The Court holds (1) that the provision of the Act (Item h) authorizing the expenditure of the amounts appropriated to the respective counties "for other public uses" is unconstitutional; and (2) that although Item (f) permits the use of public funds to aid sectarian hospitals which is found to be an unconstitutional purpose, this provision is valid because the assumption is that the funds will not be so used by the governing authorities of the respective counties. After *Page 73 undertaking to separate the unconstitutional part of the Act, the Court then declares the remaining portion valid, which I think is clearly judicial legislation.
I am in accord with the conclusion that Item (h) is invalid but do not agree that it can be stricken upon the ground that it "is foreign to the manifest purpose of the Act", and "if allowed to stand * * * might cause defeat of the purpose in one or more counties." Nor can this provision be eliminated by characterizing it as "incongruous". "A court is not permitted to adopt a restrictive construction which would be the mere arbitrary decision of the court, and in effect would amount to a redrafting of the law, in order to make it conform to that which in the view of the court should have been originally enacted by the legislative body." 11 Am. Jur. Constitutional Law § 100, page 735. Item (h) is invalid, I think, because it fails to specify "the objects and purposes" for which the appropriation is made. The power, and with it the correlative duty and responsibility, of designating the objects for which public funds are to be expended rests upon the General Assembly except where that power has been delegated under applicable constitutional provisions. It has not been delegated to the corporate authorities of any county in this State except Charleston. Gaud v. Walker et al., 214 S.C. 451,53 S.E.2d 316.
"The principle that a statute may be constitutional and valid in part and unconstitutional and invalid in part is generally recognized. The rule is that where a part of a statute is unconstitutional, if such part is so connected with the other parts as that they mutually depend upon each other as conditions and considerations for each other, so as to warrant the belief that the Legislature intended them as a whole, and if they cannot be carried into effect, the Legislature would not have passed the residue independently of that which is void, the whole act is void. On the other hand, where a part of the statute is unconstitutional, and that which remains is complete in itself, capable of being executed, *Page 74 wholly independent of that which is rejected, and is of such a character as that it may fairly be presumed that the Legislature would have passed it independent of that which is in conflict with the Constitution, then the courts will reject that which is void and enforce the remainder." Townsendv. Richland County et al., 190 S.C. 270,2 S.E.2d 777, 781. Substantially to the same effect is the following language from Pollock v. Farmers Loan Trust Co.,158 U.S. 601, 15 S. Ct. 912, 920, 39 L. Ed. 1108: "It is undoubtedly true that there may be cases where one part of a statute may be enforced, as constitutional, and another be declared inoperative and void, because unconstitutional; but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see, and to declare, that the intention of the legislature was that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one they may never have been willing, by itself, to enact."
The Act under consideration contains no saving clause. "The principles which underlie the application of the saving clause have been well established. In the absence of a legislative declaration that invalidity of a portion of a statute shall not affect the remainder, the presumption is that the legislature intends the act to be effective as an entirety. The effect of such a statutory declaration is to create, not the presumption of entirety in effect ordinarily accorded to statutes, but an opposite presumption of separability." 11 Am.Jur., Constitutional Law, § 156, page 847. Of course, those presumptions are rebuttable and the rule mentioned is merely an aid to interpretation. The ultimate inquiry is the intent of the lawmakers.
The foregoing principles will first be applied to Item (h). When this provision is eliminated, is the remaining portion of the Act "capable of being executed in accordance with the legislative intent, wholly independent of that which has been rejected"? Gaud v. Walker, supra. In determining this *Page 75 question, it is important to consider the purpose of Item (h). The following explanation of this provision in the brief of defendants' counsel stands unchallenged on the record: "Some of the counties have no hospitals, or health centers; others amply possess such facilities and further extensive expenditures for their support would amount to a duplication of effort and consequent waste of funds, whereas there may at the same time be `other public uses' to which the apportionment of funds would be of inestimable value. In this view the objects and purposes of the appropriation are clearly shown within the meaning of the constitutional provision." It appears from this statement that Item (h) instead of being "incongruous", is inextricably connected with the general plan contemplated by the Act for the distribution of the state surplus, and was included for the definite and specific purpose of compensating those counties not in need of additional hospital facilities. If, as defendants' counsel concede, there are some counties now adequately furnished with health centers and hospital facilities, I am at a loss to understand the basis of the factual conclusion in the majority opinion that "there is a compelling, practical reason for a uniform starting sum for each county, here $40,000." The purpose of this legislation was not solely to provide additional health and hospital facilities because it expressly authorizes the use of the funds to reimburse a county for the cost of those already erected and equipped. If the Act had not contained Item (h), could the proponents of this legislation have secured the requisite number of votes to override the Governor's veto? If the General Assembly had not authorized the use of the funds for any public purpose, can we say the amount of the lump sum appropriated would have been the same, or can we be assured that the basis of the allotment to the respective counties would have been the same? It seems entirely unreasonable to conclude that the General Assembly would have passed this act if it had perceived the invalidity of the part which we have held to be unconstitutional, particularly when *Page 76 that body failed to incorporate a saving clause. We are not empowered to amend a solemn enactment of the General Assembly as is proposed to be done in this case.
The foregoing conclusion is strengthened by the action of the General Assembly in overriding the Governor's veto of Item (h). In his veto message, the Governor stated: "Under this item, the State funds appropriated in the Act for health purposes could be used by the local authorities of a county for any other public purpose. It is not proper to permit State funds appropriated for the development of the health program to be diverted to other purposes. State funds for health should be earmarked for health purposes alone, and this item should not be permitted to remain in the Act." The effect of the provision under consideration was thus strikingly brought to the attention of the General Assembly. The importance which it attached to this feature of the Act is irrefutably shown by its action in promptly overriding the Governor's veto of Item (h). Undoubtedly the authority to use the funds allocated to the counties for any public purpose was deemed vital by the members of the General Assembly and was a material inducement for distributing these funds among the counties.
The statute is not one appropriating distinct amounts for several purposes, one of which is invalid. If a particular amount had been appropriated for hospital and health centers and another for other public purposes, there would be more force in the argument for separability. Here we have a lump sum appropriation of $2,584,000.00 which may be used for several purposes, one of which is conceded to be invalid.
Gaud v. Walker, supra, and Moseley et al. v. Welch et al.,209 S.C. 19, 39 S.E.2d 133, are cited in the majority opinion as supporting the theory of separability. Besides the difference in the factual situations presented, an examination of the acts involved in these cases discloses that each contained a saving clause. *Page 77
I am unable to see how the question of separability as presented in this case is affected by Section 23, Article 4 of the Constitution. We are not concerned here with the question of whether the Governor was empowered to veto Item (h). Certainly it was never contemplated that this section of the Constitution should have the effect of rendering an act passed over the Governor's veto immune from attack on the ground that the invalid part is inseparable from the remainder. I see no basis for the analogy sought to be made in the majority opinion between the elimination of an item in an appropriation bill by the veto of the Governor and its elimination by the Court on the ground of unconstitutionality. As pointed out in Doran et al. v. Robertson et al., 203 S.C. 434,27 S.E.2d 714, 717, "the constitutional authority of the executive to veto is in the nature of a legislative power." The courts have no such power. When the Governor vetoes an item in an appropriation bill, the intent of the General Assembly as to its retention is evidenced by its action in passing on the veto, but when an item in an appropriation bill is declared unconstitutional by the Court, there is no opportunity for the General Assembly to determine whether the appropriation should be enacted after striking out the unconstitutional part.
I shall next consider the construction placed by the Court on Item (f) and its effect upon the other portions of the Act. This item authorizes the use of the funds appropriated to the respective counties "for any other eleemosynary hospitals in said counties whether or not such hospital is a county or municipal owned institution." It is conceded in the majority opinion that this language is sufficiently broad and comprehensive to include aid to sectarian hospitals and that the Constitution forbids the use of public funds for such a purpose, but the Court concludes that there is no allegation in the complaint that the governing authority of any county intends to use these funds to aid sectarian hospitals and that it will be assumed that the corporate authorities of the counties *Page 78 will not do so. I do not think the Court is at liberty to thus restrict the language used in this provision. "It has * * * been said that a statute which by general language includes in a single class those within and those without a class as to which legislation is constitutionally permitted may not be limited by judicial construction to the latter class and then sustained; and that where the legislature of a state has made no limitation or exception, the legal presumption is that it is intended to make none, and it would be judicial legislation for a court to do so." 11 Am. Jur., Constitutional Law, § 100, page 735.
It is unreasonable and impractical to say that the plaintiff must rest upon the assumption stated by the Court and can take no action to prevent an unlawful expenditure of these funds until some overt act toward this end is committed or threatened by the governing board of a county. It would be just as plausible, and in practice perhaps more so, to argue that since everybody knows that a legislative act is presumed to be constitutional, the governing board of a county will do the natural thing and follow the authority given it by the legislative act. "When courts are considering the constitutionality of an act, they should take into consideration the things which the act affirmatively permits, and not what action an administrative officer may or may not take."Northern Cedar Co. v. French, 131 Wash. 394, 230 P. 837,843. To the same effect, see Rassner v. Federal CollateralSoc. Inc., 299 Mich. 206, 300 N.W. 45: Anne ArundelCounty Com'rs. v. English, 182 Md. 514, 35 A.2d 135.
A somewhat similar situation arose in Moseley et al. v.Welch et al., supra, 209 S.C. 19, 39 S.E.2d 133, 141. It was there sought by an act of the General Assembly, Act March 20, 1944, 43 St. at Large, p. 1368 et seq. to provide a county unit plan of education for Williamsburg County. Section 2 of the Act provided in effect that all school funds thereafter collected should be credited to the County Board Fund This section violated the provision of the Constitution *Page 79 which required that the proceeds of the poll tax should be expended for school purposes in the several school districts in which it was collected. The Court stated: "Appellants concede that Section 2 of this Act places all school funds, including those collected from the poll tax, to the credit of the County Board Fund and that it would be unlawful for the County Board to expend the receipts from poll taxes in any district other than in the one from which they were collected, but contend that the Constitution would not be violated until the Board attempted to improperly expend the funds." This contention was overruled and the section mentioned held unconstitutional.
My conclusion is that Item (f) should also be declared invalid. For the reasons stated in the consideration of Item (h), I do not think Item (f) is separable from that which remains. It and the other provisions are mutually dependent upon each other.
I would declare the entire act void upon the ground that the invalid parts (Items h and f) are inseparable from the remainder. It would serve no useful purpose for me to discuss or express an opinion upon the other questions decided in the majority opinion. Some of them are of major public importance upon which I prefer to reserve my decision.
TAYLOR, J., concurs.