I am painfully aware of the disastrous consequences, serious losses to the revenues of the State and much confusion, which would result from the adoption of the view entertained by me as to the constitutionality of the Act in question; considerations which should have no weight, but inevitably do, in the decisions of the issue involved. It is distressing to know that, *Page 154 in my view, the disaster has been due to a legislative disregard of the mandate of the Constitution, a matter which may seriously affect other legislation than that involved here, if the disregard should be condoned by reason of the consequences of a judicial declaration otherwise.
The only point in this case that I propose to discuss is the alleged unconstitutionality of the Act in question, by reason of its violation of Article 3, § 15, of the Constitution of 1895. That section reads:
Bills for raising revenue shall originate in the House ofRepresentatives, but may be altered, amended or rejected by the Senate; all other Bills may originate in either House, and may be amended, altered or rejected by the other."
The rationale of the provision appears to be traceable to the ancient distrust which the House of Commons entertained of the House of Lords, a safeguard, as it was conceived, against the usurpations and extravagance of the upper House, a consideration which hardly obtains in a government in which the one is as thoroughly democratic (in a broad, not party, sense) as the other. The law, however, is so written, and in view of Article 1, § 29, of the Constitution: "The provisions of the Constitution shall be taken,deemed and construed to be mandatory and prohibitory, and not merely directory, except where expressly made directory or promissory by its own terms" — if the Act offends the quoted section, the judicial duty is to so declare, regardless of the financial loss or embarrassment to the fiscal affairs of the State which may ensue. The legislative history of the Act under review is as follows:
A Bill, known as House Bill No. 1082, and entitled "A Bill to repeal the State license tax for the privilege of selling cut glass, etched glass, art glass and sporting goods," was introduced in the House of Representatives and read on January 24, 27, and 31, 1928. The provisions of the Bill as passed by the House were confined exclusively to repealing the licensetax on the articles mentioned in the title (to which was *Page 155 added 22 calibre cartridges). The Bill as passed by the House was as follows:
"A Bill to repeal the State license tax for the privilege of selling cut glass, etched glass, art glass and sporting goods.
"Be it enacted by the General Assembly of the State of South Carolina:
"Section 1. That so much of the provisions of an Act entitled 'An Act to raise revenue for the support of the State Government,' approved April 22, 1927, imposing a tax for the privilege of purchasing, selling or distributing within this State, cut glass, art glass, and sporting goods, twenty-two (22) calibre cartridges be, and is hereby, repealed.
"Section 2. This Act shall take effect January 31, 1928."
Thereafter the Bill was sent to the Senate, where it was known as Senate Bill No. 1113, and where it passed two readings on February 1 and February 17, 1918. On February 21, 1928, the Senate amended the Bill, by adding to the body of the Bill substantially the provisions now found in the Act of the General Assembly approved March 10, 1928, in regard to the tax on soft drinks, except that the tax on syrups was fixed at 75 cents per gallon, and by adding the following words to the title:
"And to provide a license tax on soft drinks sold within the State of South Carolina and to provide for the collection of said license tax."
The Bill, thus amended, passed third reading in the Senate on February 22, 1928, and was returned to the House with amendments. Upon the return of the amended Bill to the House of Representatives, that body on February 24, 1928, refused to agree to the amendments by the Senate. Thereupon the Bill was sent to the Committee on Free Conference, which committee submitted its report on March 1, 1928, recommending the adoption of the Bill, as therein changed, by striking out all after the enacting words and inserting in lieu thereof substantially the Senate provision for the tax *Page 156 on soft drinks and the other provisions of the present Act of the General Assembly, and recommending also a change in the title, so as to conform to the new scope and purpose of the Bill. The report of the Free Conference Committee was thereafter adopted by each House of the General Assembly on March 6, 1928.
The pencil memorandum appearing on the printed page of the Free Conference report, "See page 47 for title C.H. C.," was made by C.H. Gerald, a clerk in the engrossing department, page 47 containing the following recommendation as to the change of the title:
"Sec. 5. Amend the title so that the said title will read as follows:
"A Bill to amend an Act entitled 'An Act to raise revenue for support of the State government,' approved the twenty-second day April, 1927, so as to repeal the license tax on sporting goods, cut glass, etched glass, art glass, and twenty-two calibre cartridges, and to provide for a license tax on soft drinks, admissions, contractors, ammunition, candy, playing cards, manufactured tobacco products and chain stores and to levy a tax on documents, for support of the State government."
Thereafter the title of the Bill was changed, both in wording and in scope and purpose, in connection with the engrossing and enrollment of the Bill, so as to conform to the recommendation of the Free Conference report, and after having been ratified and engrossed, and with such new title, was presented and approved by the Governor on March 10, 1928, and filed as an Act in the office of the Secretary of State.
The contention of the petitioners is that the Bill which is claimed to have been passed as an Act was one for raising revenue, and did not originate in the House of Representatives, as required by Section 15, Article 3, of the Constitution. *Page 157
It will hardly be contended that the Bill as originally introduced in the House, was a Bill to raise revenue: its title was, "A Bill to repeal the State license tax for the privilege of selling cut glass, etched glass, art glass, and sporting goods" — decidedly a contraction of the revenue than otherwise; certainly no revenue was contemplated to be raised by it. It was such a Bill as might have been introduced in either House.
I think that it is equally clear that the Bill which was, upon the adoption by both Houses of the Free Conference report as an Act, enrolled, ratified, approved by the Governor, and filed with the Secretary of State, was one to raise revenue. The question is: Can it be considered as having originated in the House of Representatives, as required by the Constitution?
Going back a step: The Senate amended the House Bill, by adding provisions for a license tax on soft drinks, substantially as in the Act under consideration, and amended the title by adding:
"And to provide a license tax on soft drinks sold within the State of South Carolina and to provide for the collectionof said tax."
These amendments were rejected by the House; but, if they had been accepted (or, in legislative parlance, had been concurred in) by the House, it seems to me clear that the amendments, amounting to a Bill for raising revenue, must have been invalid as not having originated in the House.
The Free Conference report was upon its face styled "Revenue Measure," and the original Bill was, by the adoption of the Free Conference report, amended as to its title and body, by adding an entirely new and complete system of revenue-producing provisions, a subject not touched upon in the House Bill which it purported to amend.
It is sought to sustain the Act upon the principle that no inquiry can go behind the enrollment, ratification, approval, and filing of an Act, to determine whether in the passage of *Page 158 an Act the requirements of the Constitution have been complied with, unless the requirement is one that, under the Constitution,must be entered upon the journal.
I do not think that such is the law. In my opinion it would present a most anomalous situation, that the Legislature, in the passage of an Act, could ignore the mandatory requirements of the Constitution and slip into the bombproof of enrollment, ratification, approval, and filing of the Act against all inquiry as to the constitutional regularity of their proceedings; this, I think, regardless of the inquiry whether or not, under the Constitution, the fact of compliance with such requirement must be entered in the journal. To hold otherwise would appear to me to set the action of the Legislature above the mandatory requirements of the Constitution, and permit it, by its action, to override that organic law.
The contention, in a measure, is sustained by the case ofState ex rel. Hoover v. Chester, 39 S.C. 307; 17 S.E., 752, particularly by the following extract from the opinion in that case:
"We announce that the true rule is that, when an Act has been duly signed by the presiding officers of the General Assembly, in open session in the Senate-House, approved by the Governor of the State, and duly deposited in the office of the Secretary of State, it is sufficient evidence, nothing to the contrary appearing upon its face, that it passed the General Assembly, and that it is not competent either by the journals of the two Houses, or either of them, or by any other evidence, to impeach such an Act. And, this being so, it follows that the Court is not at liberty to inquire into what the journals of the two Houses may show as to the successive steps which may have been taken in the passage of the original Bill. It will be observed that this conclusionby no means negatives [denies?] the power of the Court toinquire into those prerequisites fixed by the Constitution,and of which prerequisites the journals of the two Houses *Page 159 are required to furnish the evidence. Such, for instance, as the organization of the two Houses, the presence of a quorum, the votes of two-thirds of the members by ayes and noes to be entered on the journals in certain cases."
In other words, no matter how flagrantly the Constitution may have been disregarded in the passage of an Act, the violation is covered up by the ratification, as carpenter's putty, like charity, "covers a multitude of sins," unless by the constitution the journal is required to furnish the evidence of compliance.
The cases of State ex rel. Hoover v. Chester, 39 S.C. 307;17 S.E., 752; McCullough v. Brown, 41 S.C. 220;19 S.E., 458; 23 L.R.A., 410; and State ex rel. George v.Aiken, 42 S.C. 222; 20 S.E., 221; 26 L.R.A., 345, were decided during a period of the most intense political excitement, involving the establishment of the State Dispensary. The case first mentioned is entirely inconsistent with theMcCullough case, which, in turn, was overruled by theGeorge case. Not one of the three establishes an abiding faith in the conclusions reached.
The legislative story of the State Dispensary Law is that a straight prohibition Bill passed the House and was amended in the Senate by the incorporation of the State Dispensary system. In the Hoover case the point was made that the Dispensary Law was a revenue measure, which did not originate in the House. The Court held that it was not a revenue measure, but one to regulate the sale of liquor, within the police power of the State, and paid scant attention — in fact, none at all — to the constitutional question raised, but discussed the case upon this ground:
"But it is contended by the relators that, notwithstanding this due regularity of the enrolled Act, yet that the journalsthe entries of amendments on the original Bill."of the two Houses fail to correspond in every particular with
That was the sole question discussed, and as to it I do not think that any one has ever questioned the law that such discrepancies *Page 160 are concluded by the enrolled Act — a very different question than that of the unconstitutionality of the Act by reason of the violation of mandatory requirements. I think, therefore, that the observation of Mr. Justice Pope that the enrollment is conclusive of constitutional objections, unless the requirements must under the Constitution be set forth in the journal, is clearly obiter dictum, and not binding upon this Court.
In the McCullough case, it was distinctly held that the Dispensary Law was a revenue measure, and not a prohibition law, or a law regulating the sale of liquor under the police power. If that holding be correct, and it was so decided by the same Court that decided the Hoover case, which had held that it was not a revenue measure, the point made in theHoover case that it had not originated in the House should have been sustained.
The George case then came on, the personnel of the Court having slightly changed, the McCullough case was overruled, and the dispensary system, which had received a check under the McCullough case, "now trebly thundering swelled the gale."
In the case of State v. Hagood, which was later overruled in the Hoover case, the journals of both Houses showed that the Bill as it passed both Houses provided for a general levy of 4 1/2 mills, and that, as enrolled, ratified, and approved by the Governor, it provided for a general levy of 4 3/4 mills, the difference, of one-fourth mill, being an appropriation of $3,000.00 for the Charleston militia, which in some way became a part of the Bill after it had passed both Houses without it. How it came to be inserted, whether in a free conference report or otherwise, does not appear. The Act was attacked upon the constitutional ground that, as passed, it had not received three readings in each House as required by the Constitution of 1868, which it may be observed, in passing, does not contain the mandatory provision in that of 1895. A majority of the Court, Chief Justice Willard *Page 161 and Associate Justice McGowan, held that, in determining the issue of constitutionality, resort might be had to the journals of the two Houses, upon the authority of the case of State v. Platt, 2 S.C. 150; 16 Am. Rep., 647. Associate Justice McIver (later Chief Justice) concurred in the result, considering himself bound by the Platt case as long as it stood unoverruled. He, however, turned the force of his powerful artillery upon the conclusions announced in thePlatt case, with no immediate effect, but with the result that later, in the Hoover case, the Platt case was overruled. I do not think that there is any doubt but that the opinion of that great Judge had all to do with the decision in the Hoovercase and the overruling of the decision in the Platt case. With great deference and diffidence, I venture to say that the opinion of Justice McIver in the Hagood case contains two fundamental errors: (1) He applied the same rule to constitutional objections as to objections based upon matters of routine legislative proceedings. (2) His conception that even constitutional objections were concluded by the enrollment, ratification, and approval, unless the Constitution specifically required the entry of the matter complained of in the journal.
There can be no doubt that matters of routine legislative proceedings, not at all referred to in the Constitution, but regulated by rule or custom, are concluded by the enrollment, ratification, and approval of an Act; but constitutional requirements are not. This much I think is conceded in the opinion, as the following extract shows:
"The true rule, in my judgment, is that, when an Act has been enrolled, has had the great seal of the State affixed to it, has been signed by the president of the Senate and Speaker of the House of Representatives, and has been approved by the Governor, it imports absolute verity; that its terms can only be finally ascertained by an inspection of the enrolled Act, and that it is not competent to go behind it, and alter its terms, either by entries in the journal of the *Page 162 two Houses or any other evidence. Its constitutionality may, of course, be inquired into, both for the purpose of determining whether any of its admitted provisions are in conflict with the Constitution, either State or Federal, and also for the purpose of determining whether the journals show what the Constitution requires they shall show in regard to Acts for certain purposes; for instance, where an Act purports to authorize the contracting of a public debt, whether the Act was passed by a two-thirds vote taken by yeas and nays, because, by the express terms of the Constitution, no such law can take effect until it has been passed by such a vote, which is required `to be recorded by yeas and nays, on the journals of each House.'"
The vice in this statement, as I see it, is to limit the inquiry as to constitutional requirements to those which the Constitution requires shall be specifically entered in the journal. In the illustration used, the contracting of a public debt, where by the express terms of the Constitution such a law cannot take effect until it has been passed by a two-thirds vote by yeas and nays, which is required to be recorded by yeas and nays on the journals of each House, there can be doubt but that the journal may be resorted to upon the inquiry of compliance with such requirement; but is that provision more mandatory than Article 3, § 18, "No Bill or Joint Resolution shall have the force of law until it shall have been read three times and on three several days in each House," etc.? And how is that to be determined, except by recourse to the journal, which, under Section 22, each House is required to keep of its own proceedings?
Certainly the first, second, and third readings of a Bill are parts, and most vital parts, of the proceedings of the two Houses; and by Section 22 they are required to be entered in the journals. Tested by the strict rule relied upon in the foregoing extract from the Hagood case, resort may be had to the journals to determine whether this mandatory requirement has been complied with. How else could this *Page 163 essential element of the validity of an Act be determined? Certainly not by the presumption from the enrollment, ratification and approval of the Act.
Upon the principle contended for, a Bill which had never been introduced in either House, and had not had a single reading in either, might be enrolled, ratified, and approved, and all inquiry concerning the constitutional requirement concluded. In Field v. Clark, 143 U.S. 649;12 S.Ct., 495; 36 L.Ed., 294, the constitutionality of an Act of Congress was questioned upon the ground that a certain provision which was in it upon its final passage was omitted when the Bill was signed by the presiding officers of the two Houses. The Court held that the Bill carried on its face a solemn assurance that it had been passed by Congress, and said:
"The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all Bills authenticated in the manner stated, leaving the Courts to determine,when the question properly arises, whether the Act, so authenticated,is in conformity with the Constitution." (Italics added.)
In reference to the issue raised whether the Act was one to raise revenue, which could originate only in the House of Representatives, the Court held that the Act was one to provide a national currency secured by a pledge of United States bonds, and which in furtherance of that object, and also to meet expenses attending the execution of the Act, imposed a tax on the notes in circulation, was clearly not a revenue Bill; that revenue Bills are those which levy taxes, and are not Bills for other purposes which may incidentally create revenue; that the tax was a means of effectuating the great object of providing a currency based upon the honor of the government; that there was no purpose to raise revenue to be applied in meeting the expenses or obligations of the government. To the same effect are Twin City Bank v. *Page 164 Nebeker 167 U.S. 196; 17 S.Ct., 766; 42 L.Ed., 134.Millard v. Roberts, 202 U.S. 429; 26 S.Ct., 674;50 L.Ed., 1090. In a note to 35 L.R.A., 188, at page 190, it is said:
"An `Act for raising revenue,' as contemplated by the constitutional clauses aforesaid, may, therefore, be defined thus, `An Act for raising revenue (which must originate in the lower branch of the Legislature), is one which has the avowed purpose of increasing the funds for meeting the general governmental needs by a compulsory imposition and without giving any direct and immediate equivalent in return for the payment thereof.'"
There can scarcely be a doubt but that the House Bill No. 1082, "To repeal the State license tax for the privilege of selling cut glass, etched glass, art glass and sporting goods," might constitutionally have been introduced in the Senate as a Senate Bill, at the same time that it was introduced in the House, as is frequently done, to get the benefit of the speedier progress of either Bill; and the ground upon which it might have been so introduced is that it does not purport to be a Bill for raising revenue; in fact, its effect would be directly contrary to raising revenue. If it had been so introduced in the House, could the Senate have transformed it by amendment into a Bill not contracting, but raising, revenue? I do not think so.
In State v. Wray, 109 Mo., 594; 19 S.W. 86, it was held that the presumption from the enrollment is conclusive, except as to matters upon which the Constitution makes the validity of the enactment rest.
In Hunt v. State, 22 Tex. App., 396; 3 S.W. 233, it was held that, where the Constitution requires certain things to be done, the Court may look to the journals to see that they are done.
In People v. Mahaney, 13 Mich., 481; Attorney Generalv. Joy, 55 Mich., 94; 20 N.W., 806, and Callaghan v. Chipman,59 Mich., 610; 26 N.W., 806, it was held that the *Page 165 Court may take notice of the journals to determine whether or not constitutional requirements were complied with.
In Smithee v. Garth, 33 Ark. 17, it was held that, if it appears affirmatively on the journal that in the passage of any Bill some mandatory provision of the Constitution has not been complied with, it will be fatal to the validity of the statute.
In Worthen v. Badgett, 32 Ark. 496, it was held to be well settled that Courts will look to the legislative journals to ascertain whether or not the Act in fact passed in accordance with the forms and in the manner prescribed by the Constitution.
In Glidewell v. Martin, 51 Ark. 559; 11 S.W. 882, it was held that the enrolled Bill (Act?) supplies by presumption everything necessary to its validity, save where the journalsshow affirmatively a violation of the Constitution.
In Weill v. Kenfield, 54 Cal., 111, it was held that it is the duty of the Court to see that constitutional requirements in the passage of a Bill have been complied with.
In Fowler v. Peirce, 2 Cal., 165, it was held that the Court may go behind the Act to inquire whether or not the Legislature or the executive has violated or disregarded the mode pointed out by the organic law; that the power is incident to all Courts of general jurisdiction, and necessary to the protection of public rights and liberties.
In McCulloch v. State, 11 Ind., 424, it was held that the Act is a nullity, if the journals show that the constitutional requirements were not complied with.
In People v. Burch, 84 Mich., 408; 47 N.W., 765, it was held that the journals may be examined to ascertain whether or not the Act was constitutionally passed.
In 1 Cooley, Const. Lim. (8th Ed.), 277, it is said:
"Each House keeps a journal of its proceedings, which is a public record, and of which the Courts are at liberty to take judicial notice. If it should appear from these journals that any Act did not receive the requisite majority, or that in *Page 166 respect to it the Legislature did not follow any requirement of the Constitution, or that in any other respect the Act wasnot constitutionally adopted, the Courts may act upon this evidence and adjudge the statute void."
In Barber v. Hunt, 100 Mo., 22; 13 S.W. 98; 8 L.R.A., 110; 18 Am. St. Rep., 530, it was held that matters ofdetail will be presumed properly performed, where journal records the doing of the main Act and is silent as to the subsidiary matters.
I think that the true rule is that merely negative evidence is not sufficient to impeach the enrolled Act, signed and authenticated by the proper officers and lodged in the office of the Secretary of State. Speaking of the constitutional provision as to three readings in each House, Judge Cooley says:
"The journals which each House keeps of its proceedings ought to show whether this rule is complied with or not: but, in case they do not, the passage in the manner provided by the Constitution must be presumed, in accordance with the general rule which presumes the proper discharge of official duty." Cooley, Const. Lim. (early edition), 167.
In Andrews v. People, 33 Colo., 193, 79 P., 1031; 108 Am. St. Rep., 76, the Court said:
"In determining whether the constitutional requirements with respect to the passage of Bills have been complied with, resort can be had to the legislative journals. If it affirmatively appears therefrom, either expressly or by necessary implication, that the provisions of the Constitution were not observed, then the Bill is not valid. If, however, they are merely silent on this question, it must be presumed that the fundamental law on the subject of the passage of Bills was in all respects followed."
In McDonald v. State, 80 Wis. 407; 50 N.W., 185, the Court said: *Page 167
"The Courts will take judicial notice of the statute laws of the State, and to this end they will take like notice of the contents of the journals of the two Houses of the Legislature far enough to determine whether an Act, published as a law, was actually passed by the respective Houses in accordance with constitutional requirements."