Wood v. Ross , 85 S.C. 309 ( 1910 )

Before proceeding to consider the exceptions, it may be well to construe the rulings of their Honors, Judges DeVore and Sease, for the purpose of determining whether the questions raised by the exceptions are merely speculative.

If, under a proper construction of their rulings, the acts, by virtue of which the elections were held, were declared by them to be repugnant to the provisions of the Constitution, requiring, as a condition precedent, to the holding of an election, that there shall be a petition, signed by a majority of the freeholders, then the bonds are illegal, and it would be against public policy for them to be issued.

In refusing the motions for a temporary injunction, his Honor, Judge Sease, made the following rulings:

"The plaintiff attacks the validity of the election on three grounds, two of which question the acts of the General Assembly of South Carolina, being Nos. 389 and 563, XXV Sts., which will be considered later on. * * *

"The second question involves the constitutionality of the acts of the General Assembly above referred to. The Board of Public Works for the town of Gaffney was created by an act of the General Assembly, approved February, 1907; the title of which is as follows: `An act to create a Board of Public Works for the town of Gaffney, and to define their powers and duties and compensation.' This act was amended in 1908 by an act, approved February 11, 1908, the title of which reads: `An act to amend an act entitled "An act to create a Board of Public Works of the town of Gaffney, and to define their powers and duties and compensation,' so as to limit the amount of indebtedness, and to declare valid all obligations made by the Board of Public Works, and to provide for the election of successors, to members of the present Board of Public Works." In section 4 of both said acts, the following provision is found: `All elections herein provided, shall be ordered by the town council, and they are hereby required to order all such elections upon a written petition of the majority of the board of public works, or upon a petition of one-third of the freeholders of the town of Gaffney.' In section 6 of said acts it is provided: `Whenever it may be deemed advisable by the said board to issue bonds to extend the electric light plant or waterworks in the town of Gaffney, or to secure additional water supply for the said town of Gaffney, the said town council of Gaffney shall submit the question of issuing bonds * * * to an election of the qualified electors of the said town of Gaffney * * * such election to be ordered in the discretion of the said board of public works, or upon a petition of one-third of the number of freeholders of the town of Gaffney. * * *.' In section 7 of said acts it is further provided: `Wherever the said board of public works deem it desirable, or upon a petition signed by one-third of the freeholders of the town of Gaffney, petitioning for an election for sewerage system, setting forth the amount of the bonds to be voted for, it shall be the duty of the town council of Gaffney to order an election, etc.'

"The Constitution of 1895, art. II, sec. 13, requires as a condition precedent to the holding of an election to create a bonded debt, in towns and cities, that there shall be a petition signed by a majority of the freeholders of such town or city, as shown by its tax books. The provisions of the Constitution are mandatory, and the General Assembly has no power to prescribe any method of holding such election, in conflict with that prescribed by the Constitution, for which reason the requirements above set forth, in the acts of 1907 and 1908, are repugnant to the Constitution, and are void.

"It is further contended by the plaintiff that those two acts are also repugnant to the Constitution, in that so much of the body of said acts, as provide a scheme for the holding of elections to vote bonds for waterworks, lights or sewerage, are acts devolving upon the town council and not a part of the duties, powers or compensation of the board of public works, and hence not in conformity with the titles of said acts as above set out. It is seen by the language of the two acts, that it is sought to make the holdings of such election dependent in some measure on the action of the board of public works, in which light the method and machinery provided for such elections would be pertinent to the duties of the board of public works, and so fairly embraced within the scope of the title of said acts. After eliminating so much of the language of those acts as is obnoxious to the Constitution, it is seen that the preliminary steps to the holding of such elections is in no wise dependent upon the will or act of the board of public works, further than that the individual members of said board, as freeholders, might join in the petition for such elections, and hence the matter complained of by the plaintiff is in contravention of art. III, sec. 17, of the Constitution."

The order of Judge Sease did not determine any question involving the merits. The rule in such cases is this stated in Alston v. Limehouse, 60 S.C. 559, 39 S.E., 188: "On a motion for a temporary order of injunction, the Circuit Judge, in considering the issues raised by the pleadings, should indicate that their consideration is solely for the purpose of determining whether the plaintiff has a primafacie right to an order of injunction. His order should not purport to dispose of the issues upon the merits, as was done in this case. The language of Judge Gage cannot be construed as a finding upon the facts in such a manner as to affect the merits of the case. It must be regarded as used for the purpose of showing that he was justified in granting the temporary order of injunction, and not as in any manner affecting the other question in issue. No fact decided upon such motion is concluded thereby, and when the other issues are brought to trial, they are to be determined without reference to said orders. In the case of R.R. Co. v. Terminal Co., 48 S.C. 315, 26 S.E., 613, the Court says: `The order was necessarily made without prejudice to the rights of the parties, upon the final hearing of the case; as much so as if the words "without prejudice, c.," had been inserted in the order. The Circuit Judge did not have the power, on the hearing of said motion, even if he had so desired, to decide the case upon its merits. The effect of said order was the same, as if the Circuit Judge had stated in the order that it was only to remain in force, until a decision could be made upon the merits.'" Citing Garlington v. Copeland, 25 S.C. 41, and Sease v. Dobson, 34 S.C. 345, 13 S.E., 530.

As his Honor, Judge DeVore, however, adopted said ruling, we will construe it as if it had been made by him, in the first instance, when he heard the case upon the merits.

There was no appeal from said rulings, and, standing alone, they would unquestionably be res judicata as to the constitutionality of said acts.

His Honor, the Circuit Judge, who heard the case upon the merits, also adopted the following ruling: "After a careful consideration of the two acts, I am of the opinion and so hold, that after striking out all of the objectionable matter in those acts, the purpose of them is not destroyed, and there remains enough matter to constitute a valid act, creating the board of public works for the town of Gaffney and defining their powers and duties and compensation, irrespective of the plans of holding elections, for the purpose of issuing bonds, for the purposes therein named."

This ruling is wholly inconsistent with those declaring said acts to be unconstitutional on the ground that while the Constitution requires that the petition for holding an election shall be signed by a majority of the freeholders, the said acts provide: (1) that one-third of the freeholders, or (2) a majority of the board of public works, may order an election; and on the further ground, that they are obnoxious to art. III, section 17 of the Constitution.

As those rulings are inconsistent both of course can not stand.

The general principle applicable to the construction of judgments is thus stated in 23 Cyc., 1101: "A judgment should be so construed as to give effect to every word and part of it, including such effects of consequences as follows by necessary legal implication from its terms, although not expressed; and where there are two possible interpretationsthat will be adopted, which makes the judgment harmonize,with the facts and law of the case, and be such as ought tohave been rendered, which brings it within the authority and jurisdiction of the Court, and which renders it more reasonable,effective and conclusive." (Italics ours).

Tested by this rule the rulings must be construed as declaring the acts unconstitutional, for the reasons stated by the Circuit Judge, such being the case, the exceptions present questions that are merely speculative. But waiving such objections, the appeal should be dismissed for the reasons stated in the opinion of Mr. Justice Woods.