This is an action to enjoin proceedings under an act entitled "An act to authorize and provide for the issue of bonds by Richland county for permanent highway improvement, and to provide for the expenditure of the same and for vehicle licenses and a property tax to pay the same, the total issue not to exceed one and one-quarter million dollars."
Section 1 of this act is as follows:
"The county of Richland shall issue coupon bonds for permanent highway improvement in the said county, the bonds to be of such denominations, and to be issued at such time or times, and to such an amount, or to such amounts, as the commission hereinafter provided for, may determine in its judgment and discretion, such issue not to exceed one and one-quarter million dollars, and to draw interest at a rate not exceeding five per centum per annum, payable annually."
Section 2 contains these provisions:
"The persons hereinafter named shall constitute a board of commissioners to be known as the `Richland county commission for permanent highways,' and shall have charge of the carrying out of the provisions of this act. * * * The commission shall serve for a term of three years, or until the provisions of this act are completely carried out."
Section 13 provides that the commission shall have a supervisory control over the auditor and treasurer of Richland county.
Section 14 provides that the supervisor of Richland county shall be a member of the commission.
The act does not purport to repeal the law which provides for an auditor, a treasurer and a supervisor for Richland county, but, on the contrary, recognizes that the auditor, treasurer and supervisor still remained in office after the passage of said act.
His Honor, the Circuit Judge, refused the injunction and the petitioner appealed. *Page 29
When the Constitution was adopted, the framers provided a scheme for the bonded indebtedness of the State, also for municipalities and likewise for the other political divisions and subdivisions of the State.
Section 11 of article X relates to the bonded indebtedness of the State, and is as follows:
"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 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." * * *
The following sections relate to the bonded indebtedness of municipalities:
Section 3, article VIII, is as follows:
"The General Assembly shall restrict the powers of cities and towns to levy taxes and assessments, to borrow money and to contract debts." * * *
Section 7, article VIII, is as follows:
"No city or town in this State shall hereafter incur any bonded debt which, including existing bonded indebtedness, shall exceed eight per centum of the assessed value of the taxable property therein, and no such debt shall be created without submitting the question as to the creation thereof to the qualified electors of such city or town, as provided in this Constitution for such special elections; and unless a majority of such electors voting on the question shall be in *Page 30 favor of creating such further bonded debt, none shall be created." * * *
Section 13, article XI, is as follows:
"In authorizing a special election in any incorporated city or town in this State, for the purpose of bonding the same, the General Assembly shall prescribe as a condition precedent to the holding of said election, a petition from a majority of the freeholders of said city or town, as shown by its tax books, and at such elections all electors of such city or town, who are duly qualified for voting under section 12 of this article, and who have paid all taxes, State, county and municipal, for the previous year, shall be allowed to vote; and the vote of a majority of those voting in said election shall be necessary to authorize the issue of said bonds."
Section 6 of article X relates to counties and townships, and is as follows:
"The General Assembly shall not have power to authorize any county or township to levy a tax or issue bonds, for any purpose except for educational purposes, to build and repair public roads, buildings and bridges, to maintain and support prisoners, pay jurors county officers, and for litigation, quarantine and Court expenses, and for ordinary county purposes, to support paupers, and pay past indebtedness."
The following sections relate both to municipalities and other political divisions and subdivisions of the State:
Section 5 of article X is as follows:
"The corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same. * * * The bonded debt of any county, township, school district, municipal corporation or political division or subdivision of this State, shall never exceed eight per centum of the assessed value of all the taxable property therein. And no county, township, municipal corporation or other political division of *Page 31 this State shall hereafter be authorized to increase its bonded indebtedness, if at the time of any proposed increase thereof, the aggregate amount of its already existing bonded debt amounts to eight per centum of the value of all taxable property therein, as valued for State taxation. And wherever there shall be several political divisions or municipal corporations, covering or extending over the territory, or portions thereof, possessing a power to levy a tax or contract a debt, then each of such political divisions or municipal corporations shall so exercise its power to increase its debt, under the foregoing eight per cent. limitation, that the aggregate debt over and upon any territory of this State, shall never exceed fifteen per centum of the value of all taxable property in such territory, for taxation by the State."
Section 13 of article X is as follows:
"The General Assembly shall provide for the assessment of all property for taxation; and State, county, township, school, municipal and all other taxes shall be levied on the same assessment, which shall be that made for State taxes; and the taxes for the subdivisions of the State shall be levied and collected by the respective fiscal authorities thereof."
We have reproduced these different provisions, because when they are considered together, they show clearly how careful the framers of the Constitution were to throw safeguards around bonded indebtedness, whether it was of the State, municipalities or political divisions or subdivisions of the State.
The rule laid down in Cooley's Constitutional Limitations, 71, 74, with reference to the construction of constitutions, is as follows:
"Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. It is, therefore, a very proper rule of construction that the whole is to be examined with aview to arriving at the true intention of each part. * * * *Page 32 The rule applicable here is, that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the Courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory. This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. * * *
"In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. As Marshall, Ch. J., says: The framers of the Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. This is but saying that no forced or unnatural construction is to be put upon their language; and it seems so obvious a truism, that one expects to see it universally accepted without question; but the attempt is made so often by interested subtlety and ingenious refinement, to induce the Courts to force from these instruments a meaning which their framers never held, that it frequently becomes necessary to redeclare this fundamental maxim. Narrow and technical reasoning is misplaced, when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government."
It is also announced in Delk v. Zorn, 48 S.C. 149,26 S.E. 466, that "a Constitution should be construed as a whole, and, if possible, effect should be given to all its provisions * * * and where two sections are inconsistent, effect will ordinarily be given to that section which is in harmony with other provisions, rather than to that which is inconsistent with more than one provision of the Constitution." *Page 33
To the same effect is the rule stated in Smith v. McConnell,44 S.C. 491, 22 S.E. 721, and Seegers v. Gibbes,72 S.C. 532, 52 S.E. 586.
The first proposition we announce is that the bonded indebtedness was not created by the General Assembly itself, but was left to the discretion of the commission.
We do not understand that this is contested, but if so, it is settled by the case of Ry. v. Kay, 62 S.C. 28,39 S.E. 785.
Our next proposition is that the creation of the bonded indebtedness was a legislative act that could not be delegated to the commission.
The rule is thus stated in Port Royal Mining Co. v.Hagood, 30 S.C. 519, 9 S.E. 686, 3 L.R.A. 841 (and affirmed in Jones v. Ry., 76 S.C. 67, 56 S.E. 666): "That the law itself should be full and complete, as it comes from the proper lawmaking 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 Lock's Appeal, 72 Pa. St. 491: `Then the true distinction, I conceive, is this: the legislature cannot delegate its powers 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.'"
In the case of Ry. v. Kay, 62 S.C. 28, 39 S.E. 785, the Court quotes with approval the following language fromMorton, Bliss Co. v. Comptroller General, 4 S.C. 430:
"The duty enjoined on the legislature is to `levy a tax.' A tax is the means by which a burden primarily borne by the State is transferred to the citizen. * * * Three things are essential to a tax, as that term is understood by our Constitution. First, the ascertainment of a sum certain, or that can be rendered certain, to be imposed on the collective body *Page 34 of taxpayers; second, a legal imposition of that sum as an obligation on the collective body of taxpayers; third, an apportionment of such sum among individual taxpayers, so as to ascertain the part or share that each should bear. * * * The first two acts above described, namely, the ascertainment of a sum to be imposed on the collective body of taxpayers, and its imposition by a legislative declaration to that effect, are essentially legislative acts or acts proper directly to the lawmaking function of the government. * * * The third act, namely, the apportionment of the whole sum imposed by way of tax on the collective body of taxpayers, upon the separate individuals composing that body, is usually an administrative act performed under specific statutory directions ascertaining the mode and time of its performance. * * * When the aggregate value of property is ascertained at the time the tax levy is ordered, the legislature frequently makes the division, and directs the levy to be made according to the resulting rate, which is thus established by law, instead of merely fixing the amount to be levied, and leaving the rate to be ascertained by computation, after the aggregate valuation of property subject to taxation is ascertained and known. Both modes are resorted to, and both are equally appropriate to adoption by the legislative body. As there are two distinct stages in this process, the result of one of which is to fix an indebtedness on the collective body of taxpayers and the other on the individual taxpayers, so the word `levy' is indifferently employed, as commonly used, to express either one of these processes separately, or both collectively. A tax is said to be levied, when the amount of rate to be imposed is fixed by law; for what is wanting to complete such levy is supplied by the standing tax laws, and consists in a course of administrative action. When the levying of a tax is spoken of as a legislative act, it is commonly understood to describe such action on the part of the legislature as would, with standing tax laws, complete the legislative authority requisite to *Page 35 enable the administrative department to distribute and collect the tax. * * * In other words, the tax directed to be levied must be so far imposed, in order to comply with the letter and spirit of the Constitution, that no further legislation will be necessary to enable its collection."
These authorities clearly show that fixing the amount of bonded indebtedness for a county is a legislative act which cannot be delegated.
Our next proposition is that the act is unconstitutional in that it provides that the commission shall serve for a term of three years, or until the provisions ofthis act are carried out.
Section 11, article 1 of the Constitution, provides that the terms of all officers shall be for some specified period. In ruling upon this question, his Honor, the Circuit Judge, said: "It is manifest that the term of office of the commissioners is three years, unless the duties with which they are charged have been fully performed in a less time."
The term of office mentioned in the act is in the alternative, and, therefore, it cannot be successfully contended that it is for a specified period.
It makes no difference whether the term of office was to expire before or after the work was completely carried out. It is the uncertainty that violates the Constitution.
The magnitude of the work, however, shows that the General Assembly contemplated that it would take more than three years to complete it.
The next question for consideration is, whether there was error on the part of his Honor, the Circuit Judge, in ruling that the act created an excise tax or toll chargeable for the purpose of keeping up the roads, used by the owners of vehicles, and that the charge so made is reasonable.
Without undertaking to set out the provisions of the act in detail, relative to this question, we have reached the conclusion that the exceptions assigning error in this respect *Page 36 should be sustained, on the ground that what is termed in the act a license fee is a tax on property, and obnoxious to section 6, article I of the Constitution, which provides that "all property subject to taxation shall be taxed in proportion to its value."
The rule is thus stated in Cooley's Con. Lim., pages 242-3:
"A right to license an employment does not imply a right to charge a license fee therefor, with a view to revenue, unless such seems to be the manifest purpose of the power; but the authority of the corporation will be limited to such a charge for the license as will cover the necessary expenses of issuing it, and the additional labor of officers and other expenses thereby imposed. A license is issued under the police power; but the exaction of a license fee with a view to revenue would be an exercise of the power of taxation, and the charter must plainly show an intent to confer that power, or the municipal corporation cannot assume it."
And on pages 608-9, the author also says:
"Taxes may assume the form of duties, imposts and excises; and those collected by the national government are very largely of this character. They may also assume the form of license fees, for permission to carry on particular occupations, or to enjoy special franchises. They may be specific; such as are often levied upon corporations, in reference to the amount of capital stock, or to the business done, or profits earned by them. Or they may be direct; upon property, in proportion to its value, or upon some other basis of apportionment which the legislature shall regard as just, and which shall keep in view the general idea of uniformity."
But this question is settled beyond all controversy by reason of the fact that the act, in its title, denominates the vehicle license as "a property tax."
The next question is, whether the act is lacking in uniformity in its operation, and discriminatory against the taxpayers *Page 37 of the city of Columbia, in that the city is required to bear the expense of locating roads and acquiring rights of way, when the location is within the city, while as to roads outside the city, the expenses of locating the same and condemning the lands, are to be paid out of the funds provided by the act — in other words, whether the citizens of the city of Columbia are double taxed.
In section 4 the act provides "that in the city of Columbia acquisition of the rights of way, whether by purchase, condemnation or otherwise, shall be made by the corporate authorities, and at the expense of the city of Columbia."
The taxable property within the limits of the city of Columbia is liable in the same manner as other taxable property within the limits of Richland county, for the indebtedness of the county under the act. Not only is the property within the limits of the city of Columbia liable as aforesaid, but the act makes it liable also for the expenses of acquiring rights of way in the city, while the additional liability is not imposed upon the taxable property outside the limits of the city. If the legislature had the power to impose the additional indebtedness, on the taxable property of the city, then it, also, had the power to make that property liable for the entire indebtedness of Richland county under the act.
The act is, therefore, in violation of the constitutional provision, that taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same.
The next question is, whether the words "corporate authorities," used in section 5, article X of the Constitution, which provides that "the corporate authorities of counties, etc., may be vested with power to assess and collect taxes for corporate purposes," and the words "fiscal authorities," in section 13, article X, which provides that "the taxes for the subdivisions of the State shall be levied and collected by the respective fiscal authorities *Page 38 thereof," include such a commission as was created by the act.
These words were intended to be restrictive in their nature, and a limitation upon the power of the General Assembly, investing certain persons with authority to exercise general control over the affairs of a county, municipality or other political division.
In designating the class of officers who were to be vested with power to levy and collect taxes for corporate purposes, the framers of the Constitution, no doubt, had in view those whose terms of office were fixed, as the presumption is that they would be more apt to be familiar with the necessities of the people than a commission having no connection with the government of the county, in general, but only clothed with a special duty pertaining to a single transaction.
The supervisory control which the act conferred upon the commission over the auditor and treasurer, and vesting the commission with the powers of the supervisor, tended to defeat the intention of the Constitution, and to render the said provisions without force and effect, which it is unreasonable to suppose, was the intention of the Constitution.
The next question is, whether the act is unconstitutional on the ground that it increases the bonded debt of the city of Columbia without a vote of its qualified electors, contrary to section 7, art. VIII, and section 13, art. II, of the Constitution.
Section 7, art. VIII, provides that no city or town shall incur any bonded debt, exceeding eight per cent. of the assessed value of its taxable property. It also provides that no such debt shall be created, except by a vote of the majority of the qualified electors.
The provision in section 5, art. X, that the bonded debt of a county, municipality, etc., shall never exceed eight per cent., is a limitation upon the power of the legislature itself, to create a bonded indebtedness, beyond that per cent. And, the provision that no county, municipality, etc., should be *Page 39 authorized to increase its bonded indebtedness, beyond eight per cent., is a limitation upon the power of the legislature, to authorize the creation of a bonded indebtedness, beyond eight per cent.
Section 13, art. II, provides the manner in which an election by a municipality shall be conducted.
The city of Columbia is a corporate entity, and as such separate and distinct from the corporation Richland county.Welch v. Getzen, 85 S.C. 156, 67 S.E. 294.
The legislature recognized this fact, when it provided in the act, that acquisition of the right of ways in the city of Columbia, should be made by the corporate authorities and at the expense of said city.
The case was tried and decided upon this theory, as appears throughout the record. The attorneys of the respective parties plaintiff and defendant, agreed that the proportion of the city of Columbia's liability under the act, was $833,333.34, which is two-thirds of the entire indebtedness of Richland county. The principal ground discussed by his Honor, the Circuit Judge, in his decree, and upon which he mainly relied in refusing the injunction, was, that the existing bonded indebtedness of the city of Columbia, together with its proportion of the entire indebtedness, was not in excess of fifteen per cent. of its taxable property.
Section 5, art. X, contains the only provision in the Constitution, permitting an increase of the bonded indebtedness, to an amount not exceeding fifteen per cent., which provision is as follows:
"Wherever there shall be several political divisions or municipal corporations, covering or extending over the territory, or portions thereof, possessing a power to levy a tax or contract a debt, then each of such political divisions or municipal corporations, shall so exercise its power to increase its debt, under the foregoing eight per cent. limitation, that the aggregate debt over and upon any territory of this State, shall never exceed fifteen per centum of the value of all *Page 40 taxable property in such territory, for taxation by the State."
But the right to invoke the provision as to the fifteen per cent. was subject to the requirement that each of the political divisions or municipal corporations therein mentioned, should have the right so to exercise its powers, as to determine for itself, whether it was desirous of increasing its bonded indebtedness.
We have already shown that a city can not increase its bonded debt, without submitting the question to its qualified electors.
His Honor, the Circuit Judge, was, therefore, in error, when he applied the provision as to the fifteen per cent. limit, without, also, applying the provision empowering the city of Columbia to determine for itself, in the manner provided by section 7, art. VIII, and section 13, art. II, whether it desired such increase.
The last question we will consider is, whether there was error on the part of his Honor, the Circuit Judge, in ruling that it is not essential to the creation of the bonded indebtedness of Richland county, to submit the question to the qualified electors of the county.
In the case of Carrison v. Kershaw County, 83 S.C. 88,64 S.E. 101, the petitioners, who were taxpayers of Kershaw county, applied for an injunction to restrain the county commissioners from issuing coupon bonds of the county, to the amount of forty thousand dollars.
The Court said: "The question presented by the petition and return is, whether the county commissioners have authority to issue said bonds, without submitting the question of such issuance to an election."
In dismissing the petition, the Court said:
"The power of the legislature to confer such authority upon the county commissioners is clear. While art. X, section 11 of the Constitution, forbids an increase of the public debt of the State, without submitting the question to the *Page 41 qualified electors, and while art. VIII, section 7, forbids any city or town from creating a bonded debt without submitting the question to the qualified electors of the city or town, we find no such restriction on the power of the legislature, with respect to the issuance of bonds by a county. In the absence of such restriction, the power of the legislature in the matter is plenary."
The last sentence just quoted is, however, not to be construed as ruling that the power of the legislature in creating or authorizing the creation of a bonded indebtedness for a county extends to the fifteen per cent. as this would be in violation of section 5, art. X, which provides that it shall not exceed eight per cent.
The appellant's attorney was granted permission to review this case.
This Court, however, adheres to the principle therein stated, which is conclusive of the question under consideration.
In the case just mentioned, the question whether a commission such as that created by the act under consideration, can be regarded as the corporate authorities of a county, was not involved.
For these reasons I dissent.
MR. JUSTICE WATTS and CIRCUIT JUDGE MAULDIN also dissent from the opinion of the Court, and concur in the result of the dissenting opinion announced by the Chief Justice.