The opinion
Mr. Justice Beease
(dissenting) : To my mind there can be no question whatever as to the unconstitutionality of Article 1 of the Act under consideration, and all parts of the enactment, seeking to carry out the provisions of that Article. Section 7 of Article 10 of our Constitution expréssly forbids the issuance of any “scrip, certificate or other evidence of State indebtedness” except for the purposes named
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in that Section, and the purpose for which the certificates are to be issued in the proposed Act do not come within the exceptions provided.
Under the provisions of Section 11 of Article 10 of the Constitution, the General Assembly is 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 obtaining the approval of two-thirds of the qualified electors of the State.
These two provisions of the Constitution are so clear to me that I do not deem it necessary to discuss them with reference to Article 1, the “State Unit Plan of Financing,” as set forth in the Act under review, for it is distinctly stated in that Article of the Act that the full faith, credit, and. taxing power of the State are pledged for the payment of the certificates to be issued. Regardless of the manner in which the certificates are to be paid, they are to be debts of the State of South Carolina, and the people of the State are not permitted to approve their issuance.
With the views of the Chief Justice, generally, I am in accord. On account of the grave importance of the issues involved, however, I feel impelled to make a few observations of my own, touching what I conceive to be the real issue before the Court, namely, the constitutionality of Article 2 of the Act.
I concede the legal proposition advanced by Mr. Justice Stabler to the effect that, if parts of a legislative enactment, which are in violation of the Constitution, can be eliminated, leaving the law in such shape that full force and effect may be given to the remaining parts, which are not of themselves in conflict with the organic law, then it becomes the duty of the Court tO' save the constitutional parts, and not by a judicial declaration to declare null and void the entire Act. Along with that principle of our law, however, we must not lose sight of another greater principle, so long and well established that it has become elementary, to wit, that it is
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the duty of the Court at all times to endeavor to find the real intention of the lawmaking body, as it has been expressed in its legislative Act, and this intention must be gathered from the whole enactment, and not from any one article, section, provision, sentence, or clause. If any part of an Act infringes a provision of the Constitution, and the elimination of such infringing part results in making it doubtful. as to what the Legislature intended to do, and' causes the Court to think that the legislation might not have been enacted if the General Assembly had known that some of its enactments were contrary to- the Constitution, then it becomes the duty of the Court to hold the entire Act in violation of the Constitution. Expressed somewhat differently, the idea is that, if the striking out of the unconstitutional provisions of a legislative enactment causes that enactment to be left in such shape that the expressed, or evident, intention of the Legislature cannot be carried into effect, then the whole law must be-set aside. It is the duty of the Court, when the Constitution does not forbid, to uphold the General Assembly by giving full effect to- the declared intention of that co-ordinate branch of our government. ' •=
Let us then seek to ascertain the real intention of the General Assembly, and what it sought to do, in the legislation under consideration. We turn first to the title of the Act. The main purpose of a. title to a Bill, introduced in the General Assembly, is to acquaint the members of the Senate and House of Representatives of the objects of the proposed legislation. After the Bill has become an Act, however, the title thereto may be considered by the Court- in an effort to ascertain the legislative intent. The first and important words in the title show that the main purpose was “to provide for the construction and maintenance of the State Highway System”- — no indication whatever of the construction and maintenance of any public highways owned by or under the control of any county, highway district, or other political
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subdivision. All the other wording of the title is merely incidental to the one important idea of constructing and maintaining the State Highway System. The authorization of the issuance of evidences of indebtedness of the two highway districts, the disposition of the gasoline tax, motor vehicle license fees, and other revenues, and the provision for the administration and operation of the State Highway Department are all subject to the main object expressed, the construction and maintenance of the State Highway System.
Ordinarily, our legislative enactments do not carry with them
preambles.
The office of a
preamble,
when inserted, is to help' make clear the purpose sought to be accomplished by the Legislature. The Act here has a
preamble
of considerable length, and, to my mind, throws much light upon what the General Assembly desired to do. It applies not only to Articles 1 and 3 of the Act, but to Article 2 as well. The first statement in that
preamble
is that: “Under the plan of financing provided by existing laws the construction of the State Highway System cannot be completed in less than -twenty-one years.” Without quoting the whole
preamble,
I call attention, somewhat more briefly in my own words, to some of the main declarations contained therein: The revenues to be derived annually during the next 24 years from the gasoline tax and the motor vehicle license fees (presumably from the whole state) will be sufficient, without resorting to a property tax, to pay the sums required to carry out the purposes of the Act: (a) Interest payments on the state loan (not the highway districts loans) sufficient in amount to complete the State Highway System immediately; (b) sinking fund and serial payments for retiring the principal on such a loan (state loan) within 24 years from the present time; (c) the administration and operation of the State Highway Department (not any highway district department) ; (e) compliance with the existing obligations of the State Highway Commission to reimburse moneys already advanced to it by counties and highway districts (not for the payment of any obligations of the two
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state highway districts sought to be created) ; and (g) the production of an annual surplus for the construction of additional highways.
The statement is made that “the experience” of other states shows that the construction of a State Highway System (which is, of course, to be owned and controlled by the -State) can only be done “with borrowed money.”
I am much impressed by the last “whereas” of the
preamble,
which discloses a most commendable desire on the part of our lawmakers to build up a great state, and to build it as a whole state, not -as counties, state highway districts, or other political subdivisions. Reference is there made to the contemplated improvement of the educational opportunities, the promotion of the agricultural, industrial, and labor interests of the State, the opening up of our. seashore and mountain resorts, advertisement of our natural resources, the increase of the wealth and revenues, the equipment of the State with the means to compete with neighboring states, and the socializing influences upon our whole people. All refer to the State of South Carolina as an entirety, with not a single indication that any of the great advantages, which will be gained by the legislation, will inure especially to either of the highway districts sought to be created, but to the commonwealth as a whole. Personally, I am in full sympathy with the great things the General Assembly desired to accomplish for South Carolina, as they were expressed in the last “whereas” of the
preamble.
The manner in which they were expressed, however, and the other language of the
preamble
convince me, as a Judge, that the mind of the Legislature was set upon the building of a great highway system for the.whole State of South Carolina and for the good of the entire commonwealth, with money borrowed by the State, to be repaid in years to come by the State, first from incomes derived in those years from the taxes and licenses on gasoline and motor vehicles, and, secondarily, from a tax on property. I am unable to find in the
preamble
a single word which looks to the creation of
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any state highway districts, or any other kind of political subdivisions; nor can I find- therein any language which conveys directly, or indirectly, any intention to create an obligation, the payment of which, in whole or in part, was to be assumed by any political entity, other than the whole State of South Carolina.
Except for a few distinguishing features, the plans outlined in Article 1 as to the “State Unit Plan of Financing/' and those set forth in Article 2, providing for the two-district plan of financing, are practically identical. Under the plan of Article 1, all powers and authority are vested in the State FEighway Commission, the Governor, and the State Treasurer. Under Article 2, practically the same powers given to the named officers in Article 1 are given to those same- officials, except the performance of only a few nominal duties imposed upon a board of commissioners of each of the two- State highway districts. These two boards of commissioners are to serve without any compensation whatever, and their main duty is to execute an agreement with the State Highway Commission, so that said commission may carry into effect the plan outlined in Article 1. After the State highway districts’ boards of commissioners have executed that agreement, it seems that they have no further duty to perform, except that the secretaries of these district commissions are to attest the certificates of indebtedness and notes issued in the names of their respective districts. Under either plan, all certificates of indebtedness and notes are to be signed by the- Governor and the State Treasurer, and these officials are charged with the sale of these securities. The district commissions have no power whatsoever as to any of the fund.. They simply sign the agreement with the State Highway Commission, have their secretaries to attest the certificates and notes, place the corporate seal thereon, and retire- until called upon by the State Highway Commission to- repeat the- operation.
Under both plans, the moneys received from the- sale of the certificates and notes are placed in the hands of the
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State Treasurer, and are entirely subject to the State Highway Commission. The certificates of indebtedness issued either in the name of the State or in the name of the highway districts are to be handled in an identical manner, and the State Highway Commission is given the power as to both certificates issued by the State or by the districts “to do all things ordinarily and customarily done in connection with the sale of State or municipal bonds.” Nothing is to be done usually incident to the sale of highway district bonds, if such bonds are handled differently from State or municipal obligations. Under Article 2, the highways to be constructed in each of the districts must be “State Highways” in the respective districts, and the district commissioners have no right whatever to say on what highways the moneys shall be expended. Without hardly the change of a single word, the requireménts necessary for the issuing of the State certificates of indebtedness are the same as those set out for the issuance of such certificates on the part of highway districts. In Article 1 the full faith, credit, and taxing power of the State is pledged for the payment of the principal and interest of the obligations to be made. In Article 2 the same pledge is made as to the taxing power of each of the highway districts. The theory upon which the distinction is made evidently is the one that, if the full faith, credit, and taxing power of the State cannot be pledged, then the full faith, credit, and taxing power of the two halves of the State may be pledged.
Regardless of the plan selected, under Article 3 “the entire amount of the revenues derived from the gasoline tax and the motor vehicle license tax (from the State as a whole, 1 interpolate), except such portion, if any, of the gasoline tax as shall exceed the amount of a gasoline tax levied at the rate of five cents per gallon,” shall be turned over to or held by the State Highway Department, and paid out as provided in the Act. These funds are to be used first for the payment of the expenses of the State Highway Depart
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ment up to an amount not exceeding $450,000 annually, and no payment for any district highway department is allowed, for, in fact, there is to be none such. After providing for other payments from these funds, there is appropriated a sum sufficient to maintain the highways of the State Highway System. Any surplus of the estimated revenues for any calendar year is appropriated for the construction, reconstruction, and maintenance of State highways, and for the payment of other expenses of the State Highway Department. These provisions show that the purpose of the whole Act, whichever plan may be carried out, is to permit the State Highway Department, a body created for the whole State, to have the handling and disbursement of the revenues to be derived under the provisions of, the Act, for the benefit of the whole State, and not for the 'particular benefit of either'of the two highway districts proposed to be created.
If the plan outlined in Article 1 is unconstitutional, and it seems to be so conceded by some members of the Court, and if Article 2, which substanially the same plan, is within the constitutional provisions, the practical result on the one hand is this: That the State government, with all its powers, cannot borrow $65,000,000, to be repaid in future years, without the consent of two-thirds of the qualified electors of the State, for the purpose of building a highway system for the benefit of the whole State, under the supervision of the State Highway Department, having jurisdiction throughout the whole State, and the right to expend the amount of money borrqwed; while bn the other hand, the two halves of the State may join together, and, without the consent of the qualified electors, borrow $70,000,000, for the purpose of building a State Highway System, under the supervision of the State Highway Department, a body created for the whole State, with jurisdiction throughout the whole State, and the right to expend that larger amount of money.-
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But it is said that this Court cannot declare Article 2 of the Act violative of the Constitution, in the face of the former decisions of the Supreme Court in the cases of
Lillard v. Melton,
103 S. C., 10, 87 S. E., 421 ;
McIntyre v. Rogers,
123 S. C., 334, 116 S. E., 277 ;
Barnwell v. Matthews,
132 S. C., 314, 128 S. C.,
713; Sullivan v. City Council of Charleston,
133 S. C., 189, 133 S. E., 340 ;
Briggs v. Greenville County,
137 S. C., 288, 135 S. E., 153 ;
Evans v. Beattie
137 S. C., 496, 135 S. E., 538 ; and particularly the holdings in the two cases last named. I think the opinion of the Chief Justice is convincing that the cases at bar are not controlled in any way by any decision in either of the cases cited. As I view it, Sections 7 and 11 of Article 10 were not really involved in those cases, for it nowhere appears that there was any attempt, or effort of any kind whatsoever, to pledge the faith, credit, or taxing power of the State of South Carolina, either directly or indirectly, as to the obligations under consideration by the Court in those cases. The fact that the Court announced in some of the decision's that the obligations, which were being passed upon, were not such obligations as came within the purview of those two Sections, cannot now be used as an argument that the Court would have approved the obligations, even if they were such obligations as were included by the terms of those Sections. A careful reading of each of these decisions fails to' disclose to me that there was any effort to create a debt of the State, either directly or indirectly. Here, the situation is entirely different; where, it is plainly apparent that the purpose is, first, to directly obligate the State, and, failing in the attempt, then to obligate it indirectly. The very language of the Constitution (Article 10 of Section 11), forbidding the General Assembly from increasing the public debt of South Carolina withoujt the consent of twoi-thirds of the qualified electors of the State, shows that the farmers of the Constitution did not intend for the public debt to be even in
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directly increased, without the people’s consent. When the makers of our organic law used the words “loan of the credit of the State, by guaranty, endorsement or otherwise,” they intended for each and every one of those words to- mean something. They knew that the words “loan,” “guaranty,” and “endorsement” had certain technical definitions. To be certain that in no way, either directly or indirectly, the provisions of the Section .could be violated, they inserted the word “otherwise.” An examination of all the other Sections of the Constitution pertaining to debts, whether by bond or otherwise, to be created by the various political subdivisions of the State, will show that in none of these were the words referred to in Section 11 used.
In answer to the holding of the Chief Justice that the Act contains such alternative provisions as to result in making it null and void under the familiar rule that the General Assembly, as the law-making power of the State, cannot delegate to any other body the right to make a law, it is contended that the elimination of Article 2 of the enactment would have the effect of eliminating one of the alternative provisions, and it is urged that, as a result of such elimination, the Act would be still complete, with no choice on the part of the State Highway Commission as to which of the two plans it will adopt. It necessarily follows, so it is stated, that the objection to the law as an alternative enactment is without merit. I am in full accord with the holding of the Chief Justice in this regard. If it be conceded, however, that the-position taken in reply to his holding is correct, -another interesting question occurs to my mind, and I believe that the proper answer thereto is entirely sufficient to show that it is not possible for this Court to carry out the expressed intention of the Legislature. Whatever may have been the reasoning of the General Assembly, upon which it based its expressed desire, it must be apparent that it was the intention of the Gerenal Assembly not to confine the State Highway Commission to any
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one plap for the building of the State Highway System. It thought, and no doubt wisely, that the members of that commission better acquainted that the legislators were with the problems of road building, should not be limited too much in their plans for financing the great project ahead. All through the Act runs the idea that the State Highway Commission should be fettered as little as possible with the securing of necessary money, and the disbursement thereof, in the building of a great system of public highways in South Carolina. The legislators sought to- give the State Highway Commission a choice of at least two plans. In my opinion their wish cannot be accomplished because the Constitution of the State stands in the way. Contrary, therefore, to the clearly announced desire of the General Assembly, the State Highway Commission would be limited to one plan. It could not, even at a saving of at least $5,000,000 to the people of the State, exercise the choice, which the General Assembly wanted it to have the right to exercise. Surely a law, which clearly intended to give to one of the departments of the State great discretion, cannot he held fully complete in every detail, when it is obvious that the Constitution stands in the way of the exercise of that discretion. On the other hand, if the State Highway Commission has the choice of choosing between the two plans, it is an alternative law.
The argument is advanced that under the decision of the Court in
Evans v. Beattie, supra,
the General Assembly could have divided the State into- two highway districts, as has been done in the law under consideration, and, in that connection, could have enacted all the essential principles and provisions of the present enactment, and, by leaving out all references to indebtedness by the State as a whole, could have accomplished what it has attempted to accomplish in the legislation involved in the cases at bar. That is not a question before the Court at this time for determination. Granting that this course might have been pur
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sued, the fact remains that the lawmakers did not see fit to follow that path. As I have endeavored already to show, the main purpose of the Act under review was to build a State Highway System out of moneys collected from the State as a whole.
I agree with all that the Chief Justice and Mr. Justice Stabler have said as to how this Court should hesitate always to- declare any Act of the General Assembly, a coordinate branch of our government, void for any reason. I have so expressed myself heretofore many times. • When it appears, however, to a member of this Court that an Act is 'unconstitutional, it becomes his duty not to hesitate to so declare, for the Justices and Judges of this Court have solemnly obligated themselves to “preserve, protect, .and defend the Constitution of this State.” It is true the highways we need and want so much were not needed and wanted when the Constitution of 1895 was adopted. We should not permit our desires to cause us tO' strain the letter of our governmental charter. If the people of this State and their representatives in the General Assembly desire the State to borrow money, to be repaid in future years, for the purpose of building a great highway system, there are two ways under the law by which it may be done. The first is by a vote of the qualified electors approving a loan for the purpose. The second is by an amendment to the Constitution, granting the General Assembly the right to effect the necessary loan. As I see it, any other way, and even any indirect way, is forbidden by our Constitution. I am reminded of what the distinguished Chief Justice Taney of the Supreme Court of the United States said in the famous Dred Scott case, to the effect that: “No change in public opinion on questions of policy can ever be given any weight in construing the provisions of a constitution where the meaning is clear, for the adoption of a construction that might be deemed wise at one time and unwise at another would abrogate the judicial character of the Court and malee it the reflex of the
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popular opinion or passion of the day.”
Scott v. Sandford,
19 How., 393 , 15 L. Ed., 691 .
When the Court says the Act is Consitutional; in my humble opinion, it tells the General Assembly that it may do
indirectly
what it is absolutely prohibited from doing
directly
by the Constitution of South Carolina. This in not in accord with the great principles of American constitutional law, as expounded through all the ages by the Supreme Court of the United States, and the highest Courts in all the States of the Union. Without citing even a small number of the thousands of authorities, which might be named to sustain the principle I have in mind, I call attention to what was decided by the Supreme Court of the State of New York in the case of
People v. Draper,
15 N. Y., 532 , cited in that well-recognized authority, Corpus Juris, Vol. 12, p. 719, as follows:
<cBvery positive direction in a constitution contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision.”