State v. Hagood

• Decision Date: 26 January 1879
• Docket Number: CASE No. 809.
• Citation: 13 S.C. 46
• Parties: STATE, EX RELATIONE THE ATTORNEY-GENERAL, v. HAGOOD.
• Court: South Carolina Supreme Court

13 S.C. 46

STATE, EX RELATIONE THE ATTORNEY-GENERAL,

v.HAGOOD.

CASE No. 809.

Supreme Court of South Carolina.

Jan. 26th, 1879.

1. When the constitution prescribes certain requisites in the enactment of a statute, the court may look behind the seal of the state, the approval of the governor and the signatures of the presiding officers of the general assembly, to ascertain whether the constitutional requirements have been complied with.

2. An act of the legislature, as ratified by the two houses and approved by the governor, is not valid unless it has had three readings on three several days in each branch of the general assembly. Const., Art. XI., § 21.

3. Where a specific tax levy, without having passed the general assembly, is inserted in the enrolled copy of a bill which has passed, and the enrolled bill is ratified and approved, such levy has not the force of a law.

4. Where a bill providing for a tax levy of four and one-half mills, passes both branches of the general assembly, but the enrolled copy for ratification has the one-half changed to “three-quarters,” so as to read “four and three-quarters mills,” in which form it is ratified and approved— Held, that there was no authority to levy a tax of either four and one-half or four and three-quarters mills.

5. State v. Platt, 2 S. C. 150, doubted by MCIVER, A. J.

MCGOWAN, A. J., dissenting.

This was an original application, on January 15th, 1880, by the Hon. Le Roy F. Youmans, attorney-general, for a writ of mandamus to compel the Hon. Johnson Hagood, comptroller-general, to proceed with the levy of taxes under the act of December 24th, 1879. 17 Stat. 115.

The petition set forth the following matters:

1. That on December 24th, 1879, William D. Simpson, governorof the State of South Carolina, approved and signed an act of the general assembly of this state, entitled “An act to raise supplies and make appropriations for the fiscal year commencing 1st November, 1879,” which act had had the great seal of the state affixed to it, and had been signed in the senate and house by the president of the senate and the speaker of the house of representatives.

2. That it is the duty of the comptroller-general of this state to annually notify each county auditor of the rate per centum authorized by law to be levied for the various state purposes, and to prepare and transmit to each county auditor the necessary forms and instructions to carry into effect the provisions of the tax laws, which forms and instructions are required to be obeyed by all county, town and municipal officers.

3. That although it is the official duty, by statute, of Johnson Hagood, as comptroller-general, to perform the acts hereinbefore stated, for the purpose of carrying into effect the act of Assembly in Paragraph 1, hereinbefore mentioned, yet the said Johnson Hagood has refused and still refuses so to do, unless herein directed by judicial authority.

4. That unless the said Johnson Hagood does perform the said duties of the office of comptroller-general, the entire machinery of the state for raising revenue and paying appropriations will be paralyzed, to the great and irreparable detriment of the State of South Carolina.

An order was signed requiring the said Hagood to show cause forthwith why a writ of mandamus should not issue as prayed for.

The return was then filed, which was as follows:

1. Johnson Hagood, comptroller-general of said state, upon whom an order of this honorable court has been served, requiring him to show cause why a writ of mandamus should not issue, as prayed for by the petition herein, for cause shows: That he admits that he has refused and still refuses to proceed, as comptroller-general, under the alleged act of the general assembly, entitled “An act to raise supplies and make appropriations for the fiscal year commencing 1st November, 1879;” ratifiedand approved December 24th, 1879, as stated in said petition, for the following reasons:

2. That the alleged act, as ratified and approved purports to levy a tax of four and three-quarters mills in the first section thereof, and purports to authorize the county commissioners of Charleston county to levy a tax sufficient to raise the sum of $3000 for the Charleston military in the second section thereof; whereas the act, as it passed the senate and house of representatives, purported to levy a tax of only four and a half mills in the first section thereof, and did not contain any provision whatever, authorizing the levy of any tax for the Charleston military.

That the said act, when sent, after its passage in the house, to the senate, purported to authorize a levy of a tax of four and a half mills in the first section thereof, and the senate amended the said section by striking out the words “a half,” and inserting in lieu thereof “three-quarters,” in which amendment the house refused to concur, and the senate receded therefrom.

That the senate amended the second section thereof, by inserting therein the following provision: “That the county commisioners of Charleston county be, and are hereby authorized and required to levy a tax upon all the taxable property of said county sufficient to raise the sum of three thousand dollars, which tax shall be paid at the same time with other taxes. The proceeds arising therefrom shall be held by the treasurer of said county, subject to the draft of the major-general commanding the first division, and shall by him be apportioned, as follows: the one-tenth thereof, for the use of the militia in said county without the city of Charleston; another tenth thereof to the use of the first regiment of the national guard; and the remaining eight-tenths to be equally divided amongst the companies composing the fourth brigade, by companies.”

In which amendment the house refused to concur and the senate receded therefrom, all of which fully appears in the journals of the senate and house of representatives. Wherefore it being in the apprehension of this respondent, involved in the gravest doubt whether the said alleged act has been passed in accordance with the requirements of the constitution, and has authorized any notification whatever to the county auditors of the state by this respondent as comptroller-general, and even, if so authorizing, whether this respondent should include in such notification any rate per centum as authorized by law, to be levied for the various state purposes; and if so, what rate; and whether he should include in such notification the provision as to the Charleston military in the second section of said act hereinbefore specially set forth: this respondent has felt it not to be in the line of his official duty to proceed in any manner under the said alleged act, save under sanction of the proper judicial tribunal.

Wherefore this respondent submits himself to the order of this court in the premises.

This return was verified and was not traversed; the matters therein stated were admitted to be true.

Mr. Youmans, attorney-general, for the relator.

We make no charge of contumacy against the comptroller-general. The matter being involved in doubt, it was not proper for him to proceed, nor for the governor to convene the legislature, without legal sanction.

The particular question here is novel only in the instance, but may be solved by legal formula and under well-established principles of law.

It is the highest exercise of the powers of courts in the American States, to declare an act unconstitutional. No more of an act should be declared unconstitutional than is clearly so, and that being stricken out, the remainder must be sustained. The only objection to this act is that one-quarter mill additional has been added on in the first section, and the Charleston military tax levy in another section. Strike both out and the remainder stands.

Prima facie it is the duty of the comptroller-general to execute the act as it stands on the statute-book. But under decision in Blackwell v. Barnwell, or State v. Platt, 2 S. C. 150, the court can go behind the signatures and the great seal, which seems to be the American rule; and we agree that that case is the law of this. See to same point, 4 Otto 260. The courts, however, will not interfere, unless the departure from the constitution is patent and plain. Fletcher v. Peck, 6 Cr. 87, and other cases say so. They also say part may be good and part bad, and only the bad will be declared unconstitutional. There is difficulty sometimes in separating good from bad, but where, the bad being stricken out, the good part remaining is capable of execution, it must stand; the whole must fall only where the two are so interdependent that it cannot be presumed that the legislature would enact one without the other. Sedg. on Const. Law 413; Cooley Const. Lim. 177.

The precise constitutional objection here is in Article II., Section 21, of the constitution, where the ratification of an act is prescribed. This act passed the general assembly with a tax levy of four and one-half mills; there was added at the ratification an additional one-quarter mill and the Charleston military tax levy. Both of these additions, we concede, must go. Here lies our trouble, but we will show that the four and three-quarters mills is capable of separation, and that if it can be, it must be. State v. Copeland, 3 R. I. 36; and compare 13 Rich. 498 with 14 Rich. 129. So, too, in Homestead Cases. Courts hold same words good as to future contracts, but void as to past. See, too, 14 Pick. 96. We do not think four and three-quarters can stand; we do think that four and one-half can; that they are separable, that the one-quarter is not necessarily dependent on the four and one-half. The journals show that there was no struggle for diminution; the senate proposed to amend by substituting “three-quarters” for “one-half” and the house did not concur. This shows that a foreign substance, one-quarter mill, was attempted to be added, and did slip in at the...