Askew v. Smith , 126 S.C. 159 ( 1923 )

October 14, 1923. The opinion of the Court was delivered by Proceedings by mandamus in the original jurisdiction of this Court to require the respondents, claiming to be the Bogansville Township Highway Commission in Union County, to turn over the books, records, and money, pertaining to said commission, in their possession, to the relators, the advisory board for Union County.

The relators contend that by an Act of the General Assembly, approved March 21, 1923, (33 St. at Large, p. 871), the Bogansville Township Highway Commission, which will hereinafter be referred to as the "highway commission," was abolished, and all of their duties devolved upon the advisory board.

The respondents contend that said act is unconstitutional and that they are still the legally constituted highway commission, and as such entitled to the possession of said records and to discharge the duties imposed by law upon them.

The decision of the question involved requires a consideration of the Act of March 1, 1919, (31 St. at Large, p. 595), under which the highway commission was organized and the Act of March 21, 1923, purporting to abolish it.

The Act of 1919 provides a "local option" proposition for all of the Townships of Union County except Union Township (which had already, it seems, voted a bond issue), by which it should be determined whether or not township bonds, in each township, to the amount of $150,000 should be issued for road improvement, the proceeds to be expended within the township so voting and issuing bonds; the preservation and disbursement of the proceeds, the improvement of the roads and their maintenance within the township were devolved upon a highway commission, composed of seven electors and freeholders of the township to be appointed by the Governor, for a stated term of office.

It appears that an election was held in Bogansville Township, under the Act of 1919, which resulted in favor of the issuing of said bonds; that the highway commission was duly organized; that bonds in an unstated amount (but less than one-half of the $150,000) have been issued and sold, and that an additional amount has been issued, but not sold; that the commission has made contracts, built, and improved roads, incurred obligations, and now have outstanding large obligations entered into regularly by them.

The county government of Union County is vested in a supervisor, an advisory board and a county engineer, apparently (Volume 3, Code of Laws A.D. 1922, § 1943 et seq.), although I do not discover in said sections a specific establishment of the advisory board, the number composing it, or their terms of office. This omission appears to have been supplied by the Act of 1923 (33 Stat., 136), which includes the supervisor as a member of the advisory board, and makes it consist of him and four other members named, with stated terms.

The Act of 1923 (33 Stat. 871) purports to abolish the Bogansville Township Highway Commission and to devolve all of the duties imposed upon them by the Act of 1919, upon the advisory board and the county engineer of Union County.

The constitutionality of the Act of 1923 is attacked by the respondents upon the following grounds: (1) That it is in conflict with Article 1, § 8, which prohibits the enactment of a law impairing the obligation of a contract; (2) that it is in conflict with Article 7, § 11, relative to the incorporation of townships; (3) that it is in conflict with Article 10, § 5, relating to the power of townships to assess and collect taxes for corporate purposes; (4) that it is in conflict with the Amendment of 1921 to Article 10, § 5, relating to the power of townships in Union County to increase their bonded debt, to an amount not exceeding 35 per cent. of the assessed value of property, for highway improvement; (5) that it is in conflict with Article 10, §§ 6 and 13, relating to the assessment, levy, and collection of taxes by townships.

As to the first constitutional objection, namely, that the Act of 1923 is in conflict with Article 1, § 8, which forbids the enactment of a law impairing the obligation of contracts. The Act does not purport to affect a single obligation incurred by the highway commission, as authorized by the Act of 1919. The General Assembly could not consummate such a purpose if it ever existed. Every bond, or other obligation, issued or incurred lawfully by the commission, will have to be paid by the authorities upon whom the duties and obligations of the commission have devolved. The case of Smith v. Walker, 74 S.C. 519;54 S.E., 779, and Graham v. Folsom, 200 U.S. 248;26 Sup. Ct., 245; 50 L.Ed., 464, decide that, even when the corporate existence of a township has been annihilated by a constitutional amendment, the outstanding bonds may be treated as the debt of the territory of which the township was composed, and payment by taxation may be compelled. Certainly a stronger reason exists to sustain the validity of the bonds when the administrative officers only are changed.

As to the second constitutional objection, namely, that the Act of 1923 is in conflict with Article 7, § 11, relating to the incorporation of townships and their powers: The contention is that the Act is an invasion of the township's rights and powers as a corporate body; that it is a usurpation of its corporate functions and renders nugatory the action of the electors in voting the bonds; that it vests the powers of the corporation in alien hands and places its rights under the guardianship of outsiders.

The argument is that since the Constitution has created the township a corporation, and the Act of 1919 has given it the power to issue bonds and expend the money in the improvements of its highways, the power was intended to be exclusive. The Constitution simply creates the several townships corporations, and does not purport to vest them with any particular powers. On the contrary it delegates to the General Assembly the power to "provide such system of township government as it shall think proper," and, as a matter of course, the General Assembly may change such system when and as often as it may deem proper. Necessarily the provisions of the Act of 1919, conferring the power upon the highway commission to issue bonds and improve the highways of the township, are sub modo a part of a system of township government, and under the express terms of the Constitution that system may be established and changed or even abandoned by the General Assembly at any time.

In State v. Rhame, 92 S.C. 455; 75 S.E., 881, Ann. Cas., 1914B, 519, it is said:

"Public officers are created for the benefit of the common-wealth; incumbents have no contract or property right in them, and, unless it be otherwise provided by the Constitution, they are subject entirely to legislative control. Hence, subject to the Constitution, the General Assembly may fix the term, provide for removal, abolish the office, reduce the term, and in every respect control the existence, powers, emoluments, and tenure of public officers."

In Lillard v. Melton, 103 S.C. 10; 87 S.E., 421, it is said:

"The Legislature may give it [municipality or county] all the powers such a being is capable of receiving, making it a miniature state within its locality; or it may strip it of every power, leaving it a corporation in name only; and it may create or recreate these changes as often as it chooses, or it may itself exercise directly within the locality any or all powers usually committed to a municipality."

In State v. McDaniel, 19 S.C. 114, it is said:

"Those holding offices created by the Legislature hold them subject to the Legislative will. The power that creates an office can impose such limitations and conditions upon the manner of filling it, and the tenure, and the exercise of the duties of the office, and may modify or abolish any of these or the office itself, as its wisdom may dictate, when no provision of the Constitution is contravened in doing so."

In State v. Hough, 103 S.C. 87; 87 S.E., 436, it is said:

"Those holding offices created by the Legislature, hold them subject to the legislative will. The power that creates an office can impose such limitations and conditions upon the manner of filling it and the tenure, and the exercise of the duties of the office, and may modify or abolish any of these or the office itself, as its wisdom may dictate, when no provision of the Constitution is contravened in doing so."

In State v. McDaniel, 19 S.C. 114, it is said:

"A public office, created by Legislative enactment, never escapes from the control of the Legislature; on the contrary, such office exists by sufference only, as it were. If there be no constitutional inhibition, its powers and duties may be modified or limited as the public interest may require, or the entire office may be abolished at the will of the Legislature."

In Alexander v. McKenzie, 2 S.C. 81, it is said:

"The case is, therefore, narrowed down to the single question whether the defendants have such a property in their offices as to be beyond the power of the Legislature to destroy it. * * * The idea of property cannot attach to the power appertaining to a political office, neither can it attach to the obligation that results from the possession of such political power. * * * The prospective salary and other emoluments of a public office are not the property of the officer, nor the property of the State; they are not property at all. * * * It is clear, therefore, the Legislature had full authority to withdraw from the defendants their powers as mayor and alderman, in any mode that might seem most advisable, and it only remains to see whether they have, in fact, done so."

In Fooshe v. McDonald, 82 S.C. 22; 63 S.E., 3, it is said:

"It will be found in Article 7 that the Constitution expressly provides that any change that the Legislature might see proper to make in county governments should be lawful."

The argument is specious that the Act of 1923 constitutes a breach of faith with the electors, who voted bonds to be expended by a commission composed of citizens of said township in accordance with the Act of 1919. If, as we have no doubt, the General Assembly had the power to abrogate the system of township government, in a measure, established by the Act of 1919, the electors who voted the bonds are assumed to have acted with knowledge of that power, no estoppel, as it were by contract, could tie the hands of the General Assembly in the exercise of a constitutional power. The argument is also fully answered by the case ofGrocery Co. v. Burnet, 61 S.C. 205; 39 S.E., 381; 58 L.R.A., 687, where it is declared:

"But the principle of local self-government does not inhere in townships. They have such local rights of government as the Legislature sees fit to confer upon them."

And such as they have taken they may take away.

As to the third constitutional objection, namely, that the Act of 1923 is in conflict with Article 10, § 5, relating to the power of townships to assess and collect taxes for corporate purposes: It will be observed that the power of a township, under this Article, "to assess and collect taxes for corporate purposes," depends upon a grant thereof by the General Assembly.

"The corporate authorities of * * * townships, * * * may be vested with the power to assess and collect taxes for corporate purposes."

The objections under consideration assume two propositions, neither of which can be maintained: (1) That the highway commission is the corporate authority of the township; and (2) that the General Assembly has vested it with the power to assess and collect taxes. The highway commission is nothing more than the authorized agent of the township to carry out the purposes of the Act. The General Assembly has nowhere vested it with the power to assess and collect taxes. The provision in the Act is that —

"There shall be levied annually on the property in said township a tax sufficient to pay the interest on these bonds and to pay one-fortieth or more of the principal."

— which means of course a levy and collection by the Auditor and Treasurer of the County. So that it appears that the Act has neither vested the highway commission with the power to assess and collect taxes, nor taken that power from it and conferred it upon the advisory board.

As to the fourth constitutional objection, namely, that the Act of 1923 is in conflict with the Amendment of 1921, Art. X, § 5, relating to the power of townships in Union County to increase their bonded debt, to an amount not exceeding 35 per cent. of the assessed value of property, for highway purposes: The amendment referred to was intended solely for the purpose of extending the limitations of 8 per cent. to 35 per cent., in the townships named, including Bogansville. It is inconceivable that an act which made a change in the authorities representing the townships, who were charged with the duty of issuing the bonds and disbursing the proceeds, would in any sense affect the power of the townships to vote bonds or increase their bonded indebtedness.

In connection with this objection, the respondents insist that the Act of 1923 is in conflict with Article 7, § 1, which, in referring to municipal corporations, provides:

"The powers of each class shall be defined so that no such corporation shall have any powers or be subject to any restrictions other than all corporations of the same class."

In the first place the whole trend of the article indicates its application to cities and towns, and not to townships. The action of the General Assembly in making a classification of cities and towns, and none of townships, lends color to this construction.

But assuming that it was intended to include townships under the terms "municipal corporations," the respondents are met with the provision of Article 7, § 11, which is:

"The General Assembly may provide such system of township government as it shall think proper in any and all the counties, and may make special provision for municipal government and for the protection of chartered rights and powers of municipalities." State v. Touchberry, 121 S.C. 5.

As to the fifth constitutional objection, namely, that the Act of 1923 is in conflict with Article 10 §§ 6 and 13, relating to the issuing of bonds and the assessment, levy and collection of taxes by townships for highway improvement: Section 6 contains a limitation of the purposes for which the General Assembly may authorize counties or townships to issue bonds. If the General Assembly should authorize a township to issue bonds, there is no reason why it could not prescribe the method to be pursued, including the authorization of certain officers to sign the bonds, which would be subject to change at the discretion of the General Assembly; the change would in no wise affect the validity of bonds issued by former authorities or bonds to be issued by the new.

The only pertinent provision of Section 13 is:

"The taxes for the subdivisions of the State shall be levied and collected by the respective fiscal authorities thereof."

If the contention is that the taxes can be levied only by the highway commission, as the fiscal authorities of the township, it is answered by the case of Dickson v. Berckmyer,67 S.C. 526, which holds that a levy by the General Assembly is sufficient. If that they can be collected only by the highway commission, it is a sufficient answer that no authority is given to them by the Act to collect taxes. The process is extremely simple: If no change had been made in the Act of 1919, the tax would have been levied by a direction from the highway commission to the Auditor and Treasurer to enter the tax upon their books. After the passage of the Act of 1923, the same direction will be given by the advisory board and engineer, the latter being, pro hac vice, the fiscal authorities of the township. See Dickson v.Berckmyer, supra.

We think therefore that the Act of 1923 is impervious to the attacks made upon it, and that the petition should be granted; and it is so ordered.

MR. CHIEF JUSTICE GARY and MR. JUSTICE MARION concur.