Walker v. Bennett , 125 S.C. 389 ( 1923 )

I dissent upon the ground that the Act is, as I think, a palpable infringement of Subdivision 4, § 34, Art. 3, of the Constitution of 1895, prohibiting the General Assembly from enacting a local or special law "to incorporate school districts."

That the Act here in question is a "local or special" Act, and that it "incorporates" a school district, is too obvious to require discussion. With due deference, I think the suggested distinction between "consolidate" and "incorporate" is chimerical. So much of the Act as refers to consolidation is merely descriptive of the territory of the new district, which it is the primal purpose of the Act to erect into a body politic and corporate, with special powers, among which are the powers to govern its affairs through a special board of trustees and to levy through this board taxes in a manner and to an amount not permitted under general law. If such were not the purpose in view and the object to be attained, the Act was an entirely useless piece of legislation. In either view it is clearly in contravention of the constitutional prohibition, the twofold object of which is (1) To prevent the unnecessary waste of time and money required for the enactment of such useless legislation — that is, of special laws for purposes which could as well be accomplished under a general law, and (2) to prevent the creation of a multiplicity of school districts with special corporate powers, in derogation of that uniformity which is mandatorily prescribed by Subdivision 10 of Section 34, of Article 3.

The case is not ruled by State v. McCaw, 77 S.C. 351;58 S.E., 145, and Burriss v. Brock, 95 S.C. 104;79 S.E., 193. Those cases involve Acts which were merely amendatory of the special charters of existing graded school districts organized under laws enacted before the adoption of the Constitution of 1895, which charters were expressly protected from repeal under Section 5, Article 11. Being so protected, in view of Subdivisions 2 and 3 of Section 34 of Article 3, which expressly referred to and prohibited the amendment of charters for certain purposes and of the absence of any such prohibition as to amendment in Subdivision 4, it was properly held that the language of Subdivision 4 might not be held to prohibit the amendment by Special Act of the charter of a school district already incorporated under laws passed prior to the adoption of the Constitution. Here an entirely new school district is created and incorporated, with special powers.

The contention that the present Act may be sustained as a special provision in a general law is likewise untenable. A special Act concerning a subject or for a purpose as to which local or special laws are expressly prohibited by Section 34 of Article, may not properly be sustained as a "special provision" in a general law. If the special Act directly infringes one of these express prohibitions, it cannot be saved by construing it as a special provision in a general Act. Against an objection leveled under Subdivision 9 of Section 34, which prescribes that no special law shall be enacted where a general law can be made applicable, a special Act may be sustained as a special provision of a general law, if it does not or would not destroy the general character of the law into which it is written as a special provision. See State v. Higgins, 51 S.C. 51; 28 S.E., 15; 38 L.R.A., 561. Dean v. Spartanburg, 59 S.C. 110;37 S.E., 226. Nance v. Anderson County, 60 S.C. 501;39 S.E., 5. Grocery Company v. Burnet, 61 S.C. 211;39 S.E., 381; 58 L.R.A., 687. Certainly, however, a special Act to incorporate a special school district and to endow it with special corporate powers may not, in any view, be sustained as a consistent part of a general law.

For the reasons indicated, I am constrained to dissent.