This is an application to the Supreme Court, in the exercise of its original jurisdiction, for an order enjoining the respondents, from proceeding as commissioners appointed by the Governor, to change the boundary line between the counties of Sumter and Lee, so as to annex a portion of Lee county to the county of Sumter. *Page 222
Lee county was created by an act of the legislature in 1902, and contains 410 1/2 square miles. The territory which it is proposed to take from it, contains 9 square miles, which would still leave over 400 square miles.
The question for determination is, whether such reduction would violate the provisions of sections 3, 4, 5 and 7, art. VII of the Constitution, which are as follows:
Sec. 3. "No new county hereafter formed, shall contain less than one one hundred and twenty-fourth part, of the whole number of inhabitants of the State, nor shall it have less assessed taxable property, than one and one-half millions of dollars, as shown by the last tax returns, nor shall it contain less area than four hundred square miles.
Sec. 4. "No old county shall be reduced to less area, than five hundred square miles, to less assessed taxable property than two million dollars, nor to a smaller population, than fifteen thousand inhabitants.
Sec. 5. "In the formation of new counties, no old county shall be cut, within eight miles of its courthouse building.
Sec. 7. "The General Assembly shall have the power to alter county lines at any time: Provided, That before any existing county line is altered, the question shall be first submitted, to the qualified electors of the territory, proposed to be taken from one county, and given to another, and shall have received two-thirds of the votes cast: Provided,further, That the change shall not reduce the county, from which the territory is taken, below the limits prescribed in sections 3, 4 and 5 of this article: Provided, That the proper proportion of the existing county indebtedness, of the section so transferred, shall be assumed by the county, to which the territory is transferred."
It appears from the proceedings, of the constitutional convention, that section 7 was not a part of the resolution, proposing sections 3, 4 and 5, but was adopted as an amendment to them, after they had been agreed upon, by the convention. *Page 223
That section was not intended to alter or amend, sections 3, 4 or 5, but to conform to the requirements of the Constitution, as to the area, wealth and population, either of an old or a new county, — the applicability of those sections to the particular case, being dependent upon the question, whether the proposed territory, is to be taken from a county in existence, when the constitution was adopted, or from a county thereafter created.
If the territory is taken from an old county, it must still possess all the requirements of the Constitution, to wit: Not less than five hundred square miles, two million dollars of taxable property, and fifteen thousand inhabitants; nor shall the new boundary line come within eight miles of its courthouse building. While, on the other hand, if the territory is taken from a new county, it must still contain, not less than four hundred square miles, one hundred and twenty-fourth part of the inhabitants of the State, and one and one-fourth millions of dollars of taxable property.
It will be observed, that the requirements in sections 3, 4 and 5, as to old and new counties, are different; and, it was in recognition of this fact, and in order to protect both classes of counties, that the convention did not use the words, "old county" or "new county," in section 7; for, if it had mentioned only one class, it would have rendered those sections inconsistent, and full force and effect could not be given to all their provisions.
If the convention had intended, that an existing line could not be changed, unless the county from which the territory was taken, still contained at least five hundred square miles, it would have expressed such intention, in far simpler language, and would not have made any reference to section 3, which requires only four hundred square miles.
The convention was composed of many of South Carolina's ablest lawyers, several of whom, were afterwards elected to judicial offices, and it is unreasonable to suppose, *Page 224 that they did not clearly see the glaring inconsistencies, that would arise, unless sections 3, 4 and 5 should be construed, in the light of the distinction, between the requirements as to an old and a new county, especially as this is the only interpretation, by which full force and effect can be given, to all the provisions of those sections.
The trouble in this case, has arisen from the attempt, to make all the provisions of sections 3, 4 and 5 applicable to a single class of counties which is impossible, as they can not be harmonized.
For these reasons I concur.