State ex rel. Barber v. Parler

The opinion of the Court was delivered by Mr. Justice Pope. This is an action brought in the original jurisdiction of this Court by the plaintiffs above named, having already received such consent to do so as required by law, to test the right of the defendant to hold the office of county treasurer of Dorchester County, in this State, because it is alleged that under the Constitution of this State, adopted in the year 1895, there is no such county as Dorchester County, and, consequently, no such office as that of its county treasurer. The coinplaint must be reported. The answer of defendant need not be reported. When the complaint was read before this Court, the defendant interposed the oral 'demurrur that the complaint did not state facts sufficient to constitute a cause of action, in two particulars: first, because it is not alleged that the defendant usurped, intruded into or unlawfully holds or exercises any public office, civil or military; second, because — 213 — the complaint does not allege any facts showing that the act of the General Assembly creating Dorchester County is unconstitutional and void. After a full hearing of the respective counsel, and after a patient investigation of the matters involved, this Court passed the following order (omitting the caption): “The Court having reached the conclusion that there is no ground for the relief prayed for in the petition, and it being important to the public interests that this conclusion should be annonnced without further delay; it is ordered, that the petition be dismissed. The reasons for this conclusion will be stated in an opinion to be hereinafter filed.” Such being our conclusion, it only remains that the reasons therefor be now stated. 1 Counsel for the petitioner conceded that the defendant has been appointed by the governor to fill the office in question, and that he is exercising the duties thereof, but they contend that there is no such office as county treasurer of Dor-Chester County, for the reason that no such county as Dorchester County exists in this State, because the act of the General Assembly, passed on 25th February, 1896, was unconstitutional, and, therefore, void. We must, therefore, examine the constitutional provisions in question, and so much of the act of the General Assembly passed in 1896, and, it maybe, of the act of the General Assembly passed in 1897, as relate to this subject, to see if petitioner is correct in his premises. Art. VII. (sections 1 and 2 thereof) of the Constitution of this State are as follows: “Section 1. The General Assembly may establish new counties in the following manner: Whenever one-third of the qualified electors, within the area of each section of an old county proposed to be cut off to form a new county, shall petition the governor for the creation of a new county, setting forth the boundaries and showing compliance with the requirements of this article, the governor shall order an election, within a reasonable time thereafter, by the qualified electors within the proposed area, in which election — 214 — they shall vote ‘Yes’ or ‘No’ upon the question of creating said new county; and at the same election the question of a name and a county seat for such county shall be submitted to the electors. Section 2. If two-thirds of the qualified electors voting at such election shall vote ‘Yes’ upon such questions, then the General Assembly, at the next session, shall establish such new county: Provided, No section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such section, and no county shall be formed- without complying with all the conditions imposed in this article. An election upon the question of forming the same proposed new county shall not be held oftener than once in four years.” It is conceded that in the election ordered by the governor under the condition prescribed, to wit: under a petition signed by more than one-third of the citizens residing within the territory of the proposed new county, more than two-thirds of the voters voted for the establishment of the new county, and for “Dorchester” as its name; , but because a two-thirds vote at such election, for the name ' of a county seat, was not cast, therefore, one of the questions was not answered by the voters, as required by the Constitution. It is well to notice that the words of the second section, “and no new county shall be formed without complying with all the conditions of this article,” governs or requires a two-thirds vote of the citizens affected, as to the creation of such new county, but also section 3 requires that -no such county shall contain less than the 124th part of the whole number of the inhabitants of the State, nor shall it have less, assessed taxable property than $1,500,000, as shown by the last tax returns, nor shall it contain less area than 400 square miles; and also, that section 4 requires that no old county shall be reduced to less area than 500 square miles, to less assessed taxable property than $2,000,000, nor to a less population than 15,000 inhabitants. And also, section 5 provides that, in the formation of new counties, no old county shall be cut within eight miles of its court house — 215 — building. And also, by section 6 it is provided that all new counties formed shall bear a just apportionment of the valid indebtedness of the old county or counties from which they have been formed. In the case at bar, all the conditions have been complied with, unless the choice by a two-thirds vote at the first election of a county seat can be said to be a condition in the article to the formation of the. new county, Dorchester. Does the language itself of this article require such a construction of its terms? It is true, that the word “questions” is plural, but may not this word “questions” be construed, from the language itself, to mean the question propounded to the several pieces of territory which it was proposed should form the new county? Each had to vote separately. It is equally certain that in the minds of the Constitution builders — the delegates composing the convention which framed the new Constitution — there was present the idea that new counties would be made up of parts of two or more counties; and, therefore, might not the word “questions” be referable to the same question "being propounded to several distinct pieces of territory, separately, and thereby become “questions?” It is to be noticed, also, that while the copulative conjunction “and” is here used to connect the matter of voting “yes” or “no,” upon the question of creating the new county, with the words, “at the same election the question of a name and a county seat for such county shall be submitted to the electors,” the word “also,” importing “in like manner,” is absent. The petitioner, however, submits that the language in the second section, “If two-thirds of the qualified electors voting at such election shall vote ‘yes’ upon such questions, then the General Assembly, at the next session, shall establish such new county,” negatives any theorizing; that the language of the Constitution needs no explanation, for its meaning is so plain that it needs no interpretation. Is this so? How could a vote for a name and a county seat be ascertained by voting a ticket with “yes” or “no” on it? It is suggested that it could be so arranged on the ballots. This — 216 — suggestion admits the necessity for resorting to something outside of the language employed in the Constitution itself to accomplish this result. It has been suggested at the bar that a resort to contemporaneous construction by the legislature will show what the Constitution means. While this is not recognized as of much value, except in cases of doubtful'construction, yet it is admitted as one of the means to ascertain the meaning of doúbtful terms. This is of value, too, because many of the members of the convention which _ framed the Constitution were also members of the next General Assembly, which assembled in less than one month after the Constitution went into effect, for the Constitution went into effect on 31st December, 1895, and the next General Assembly met on 15th January, 1896. By the act passed by that General Assembly, entitled “An act to provide for the formation of new counties, and the changing of county lines and county seats, and consolidation of counties,” approved 9th March, 1896 (22 Stat., 64), in the fifth section, it is provided, “The General Assembly, at its next session, shall create such new county, if two-thirds of the qualified electors voting at such election shall vote in favor of the establishment of such new county, and if all the constitutional requirements for the formation of new counties have been complied with, of all of which such General Assembly must judge.” By the language quoted, it is quite evident that the General Assembly thought the vote “yes” or “no,”'on the question of the establishment of the new county, was the meaning of the language in section 2 of art. VII. of our present Constitution, when it speaks of a two-thirds vote on the “questions” therein referred to. Likewise, in the act passed by the next General Assembly, as found in vol. 22 of Stat. at Large, 595, entitled “An act to establish Dorchester Connty,” it is manifest from the provisions of that act that the judgment of the General Assembly was that the two-thirds vote was not necessary to establish a county seat; for in the second section of the act just cited, a majority vote in the election to determine a — 217 — “Count}' Seat” was all that was required. Reference has also been made by both parties to this controversy, to the propriety of resorting to the journal of the Constitutional' Convention to aid us in determining this matter. Mr. Cooley, in his work on Constitutional Limitations, * pages 66 and 67, speaks of this resort to such journal as very helpful. We have examined the journal in question, and our minds are impressed with the fact that, in the passage of the article in question by the convention, the word “question,” in the second section of article VIL, was in the singular, and that it was only changed to “questions” by the “committee on order, style and revision,” by its amendment to that effect, which was adopted by the convention. We do not mean to say that the Constitution should not be read with the word “questions” in it. Such was the final act of the convention, and it must so stand; but we do mean to say that, in ascertaining to what vote the two-thirds vote is required to relate, it must be confined to the question of creating a new county out of an old county or old counties. 2 Again, it is suggested that the legislation had in relation to Dorchester County is unconstitutional and void, because it has attempted to enlarge the direct provisions of the Constitution, in sections 1 and 2 of article VII., by allowing a second and other elections to determine county seat, after the first election on that matter, which was held at the same time the question as to the creation of the new county was submitted to the electors residing in the territory affected thereby. We cannot accept this view. In the first place, the Convention speaks in the first section of article VII. of the General Assembly establishing new counties. Its only restrictions are set forth in the article, and do not negative the idea that the General Assembly, under its possession of general legislative power, may do other things than those enumerated in the article VIL; but it (the legislature) must not controvert, in letter or spirit, the provisions of the Constitution itself. All these matters have been frequently discussed by this — 218 — Court. See State v. Hayne, 4 S. C., 420; State v. Columbia, 6 S. C., 1; Pelzer, Rogers & Co. v. Campbell, 15 S. C., 592; Ex parte Lynch, 16 S. C., 34; Norton v. Bradham, 21 S. C., 375; State ex rel. v. City of Aiken, 42 S. C., pp. 231, 243; v. Zorn, 48 S. C., 152. It follows, therefore, that the relief prayed for must be denied, our judgment to that effect having already been rendered herein.