Weeks v. Ruff, County Sup'r , 164 S.C. 398 ( 1932 )

This is an action brought in the original jurisdiction of the Court by a citizen and taxpayer of Newberry County for the purpose of enjoining the defendants, who are officials of that county, from issuing county bonds pursuant to an Act approved March 13, 1931, which purports to authorize the Newberry County Board of Commissioners "to issue and sell bonds of Newberry County in an aggregate principal amount not exceeding Eight Hundred Thousand ($800,000.00) Dollars for the purpose of funding or paying any outstanding notes of said county which have been validated by the Constitution of South Carolina or any amendment thereto." Acts of 1931, p. 918.

It is agreed that the notes referred to in the statute were invalid in their inception, being without warrant of constitutional authorization at the time they were given, that they were issued when the county's bonded debt was already practically as great as the amount permitted by Section 5 of Article 10 of the Constitution; that they were not issued in anticipation of current taxes for current expenses; and that they are not at the present time valid obligations of the county unless it can be said that they have been validated by amendment to the Constitution, relating to Newberry County, which was proposed by a resolution passed at the 1930 session of the General Assembly. Acts 1930, p. 1091.

In conformity with the resolution, the proposed amendment was submitted to the qualified electors of the state at the 1930 election and was approved. At the following session of the General Assembly a bill to ratify the amendment was introduced, was passed by both Houses of the General Assembly, a yea and nay vote being taken thereon in each branch, was ratified in joint session of the two Houses, and was approved by the Governor. Acts of 1931, p. 103. Subsequently and at the same session, the Legislature enacted the statute under which the defendants propose to issue the bonds in question.

The plaintiff does not attempt to impeach the method of submission of the proposed amendment to the people or its subsequent ratification by the Legislature, but alleges that the resolution proposing the amendment was not adopted in the manner provided by Section 1 of Article 16 of the Constitution — which requires that a proposed amendment to the Constitution must be agreed to by two-thirds of the members elected to each House and must be entered on the journals of the Houses, respectively, with the yeas and nays taken thereon, before being submitted to the qualified electors of the State — and that, therefore, the amendment did not become effective as a part of the Constitution and consequently the 1931 statute is unconstitutional.

The defendants very properly interposed no objection to a consideration by the Court of the journals of the two Houses of the General Assembly for the purpose of determining whether the prescribed formalities had been complied with in the passage of the submitting resolution, resort to such journals being proper for such purpose. State exrel. Hoover v. Chester, 39 S.C. 307, 17 S.E., 752; Thompsonv. Livingston, 116 S.C. 412, 107 S.E., 581; Wingfieldv. South Carolina Tax Commission, 147 S.C. 116,144 S.E., 846.

The "submitting resolution" of 1930, which is the center of the contest, originated in the House, and as introduced in that body, proposed to amend Section 5, of Article 10, of the Constitution relating to bonded indebtedness, by adding thereto the following provision as to the County of Newberry: "That the limitations imposed in Section five (5), of Article ten(10), of the Constitution of South Carolina, shall not apply to the bonded indebtedness incurred by the County of Newberry when the proceeds of any bonds issued by the County of Newberry are applied exclusively for funding purposes of said county."

The resolution in this form was adopted by the House with the formalities provided by the Constitution and was then sent to the Senate, where it was amended by inserting in lieu of the quoted provision the following: "All notes and bonds heretofore issued by Newberry County and now outstanding and unpaid are hereby validated; and the General Assembly may authorize the said County to issue its bonds for the purpose of paying, funding or refunding the said outstanding notes or bonds, notwithstanding any limitation or restriction contained in this Constitution."

The resolution as thus amended was passed by the Senate with proper formalities and returned to the House, where the Senate amendment was agreed to, but without entry on the House journal of such amendment in extenso, or of a yea and nay vote, or of an agreement to the Senate amendment by two-thirds of the members of the House.

Plaintiff contends that the omission of these formalities constituted a fatal defect in the adoption of the "submitting resolution." The defendants answer: (1) That it has been customary and, as a matter of legislative practice, seems to have been generally regarded as complying with the requirements for constitutional amendments, for the journal of either House or Senate to show concurrence in any amendment coming from the other branch of the General Assembly without showing the record vote thereon, and that such practice should be regarded as a compliance with constitutional requirements under the rule that "the legislative construction placed upon doubtful constitutional provisions is entitled to great weight and consideration, and raises a strong presumption that it is correct, and will generally be adopted by the Courts" (Thompson v. Livingston, 116 S.C. 412,107 S.E., 581, 583); and (2) that the Senate amendment constitutes a change in form of expression rather than in the real substance of the legislative intent as expressed in the House resolution, and that, therefore, the compliance of the House with the constitutional requirements while the original resolution was under consideration was sufficient.

The people are the repository of all political power, and they have promulgated the Constitution as the fundamental law of the land. Realizing that changes in this instrument might become necessary or advisable from time to time, and recognizing the impracticability of calling a constitutional convention to pass upon every such proposed change, they prescribed, through their constitutional convention, certain conditions under which such changes might be made through action of the Legislature and a vote of the people themselves. These conditions include certain formalities to be complied with by the two Houses of the General Assembly before a proposed amendment is submitted to the people for a vote. The people have a right to assume, when an amendment is submitted to them at a general election, that all the preliminary formalities — which were intended to insure a careful consideration of the amendments by the General Assembly before their submission — have been complied with, and that, therefore, the protection which these formalities afford has been given. We think it necessary that such formalities shall be substantially complied with, as otherwise the provisions of the Constitution requiring them — which are clear and explicit — would be of no effect. InHeinitsh v. Floyd, 130 S.C. 434, 126 S.E., 336, 337, this Court said: "Two things are essential to the amending of the Constitution by the legislative method, the proposed amendment must be properly submitted, and it must be adopted by the vote of the people in the free and fair exercise of their right of suffrage."

We do not see how an amendment could be "properly submitted" without compliance with the very formalities prescribed by the Constitution for that purpose. While it has been held that an amendment to a "submitting resolution" which would not affect the main purpose thereof may be adopted without a yea and nay vote (Stevenson v. Carrison,122 S.C. 212, 115 S.E., 251), it would seem to be equally clear that if such an amendment goes to the substance of the resolution, the journal would have to show that the prescribed formalities have been complied with. In the present case a cursory examination of the proposed constitutional amendment contained in the resolution as it passed the House and that substituted therefor in the Senate show that the changes made by the Senate were material. The House provision is a mere extension of the debt limitation of Newberry County, when the proceeds of bonds are applied exclusively for funding purposes of that county and might reasonably be thought applicable only to indebtedness regularly incurred, while the Senate provision validates all notes and bonds of the county theretofore issued and unpaid, which indebtedness was admittedly invalid at its inception — a difference not in form but in substance.

We think, therefore, that the failure of the House to observe the formalities prescribed by Section 1, of Article 16, of the Constitution in adopting the Senate amendment to the submitting resolution constitutes a fatal defect, and that the amendment was not properly submitted to the people.

The judgment of this Court should be: That the said proposed amendment to Section 5, of Article 10, of the Constitution, relating to Newberry County, be and is hereby declared inoperative, null, and void; that the Act of the General Assembly (Act No. 491, Acts of 1931, p. 918) authorizing the issuance of refunding bonds of Newberry County be and is hereby declared unconstitutional; and that the respondents herein be and are hereby permanently enjoined from issuing bonds of the said County of Newberry pursuant to said Act.

MR. JUSTICE CARTER, and MESSRS. CIRCUIT JUDGES RICE and TOWNSEND, concur.