This is known as the "Catawba" county case. There has been a petition presented to the Governor for an election within certain limits there described, looking to the establishment of a new county to be called Catawba county. The Governor has appointed the respondents as commissioners and they have organized for the purpose of carrying out this work.
The petition asks for an injunction against the commissioners on the ground that the proposed new county would be in violation of the statute of 1912, forbidding the formation of ill-shaped counties. The petition does not claim that there is any want of compliance with the provisions of the Constitution, but that the form of the proposed county is forbidden by the statute. The return of the respondents admits that the form of the proposed new county is in conflict with the statute, but claims that the statute is in conflict with the provisions of the Constitution. This, it will be seen that the sole question is as to the validity of the statute of 1912. *Page 75
Learned and exhaustive arguments have been delivered by able counsel on both sides, but the question at issue is on the surface.
The statute is as follows:
"An act to prevent the establishment of ill-shaped counties.
"Section 1. Be it enacted by the General Assembly of the State of South Carolina, that hereafter the General Assembly of this State shall not establish any new county, the greatest length of which shall be more than four times as long as the least central width thereof, or which will leave the county or counties from which the territory is taken of a length more than four times as long as the least central width thereof: Provided, further, The Governor shall not order an election in such an area described.
"Sec. 2. That the term `central width' shall be construed to mean any width of such proposed new county not entirely within eight miles of the ends thereof.
"Sec. 3. That this act shall go into effect immediately upon its approval by the Governor.
"Sec. 4. That all acts or parts of acts inconsistent herewith be, and the same are hereby, repealed." Act February, 1912 (27 St. at Large, p. 841).
The Constitution provides:
"Article VII. Counties and County Government.
"Section 1. Formation of New Counties — County Seatand Name. — The General Assembly may establish new counties in the following manner: Whenever one-third of the qualified electors within the area of each section of an old county proposed to be cut off to form a new county shall petition the Governor for the creation of a new county, setting forth the boundaries and showing compliance with the requirements of this article, the Governor shall order an election, within a reasonable time thereafter, by the qualified electors within the proposed area, in which election they shall *Page 76 vote `Yes' or `No' upon the question of creating said new county; and at the same election the question of a name and a county seat for such county shall be submitted to the electors.
"Sec. 2. Section of Old County to Be Cut Off. — If two-thirds of the qualified electors voting at such election shall vote `Yes' upon such questions, then the General Assembly at the next session shall establish such new county: Provided, No section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such section; and no county shall be formed without complying with all the conditions imposed in this article. An election upon the question of forming the same proposed new county shall not be held oftener than once in four years."
It is said that the Constitution says "the General Assemblymay establish new counties," and, if it may, it may not. That is true. The General Assembly may establish one new county and may not establish another. If the provision had stopped here, then, under the well known undisputed and indisputable power of the legislature, it would have been free to act in accordance with its best judgment in each case as it arose. The Constitution does not stop here. It goes on to say that, when certain conditions are complied with, the Governor "shall" order the election, and the General Assembly, at its next session, "shall" establish such new county.
New counties may or may not be formed, but, when the conditions are found to exist, the election "shall" be held and the new county "shall" be established. It is not denied that the constitutional requirements exist and neither the executive, legislative, nor judicial department of government have the right to say it shall not be established, or to do any act to prevent it without a violation of the constitutional command. Much has been said about the doctrine of implied prohibition. That doctrine has nothing to do with this case. A consideration of that doctrine and the authorities cited tend *Page 77 only to obscure the question. This is a plain, simple command of the Constitution. If the conditions exist (not disputed), the election "shall" be held, and, if other conditions shall be shown to exist, the new county "shall" be established. If the Constitution has said before an election can be held that certain conditions must be shown to exist, then it might have been pertinent to inquire whether the legislature could add other conditions. That is not the provision for our construction. The provision is, when certain conditions exist, the election "shall" be held; when other conditions exist, the county "shall" be established. To add any condition is to disobey the command. If the Constitution says when eight conditions appear, the new county shall be established, and the legislature says there shall be nine, then the legislature says, notwithstanding the eight appear, the county shall not be established, this is certainly a violation of the Constitution.
When the Governor found in his judgment as Governor, that the constitutional conditions existed (not disputed), he was bound to order the election and this Court is bound not to enjoin his appointees.
The Court en banc in Robinson v. McCown, 104 S.C. 285,88 S.E. 808, recognizes this when it says:
"By the terms of the Constitution the intention as clearly appears that, on compliance with the specified conditions, the people interested should have the right to an election on the question of creating the new county so that they should not be annoyed by the agitation of that question oftener than once in four years. They complied with the conditions. They were entitled to an election."
See, also, Fraser v. James, 65 S.C. page 86, 43 S.E. 292:
"The Constitution imposed upon the legislature the duty of creating a new county when the specified conditions existed." *Page 78
It is said that State v. Parler, 52 S.C. 207, 29 S.E. 651, is in conflict with this. A careful consideration of that case will show that there is no conflict.
In that case the provision under consideration reads:
"At the same election the question of a name and a county seat for such county shall be submitted to the electors."
The question was submitted to the electors at the "same election;" but, inasmuch as neither of the county seats voted for received two-thirds majority, the election was declared to have failed to establish a county seat, and the legislature ordered a new election as to county seat and declared that a majority vote should locate the county seat. The Constitution does not forbid the holding of another election for a county seat in case the first election failed to locate the county seat. The legislature has the unquestionable power to do anything not forbidden by the Constitution; therefore the legislature had the right to order a second election as to the county seat. The Constitution does not say that two-thirds vote is necessary to locate the county seat; therefore the legislature had the right to say a majority vote is sufficient.
It is said, however, that the Constitution uses two words, "may" and "shall," and these are in conflict. If they are, then the word "shall" is used last, and in constitutions, statutes and wills, where there is a conflict, the last provision governs. This needs no citation to sustain it.
Again, it is said the "spirit of the Constitution" shall govern. The constitutional convention anticipated the question and said (article I, section 29):
"The provisions of the Constitution shall be taken, deemed and construed to be mandatory and prohibitory, and not merely directory, except where expressly made directory or permissory by its own terms."
"Shall" is mandatory by its "own terms."
2. There is another reason why this statute cannot be sustained. If this statute had said "no new county shall be established of a certain shape," there might have been at least *Page 79 a plausible ground for maintaining that, until it was declared unconstitutional, it was entitled to obedience. It does not say that. It says "hereafter, the General Assembly shall not establish any new county," etc. It makes no difference what follows. On its face it forbids a subsequent legislature to pass an inconsistent act. Make the power of the legislature as great and unrestrained as you please, there is no one who can claim that the legislature of 1912 had the right to abridge the power of any succeeding legislature (except in a contract, which is not before us) to pass any act it deemed best. It is said that, when a part of an act is unconstitutional, the rest, if inseparable, may stand. Strike out the prohibition to succeeding legislatures and nothing is left except the attempt to forbid the Governor to exercise his constitutional powers, and the second is, of course, as futile as the first.
This act (1912) is clearly invalid even if the legislature has the right to add conditions. This, we have seen, they have no right to do.
The judgment appealed from should be reversed, and the order of injunction vacated.
MR. JUSTICE HYDRICK and CIRCUIT JUDGES PRINCE, SHIPP, SEASE and GARY concur in the dissenting opinion of MR. JUSTICE FRASER.
MR. JUSTICE GAGE did not participate in the consideration of this case. *Page 80