, and D. W Robinson and N. A. Turner, both of Columbia, of counsel), for appellants.
John M. Daniel, Atty. Gen., M. J. Hough and T. C. Callison, Asst Attys. Gen., C. T. Graydon, Pinckney L. Cain, Jos. J Nettles, and C. B. Elliott, all of Columbia, and R. R Williams, of Greenville, for respondents.
By their petitions in the original jurisdiction of this Court the petitioner and intervening petitioners challenge the constitutionality of an Act of the General Assembly, approved June 10, 1940, Act. No. 1019, 41 St. at Large, p. 1949, appropriating two million dollars of the revenues derived from the five cents gasoline tax and the motor vehicle license fees to the payment of the State deficit for the fiscal year ending June 30, 1940, and to the general expenses of the State, in the manner and under the circumstances hereinafter set forth. Of this said sum, one million dollars is required by the Act to be paid by the Highway Department to the State Treasurer prior to December 31, 1940, and the remaining million dollars is required to be paid within the first six months of the calendar year, 1941.
The petitioner, Edwards, is a taxpayer residing in Darlington County. The intervening petitioners are the owners of State Highway Certificates of Indebtedness in the principal amount of three hundred and seventy-eight thousand ($378,000) dollars, no part of which is in default.
The respondents are the members of the State Highway Commission, the Chief Highway Commissioner and the State Treasurer.
The petitioner and intervening petitioners (hereinafter referred to as petitioners) question the validity of the Act under discussion on three grounds, as follows: (1) That it violates the provisions of the Constitution of this State, Article X, Section 2, which provides for the payment of the ordinary expenses of the State and for the payment of a State deficit. (2) That it violates the provisions of the Constitution of this State, Article X, Section 3 , which provides that a statute that levies a tax "shall distinctly state the object of the same; to which object the tax shall be applied". (3) That it violates the provisions of the South Carolina Constitution, Article 1, Sections 5 and 8; and the United States Constitution, Article 1, Section 10, and amendment XIV, Section 1, which prohibit the impairment of the obligation of a contract.
The relief prayed for is that the respondents be permanently enjoined from carrying out the requirements of the Act.
On the verified petition of the taxpayer petitioner, there was issued out of this Court a rule requiring the respondents to show cause why they should not be enjoined as prayed. Pending a hearing and until the further order of the Court, a temporary restraining order was granted.
The respondents, by demurrers and return, contest the contentions of the petitioners, and allege generally that the Statute in question does not violate any of the constitutional provisions upon which the petitioners rely, and that it is the right and duty of the Highway Commission to pay over to the State Treasurer the funds appropriated as above stated.
It is alleged by the petitioners and admitted by the respondents that the State Treasurer called upon the Highway Commission for the payment of the first one Million Dollars of the appropriated funds, and that the Highway Commission, if not restrained from so doing, would pay over to the State Treasurer the said amount of money for the purposes expressed by the Statute.
It may be said here that aside from the constitutional questions presented by the pleadings, there is considerable statistical data in the pleadings, exhibits and briefs of counsel, around which much of the argument of counsel revolves. While there is little difference between the parties respecting the accuracy and completeness of most of the data thus presented, the petitioners and respondents are far apart in their respective applications of this data to the legal issues to which counsel deem such data pertinent. As we view the problems presented by this case, however, such data, whatever interpretation we might place on it, is not controlling on any issue which we need now to decide. Hence, we will make only such references to this data as are desirable for the purpose of making more intelligible the problem dealt with in this opinion.
In approaching the problems presented by this case, we are mindful of the constitutional principles that legislative acts may not be invalidated in cases of doubt; that the Courts and the General Assembly are coordinate branches of the State Government and except where constitutional limitations have been clearly disregarded, it is not for this Court to pass on the propriety or soundness of the exercise of the legislative power.
We recognize the soundness of the distinction between avoiding constitutional restrictions and evading them, and that where a given course of legislative action has been declared by this Court to be unconstitutional, no stigma of illegality attaches to a later statute which recognizes the condemnation of the earlier law and seeks to avoid the defects of that law.
But we cannot dissipate constitutional provisions by forced construction, or by regarding form rather than substance. A statute is constitutional or unconstitutional by reason of its scope and purpose and effect. Whatever the language used, we test the statute by a realistic consideration of the subject which it encompasses, the purpose which it seeks to serve, and the effect it will have when put in operation.
If constitutional limitations are directed to these factors, they must be given effect.
We are mindful, too, of the fiscal problems of the State that are wrapped up in the present litigation. But these are legislative problems. Our twofold duty is to refrain from interfering with legislative action which involves no clear constitutional infirmity, and to firmly condemn such action when it infringes upon constitutional restraints upon the legislative power. This Court has neither the power to levy taxes nor the power to appropriate the money made available by such levy, and in view of these indisputable facts, it cannot be charged with any portion of the responsibility for the financial problems under which the State is laboring.
The limitations on legislative power contained in the constitution of 1895 are the fruits of generations of experience. They were adopted in the light of conditions that were both normal and subnormal --periods of depression and prosperity, of war and peace, of wise governmental action and unwise governmental action, all of which played their part in dictating limitations on the legislative power in the interests of the people. It is no part of our right or duty to do more or less than dispassionately construe the constitutional provisions that have been invoked, and to determine whether the safeguards and restrictions that the framers of the constitution saw fit to throw around the legislative function have been observed.
In these troublous times, with public finance and economic forces taking on aspects that challenge alike the pessimist and the optimist in looking to the uncertain days ahead, our solemn duty can be no less than that of being diligent to maintain the balance of governmental powers that give rise to the power of a Court to declare an Act of the General Assembly unconstitutional.
On the matter of the financial situation of the State which gave rise to the enactment of the Act in question, the record discloses that as of June 30, 1940, there is a State deficit of $1,856,898.26, and that as of June 30, 1941, the combined deficit for the two fiscal years will approximate $3,000,000, without taking into account the appropriation made under the present Act.
The gasoline tax, of which five (5¢) cents per gallon is "allocated for the purposes of the State Highway Department", is levied by an Act approved March 16, 1929, Acts 1929, 36 St. at Large, p. 107. In the Code, this Act is found as Section 2505 et seq.. Section 2507, one of the provisions of the 1929 Act which the 1940 Statute attempts to amend, directs that five (5¢) cents per gallon of the tax "shall be turned over to the State Highway Department". Other sections of the 1929 Act prohibit the Highway Department from issuing bonds or making reimbursement agreements unless the estimated revenues for the year from the five (5¢) cents gasoline tax and the motor vehicle license fees are certified to be sufficient for the stated purposes of the Highway Department, including "the maintenance of all highways in the State Highway system". Section 2510, Code of 1932. The 1940 Act under discussion undertakes to amend this Section by adding an additional purpose to the levy, viz., to pay the State deficit and the general expenses of the State for the fiscal year beginning July 1, 1940. 41 St. at Large, p. 1950, § 2.
The motor vehicle license fees are levied by various statutes enacted prior and subsequent to 1929. These statutes are found in Code, Section 5893, et seq., as part of the codification of the law providing for the State Highway System, and the construction, operation, maintenance and financing of the same.
Section 5893 of the Code provides that the fees are levied "in order to provide funds for carrying out the provisions of this article". The 1940 Act here involved attempts to amend this section by adding an additional purpose to the levy, to wit, to...
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