I concur in the conclusion reached by Mr. Justice Hydrick that the petition for injunction should be dismissed, but am unable to agree to the construction of the Constitution indicated in his opinion. A petition having been presented for the changing of the boundary line between the counties of Sumter and Lee so as to annex a portion of Lee county to the county of Sumter, the Governor appointed the respondents, D. E. DuRant, J.P. Kilgore, T.S. DuBose, and Stanyarne Burrows, to investigate and report to him the facts as to area, population, etc., as provided by the act of 1911 (27 Stat. 43). Thereafter this proceeding was instituted to enjoin the respondents from proceeding, on the ground that Lee county, though created since the adoption of the Constitution, became immediately, on its formation, an "old county," within the meaning of the Constitution, and not having over five hundred square miles, its area cannot be reduced.
At the argument it was stated that whenever the question has arisen before the different Governors of the State, they have adopted the view that the expressions "old county" and "old counties," as used in the Constitution, embraced all counties in active existence, whether created before or after the adoption of the Constitution, and that the expressions *Page 225 "new county" and "new counties" were limited in their meaning to counties in process of formation. It was further stated, that Governor Blease had appointed the commissioners with the view of having the matter settled by judicial construction.
The following are the portions of article VII of the Constitution bearing on the question:
Section 1. "The General Assembly may establish new counties in the following manner: Whenever one-third of the qualified electors within the area of each section of an old county proposed to be cut off to form a new county shall petition the Governor for the creation of a new county, setting forth the boundaries and showing compliance with the requirements of this article, the Governor shall order an election, within a reasonable time thereafter, by the qualified electors within the proposed area, in which election they shall vote `yes' or `no' upon the question of creating said new county; and at the same election the question of a name and a county seat for such county shall be submitted to the electors.
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 million 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. 6. "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. *Page 226
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 vote 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."
The first section shows clearly that the convention meant by "old county," as used therein, any county which might be in existence at any time in the future when it should be proposed to take action under it looking to the formation of a new county, and by "new county" only those counties proposed and in process of formation under the law. It will be observed that here the provision is that the General Assembly may establish a new county only when the petition comes from certain electors of an "old county" within the area of the "old county" proposed to be cut. There is no provision nor warrant in the Constitution for a new county to be formed from a section of another new county, or by the petition of electors of a "new county." Hence it follows that if "old county" is restricted in its meaning to counties already in existence at the date of the adoption of the Constitution, there would be no authority in the Constitution for taking a part of any county formed since the adoption of the Constitution for the creation of a new county; and a county formed since 1895, whatever might be its wealth, area, population, and the need of its inhabitants, could never be divided, for the formation of a new county.
Section 3, in providing that "no new county hereafter formed." etc., and section 6, in providing that "all new *Page 227 counties hereafter formed shall bear a just apportionment of the valid indebtedness of the old county or counties from which they have been formed," do not necessarily carry the meaning that counties thereafter formed should remain new counties after their formation, but only that new counties formed after the adoption of the Constitution should not, when formed, contain less than the specified population, taxable property, and area, and should bear a just proportion of the valid indebtedness of the old county or counties from which they were formed.
Section 5 confirms most strongly the meaning we have attributed to old county and new county in the construction of section 1. Clearly the intention of the section was to protect any county of the State actually in existence, whether formed before or after 1895, from having its territory cut within eight miles of its courthouse. But if "old county" in this section meant only a county in existence in 1895, then there would be nothing to prevent the line of a proposed new county being run to the courthouse door of any county formed since 1895.
From these considerations it seems clear that two of the first six sections of the article require the construction that in the formation of counties, "old county" and "old counties" should mean any county or counties formed or in existence at any time that proceedings might be instituted looking to the formation of a new county, and that the other four sections are not in anywise inconsistent with this construction.
It will be observed that these sections all relate to the formation of new counties and have no reference to the change of county lines. The journal of the convention shows that after these sections were agreed on, section 7 was proposed as an amendment. It has no reference to the formation of new counties, but relates to an entirely different subject from that covered by the first six sections, namely, the mere alteration of county lines by which territory would be transferred *Page 228 from one county to another. The words "new county" are not written in it, but, by its proviso, "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" means the same thing as if the words of the sections referred to had been set out in it. So this section distinctly enacts that with respect to the change of county lines there should be a difference between counties "existing" at the date of the adoption of the Constitution and those created after.
We think, therefore, it is reasonably clear that in providing for the formation of new counties from those already in existence, the convention meant by "old county" and "old counties" any county or counties in existence at the date when it should be proposed to form a new county, and by "new county" and "new counties" a county or counties proposed and in the process of formation; but that in the amendment providing merely for the alteration of county lines the intention was to divide the counties with respect to population, area, and taxable property into two classes, namely, counties "existing" at the date of the Constitution and those created after its adoption.
It is true that this construction is subject to the criticism that it gives to the words "new" and "old" different meanings in different sections of the same instrument, but that is not a cogent objection. The general presumption is that the meaning of a word used more than once in the same statute or constitutional provision is identical, but this presumption is by no means conclusive, and must yield to the intention appearing from consideration of the entire statute or the entire article of a Constitution. The presumption is manifestly weakened when it appears that the words are used, as here, in connection with different subjects. 36 Cyc. 1132; 26 Am. Eng. Enc. 610; Rhodes v. Weedy,46 Ohio 234; 15 Am. St. 584; Jones v. DuBois, 16 N.J.L. 293;Sunset Tel. Co. v. Pasadena, 118 P. 796; Ryan v. State. *Page 229 92 N.E. 340; State v. Knowles, 90 Md. 654; 49 L.R.A. 695; 45 A. 877; Gernert v. Limbach (Ala.), 50 So. 903.
The presumption cannot have any force in this case where it is plain the constitutional convention could not have intended the unfair, not to say absurd, results which would flow from holding that section 7, in referring to old and new counties with respect to alteration of county lines, meant the same distinction between "old county" and "old counties" and "new county" and "new counties" as was clearly indicated in the preceding sections in providing for the formation of new counties.
On this reasoning I concur in the conclusion of Mr. Justice Hydrick that Lee county, having been created since the adoption of the Constitution of 1895, is a new county within the meaning of section 7 of article VII, providing for the alteration of county lines, and that it is not a valid objection to the proposed alteration of the county lines of Lee county that Lee county contain less than five hundred square miles. But I think that as soon as Lee county was created it became an "old county" within the meaning of the first six sections of the article providing for the formation of new counties, and that inasmuch as Lee county contains less than five hundred square miles it could not be reduced in acrea for the formation of a new county.
MR. JUSTICE WATTS concurs.