Wingfield v. South Carolina Tax Comm'n

• Decision Date: 25 September 1928
• Docket Number: (No. 12499.)
• Citation: 144 S.E. 846
• Parties: WINGFIELD et al. v. SOUTH CAROLINA TAX COMMISSION et al. O'DOWD et al. v. SAME.
• Court: South Carolina Supreme Court

144 S.E. 846

WINGFIELD et al.

v.SOUTH CAROLINA TAX COMMISSION et al.

O'DOWD et al.

v.SAME.

(No. 12499.)

Supreme Court of South Carolina.

Sept. 25, 1928.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, License Tax.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Inspect; Inspection; Practice.]

Cothran, J., dissenting.

Original proceedings by E. L. Wingfield and others and by J. M. O'Dowd and others against the South Carolina Tax Commission and others to have declared void Acts 1928, No. 574, imposing license or occupational tax, and praying injunction. Injunction denied, and petitions dismissed.

Melton & Belser, of Columbia, for petitioners.

John M. Daniel, Atty. Gen., and Cordie Page, Asst. Atty. Gen., for respondents.

STABLER, J. The petitioners in both of the above-entitled proceedings instituted in the original jurisdiction of the court, seek to have declared null and void Act No. 574 of the Legislature, passed at its 1928 session and approved by the Governor March 10, 1928. The two actions are similar, and cover in part the same points; they were heard together on argument here, counsel for petitioners filing one brief covering the several questions raised in the two cases. In our consideration of these questions, we shall follow, in the main, the plan outlined by the petitioners in their printed argument, and the conclusions arrived at by the court will dispose of all questions raised in both cases.

The constitutionality of the statute is attacked upon three general grounds: (1) The origin and method of passage of the act; (2) its operation and effect; and (3) its vagueness and uncertainty. Under their first general objection, and in amplification of same, the petitioners state the following specific grounds: (a) That the act, one for the raising of revenue, did not originate in the House of Representatives; (b) that it was not read three times in either house; and (c) that the subject of the act is not expressed in the title. In amplification of their second general objection, and as specific grounds of same, thepetitioners contend, as to retailers of soft drinks, that the provisions of the act (d) deprive such retailers of their right to carry on their occupation and of their liberty to contract, and (e) impose unequal operation and discrimination against them; that as to theater owners affected by admissions tax, (f) they are deprived of liberty to contract by requirements as to the use of tickets, and that (g) such operators using their own tickets are required by the act to pay a double tax. Under the third general objection it is contended that the uncertainty and vagueness of the act is evident from its prohibition of "practices" making inspection "difficult" and from alternative provisions. These enumerated objections are pleaded in detail, and the petitions set out various particulars in which the act is alleged to be unreasonable, unjust, discriminatory, and in violation of the Constitution.

With respect to subdivision (c), for the sake of clarity, we may say that the petitioners do not contend that the subject of the act is not expressed in the title of the enrolled act; their objection is that the title was changed after the bill was introduced in the Legislature, and that the title as it appears in the enrolled act was never passed by either house of the Legislature. The respondents, as constituting the South Carolina tax commission, by their answers allege that the statute is a valid and constitutional enactment; that the record shows that the bill originated in the House of Representatives, was read three times on three separate days in each house, and that the subject of the act is properly expressed in the title; that the law is now of force and cannot be impeached by the journals of the two houses, nor by any other extrinsic evidence; that the tax imposed is not a property tax, but a license tax; and that "section 1 of article 10 of the Constitution specifically provides 'that the General Assembly may provide for a graduated tax on incomes, and for a graduated license on occupations and business'; that the tax herein imposed is a license tax operating equally on all persons within the respective classes, is a valid and proper enactment of the General Assembly in accordance with both the state and federal Constitutions, and does not deprive any person of property without due process of law, nor deny to any person the equal protection of the laws." They also allege that the petitioners have an adequate remedy at law, by paying the tax under protest and suing to recover the same.

We approach the consideration of the questions raised by the petitioners with due appreciation of their importance and seriousness. We are also mindful of the fact that it is a grave matter to declare a solemn enactment of the Legislature, a co-ordinate branch of the government, invalid, and that the court in its deliberation and conclusions should be guided by the well-settled principle that the unconstitutionality of an act must be shown beyond a reasonable doubt. McKiever et al v. City of Sumter et al., 137 S. C. 266, 135 S. E. 60; Poulnot v. Cantwell, 129 S. C. 171, 123 S. E. 653; Battle v. Willcox, 128 S. C. 500, 122 S. E. 516; Santee Mills v. Query, 122 S. C. 158, 115 S. E. 202; Powell v. Hargrove, 136 S. C. 345, 134 S. E. 3S0. We find the following clear statement of this principle In 6 R. C. L at page 75:

"To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state Constitution to be in contravention of the Constitution of the United States, the case must be so clear as to be free from doubt, and the conflict of the statute with the Constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore in no doubtful case will the judiciary pronounce a legislative act to be contrary to the Constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of its validity."

The act in question is a revenue measure, the title being as follows:

"An act to amend an act entitled 'An act to raise revenue for the support of the state government, ' approved twenty-second day, April, 1927, so as to repeal the license tax on sporting goods, cut glass, etched glass, art glass, and twenty-two caliber cartridges and to provide for a license tax on soft drinks, admissions, contractors, ammunition, candy, playing cards, manufactured tobacco products and chain stores and to levy a tax on documents, for the support of the state government."

I. The provisions of the state Constitution, alleged by the petitioners, under their first general ground of objection, to have been violated in the origin and passage of the act, are the following sections of article 3:

"15. Bills for raising revenue shall originate in the House of Representatives, but may be altered, amended or rejected by the Senate; all other bills may originate in either house, and may be amended, altered or rejected by the other."

"17. Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title."

"18. No bill or joint resolution shall have the force of law until it shall have been read three times and on three several days in each house, has had the great seal of the state affixed to it, and has been signed by the president of the Senate and the speaker of the House of Representatives: Provided, that either branch of the General Assembly may provide by rule for a first and third reading of any bill or joint resolution by its title only."

The petitioners point to the journals of the two houses to substantiate their contention as to the irregularities alleged. The respondents, however, without admitting that the journals show any of the irregularities com-plained of, contend that they are not competent evidence, and that—

"It is the well-settled rule in this state that the act itself is the best evidence of its passage, and when it is duly certified by the president of the Senate and speaker of the House of Representatives, approved by the Governor and filed in the archives of the secretary of state, it cannot be impeached by the journals or any other evidence outside of the act itself."

The question whether resort may be had to the journals of the Legislature for the purpose of impeaching an act regular on its face Is one about which the decisions in the various jurisdictions are not in harmony. The conflicting views are well stated in 25 R. C. L. at page 894:

"It is held by one line of cases that a duly authenticated, approved, and enrolled statute imports absolute verity, and is conclusive that the act was passed in every respect as designated by the Constitution; and, by another, that while such authentication, approval, and enrollment are strong prima facie evidence that it was regularly passed, still this presumption may be overcome by resorting to the legislative journals. These rules have sometimes been respectively called the 'enrolled bill rule' and the 'journal entry rule.'"

Prior to 1893, the journal entry rule prevailed in this state. State v. Platt, 2 S. C. 150, 16 Am. Rep. 647; State v. Hagood, 13 S. C. 46. In each of these cases, however, a vigorous dissenting opinion was filed. In his dissent in the Hagood Case, Mr. Justice McIver said:

"The true rule, in my judgment, is that when an act has been enrolled, has had the great seal of the state affixed to it, has been signed by the president of the Senate and speaker of the House of Representatives and has been approved by the Governor, it imports absolute verity; that its terms can only be finally ascertained by an inspection of the enrolled act, and that it is not competent to go behind it, and alter its terms either by...