I concur in the opinion announced by MR. JUSTICE WATTS, as to the proper construction of the words "old county."
The issues arising in this proceeding include questions as to the constitutionality and legality of the attempted formation and establishment of the proposed new county of McCormick out of portions of the existing counties of Greenwood, Abbeville and Edgefield. The constitutional questions involve the proper construction of the terms "old county" and "new county," as used in sections 1, 3, 4 and 5 *Page 300 of article VII of the State Constitution, but more particularly with reference to the meaning of the phrase "old county" in section 4 of that article; the contention of the petitioners being that these words have relation to the time of the formation of the "new county," while the respondents maintain that they have reference only to the date of the adoption of the Constitution. The issue arises with regard to that portion of the proposed county of McCormick which is sought to be taken from the pre-existing county of Greenwood, and its solution depends upon the conclusion to be reached upon the question as to whether the county of Greenwood is an "old county" within the meaning of section 4, art. VII of the Constitution.
It is admitted both by the proponents and the opponents of the new county thus sought to be established that, since Greenwood became a county subsequent to the adoption of the State Constitution of 1895, the question as to the constitutionality of formation of the proposed new county of McCormick primarily depends upon the construction to be given to the phrase "old county" as appearing in subdivision 4 of article VII of that Constitution. In other words, it is conceded by all parties to this proceeding that, if Greenwood is to be considered as an "old county" within the meaning of the section, then it must follow that the formation of the proposed new county of McCormick by the inclusion therein of that section of Greenwood county fixed by the limits determined for such new county would alter the previously existing limits of Greenwood county to such an extent as to reduce its area to less than 500 square miles, in violation of that article and section of the Constitution.
The question of constitutional construction thus presented is one which has not yet been determined in this State, since it was not necessarily involved in Rhame v. DuRant,93 S.C. 217, 76 S.E. 611, which required only a determination as to the effect of the provisions of section 7 of the same article, relating solely to the alteration of county lines. *Page 301 While the requirements of certain other sections of this article were incidentally discussed in that case, and varying conclusions with regard to the same were reached by the different members of the Court as then constituted, it is nevertheless clear that any opinions there expressed as to the proper construction of the terms "old county" and "new county," as employed in sections 3 and 4 of article VII of the Constitution, were merely obiter dicta, and cannot have the effect of a decision settling the meaning of these words as there used. The question now arising is, therefore, res integra, and is to be determined now by the application of the proper principles and rules of construction, with such aid only as may be derived from the opinions expressed in the case mentioned when considered as being merely persuasive.
Throughout the discussion of the propositions here involved it is to be remembered that the Constitution is that fundamental law which is intended to guide and control the legislative, executive, and judicial departments of the State throughout that considerable period naturally presumed as being within the contemplation of those who were engaged in framing it, during all of which time it is to speak the will of the people as a daily subsisting mandate with reference to the various primary and fundamental principles of government included within its terms and requirements. It must, therefore, be regarded as enunciating those principles as vital and enforceable at any date upon which the same may become applicable in the administration of the affairs of the State. Its provisions are intended to operate as a declaration of the continuing purpose of the people with reference to such matters as are therein embraced and as speaking the controlling will of the people as a continually abiding limitation upon the power of their representatives in the future administration of the various departments of the government thereby established.
In the Constitution of this State adopted in 1895, by section 4 of article VII, it is declared that "no old county shall *Page 302 be reduced to less area than five hundred square miles;" and the query now advanced is as to what period of time this limitation has reference in the ascertainment of what is meant by the words "old county." Upon a critical and dispassionate view of the language used, when the nature and purpose of the provision is considered in its proper relation to other objects and requirements of the Constitution, it is scarcely too strong a form of expression to say that it appears to be manifest to the ordinary comprehension that the phraseology so employed must be held to refer to any political division of the State which can properly be denominated an "old county" at the date of the proposed erection of a new county. That period, and that period alone, was in the contemplation of the members of the constitutional convention at the time of the adoption of this provision as the date at which such a limitation would become applicable. They were undertaking to provide for the creation of new counties in the future, and that "time to come" was the period to which they must reasonably have had reference in seeking to protect existing counties, which might then be termed "old," from too extensive a dismemberment. The language used must, therefore, be held to refer to that future date, for the reason that it was the time contemplated by its users as the period when the provision for the protection of "old counties" would become operative by way of practical application. The operation of this section must be considered as being prospective, and, being continuous, it must be considered as being applicable at any and all times in the future when a new county should be proposed. See Cooley's Const. Lim. (5th ed.), p. 76; 8 Cyc. 731. This conclusion appears so patent as to require no demonstration to uphold it, being so evident as scarcely to allow room for argument in its support. Indeed, paradoxical as it may seem, this is an instance of the truth that an inference may be so obvious as to be rendered apparently obscure and uncertain by the very effort to prove that it necessarily results from the premise *Page 303 admittedly existing. Nevertheless some further considerations may be mentioned as fortifying the conclusion already stated.
It is apparent that the provision under discussion was intended to become operative at such time as a new county should be proposed, the proper formation of which was then to be contemplated. Hence it is significant that in the enumeration of the constitutional prerequisites to the formation of a "new county" the petition for the establishment thereof, as required by section 1 of article VII, must in all cases be made by the "electors within the area of each section of an old county proposed to be cut off to form a new county." The conclusion is practically irresistible that with reference to such new county then to be proposed any and every county then existing was regarded as being an "old county." Otherwise, and if the construction contended for by the respondents should prevail, the conclusion would be inevitable that no "new county" could at any time be created by the inclusion therein of any section of a county not existing as such at the date of the adoption of the Constitution. This would be true in that event for the reason that the Constitution nowhere provides for the taking of any section of a "new county" to form another county therefrom, and permits only the taking of territory from an "old county" for that purpose. Hence it must follow that, if the contention of the respondents be adopted, and it be held that Greenwood is not an "old county" within the meaning of section 1 of article VII, there is no authority thereunder for the taking of any part of the territory of such "new county" of Greenwood for the purpose of forming the proposed county of McCormick. Either horn of the dilemma, therefore, is equally fatal to the end sought by the proponents of the county of McCormick; for, if the term "old county," as used in the first section of article VII of the Constitution, can be held to include Greenwood, no reason has or can be advanced *Page 304 why it does not likewise embrace Greenwood when employed in the fourth section of the same article.
Viewing, then, the provisions of the section here in controversy in the light of the obvious considerations already suggested, what meaning was intended to be conveyed by the term "old county" as there used? In answering this question it is especially to be noted that these words are employed in apposition to the phrase "new county," and that they are so used with particular reference to the matter of providing for the establishment of a "new county." The object of the provisions contained in sections 1 to 6, inclusive, in article VII; is solely that of fixing limitations upon the power of the legislature to establish new counties thereafter. Keeping this manifest purpose in view, what idea was in the minds of the framers of these sections and was sought to be given expression by the word "old" as applied to a county? Evidently and admittedly the idea then dominant was that of the reasonable certainty that it would become desirable at various future and more or less remote dates to establish additional counties in this State. The members of the constitutional convention, therefore, when they made use of the expression "old county," did not have the then present time of 1895 in view, but were contemplating the years of the future, including 1915, 1925, 1950, and later periods. The language and phrasing used must, therefore, be construed with particular reference to the periods at which it was intended and expected to become applicable.
One of the principal definitions of the word "old" is that of "existing or subsisting before something else;" and that is unquestionably, and, it may be said, admittedly, the sense in which the word was used in the section of the Constitution now for interpretation. Applying this meaning to the word as appearing in the clauses in controversy, and remembering that the purpose thereby sought to be accomplished was that of providing for the erection of new counties in the remote as well as the less distant future, there can be little *Page 305 (if any) room for doubt that the members of the constitutional convention had reference by the term "old" to those counties which could properly be so characterized at such future date, when considered in apposition to the new counties then to be proposed. Thereupon, with direct reference to such distant period as well as to the nearer future, they declared that in the formation of such a new county "no old county shall be reduced to less area than five hundred square miles." Substituting the definition of "old" which has already been given, and which is the only meaning of the word which could reasonably have been within the contemplation of the framers of these provisions, the manifest meaning of this section is found to be that, "in forming a new county hereafter, no then existing county shall be reduced to less area than five hundred square miles." Any other construction would be open to the patent objection that it ignores the end sought to be accomplished by the framers of these sections, and disregards the fact that they were seeking to establish, not only a minimum area for new counties thereafter to be created, but also a higher minimum below which counties once established should not afterwards be reduced. They, therefore, declared that no county thereafter created should contain less than 400 square miles, and that, once established, no county of the State should ever be reduced in extent, unless its area exceeded 500 square miles, and in that event only to the amount of such excess, if so desired. Neither in the language used in the Constitution itself nor in the debates and proceedings of the constitutional convention has anything been found to show that the members of that convention had any other or different purpose in view than that of declaring as a general principle, where counties had once been established, either before or after the adoption of that Constitution in 1895, that any such established county should not be further reduced in territory, unless it exceeded 500 square miles in area, and in such case only to the extent of such excess. *Page 306
So far as concerns the meaning of the term "new county" as applied to the enforcement of the provisions contained in section 7 of article VII of the Constitution, with regard to the alteration of county lines, it need only to be remarked that such meaning has already been adjudicated by the decision in Rhame v. DuRant, already cited. As is said by Justice Woods in that case, however, it is not a cogent objection that the word "new" is employed in its application to one section of a Constitution, with reference to the alteration of county lines, in a different sense from that in which it is used in another section, relating to the formation of new counties.
In construing sections 4 and 5 of article VII, however, it would lead to manifest absurdity to adopt the construction contended for by respondents as to the meaning of the phrase "old county" as employed in each of these sections. That absurdity would consist in the interpretation of the intent of the framers of the Constitution as seeking to provide that no county existing at the time of the adoption of the Constitution of 1895 should be so cut down as to reduce its area below 500 square miles or to bring its boundary within 8 miles of its courthouse building, while at the same time permitting both of these results to be accomplished by the subsequent cutting down of any county established after the adoption of that Constitution. So to conclude would be to attribute to the convention a care and preference for counties existing in 1895, however newly created, to the exclusion of any such feeling in behalf of counties to be thereafter erected. There is no warrant to be found for any such conclusion, either in the language employed in the instrument itself or in the debates and other proceedings of the convention. Even if the newspaper reports of these debates and proceedings are entitled to any consideration, there is nevertheless no sound inference to be deduced therefrom which is entitled to be given any special weight in *Page 307 determining the question here presented. If it be conceded that special interest was felt by the members of the constitutional convention in providing against the too extensive dismemberment of the counties then existing, there is nothing to show that these members were not also impressed with the advisability of likewise making provision for similar protection against the continued cutting down of area or boundary of counties which should thereafter be established. Hence no firm ground can be found in these debates upon which to rest a conclusion that the members of the convention desired to protect then existing counties against a reduction of area below 500 square miles and encroachments upon boundary lines within 8 miles of the courthouse, without intending to give like protection so far as possible to counties thereafter formed, when the same had once been established. Consequently the light to be derived from this source fails to serve any particular purpose of illumination as to the matters here in controversy, and we are still remitted to the language used in the Constitution itself for a proper interpretation of its provisions in this particular.
As especially significant of the sense in which the term "old county" is used in section 4 of the article now sought to be interpreted, it is to be noted that the same phrase, in relation to the same general subject matter, is used apparently with the same meaning in section 6 of this article. Manifestly in the last mentioned section the word "old," as applied to county, is used with reference to any county existing at the time a proposed "new" county is to be formed. This section declares that:
"All new counties hereafter formed shall bear a just apportionment of the valid indebtedness of the old county or counties from which they have been formed."
It is too clear for argument that the word "old" in this section must be interpreted as meaning any county in existence at the date of the formation of such new county, since *Page 308 otherwise the constitutional convention would stand convicted of the absurdity of requiring the assumption by such new county of a just proportion of the debt of any section thereof taken from a county existing in 1895, without making any such requirement as to such a debt with reference to any section taken from a county subsequently created.
Moreover, in section 2 of article VII of the Constitution, there is found a precise definition given by the constitutional convention itself of the meaning of the term "old county," which is there translated by the phrase "the county proposed to be dismembered." By section 1 of this article it is provided as a prerequisite to the formation of a new county that there shall be a petition by "one-third of the qualified electors within the area of each section of an old county" out of which such new county is to be formed. Thereupon, as if for the very purpose of defining the meaning of the words "old county," the convention proceeded in the very next section to characterize the term "old county" by substituting therefor the equivalent phrase, "the county to be dismembered." Having used the words "old county" in the first section of this article in the sense of the "county to be dismembered," when reference is again made to the same "old county" in the fourth section of the same article, with reference substantially to the same subject, with what reason can it be contended that the meaning of the phrase has suddenly, mysteriously, and unnecessarily been changed? No reasonable foundation for such a conclusion has been suggested; and so to conclude without reason to support it would be to violate the rule that the same words, when used with reference to the same general subject matter, are to be considered as intended to convey the same meaning. Cooley's Const. Lim. (5th ed.), p. 74; 2 Cyc. 734.
It may be added that the construction thus placed upon the words "old county," as used in the section under consideration, as being "any county existing at the time of the *Page 309 proposed formation of a new county," is identical with that which appears to have been adopted in contemporary legislative enactments, appearing now as sections 634, 637, 639, 641, and 642 of the Civil Code. It is well settled that such contemporaneous interpretation raises a strong presumption of the correctness of a legislative construction then adopted. Cooley's Const. Lim. (5th ed.), p. 81; 8 Cyc. 736.
The true meaning of these provisions of the Constitution must, therefore, be held to consist in the declaration that counties might thereafter be established with an area of not less than 400 square miles, and with the courthouse located at such point within the limits as the qualified electors should determine, but that, when once established, no county of the State should be further reduced in limits (in order to form a new county) unless the same should exceed 500 square miles, nor should any of its existing area be taken in any event (for the purpose of forming a new county) if thereby the line of such established county would be so altered as to bring it within eight miles of its courthouse building. These provisions were manifestly intended as guaranties of protection to the people of the county so established in the continued territorial autonomy of the county to the extent thus declared. In other words, the Constitution says to the people that, if they will establish new counties with not more than 500 square miles of area, they will be guaranteed against the taking of any part thereof thereafter in order to the erection of any other proposed county, and that, if they will locate their county courthouse building not nearer than a distance of 8 miles from any particular border, no other new county will be permitted to cut its lines within the limits of that border in any event. These provisions are made applicable not only to counties existing at the time of the Constitution, but to those thereafter created, so as to protect all of them against dismemberment within the 500 square miles of area, as well as within the 8 miles limit of border line. *Page 310
Such construction of these provisions gives proper force to the language used and renders the requirements as to the creation of new counties and as to the reduction of limits of existing counties reasonably harmonious; while the adoption of the other interpretation for which contention is made by respondents would lead to many absurd conclusions. The latter construction, for instance, would require the attributing to the makers of this Constitution of the unreasonable intention of declaring that a county established prior to 1895, however recent its creation, could not be reduced below 500 miles in area, nor be cut within 8 miles of the established courthouse, in order to form a new county, while one erected subsequent to that date could be so reduced or so cut for the very identical purpose. Since there is no reasonable basis for such a distinction, a conclusion involving it should not be adopted, unless it be required by necessary intendment from the language of the Constitution itself. It has been shown already, however, not only that no such construction is demanded by the phraseology of that instrument, but also that it is absolutely forbidden by the very definition of "old county" given by the Constitution itself; and it has further been shown that the term "old county," when used in apposition to "new county" in a constitutional provision relating to the formation of such counties, necessarily requires the adoption of that meaning which defines the phrase "old county" as being "any county existing at the time of the proposed formation of a new county."
Hence it must be concluded that the county of Greenwood is an "old county," within the meaning of the language used in section 4 of the seventh article of the Constitution of this State, and that its area cannot now be reduced below that of 500 square miles in order to form the proposed new county of McCormick. This conclusion renders it unnecessary to pass upon the other questions sought to be raised by the petition herein, while it also requires the granting of the prayer of the petitioners. *Page 311
It is, therefore, considered that it should now be ordered and adjudged that all further proceedings looking to the establishment of the proposed new county of McCormick under and by virtue of any election heretofore had or attempted be, and the same are hereby, permanently enjoined and restrained, and that all sections of the various counties sought to be incorporated in the proposed new county of McCormick be, and they are hereby, declared to remain parts of the several counties respectively to which they have heretofore belonged.