[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 457 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 458 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 459 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 460 October 12, 1929. The opinion of the Court was delivered by The common purpose of the above-entitled actions, brought in the original jurisdiction of this Court by several citizens and taxpayers, either in their own names or in the name of the State, is to have a certain Act of the General Assembly (36 St. at Large, p. 670), approved March 14, 1929, declared unconstitutional and void, and to have the respondents permanently enjoined from carrying out its provisions. The cases involve practically the same issues and I shall consider them together.
The Chief Justice of this Court, for whose views I have the greatest respect, has written an opinion in which he has reached the conclusion that the act in question contravenes certain provisions of the Constitution and is therefore invalid. I greatly regret that, after a careful study of the act and of the issues involved in these proceedings, I do not find myself in full agreement with his views and conclusions; and shall endeavor to state my reasons therefor.
The title of the act is as follows: "An Act to Provide for the Construction and Maintenance of the State Highway System and for the Payment, with Interest, of Certain Obligations of the State Highway Commission and of Counties and Highway or Bridge Districts Arising from the Construction of Highways, and for These Purposes to Authorize the Issuance of Evidences of Indebtedness of the State, to Divide the State into Two Highway Districts, to Authorize the Issuance of Evidences of Indebtedness of These Districts, *Page 464 to Appropriate and Provide for the Disposition of the Gasoline Tax and Motor Vehicle License Fees and Other Revenues, and to Provide for the Administration and Operation of the State Highway Department."
The Act contains a preamble, setting forth certain legislative recitals and findings of fact as the basis of the legislation proposed, and declaring that: "In the judgment of the General Assembly, an immediate investment by the State in a complete State Highway System in accordance with the financial plans set forth in this Act would be not only self-sustaining — never costing the taxpayers of the State one cent of property taxes — but would also produce great profits or dividends which cannot be stated in terms of money." I shall hereafter refer more particularly to this preamble.
The Act is divided into three articles, the first of which provides for establishing a state unit plan for financing the completion of the construction of the state highway system; Article 2 provides for a district unit plan of financing; and Article 3 contains certain general provisions and relates, in part, to matters of an administrative nature.
In considering the issue presented in this case, the constitutionality of a statute, I fully appreciate the importance and seriousness of some of the questions raised by the petitioners; but, as stated in Wingfield v. SouthCarolina Tax Commission, 147 S.C. 116, 144 S.E., 846,848, I am "also mindful of the fact that it is a grave matter to declare a solemn enactment of the Legislature, a coordinate branch of the government, invalid, and that the Court in its deliberation and conclusions should be guided by the well-settled principle that the unconstitutionality of an Act must be shown beyond a reasonable doubt. McKiever et al.v. City of Sumter et al., 137 S.C. 266, 135 S.E., 60;Poulnot v. Cantwell, 129 S.C. 171, 123 S.E., 653; Battlev. Willcox, 128 S.C. 500, 122 S.E., 516; Santee Mills v.Query, 122 S.C. 158, 115 S.E., 202; Powell v. Hargrove,136 S.C. 345, 134 S.E., 380." *Page 465
The following clear statement of this principle is found in 6 R.C.L., p. 75: "To justify a Court in pronouncing a legislative Act unconstitutional or a provision of a State Constitution to be in contravention of the Constitution of the United States, the case must be so clear as to be free from doubt, and the conflict of the statute with the Constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative Act to be contrary to the Constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of its validity."
I shall now proceed to consider the several grounds upon which the constitutionality of the Act is attacked.
I. It is contended that the Act in question is violative of Section 17 of Article 3 of the State Constitution, which provides that "Every Act or Resolution having the force of law shall relate to but one subject, and that shall be expressed in the title."
In Verner v. Muller, 89 S.C. 117, 71 S.E., 654, 655, with regard to this provision, the Court said: "The mandate of the Constitution is complied with if the title states the general subject of legislation and the provisions in the body of the Act are germane thereto as means to accomplish the object expressed in the title. Connor v. Railroad, 23 S.C. 427;State v. O'Day, 74 S.C. 448, 54 S.E., 607."
The controlling principle of construction is that stated inLillard v. Melton, 103 S.C. 10, 87 S.E., 421, 423: "When the general subject is expressed in the title, any details of legislation which provide the means, methods, or instrumentalities which are intended to facilitate the accomplishment of the general purpose, and are germane to it, may be embraced in the body of the Act without violating this provision of the Constitution. State v. O'Day, 74 S.C. 449, *Page 466 54 S.E., 607; Aycock-Little Co. v. Railway, 76 S.C. 331,57 S.E., 27; Johnson v. Commissioners, 97 S.C. 212,81 S.E., 502."
"It is not necessary that the title should be an index of the contents of the statute." Briggs v. Greenville County, 137 S.C. 288,135 S.E., 153, 163. See, also, Means v. HighwayDepartment, 146 S.C. 19, 143 S.E., 360; McKieverv. City of Sumter, 137 S.C. 266, 135 S.E., 60.
Counsel for petitioners have failed to indicate any proper basis for their contention. Measured by the rules of construction above indicated, an examination of the wording of the title and of the provisions of the Act satisfies any doubt that the constitutional mandate in that respect was fully complied with. It cannot be fairly contended that the body of the Act contains a single clause that may not be properly viewed as "a means to accomplish" the expressed objects thereof or as "matter promotive" of the general object, which is the construction and maintenance of a state highway system; or that the people of the State were not "fairly apprised" of the character, through publications, of the pending legislation. There is no merit in this contention.
II. The petitioners also challenge the constitutionality of the Act upon the following grounds: (1) That it did not receive three readings in each of the Houses of the General Assembly on three several days, and so violated Section 18 of Article 3 of the Constitution; (2) that, although a revenue measure, it did not originate in the House of Representatives, and so violated Section 15 of Article 3 of the Constitution; and (3) that it was improperly amended during its passage.
This question, in its threefold aspect, is disposed of adversely to the contention of the petitioners by the recent decision of this Court in Wingfield v. Tax Commission, supra, in which the Court said:
"Prior to 1893, the journal entry rule prevailed in this State. State v. Platt, 2 S.C. 150, 16 Am. Rep., 647. State *Page 467 v. Hagood, 13 S.C. 46. In each of these cases, however, a vigorous dissenting opinion was filed. In his dissent in theHagood case, Mr. Justice McIver said:
"`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 journals of the two houses or any other evidence.'
"In the case of State ex rel. Hoover v. Chester, 39 S.C. 307,17 S.E., 752, decided in 1893, the question was again considered. In a unanimous opinion the Court overruled thePlatt and Hagood cases, and adopted the enrolled bill rule in the following unmistakable language:
"`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.'"
The Court gives the following reasons for the adoption of the enrolled bill rule: "Public policy, certainty as to what the law is, convenience, and that respect due by the Courts to the wisdom and integrity of the Legislature a co-ordinate branch of the government, all require that the enrolled bill, when *Page 468 fair upon its face, should be accepted without question by the Courts. 26 Am. Eng. Ency. of Law, p. 557; State ofWashington, ex rel. Thomas M. Reed, Jr., v. W.C. Jones,Attorney General, 6 Wn., 452, 34 P., 201, 23 L.R.A., 340; Atchison Railway Co. v. State of Oklahoma,28 Okla. 94, 113 P., 921, 40 L.R.A. (N.S.), 1; Field v. Clark,143 U.S. 649, 12 S.Ct., 495, 36 L.Ed., 294 and the cases cited therein."
As the enrolled Act in the present case fully meets all the requirements of the enrolled bill rule as laid down in theWingfield case, it is not competent to attempt to impeach it by evidence outside the Act itself.
III. In the proposed opinion it is said: "A very serious objection is made to the entire Act, which concerns both plans, that it is an alternative law, dependent upon the will and option of a department of the Executive branch of the government; in effect a delegation of legislative prerogatives and duties."
The provision objected to is found in Section 1 of Article 2, and is as follows: "Instead of requesting the Governor to issue State highway certificates of indebtedness or notes as provided in Article I of this Act, the State Highway Commission may, at its option, enter into one or more reimbursement agreements with one or both of the highway districts created by this article, and certificates of indebtedness and notes of these highway districts may be issued, as provided in this article."
The conclusion reached by the writer of the proposed opinion is that this provision is not permissible legislation and renders invalid the entire Act.
It is a primary principle that in our system of government the legislative, executive, and judicial departments must be kept separate and independent. With regard to the rule that the Legislature cannot delegate its power to make laws, the following from Cooley's Constitutional Limitations is quoted with approval in Vesta Mills v. *Page 469 City Council, 60 S.C. 1, 38 S.E., 226, 228: "`One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made, until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved; nor can it substitute the judgment, wisdom, and patriotism of any other body for those for which alone the people have seen fit to confide this sovereign trust.'"
There is a distinction, however, between delegating power to make a law and conferring authority or discretion as to its execution. If a legislative Act is clothed with all the forms of law and is complete in itself in form and substance, if the officer, board, or commission to whom the authority is alleged to have been delegated is given no power to add to or to take away from the law as enacted, if nothing is left to discretion as to what shall constitute the form and substance of the statute, and if the Act embodies a full and complete expression of the legislative will, matters which may be fairly regarded as relating to the administration and execution of the statute, even though involving discretion, do not constitute an unauthorized delegation of legislative authority.
Judge Cooley says further (8th Ed.), 228: "The maxim that power conferred upon the Legislature to make laws cannot be delegated to any other authority does not preclude the Legislature from delegating any power not legislative which it may itself rightfully exercise. It may confer an authority in relation to the execution of a law which may involve discretion, but such authority must be exercised under and in pursuance of the law. The Legislature must declare *Page 470 the policy of the law and fix the legal principles which are to control in given cases; but an administrative officer or body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this could not be done there would be infinite confusion in the laws and in an effort to detail and to particularize, they would miss sufficiency both in provision and execution."
In 6 Am. Eng. Ency. (2d Ed.), 1029, the following appears: "There is no constitutional reason why legislative functions which are merely administrative or executive in their character should not be delegated by that branch of the government to other departments, or to bodies created by it for that purpose. A distinction is drawn between a delegation of power to make the law, involving necessarily a discretion as to what it shall be, and a grant of authority relative to its execution, though the latter involves the exercise of discretion under and in pursuance of the law."
In 6 R.C.L., 174, the writer says: "All laws are carried into execution by officers appointed for the purpose, and these are clothed with a power which often necessarily involves in a large degree the exercise of discretion and judgment."
And at page 165: "One of the most important tests as to whether particular laws amount to an invalid delegation of legislative power is found in the completeness of the statute as it appears when it leaves the hands of the Legislature."
With respect to this rule, we find the following in 12 C. J., at page 840: "While, however, the Legislature may not delegate the exercise of its discretion as to what the law shall be, it may confer discretion in the administration of the law. Also, the Legislature has power, when enacting a statute creating a new right with its remedy, to vest in some board or person power to adjudicate all matters arising under the statute, and to make such adjudication final and conclusive. The difficulty lies, not in determining the governing principle, but in its application to concrete cases. With the growing *Page 471 complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the Legislature, and toward the approval of the practice by the Courts; but this variety of conditions and circumstances, and of laws intended to meet them, has led to a variety of judicial decisions and utterances which the Courts have found difficult to harmonize. Such powers of delegation naturally vary with the scope and authority of the delegating body, Congress and the State Legislatures possessing much wider powers in this respect than the legislative bodies of municipal corporations."
The reports are full of decisions illustrative of the distinction adverted to. I shall not attempt even an incomplete collation of these authorities, but shall content myself with citing a few typical cases.
"A statute authorizing a particular officer to pass upon the question of character, to determine the granting of license is not a delegation of legislative power. Delegation of power to determine who are within the operation of the law is not a delegation of legislative power. State v. Thompson,160 Mo., 333, 60 S.W. 1077, 83 Am. St., 468, 54 L.R.A., 950. So statutory delegation of power to incorporated medical societies to appoint medical examiners to examine and pass upon the fitness of applicants for license to practice medicine is not invalid. Schoole v. State, 90 Md., 729, 46 A., 326, 50 L.R.A., 411. See, also, People v. Witte, 315 Ill., 282,146 N.E., 178, 37 A.L.R., 672." Cooley's Constitutional Limitations (8th Ed.), 230 (note).
Enactments have been generally upheld that confer authority upon municipalities to enact and enforce ordinances(Buffalo v. Stevenson, 207 N.Y., 258, 100 N.E., 798), upon administrative boards to fix rates (Interstate CommerceCommission v. Railroad Company, 168 U.S. 144,18 S.Ct., 45, 42 L.Ed., 414), upon a fire commissioner to install *Page 472 means to prevent fires (People v. Kaye, 212 N.Y., 407,106 N.E., 122), upon boards of health to enact sanitary rules and ordinances (People v. Van De Carr,199 U.S. 552, 26 S.Ct., 144, 50 L.Ed., 305), on a commissioner of agriculture to make needful rules with regard to food and food traffic (People v. Dairy Company, 222 N.Y., 416,119 N.E., 115, 3 A.L.R., 1260), upon the Secretary of the Treasury to determine the standards of quality of imported tea (Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct., 349,48 L.Ed., 525), upon the State Board to revoke license of architect for gross incompetency in construction of building. (Klafter v. Board of Examiners, 259 Ill., 15,102 N.E., 193, 46 L.R.A. (N.S.), 532 Ann. Cas., 1914-B, 1221), upon commissioners of land office to grant lands upon navigable waters for the promotion of state commerce and the enjoyment of adjacent owners (Rumsey v. Railway Co.,130 N.Y., 88, 28 N.E., 763), upon the President of the United States to reduce revenue and equalize duties on imports, and to suspend by proclamation the free introduction of sugar, etc. (Field v. Clark, 143 U.S. 649, 12 S.Ct., 495,36 L.Ed., 294).
Codman v. Crocker, 203 Mass. 146, 89 N.E., 177, 180, is very much in point. The Court said: "Objection is made to the action of the commission on the ground that the statute involves an unconstitutional delegation of legislative authority. But the Legislature determined that a railway for the same general service might be constructed by either of two routes to either of two termini, and left to this commission the question of administration as to which of the two modes of building this great public work would be the better. This was a delegation only of such powers as often have been left to boards of public officers with the approval of this and other Courts. Brodbine v. Revere, 182 Mass. 598,66 N.E., 607; Lynn v. Essex County, 148 Mass. 148,19 N.E., 171; Martin v. Witherspoon, 135 Mass. 175; Opinionof Justices, 138 Mass. 601; Welsh v. Swasey, 193 Mass. 375, *Page 473 79 N.E., 745, 118 Am. St. Rep., 523, 23 L.R.A. (N.S.), 1160; Field v. Clark, 143 U.S. 639, 12 S.Ct., 488,36 L.Ed., 285; In re Kollock, 165 U.S. 526, 17 S.Ct., 444,41 L.Ed., 813; Agawan v. Hampden, 130 Mass. 528; Floodv. Leahy, 183 Mass. 232-236, 66 N.E., 787; Commonwealthv. Union Passenger R. Co., 163 Pa., 22, 29 A., 711;People v. Dunn, 80 Cal., 211, 22 P., 140, 13 Am. St. Rep., 118."
In Trustees of Saratoga Springs v. Saratoga Gas, ElectricLight Power Co., 191 N.Y., 123, 83 N.E., 693, 695, 18 L.R.A. (N.S.), 713, it was held (quoting syllabus): "No unconstitutional delegation of legislative power is effected by conferring on an administrative commission the power to fix the maximum rates which the Legislature declares shall be charged by gas companies." 18 L.R.A. (N.S.), 713.
The Court in this case said:
"The argument against the constitutionality of the underlying feature of the statute proceeds on two propositions — one that legislative power cannot be delegated, and the other that rate making is a legislative power. Both propositions are true, if not construed too broadly, but each is liable to such misconstruction. To be strictly accurate, the first requires the qualification pointed out by Chief Justice Marshall in Wayman v. Southard, 10 Wheat. (U.S.), 1, 42,6 L.Ed., 253: `It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others powers which the Legislature may rightfully exercise itself.' If by the second proposition it is intended to assert that the rate-making power being part of the police power is vested in the Legislature, it is true. But if it is intended to go further and deny the power of the Legislature to confer by general laws upon other branches of the government, the duty not only of executing the law, but of determining its application to particular cases and the *Page 474 formulating rules for its exercise, then in my judgment it is not true. * * *
"While no consideration of convenience or of supposed necessity would justify us in ignoring any constitutional mandate or limitation, it must be remembered that we have no express constitutional provision on the subject, and that it is sought to condemn the legislation before us solely by extending the principle that the Legislature cannot delegate legislative powers, a principle which, though unquestionably true is, as we have seen, true only within limits to a point that would render efficient legislation on the subject impracticable. it cannot be said, to use the language of Justice Harlan, that in any real sense the Legislature has delegated its power to the commission. The statute is complete. The Legislature, not the commission, has enacted that there shall be maximum rates for the charges of the gas and electric light companies, and that light shall be furnished to consumers at those rates, and has provided the penalty for extorting greater charges for service. What is intrusted to the commission is the duty of investigating the facts, and, after a public hearing, of ascertaining and determining what is a reasonable maximum rate. I cannot see how the duty intrusted to the commission in this case differs in principle from that imposed on the President to determine that duties were reciprocally unequal or on the Secretary of the Treasury to determine what was inferior tea."
The Courts of this State are in line with those of other jurisdictions in applying the rule and the distinction pointed out. In Wingfield v. South Carolina Tax Commission, supra, the following from Santee Mills v. Query, 122 S.C. 158,115 S.E., 202, is quoted with approval: "It is elementary that, while the Legislature may not delegate its power to make laws, it may vest in administrative officers and bodies a large measure of discretionary authority, especially to make rules and regulations relating to the enforcement of the law. 12 C.J., 844-853; Port Royal Min. Co. v. Hagood, *Page 475 30 S.C. 519, 9 S.E., 686, 3 L.R.A., 841; Michigan Cent.R. Co. v. Powers, 201 U.S. 245, 26 S.Ct., 459,50 L.Ed., 744; Leser v. Lowenstein, 129 Md., 244, 98 A., 712.'"
In Port Royal Min. Co. v. Hagood, 30 S.C. 519,9 S.E., 686, 688, it was held that an Act authorizing the State Board of Agriculture "to grant or refuse" licenses to mine for phosphate rock, "as the said board may, in its discretion, deem best for the interests of the State," etc., was not an unconstitutional delegation of legislative power to the board. The Court said: "It is undoubtedly true that legislative power cannot be delegated; but it is not always easy to say what is and what is not legislative power, in the sense of the principle. The Legislature is only in session for a short period of each year, and during the recess cannot attend to what might be called the business affairs of the State. From the necessity of the case, as well as the character of the business itself, that must be performed by agents appointed for that purpose, such as the railroad commission, regents of the lunatic asylum, the State Board of Canvassers of elections, `sinking fund commission,' etc. The numerous authorities cited in the argument show conclusively, that, while it is necessary that the law itself should be full and complete as it comes from the proper law making body, it may be, indeed must be, left to agents in one form or another to perform acts of executive administration which are in no sense legislative. Without encumbering this opinion with the authorities, we think the view is well stated in Locke's Appeal, 72 Pa. St., 491 [13 Am. Rep., 716]: `Then the true distinction, I conceive, is this: The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.'" *Page 476
The conferring of an option on a commission by the Legislature is by no means a new doctrine in this State. Such course has been followed a number of times since the year 1924 in connection with the construction of highways in this State.
"Under the Act of 1924 (33 Stat., 1193), amended by Act of 1925 (34 Stat., 51), two alternative plans were authorized for the construction of the highways designated therein: (1) By the State Highway Commission, by means of funds provided by the Act, consisting of the automobile license tax, three-fifths of the five-cent gasoline tax (Act of 1925, p. 56, § 11), and all Federal Aid moneys, within a period to be determined by the commission, and which has been estimated at 18 years, beginning January 1, 1924; (2) By the several counties, by permission of the State Highway Commission, and under a reimbursement agreement with the commission by which the value to the State of such construction shall be refunded to the County out of the funds made available by the Act, in equal annual installments, during the estimated period of construction. * * *
"In Section 12-a of the Act [Coastal Highway Act], it is provided that at the option of the Board of Coastal Highway Commissioners, the reimbursement agreement between the commission and the district may be made between the commission and the six counties named, so that the six counties, acting by the board, shall jointly agree to advance the moneys necessary to construct the highway, and the commission shall agree to reimburse said counties for the money so advanced, with like effect as if the agreement had been made between the commission and the district." Evans v. Beattie,137 S.C. 496, 135 S.E., 538, 540.
In the Act (34 Stat., 1001), involved in Briggs v. GreenvilleCounty, supra, a road district coterminous with Greenville County was created, and the State Highway Commission was given the option of entering into reimbursement agreements, with either the road district, a district and *Page 477 separate corporate entity, or Greenville County, which was also vested with an entirely separate corporate existence and powers.
Though the constitutionality of the Coastal Highway Act and the Greenville County District Act was vigorously assailed on other grounds, the alternative or optional features of these Acts were not made grounds for such attack. If the Act in the present case may be held unconstitutional for the reason here urged, may not the Coastal Highway Act and the Greenville County District Act, as well as the Pay-As-You-Go Act of 1924 (33 St. at Large, p. 1193), be held invalid for the same reason?
All other authorities aside, the question seems to me to be settled by the decision in Ruff v. Boulware, 133 S.C. 420,131 S.E., 29, 30. In that case the Court construed a statute authorizing the establishing of a chain gang in Fairfield County "upon the unanimous written consent of the legislative delegation" from that county "to be filed with the Board of County Commissioners." A reading of the Act discloses that the consent of the legislative delegation, necessary for the operative effect of the statute under its provisions, was not predicated upon the determination of any fact or state of facts by the delegation as a prerequisite to such consent, but was left entirely to the arbitrary decision of the delegation itself. In upholding the constitutionality of the statute, the Court, speaking through Mr. Justice Marion, said:
"Appellants' exceptions * * * make the two points: (1) That the statute is, in effect, a delegation of the legislative power of the State, in contravention of Section 1, Art. 3, of the Constitution, in that it is not in itself a definite and final exercise of the legislative power vested in the General Assembly, but undertakes to make a law dependent upon the arbitrary consent of the legislative delegation, without laying down any `rule by which, or event upon which, the legislative delegation is to exercise its consent.' * * * *Page 478
"As to the first of the foregoing contentions, we are clearly of the opinion that the Act may not soundly be declared null and void as an unconstitutional delegation of legislative power.
"`Where an Act is clothed with all the forms of law, and is complete in and of itself, it is fairly within the scope of the legislative power to prescribe that it shall become operative only on the happening of some specified contingency. Such a statute lies dormant until called into active force by the existence of the conditions on which it is intended to operate. * * * This contingency may consist of some act or acts to be performed by public officers, or by the people or parties interested; or it may be the recommendation of a grand jury, or consist of the determination of some fact or state of things on the part of the people of a municipality or other body or officers. The nature of the condition is broadly immaterial.' 12 C.J., pp. 864-865, § 365.
"The Act here in question was complete in form and substance, and became a law in praesenti upon its approval by the Governor. Its scope and object, in so far as the exercise of the State's legislative power is concerned, were broadly to permit and authorize, upon the terms and conditions prescribed, the establishment and operation of a chain gang in the County of Fairfield — a permission and authority which, it seems, had been, expressly or impliedly, withdrawn or denied by a prior Act of the Legislature abolishing the chain gang in Fairfield County. 32 Stat. at Large, 70. By prescribing, in effect, that the Act should only become operative upon the filing of the written consent of the legislative delegation with the Board of County Commissioners, the General Assembly parted with and delegated no legislative power. The public officials constituting the legislative delegation were given no power to add a jot to, or take a tittle from the law as enacted. Nothing was left to their discretion as to what should constitute the form and substance of the statute, and, regardless of whether or not it ever became operative by *Page 479 compliance with the condition prescribed by the Legislature itself, it was nevertheless a valid law, in the sense that it was a full and complete expression of the Legislative will and power. As is well said in Sutherland on Statutory Construction, § 68:
"`The true distinction is between the delegation of power to make the law, which involves a discretion as to what the law should be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made.'
"In so far as the provision with respect to the filing of `consent' by the legislative delegation, the contingency upon the happening of which the law was to go into effect, confers any authority or discretion on the persons designated, it is an authority or discretion as to the execution of the law and not as to what the law shall be. In the limited time available to the writer, a discriminating reference to, and citation of, pertinent decisions from other jurisdictions tending to support that view cannot be undertaken. The conclusion, as we apprehend, is in substantial accord with the views of this Court on the question of invalid delegation of legislation as expressed in Port Royal M. Co. v. Hagood, 30 S.C. 525,9 S.E., 686, 3 L.R.A., 841; Burriss v. Brock, 95 S.C. 110,79 S.E., 193, and Lillard v. Melton, 103 S.C. 18,87 S.E., 421. For the reasons indicated, the contention that the Act is void as an unconstitutional delegation of legislative power cannot be sustained."
As I understand the matter, the decision on this point in the proposed opinion is grounded upon these propositions: (1) That the Legislature cannot delegate power to make a law; (2) that it can delegate to others power to determine some fact or state of things upon which the operation of a law it has enacted shall be dependent; (3) that it cannot vest arbitrary discretion in any officer or body, but must prescribe *Page 480 some rule of action by which the discretion shall be controlled.
I think that a more accurate statement of the first proposition would be that the Legislature cannot delegate powers which are strictly and exclusivelylegislative, but that it may delegate to others powers which it may rightfully exercise itself. Chief Justice Marshall inWayman v. Southard, supra. With the rule as thus stated I am in agreement.
The second proposition is undoubtedly correct law and is broad enough to cover the facts of many cases in which it is pronounced. But I do not think it statesall the law covering the delegation of power to determine whether a statute shall become operative. The authorities do not seem to limit such delegation of power to cases where the agency to which the power is delegated shall make a determination of a fact or state of things as a prerequisite to the operation of the law. There are numerous cases in which the operation or scope of operation of a statute has been left to the decision of some governmental officer or board, or of the people interested, without prescribing the determination of any fact or state of things as a prerequisite to the exercise of such power — it has been left to them merely to decide whether the Act shall be operative.
Such a case is State ex rel. Witter v. Forkner, 94 Iowa, 1,62 N.W., 772, 774, 28 L.R.A., 206, in which a statute providing, among other things, that on consent of a city council, to which the consent of a majority of the electors is a condition precedent, certain penalties of a prohibitory liquor law may be suspended, is held not unconstitutional as a delegation of legislative power. The Court said: "It is no doubt true that the General Assembly cannot legally submit to the people the proposition whether an Act shall become a law or not, for the people have no power, under our form of government, in their primary or individual capacity, to make laws. This they must do by their representatives. But *Page 481 the constitutional objection to the law is met, if the Act, when it came from the Legislature, received the Governor's approval, and was properly published, and was, of itself, acomplete and perfect enactment. * * * The popular will is expressed under and by virtue of a law that is in force and effect, and the people neither make or repeal it. They only determine whether a certain thing shall be done under thelaw, and not whether said law shall take effect. The law had full and absolute vitality when it passed from the hands of the Legislature; and the people under the `rule of action' therein given for their government, proceeded to act. * * * The Act in question is complete in itself, requiring nothing further to give it validity, and does not depend upon the popular vote of the people, or, if it does, depends upon this vote simply to determine the limits of its operation. The rule * * * is supported by the overwhelming weight of authority."
In Adams v. Beloit, 105 Wis. 363, 81 N.W., 869, 872, 47 L.R.A., 441, the Court said: "Option legislation upon proper subjects is now universally upheld, and declared to be general legislation, and not special legislation, nor to constitute a delegation of legislative power."
In Cole v. Dorr, 80 Kan., 257, 101 P., 1016, 1017, 22 L.R.A. (N.S.), 534, the Court said: "Even in jurisdictions where it is held that the taking effect of a Statute cannot be made to depend upon the result of a popular vote the principle is recognized that `if an act in question is complete in itself, and requires nothing further to give it validity as a legislative act, it is not vulnerable to attack on constitutional grounds simply because the limits of its operation are made to depend upon a vote of the people.'"
In Gordon v. State, 46 Ohio St., 607, 23 N.E., 63, 66, 6 L.R.A., 749, the Court said: "In the exercise of the duties devolved upon the legislative branch of the state government, it is manifest that discretion and judgment are required, not only in determining the subject-matter of legislation, but *Page 482 not unfrequently in ordering the conditions or contingencies upon which laws are to be carried into effect. It may be deemed expedient in one case to provide for preliminary action before a law is executed, which, under other circumstances, would not be adopted. In requiring such proceedings prior to the enforcement of a law, the legislature need not be prevented from keeping within the strict line of its authority. It is evident, we think, that the Act whose constitutional validity is called in question was a complete law when it had passed through the several stages of legislative enactment, and derived none of its validity from a vote of thepeople. In all its parts it is an expression of the will of the Legislature, and its execution is made dependent upon a condition prescribed by the legislative department of the state. By its terms, it was made to take effect from and after its passage. The qualified electors derive their authority to petition the trustees, and the trustees obtain their authority to order a special election, directly from the Legislature. The right of the electors to register their votes for or against the sale of intoxicating liquors is conferred by the same body."
"The rule is well established that a Statute does not delegate legislative power, so long as it is complete in itself, when it has passed the Legislature and has been approved by the Governor, even though it is left to some local body to determinewhether and when it shall go into operation." State v.Tausick, 64 Wn., 69, 116 P., 651, 656, 35 L.R.A. (N.S.), 807.
A study of the authorities has thoroughly convinced me that the application of the rule laid down in the second proposition of the proposed opinion does not establish the unconstitutionality of the Act in question, for the reason that the discretion as to which method of financing shall be followed is essentially an administrative act and does not givethe commission any authority to say what the law shall be, The explicit language of this Court in the Ruff case, supra, permits no other conclusion: "In so far as the provision with *Page 483 respect to the filing of `consent' by the legislative delegation, the contingency upon the happening of which the law was to go into effect, confers any authority or discretion on the persons designated, it is an authority or discretion as to the execution of the law and not as to what the law shall be."
To support the third proposition, reliance is placed especially upon the case of Makris v. Superior Court,113 Wn., 296, 193 P., 845, 847, 12 A.L.R., 1428. That case, however, and numerous cases like it, relate to the regulation of the exercise of man's natural rights and simply mean that the exercise of such rights shall not be left to the uncontrolled discretion of any officer or board. The opinion itself, as shown in the proposed opinion here, lays down the rule which forms the basis of the decision to be that "it is sufficient to render a law or ordinance void in the light of these constitutional guaranties, if the prescribed manner of administering such law or ordinance results in leaving the question of the propriety of issuing, withholding, or revoking alicense to conduct an ordinary lawful business, and thus the question of who may and who may not engage in such business, to the decision of any officer or set of officers, uncontrolled by any prescribed rule of action."
The note to this case at page 1436 of A.L.R., also quoted in the proposed opinion, specifically recognizes that the point involved is whether a Statute or ordinance which vests arbitrarydiscretion with respect to an ordinarily lawful business,profession, appliance, etc., in public officials, withoutprescribing a uniform rule of action, is unconstitutional and void. Even if it be conceded that such discretion is a grant of legislative power, still the rule would not control here as in the present case the commission will not be called upon to deal with any similar question nor indeed is authorized to perform any act having the force of legislation.
In considering this objection as a whole it is well to hear in mind that "there is a constantly growing tendency toward *Page 484 the delegation of greater powers by the Legislature and toward the approval of the practice by the Courts"; that while there is little disagreement as to the general principle governing the delegation of power by the Legislature, it is often difficult to draw the line and say whether delegated powers are or are not strictly and exclusively legislative; and that in every case before an Act of the Legislature is declared unconstitutional, such unconstitutionality must appear beyond a reasonable doubt.
It is clear, from an application of the principles announced by this and other Courts, that the objection urged against the constitutionality of the Act in question, in the particulars indicated, is without merit. There is no question here of alternative laws. There is but one law, with alternative plans of financing provided for the purpose of carrying out the law. The Act, as it came from the hands of the Legislature, is complete in itself in form and substance; it "embodies a full and complete expression of the legislative will," and became a law in praesenti upon its approval by the Governor. The Highway Commission is given no power to add to, or to take away from, the law as enacted, and nothing is left to the discretion of the commission as to what shall constitute the form or substance of the Statute. The basic subject matter of the Act is the completion of the construction of the State Highway System, and the two alternative plans of financing the work, each complete in itself, are merely parts of that subject. The authority conferred upon the commission, in the option given it to select either of the plans, is an authority or discretion as to the execution of the law, being merely a choice of a method of procedure for carrying out the purpose of the Act, and is nothing more than provision for efficient execution and administration of a finished Statute. This power is similar in principle to that which, as we have seen, has often been delegated to public officials or boards with the approval of the Courts. *Page 485
IV. It is also contended that the Act is invalid as it undertakes to provide an appropriation of the proceeds of the gasoline tax and motor vehicle license fees for an indefinite number of years, in violation of Section 2 of Article 10 of the Constitution.
Under our form of government the Legislature is given plenary power in the matter of taxation, subject, of course, to express constitutional limitation. See Cooley's Constitutional Limitations (8th Ed.), page 986, et seq.
It has been held by this Court that with regard to appropriations the same extensive power exists, subject in like manner to constitutional limitations. In the case of Briggsv. Greenville County, supra, Mr. Justice Cothran, speaking for the Court, says:
"Are the provisions of the `Pay-As-You-Go' Act which appropriate the funds out of which reimbursements are to be made under said reimbursement agreements in conflict with Section 2 of Article 10 of the Constitution of South Carolina, in that they appropriate money for more than one year?
"The power of the Legislature over the matter of appropriations is plenary, except as restricted by the Constitution. 36 Cyc., 891. In the absence of a constitutional prohibition, the Legislature may make continuing appropriations; that is, those the payment of which is to be continued beyond the term or session of the Legislature by which they are made. 36 Cyc., 893, 894; In Re. Continuing Appropriations,18 Colo., 192, 32 P., 272; Callaghan v. Boyce, 17 Ariz., 433,153 P., 733; Fleckten v. Lamberton, 69 Minn., 187,72 N.W., 65; People v. Pacheco, 27 Cal., 175; Jeffreys v. Huston,23 Idaho, 372, 129 P., 1065.
"In Re. Continuing Appropriations, supra, the Court said (pages 193, 194 [32 P., 272]):
"`The power of the Legislature, except as otherwise restricted by the Constitution, is plenary over the entire subject. *Page 486 The power can, however, only be exercised subject to the provisions of Section 16 of Article 10 of the Constitution, by which appropriations in excess of the revenue are inhibited. * * * Under a similar provision with reference to appropriations to be found in the Federal Constitution, such continuing appropriations have been made by Congress, apparently without question, and it has been resorted to in this State, from the time of the inception of the State government. When such appropriations are for the whole, orfor a definite part of a certain special fund, we are of the opinion that they furnish sufficient authority for the disbursement of such fund. * * *'" (Italics added.)
As the appropriations contemplated by the Act under consideration relate to a "certain special fund," the gasoline tax and the motor vehicle license tax, the present case is clearly brought within the rule declared in the Briggs case, which settles the question adversely to the contention of the petitioners.
V. There is no merit in the contention (1) that the issuance of certificates of indebtedness or notes of the highway district to the amount authorized by the Act is in violation of Section 5 of Article 10 of the Constitution, limiting the amount of bonded debt of political subdivisions; or (2) that the provisions of the Act creating highway districts are in conflict with Section 5 of Article 10 and Section 34 of Article 3 and other sections of the Constitution which recognize and adopt certain kinds of political subdivisions for purposes of local government; or (3) that failure to provide opportunity for the taxpayer to be heard on the question of benefits to be derived from proposed improvements to his property amounts to a denial to the petitioners of due process of law and equal protection of the law under the State and Federal Constitutions; or (4) that the Act is violative of Section 5 of Article 1 of the State Constitution and theFourteenth Amendment to the Federal Constitution, in that it provides an equal and uniform rate of taxation upon all *Page 487 property in each of the districts without due regard to location, condition, and benefits to be derived therefrom, and will operate to work a disproportionate taxation, and a consequent probability of injustice, amounting to a denial to the petitioners of due process of law and equal protection of the law.
The questions here raised are decided adversely to the petitioners by the decisions in Briggs v. Greenville County,supra, and Evans v. Beattie, supra.
In connection with (4): I cannot agree with the suggestion in the proposed opinion that the two-district plan is unjust and discriminatory in its operation. I find nothing in this plan that works any unfairness to any section. Material improvement is provided through a closely knit system of highways in the districts proposed. There will necessarily come to all sections of a district advantages and benefits from such local improvements. Mileage of roads is not the sole measure of benefits to a county. The extent of the general use by the people of any county of the highways to be constructed must be considered. The people of the more populous counties will necessarily use the highways constructed more than the people of the less populous, and in this way will derive the greater benefits from the improvements made. If it should be said that they pay more, the answer is that in the greater use of the highways built, they will receive greater benefits. Evans v. Beattie.
VI. Nor is there any merit in the contention that the issuance of certificates of indebtedness or notes as provided in the Act is in violation of Section 10 of Article 1 of the Constitution of the United States forbidding the emission of bills of credit.
It is clear, from an examination of this provision of the Act, that the evidences of indebtedness authorized by the Act are not "bills of credit," within the meaning of the Constitution of the United States. The "bills of credit" referred to in the Federal Constitution embrace only instruments that *Page 488 are intended to circulate as money. Houston, etc., RailwayCompany v. Texas, 177 U.S. 86, 20 S.Ct., 545,44 L.Ed., 683; Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct., 903,29 L.Ed., 185.
There is nothing in the Act to indicate or to lead to the supposition that the bonds or certificates of indebtedness to be issued were intended to circulate as money. They are entirely different from the instruments considered in State ExRel. Shiver v. Comptroller General, 4 S.C. 185. The evidences of debt there issued were in forms of money, in small denominations and non-interest bearing.
VII. It is also urged that the Act is defective in that it does not contain any provision for the levy of a tax for a sinking fund.
It appears that Section 7 of Article 8 is the only provision in the Constitution with regard to a sinking fund, and it specifically relates to "cities and towns."
It is sufficient to say that no sinking fund is required for the retirement of obligations to be issued under this Act, as payments will be met from current funds. Moreover, "the special funds pledged for the payment of the proposed bonds * * * are really sinking funds." Briggs v. GreenvilleCounty, supra.
VIII. It is further urged that the Act is in conflict with Section 10 of Article 1 of the Constitution of the United States and Section 8 of Article 1 of the State Constitution, which forbid the enactment of laws impairing the obligation of contracts.
The contention is that the Act impairs the contractual obligation existing, at the time of its passage, between counties and highway districts on the one hand and holders of county or highway district bonds on the other hand, for the payment of which bonds the gasoline tax and the motor vehicle license tax had been pledged. This objection by the petitioners appears to be founded upon the proposition that the holders of these outstanding bonds and other obligations have a claim *Page 489 upon the highway revenues derived from these sources, prior to all subsequent claims.
The Act itself requires the State Highway Commission to meet all of its outstanding reimbursement obligations, and also to pay interest on these obligations at the rate of 4 1/2 per cent. per annum or at such greater rate as is borne by bonds of counties or highway districts secured by a pledge of those reimbursement obligations. It is also required to pay all county, highway district, and bridge district obligations, secured by a pledge of that portion of the gasoline tax required by prior Acts to be distributed to counties.
While a decision of this question is not necessary here, no such bondholder being a party to the cause, I construe the Act before me to mean and to provide that, where such contractual obligation exists, the holder or holders of such outstanding bonds or other obligations have a claim upon such highway revenues pledged to secure their payment, prior to any and all subsequent claims thereto and thereon, created by or that may arise under the present Act. There is nothing in the Act inconsistent with such a construction, and I so construe it. Board of Liquidation of New Orleans v. Louisiana,179 U.S. 622, 21 S.Ct., 263, 45 L.Ed., 347.
IX. It is urged with great earnestness that the Act also violates Sections 7 and 11 of Article 10 of the State Constitution. These sections are as follows:
"No scrip, certificate or other evidence of State indebtedness shall be issued except for the redemption of stock, bonds or other evidences of indebtedness previously issued, or for such debts as are expressly authorized in this Constitution."
"To the end that the public debt of South Carolina may not hereafter be increased without the due consideration and free consent of the people of the State, the General Assembly is hereby forbidden to create any further debt or obligation, either by the loan of the credit of the State, by guaranty, endorsement or otherwise, except for the ordinary and current business of the State without first submitting the question *Page 490 as to the creation of such new debt, guaranty, endorsement or loan of its credit to the qualified electors of this State at a general State election; and unless two-thirds of the qualified electors of this State, voting on the question, shall be in favor of increasing the debt, guaranty, endorsement or loan of its credit, none shall be created or made. And any debt contracted by the State shall be by loan on State bonds, of amounts not less than fifty dollars each, bearing interest, payable not more than forty years after final passage of the law authorizing such debt. A correct registry of all such bonds shall be kept by the Treasurer in numerical order, so as to always exhibit the number and amount unpaid, and to whom severally made payable. And the General Assembly shall levy an annual tax sufficient to pay the annual interest on said bonds."
In each of the three cases under consideration it is contended as fatal to the enactment that it directs the creation of a new debt, an increase of the public debt, and the loan of the credit of the State without the free consent of two-thirds of the qualified electors thereof voting in favor of the issue.
In the case of Hildebrand v. High School District, 138 S.C. 445,136 S.E., 757, 760, Mr. Justice Blease, in a very able and clear opinion, said: "The duty rests upon this Court to endeavor to harmonize not only legislative enactments with the Constitution, but the various provisions of the Constitution itself. The General Assembly is required, of course, to stay within the limitations of the Constitution in all of its legislation. While that body's construction of constitutional provisions, evidenced in its enactments, are not binding upon this Court, they will be given due consideration at all times."
So far as the question immediately under consideration is involved, the General Assembly, by way of preamble in this Act and recital of its understanding of the decisions of this Court has declared: "Whereas, The Supreme Court of South Carolina has held a number of times that county, city and *Page 491 district obligations, of the same character as the obligations hereinafter authorized, secured by a special fund which mayreasonably be expected to be sufficient to meet the payment ofthe obligations without resorting to a property tax, do not constitute debts within the meaning of the constitutional restriction upon the amount or method of incurring debt, notwithstanding that the full faith, credit and taxing power of a county, city or district are pledged for the payment of the obligation." (Italics added.)
In this connection, in construing the constitutional restrictions upon the creation of a State debt (Sections 7 and 11 of Article 10), I shall also consider the restrictions in the Constitution relating to the creation of debts of political subdivisions (Section 7 of Article 8 and Section 5 of Article 10). It will be noted, from a reading of these sections, that the provisions relating to the State apply to "debt" and "indebtedness," while the provisions relating to political subdivisions apply only to "bonded debt" or "bonded indebtedness."
With respect to the provisions relating to State debt, the answer to the question under consideration depends upon the meaning of the words "debt" and "indebtedness" as used in Sections 7 and 11 of Article 10. The definitions of the word "debt" are many, and depend on the context and the general subject with reference to which it is used. 17 C.J., 1371. Its meaning in the constitutional provisions before us must be determined by their purpose, which was "that they should serve as a limit of taxation — as a protection to taxpayers, and especially those whose property might be subjected to taxation." Briggs v. Greenville County, supra. In many cases, and in many states, obligations of various kinds, constituting debts in the ordinary sense of the term, have been held not to be debts within the meaning of similar constitutional provisions.
The only decision of this Court construing the restrictions upon the creation of a State debt which seems to throw any light upon the present problem is the decision in the Briggs *Page 492 case, upholding reimbursement agreements. In that case it was held that the State's indebtedness to a county or road district under a reimbursement agreement, being payable exclusively from a special fund derived from sources other than a general property tax, was not within the meaning of the constitutional provisions relating to creations of debts of the State. Mr. Justice Cothran, who wrote the opinion of the Court, said:
"The proposed reimbursement agreements will not constitute a general liability of the State. The reimbursements to be made thereunder can be made only from a special fund consisting of the gasoline tax, automobile license tax, and Federal aid. No property tax can ever be levied to meet these obligations.
"Is such a limited liability a debt of the State in the constitutional sense? The underlying purpose of the constitutional provisions concerning the creation of State debt was that they should serve as a limit of taxation — as a protection to taxpayers, and especially those whose property might be subjected to taxation. This purpose will not be defeated if it should be held by this Court that a debt for the construction of a State highway system, payable exclusively from Federal aid moneys and special license taxes to be borne by the persons who will derive the principal benefits from the State Highway System, is not a debt of the kind required by the Constitution to be approved by the voters of the State before it is incurred. According to the weight of authority in other States, such a debt does not fall within the terms of such a constitutional provision."
It would seem, by parity of reasoning, as the Court held "such a debt does not fall within the terms of such a constitutional provisions," that a submission of such question, under the State unit plan of financing, to the qualified electors, is not required.
But whatever doubt may be thought as to the holding of this Court with respect to provisions relating to the creation of a State debt, there is no uncertainty as to *Page 493 the tenor of its decisions dealing with constitutional restrictions upon the creation of a "bonded indebtedness" of political subdivisions. The leading decisions of this class are theEvans and Briggs cases, supra, the opinion in the former being filed October 15, 1926, and the opinion in the latter three days later. The Court discussed at great length in these cases, and in language almost the same in both, the meaning and effect of the constitutional restrictions on the creation of indebtedness of political subdivisions. Both of these cases were vigorously contested, and the validity of the Statute involved in each of them was challenged on many constitutional grounds. Unusual study and consideration were given to both cases on account of the gravity and importance of the questions raised; the opinions in both of them were written by that learned and careful jurist, Mr. Justice Cothran, and concurred in by the entire Court. Many of the questions raised in the former case were also involved in the decision of the latter. The Court, as indicating that it recognized the grave issues raised demanded its most careful consideration, said:
"The matter is now before us for decision upon the petition and return and upon exceedingly full and illuminating briefs of counsel, which demonstrate the fact that this is not a `friendly suit' to insure the validation of the Coastal Highway Act, but a genuine and earnest contest over the provisions of that Act; as counsel for the petitioners very aptly describe the situation:
"`Here the citizen's claim of fundamental right under government, is to be weighed against the claim of lawful community enterprise and development. The grave issue ought to compel care and dignity in presentation as the only fitting aid to true and just judgment.'
"In that spirit we approach the discussion and decision of the many points involved."
On the question here involved, Mr. Justice Cothran wrote learnedly and elaborately, as follows: *Page 494
"This Court has held a number of times that obligations of the same character as these bonds, secured by the pledge of a fund which might reasonably be expected to be sufficient to meet the obligations without resorting to the levy of a property tax, did not constitute bonded debt within the meaning of the constitutional limitations, notwithstanding that the full faith, credit, and taxing power of a political subdivision were pledged for the payment of the obligations.Lillard v. Melton, 103 S.C. 10, 87 S.E., 421; Brownlee v.Brook, 107 S.C. 230, 92 S.E., 477; McIntyre v. Rogers,123 S.C. 334, 116 S.E., 277; Barnwell v. Matthews, 132 S.C. 314,128 S.E., 712; Sullivan v. City Council ofCharleston, 133 S.C. 189, 133 S.E., 340. In each of these cases the obligations passed upon undoubtedly constituted a debt, in the technical and legal sense of that term, of a political subdivision, a debt payable in future years, evidenced by instruments designated as bonds or having all of the characteristics of bonds. In all but one of the cases the obligations were designated, `certificates of indebtedness,' rather than `bonds,' but the decisions were not placed upon the ground that a certificate of indebtedness is not a bond. Indeed, in the recent case of Sullivan v. City Council of Charleston, 133 S.C. 156,130 S.E., 873 (decided on the same day as the case with the same title cited above), it was held that notes which were bonds in everything but name should be deemed to be bonds within the meaning of the constitutional limitations. See, also, Denver v. Home Savings Bank, 236 U.S. 101,35 S.Ct., 265, 59 L.Ed., 485.
"In one of the cases (Lillard v. Melton) the obligations were secured by the income of a canal company. In three of the cases (Lillard v. Melton, Brownlee v. Brock, and McIntyrev. Rogers) the obligations were secured by special assessments levied upon property benefited by street improvements and payable in annual installments. In one case (Sullivanv. City Council of Charleston) the obligations were secured by past-due and unpaid taxes. In another case (Barnwell *Page 495 v. Matthews) they were secured, as in the present case, by a reimbursement agreement made pursuant to the `Pay-As-You-Go' Act. In reliance upon the decisions in these five cases, millions of dollars of county and city obligations have been issued and are now outstanding.
"The present case cannot be distinguished upon the ground that these bonds are `direct and general obligations' of a political subdivision, `payable primarily' from a property tax. This will be seen from the following review of the cases:
"In Lillard v. Melton, supra, it was held that interest coupons of bonds issued by a corporation known as the `Board of Trustees of the Columbia Canal' did not constitute bonded debt of the City of Columbia within the meaning of Section 5 of Article 10 of the Constitution, notwithstanding that the city was primarily liable for the payment of the coupons. The statutes under which the bonds were issued (19 Stat., 1090, 1097, approved December 24, 1887), provided that payment of the coupons should be `guaranteed' by the city; that `said board of trustees shall, after the year 1893, pay the interest on said bonds each and every year, if practicable for them to do so'; that the city `shall be authorized and required to levy such a tax on the real and personal property assessed for taxation in the City of Columbia as may be necessary to pay the coupons * * * for the year A.D. 1888, and shall annually thereafter levy a tax sufficient to pay the coupons as they mature on said bonds, and shall pay the same: Provided, that after the year 1893 the board of trustees of the Columbia Canal shall pay over semiannually to the City of Columbia' all of the net income of the corporation, `not exceeding in any one year the amount of the coupons maturing'; that the city's `guaranty' should be written on the bonds as follows: "The City of Columbia, S.C. guarantees the prompt payment of each and every coupon attached to this bond'; and that the coupons should be payable at the city treasurer's office. It is clear from these provisions that the city's liability was primary and direct. The city was required to pay the coupons, and to *Page 496 levy a sufficient annual tax for that purpose, which tax was doubtless to be reduced, however, by the amount of moneys received from the canal corporation. The primary fund for the payment of the coupons was the city tax.
"In the same case `certificates of indebtedness' issued by and guaranteed by the City of Columbia pursuant to 28 Stat., 585, were held to be not a part of the city's bonded debt within the meaning of the constitutional limitations. The statute authorizing the issuance of the certificates contained the following recitals: That the city had assessed a part of the cost of certain street improvements upon abutting property owners; that the city desired `to issue certificates of indebtedness showing amounts due to said city by said property owners as deferred payments upon such assessments for the purpose of realizing money upon such certificates by either selling the same or borrowing money thereon'; that `the property so assessed is bound to said city for the payment of the deferred portions of such assessments, and such certificates of indebtedness do not constitute in reality debts against the city, but merely evidence debts due to the city, and the existence of said lien on said property will fully protect said city against loss upon guaranty of such certificates of indebtedness entered into by said city.' These recitals were followed by a grant of authority to the city `to sell any such certificates of indebtedness which may hereafter be issued by said city, * * * or to borrow money upon such certificates of indebtedness, and to pledge such certificates as collateral security for the payment of such debts, and, in either event, to guarantee the payment of such certificates according to the terms thereof, and to pledge the faith and credit of the city for the payment thereof.' The record in the case shows that the certificates of indebtedness had fixed dates of maturity extending over a period of several years. Apparently, the certificates were intended to be assignments of the assessments. However that may be, it is clear that the city at least made an absolute guaranty of payment, under which it would become primarily liable at the *Page 497 maturity of the certificates for the payment of the amount thereof, and that the city's faith and credit were pledged for such payment.
"The Court did not, in Lillard v. Melton, discuss at length the grounds for its decision that the obligation of the City of Columbia on the interest coupons and paving certificates above described should not be included as a part of the bonded debt of the City of Columbia within the meaning of the constitutional limitations. The Court merely said (103 S.C. 10,19, 87 S.E., 421, at page 425):
"`Likewise, the liability of the city on the guarantee of the paving assessments and the interest on the canal bonds constitute but a contingent obligation and must be excluded.'
"In Brownlee v. Brock, supra, and in McIntyre v. Rogers,supra, paving certificates similar to those we have described were held, without a discussion, to be exempt from the constitutional limitations upon bonded debt, upon the authority of Lillard v. Melton. In Barnwell v. Matthews, supra, the facts were as follows: Act No. 348 of 1925 (34 Stat. at Large 723, approved April 1, 1925), authorized Florence County to issue its `notes' in the amount of $225,000, maturing in three annual installments of $75,000 each, beginning four years after the date of the notes. Of the proceeds of the notes $205,000 were to be used for the construction of two roads embraced in the State Highway System and designated in Section 1 of the Pay-As-You-Go Act; and $20,000 of the proceeds were to be used for the construction of a road which had not yet become a part of the State Highway System. The Act directed the county to pledge as security for the payment of the notes `all surplus tolls arising from the operation of the Mars Bluff bridge and all tolls that may be derived from Godfrey's ferry bridge, which shall accrue to Florence County,' and also `all reimbursements due from the State Highway Commission,' except reimbursements to be paid during the years 1925, 1926, and 1927. The Act further provided as follows (Section 3): *Page 498
"`The full faith and credit and taxing powers of Florence County are hereby irrevocably pledged for the payment of said notes, and the auditor of Florence County is hereby authorized and directed to make a sufficient levy to pay the interest and installments on said notes, but said levy shall be suspended in case the tolls and reimbursements above mentioned are sufficient to pay said interest and installments of said notes as they become due.'
"The Circuit Court held that the notes were not subject to the constitutional limitations on bonded debt. The judgment of the Circuit Court was affirmed, without opinion. The grounds for the decision are stated in the judgment of the Circuit Court as follows:
"`In the instant case the Legislature has authorized the issuance of obligations to be secured primarily by bridge tolls and highway reimbursements, the work performed with the funds derived from the notes being work specifically designated by statute as that of the State Highway Department, and for which the taxpayer is never to be liable unless the resources pledged fail, and has declared in express language that such obligations are notes. * * * It is perhaps unfortunate that the Constitution is not more explicit in defining the term "bonded debt," but be that as it may, I feel satisfied that whatever other elements may be necessary to make up a bonded debt, certainly one of the most essential is that it must be a primary obligation of the political subdivision involved, and secured primarily by a tax levied on the property holders therein. From the facts pleaded in the affirmative defense and admitted by the demurrer, this essential element is wanting in these obligations. They * * * secure funds borrowed for the building of roads of the state-wide system of public roads. The Act providing for the building of such roads expressly declares, in Section 1 thereof, that they "shall be constructed by the State of South Carolina and ever maintained as State highways." It is true Section 6 of the same Act permits a county to build any roads of such system and to *Page 499 be reimbursed therefor by the State, but this in no way changes the fundamental purpose of the Act, which was to charge the State with the duty of constructing such roads and to impose upon it the corresponding obligation of paying for them. The Act of April 1, 1925, makes explicit provision for two of the designated highways of the "Pay-As-You-Go Act," and authorizes the expenditure of $205,000 thereon. As to these it is too clear for argument that the county is only contingently liable, and in fact I am constrained to hold a taxpayer to the county can never be required to pay any part of such amount as the State would be legally bound to discharge such obligations without permitting such action against taxpayers to the county.
"`Under the facts and the law, therefore, the proposed notes to the extent of $205,000 are nothing more than guaranties or other contingent obligations of the county; and in no sense do they constitute a bonded debt thereof. The case therefore falls squarely within the decision of Lillardv. Melton, 103 S.C. 10, 87 S.E., 421, and must be controlled by it. While the additional $20,000 authorized to be issued is not to be used in the construction of a road already designated as a part of the State System, yet the demurrer admits that it is to become a part of such system. This being true, the notes representing it are governed by the same principle as apply to those to be issued for the other two roads.'
"In Sullivan v. City Council of Charleston, 133 S.C. 189,133 S.E., 340, the last of the five cases above referred to, the facts were as follows: The city had on its books over $300,000 of uncollected taxes, levied in the years 1921, 1922, 1923, and 1924. On March 14, 1925, there was enacted a statute, Act No. 298 of 1925 (34 Stat. at Large, 661), which provided as follows:
"`The city council of Charleston [the corporate name of the city], Charleston County, is hereby authorized and empowered from time to time to issue its certificates evidencing the amount of taxes or portions thereof which may have been *Page 500 levied against property in the City of Charleston, Charleston County, S.C. and which are past due and unpaid, and to sell, hypothecate or pledge said certificates, and upon such sale, hypothecation or pledge to assign the same and to guarantee in the name of the city council of Charleston to the holder thereof the payment of the indebtedness evidenced thereby, at a place and time designated in such guaranty: Provided, however, that when the taxes evidenced by said certificates are collected, they shall be applied solely to the retirement of the same until all of said certificates are retired in full; and, provided, further that in the event, at any time, sufficient of the said due and unpaid taxes have not been collected to meet the payment, to the holder of such certificates of the amount which is to be paid under the guaranty indorsed on said certificates at the time such guaranty provides for payment, the city council of Charleston shall forthwith levy and collect a tax upon all taxable property in the City of Charleston, which, added to the collections made on such due and unpaid taxes, will make a sum sufficient to meet the payment of the amount due on the certificates then maturing; such certificates shall have attached to them interest coupons certifying that the city council of Charleston will pay to the holder thereof the amount of interest therein stated, which interest shall be fixed by city council in the ordinance authorizing the issuance of said certificates, and to meet the payment of said interest there shall be included in the general tax levy of each year in which such interest is due, as a part of the ordinary expenses of city council, a sufficient tax to meet the payment thereof. The guaranty of city council indorsed on said certificates shall provide the date on which the holder of said certificates may require payment thereof, and such time shall be fixed as in the opinion of city council it is probable that the collection of said due and unpaid taxes will enable the same to be paid.'
"In a suit instituted by petition of a taxpayer, it was contended that the issuance of these certificates created a bonded *Page 501 debt in the meaning of the 8 per cent. constitutional limitation and would be in violation of the Constitution, the existing bonded debt of the city being then up to 8 per cent. limit. In disposing of this contention, the Court merely said:
"`The contention of the petitioner is untenable under * * * Barnwell v. Matthews et al. [132 S.C. 314],128 S.E., 712.'
"The guaranty of the City of Charleston of the certificates of indebtedness was an absolute guaranty of payment, upon which the city would become primarily liable at the time of the maturity of the certificates. The holder of a certificate would not, in the event of nonpayment of the certificates at maturity, have to look to the past-due and unpaid taxes upon which the certificates were predicated. Moreover, it appears from the Act that the city could, `in the event, at any time, sufficient of the said due and unpaid taxes have not been collected to meet the payment * * * at the time such guaranty provides for payment, * * * forthwith levy and collect a tax' to pay the certificates; i. e., the city could, if it foresaw an insufficiency in the collections of back taxes, levy the new tax prior to the time of maturity of the certificates. It is noteworthy also that the interest on the certificates was to be paid out of a new tax. Furthermore, we wish to call attention to the provision in the Act directing the city to make the certificates payable at such time as in the opinion of the city it was probable that the collection of the back taxes would enable the city to pay the certificates. Similar provisions are to be found in the Coastal Highway Act. This case was decided by the Court en banc, and under the provisions of the Constitution its decision is `final and conclusive.'
"From the foregoing review of the decisions, it is obvious that the present case cannot be distinguished from the previous cases upon the ground that the obligations here in question are payable primarily out of an ad valorem tax, if the Coastal Highway Act had not made such a provision for payment, but had required the holders of the proposed bonds *Page 502 to look first to the reimbursement moneys and gasoline tax, and required the district or counties to exhaust their remedies against the State Highway Commission or the state treasurer before resort could be had to the levy of a property tax in order to meet the bonds, the bonds would be unsalable, or they would have to be sold on such a high interest basis as to make the cost of the financing excessive."
The principle stated in the first sentence of the foregoing extract was adopted by the Court as the controlling principle of its decision. In both cases it was held that county bonds, secured by the pledge of a special fund which might reasonably be expected to be sufficient to pay the obligations without resorting to the levy of a general property tax — the fund referred to being derived from the same sources as the special fund provided for the payment of the obligations in the instant case — did not constitute bonded debt within the meaning of the constitutional restrictions upon the creation of "bonded debt" of counties, notwithstanding that the bonds were "direct and general obligations" of the counties, "payable primarily" from a general property tax, rather than from the special fund, and the "full faith, credit and taxing power" of a county or counties were pledged for the payment of the bonds. In both cases the same principle was applied to bonds of a highway district. The statutes involved authorized the issuance of bonds either in the name of a highway district on the one hand or in the name of a county or group of counties on the other hand, as the local officers might in their discretion determine.
It is true that the decision in regard to highway district bonds might have been reached solely upon an entirely different ground, namely, that a property tax levied for the payment of obligations of a highway district is a special assessment, as distinguished from a general property tax, and bonds payable exclusively out of special assessments or other funds derived from sources other than a general property tax do not constitute debt within the meaning of the constitutional restrictions (Jackson v. Breeland, 103 S.C. 184, *Page 503 88 S.E., 128; Rutledge v. Greater Greenville SewerDistrict, 139 S.C. 188, 137 S.E., 597), but this additional ground for the ruling concerning district obligations is not mentioned in the Greenville case. In that case the doctrine announced in the Coastal Highway case was reaffirmed in the same language used in the latter case, and upon the doctrine therein announced as to this question, the Court rested its decision. Nor would the doctrine furnish any support for the ruling concerning county obligations in theCoastal Highway case; (Evans v. Beattie, 137 S.C. 496,135 S.E., 538) and, as I have stated, the same principle was applied therein to bonds issued by a highway district as to those issued by a county or a group of counties. A decision as to the district bonds proposed to be issued in this case may also be rested solely upon that ground.
In the proposed opinion it is also stated that this doctrine "should be disapproved for the reason that it is erroneous." A number of decisions from other jurisdictions are cited and quoted from to sustain this proposition.
It is evident that only by complete repudiation of the former holding of this Court can the Act in question be declared unconstitutional; and I, for one, am not prepared, without urgent reasons or clear manifestation of error, to abandon a doctrine or principle declared by this Court to be sound and the law of this jurisdiction, and to substitute therefor the decisions of the Courts of other jurisdictions, which, though deserving of respect, are in no way binding upon us. The decisions in the Evans and Briggs cases were not arrived at over night, but were the result of many weeks of careful study, investigation, and consideration. The validity of the statute in each of these cases was assailed by able counsel representing the petitioners, and the Court, as said, reached its decision after careful thought and mature deliberation. The learned justice who wrote the opinion in theCoastal Highway case also wrote the opinion in the GreenvilleCounty case. In the Coastal Highway case he announced the doctrine here objected to, basing his conclusions upon the *Page 504 holding of this Court in several of its prior decisions, which, according to the view taken in the Coastal Highway case, settled conclusively the question there raised. Not only that. As showing that the position taken was sound, and in accord with previous declarations of this Court, he made an exhaustive analysis and review of the cases cited, and concluded at the end of that review that it was obvious from these decisions that the Coastal Highway case could not be distinguished from them in principle. In addition, at the same time the Court had under consideration the GreenvilleCounty case, involving many of the same grave constitutional questions raised in the Coastal Highway case, including the one now being considered here. After a most learned and elaborate discussion of this question, using practically the same language as in the Coastal Highway case, the same learned justice again affirmed the doctrine stated in theCoastal Highway case, declaring it to be sound and the law of this jurisdiction, as had been adjudicated by a number of previous decisions of this Court. In both of these opinions, as I have stated, all the members of the Court concurred.
And even as late as August 25, 1927, this Court in a unanimous opinion, in the case of Thomson v. Christopher,141 S.C. 92, 139 S.E., 178, 180, referred with approval to the doctrine stated in the Evans and Briggs cases: "It has been held in several cases in this State that the obligations of a political subdivision which are merely guaranties or other contingent obligations of the subdivision or are secured by the pledge of a fund which might reasonably be expected to be sufficient to meet the obligations without resort to a property tax would not constitute bonded debt within the meaning of the Constitutional limitation, notwithstanding that the full faith, credit and taxing power of the subdivision were pledged for the payment of the obligations.Briggs v. Greenville County, 137 S.C. 288, 135 S.E., 153, and cases cited; Evans v. Beattie, 137 S.C. 496,135 S.E., 538, and cases cited." *Page 505
Every decision of this Court which has been brought to my attention, having to do with the constitutionality of a bond issue for improvement and construction, and involving the question here under consideration, is in accord with the principle stated in the Briggs and Evans cases. Since the decisions in those cases, and in reliance on them, approximately $30,000,000 additional county and district obligations have been issued and are now outstanding. All of these millions of county and district bonds are secured by the obligation of the State to repay the counties and districts out of the public moneys to be collected in future years from license fees and gasoline taxes.
To open the clear declarations of this Court to doubt or question, after these millions of bonds have been issued in the State in reliance, as pointed out, upon these decisions, would seem almost inconceivable; and I do not think that this Court can afford, by a mere wave of the hand, to declare "erroneous" its solemn adjudication in relation to a grave constitutional question, the ink being yet scarcely dry upon the paper, with no "urgent reasons" or "clear manifestation of error," upon the unstable grounds that the principle or doctrine announced is not, perhaps, in full accord with a few decisions of other jurisdictions. As said in Lillard v. Melton, 103 S.C. 10, 87 S.E., 421, 427: "Since the decision in the case of Carrison v. Kershaw County,supra [83 S.C. 88, 64 S.E., 1018] the Legislature, evidently viewing the solemn adjudication of this Court as a determination of its powers in such cases has enacted a great many measures providing for bond issues without the prerequisite of a submission of the question to a vote of the electors. A contrary conclusion at this time would, indeed, be unfortunate in its effect upon the valuable rights which have been acquired in good faith and in reliance upon that decision. Cooley's Cons. Lim., pp. 81, 82. When a principle is once adopted and declared by the Courts, the people have a right to regard it as just declaration of the law, and to regulate their actions and contracts thereby. Id., pp. 83, 84. *Page 506 There should never be a disturbance of the same, except upon urgent reasons and a clear manifestation of error.Id., 84."
The following from State v. Frear, 142 Wis. 320,125 N.W., 961, 964, 20 Ann. Cas., 633, is in point: "Decisions on constitutional questions that have long been considered the settled law of the State should not be lightly set aside, although this Court as presently constituted might reach a different conclusion if the proposition were an original one. As is said in Fisher v. Mfg. Co., 10 Wis. 351, 355: `It is the duty of this branch of the government to pass finally upon the construction of a law, and determine whether the Legislature in its action has transcended its constitutional limits, and the community has a right to expect, with confidence, we will adhere to decisions made after full argument and upon due consideration.'"
X. The proposed opinion refers to the "district unit plan of financing" as a "subterfuge," and suggests that "it was devised to circumvent the constitutional inhibition; to avoid the necessity of submitting the issue to a popular vote as required by the Constitution."
For a clear understanding of the provisions of the Act and the causes that moved the Legislature to put it in the form in which it came from the hands of that body, some information concerning prior legislation relating to the financing of the State Highway System is necessary.
Under the law in force at the time of the passage of the Pay-As-You-Go Act of March 21, 1924 (33 St. at Large, p. 1193), the State Highway Commission, with the consent and co-operation of the local road authorities of the several counties, had created a more or less loosely connected system of highways. By the Act of 1924 these highways were incorporated, along with other highways authorized and instructed to be maintained into a closely knit state highway system created by the Act, and the State Highway Department was charged with the maintenance and construction of these roads. It was provided by the Act, as amended, that *Page 507 such maintenance and construction should be by means of a fund consisting of federal aid money, the motor vehicle license tax, and three-fifths of the 5-cent gasoline tax. The commission estimated that these revenues would be sufficient to complete the entire system within 18 years from and after the year 1924, and made numerous agreements for reimbursements within that period. Owing to the fact that many miles of highways were added to the system by subsequent legislation, the commission found it necessary to make a new estimate of the time required for the completion of the work.
Under Acts of 1926 and 1927, county and district bonds were issued on the faith of these highway revenues. These Acts created a state obligation to collect the gasoline and license taxes and to pay over to each county or road district the proportionate share of such taxes pledged to the retirement of the respective county or district bonds, and the Court recognized the legality of legislative action to create state obligations of this kind (Briggs v. Greenville County;Evans v. Beattie). Advances of money were made to the state which called for repayment by the state out of those yearly revenues, of which a continuing appropriation was made by the Legislature. The county bond plan, with its extension to a few scattered districts, while materially aiding construction in different sections of the State, was not adapted to finish a state-wide connected system of improved highways.
The situation is well presented in the preamble to the present Act: "The great progress made in the building of the State Highway System of South Carolina has been made, not by adhering to a `Pay-As-You-Go' policy, but by issuing bonds or other obligations in the name of counties or highway districts, backed by reimbursement agreements with the State Highway Commission, and this method of financing is no longer adequate because a majority of the counties are unable to pay interest on any further bond issues out of their share of the gasoline tax, and therefore the rate *Page 508 of progress in highway construction and the rate of increase in revenues received from the users of highways will be greatly reduced unless a new plan of financing is adopted."
The inability of so many counties to pay the interest referred to out of the 2-cent gasoline tax distributed to them was, of course, due to the fact that such distribution was made on the basis of motor vehicle license tax collections, rather than on the basis of mileage or cost of construction of state highways, in the several counties. Owing to this inability, many counties could not issue bonds under the reimbursement plan, and many of the most important highways in the State Highway System were left to be constructed in the distant future under the so-called "Pay-As-You-Go" plan of financing.
Under these circumstances, when the Legislature assembled in 1929 it attempted to meet the situation through the enactment of legislation providing some acceptable plan of financing the completion of the construction of the State Highway System throughout all the counties within a reasonable time.
It first satisfied itself of the sufficiency for this purpose of the gasoline tax and the license fees to be collected during a period of years. In the preamble it is declared: `The State Highway Commission has made a conservative estimate of revenues and liberal estimate of expenses, from which it appears that the revenues to be derived annually during the next twenty-four years from the gasoline tax and the motor vehicle license fees will be sufficient, without resorting to a property tax, to pay the sums required annually for: (a) interest payments on a State loan sufficient in amount to complete the State Highway System immediately; (b) sinking fund and serial payments for retiring the principal of such a loan within twenty-four years from the present time; (c) administration and operation of the State Highway Department; (d) maintenance of the entire State Highway System according to the most approved standards; (e) full compliance with all existing obligations *Page 509 of the State Highway Commission to reimburse counties or highway districts for constructing State highways or for advancing moneys for that purpose; (f) payment of interest on these reimbursement obligations at the rate of four and one-half per centum per annum, or, in cases where this would be less than the interest payable on outstanding county or highway district bonds or other obligations issued since the passage of the `Pay-As-You-Go' Act for the construction of State highways, payment of interest on such bonds or other obligations, and: (g) to produce an annual surplus for the construction of additional State highways and for eventually maintaining county roads."
Also, properly desiring to keep any legislative enactment within constitutional limitations, the Legislature proceeded to inform itself as to the holdings of this Court with respect to such limitations, as appears from a portion of the preamble already quoted. Recognizing that the credit of the State is better than the credit of any of its political subdivisions, it proposed and adopted a state plan of financing, involving the use of the gasoline tax and license fees as a special fund, and the creation of a road district coterminous with the State itself, with the full faith, credit, and taxing power of the State pledged for the payment of the obligations to be issued. The Legislature, under the decisions of this Court, had grounds for believing that such a plan was constitutional.
About the question, however, of the legality of the issuance of such obligations without a vote of the electors, although the same in principle as that involved in the district plan decisions, the Legislature appeared to have had some doubt. So, in order to meet the contingency that would arise if such a plan should be held unconstitutional by this Court, the legislators, as good business men, having at heart the best interest of the State in the accomplishment of the thing sought to be done, provided as an alternative a two-district plan of financing; and, in so doing, followed the path blazed out by this Court, relying upon the fundamental soundness *Page 510 of the principles declared in its decisions. About the constitutionality of the "district unit plan of financing," there could be no doubt; and if, in following the chart of our judicial decisions, the Legislature brought itself "within the sheltering wings of the coastal highway and other district cases, decided by this Court," can it be said that it had no right, in order to assure the constitutionality of the Act, to rely upon such fundamental utterances, or that in relying upon them, it resorted to subterfuge and is chargeable with an attempt to evade the Constitution? I think not.
In Cooley's Constitutional Limitations (8th Ed.), on page 375, it is said: "The constitutionality of the law, then, is to be presumed, because the Legislature, which was first required to pass upon the question, acting as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid by the Constitution upon their action, have adjudged that it is so."
The members of the Legislature must act upon their own initiative and their own best judgment. They cannot obtain the opinion of this Court in advance, as to the constitutionality of any proposed law. But in this case they had, and were entitled to rely upon, the declaration of fundamental principles announced by this Court in the consideration of the effect of constitutional limitations on similar bonds issued by counties and highway districts for the same purposes of highway improvement.
Mr. Justice Blease, in the Hildebrand case, said: "The fact, however, that the lawmaking body, with the purpose in view of observing strictly constitutional provisions, and, tothat end, exercises great precaution to make one of its Actscome clearly within any possible construction of the Constitution,should not avail to defeat the real intention of thelegislation."
Again I refer to Cooley's Constitutional Limitations (8th Ed.), p. 375, to see what weight a decision of such character should have upon the legislative mind: "As to what the doubt shall be upon which the Court is to act, we conceive *Page 511 that it can make no difference whether it springs from an endeavor to arrive at the true interpretation of the Constitution, or from a consideration of the law after the meaning of the Constitution has been judicially determined * * * since it is but reasonable to expect that, where a construction has once been placed upon a constitutional provision, it will be followed afterwards, even though its original adoption may have sprung from deference to legislative action rather than from settled convictions in the judicial mind."
A fair consideration of the facts existing at the time of the passage of the Act in question must lead to the conclusion that the Legislature, in its enactment of the statute, proceeded with proper caution and circumspection and with a full appreciation of the grave responsibility resting upon it. As I view the entire situation that confronted the members of the Legislature — the history of highway legislation, the purpose to be accomplished, and the decisions of this Court with regard to grave constitutional questions that might affect the validity of the Act — what they did was but a proper exercise of precaution to bring the Act within any possible construction of the Constitution, to assure the accomplishment of the primary purpose of the law; and, as said in the Hildebrand case, such precaution "should not avail to defeat the intention of the Legislature."
On the whole, I have given to the issues involved the careful consideration which their importance deserved, and have expressed my views, it is to be hoped, at not too great length. In my study of the case, the well-prepared arguments of counsel, both for the petitioners and for the respondents, have been very helpful; and, in the preparation of this opinion, I have made such use of their form and substance as I deemed proper.
The judgment of this Court is that the Act in question, including all of its articles, sections, provisions, sentences, and clauses, be and is hereby declared constitutional and valid, and of full force and effect, and that, the injunction *Page 512 prayed for, in each of the said cases, be denied and the petition dismissed.
And it is so ordered.
NOTE — Since the preparation of the foregoing opinion, certain statements with regard to the Legislature, then appearing in the proposed opinion of the Chief Justice, have been expunged therefrom; and this note is here inserted to explain and clarify certain references made in my opinion to such statements.
MR. JUSTICE CARTER and MESSRS. CIRCUIT JUDGES WILSON, SHIPP, SEASE, RICE, MAULDIN, DENNIS, JOHNSON, GRIMBALL and RAMAGE concur in the foregoing opinion.
MESSRS. CIRCUIT JUDGES FEATHERSTONE and MANN: We are clearly of the opinion that the two-district plan is constitutional.
We have a doubt as to the constitutionality of the State unit plan, but yielding to the opinion of the majority of our brethren, we resolve the doubt in favor of the constitutionality of the entire Act.