State Ex Rel. Richards v. Moorer , 152 S.C. 455 ( 1929 )

These three cases involve the validity of an Act of the General Assembly, approved March 14, 1929, known as the State Highway Bond Act. In each case application is made to this Court in its original jurisdiction, by one or more taxpayers in their own names or in the name of the State to enjoin certain state officers from carrying out the provisions of the Act and to have the Act declared unconstitutional, null, and void. The cases, involving practically the same issues, were heard together and will be so decided. They involve no questions of fact.

The Court is sensible of, and responsive to, the principle that, when asked to declare a solemn enactment of the General Assembly, a co-ordinate branch of the government, invalid by reason of its unconstitutionality, a conclusion to that effect should be so manifest as to be beyond a reasonable doubt. Wingfield v. Tax Commission, 147 S.C. 122,144 S.E., 846.

The attitude of the Court is forcibly expressed by Mr. Justice Evans, of the Supreme Court of Iowa, in the case of State v. Executive Council (Iowa), 223 N.W., 737, 743, thus: "To shatter, by judicial decision, the painstaking labor of years of these great departments, carries to the onlooker an ungracious aspect. The responsibility thus facing us is one not of our seeking, nor of our liking, nor yet one which we would dare evade. We are assured, too, that in the long event the duty we owe, not only to the litigants, but to our co-ordinate departments of government, is to undertake frankly the judicial responsibility which litigation casts upon us, and to declare faithfully our judicial convictions therein. In such a case our primary concern is, and must be, directed to the soundness of our conclusion, and not to its consequences. Consequences are inevitable in every litigation and are commensurate with the magnitude thereof. They are not judicially made, nor can we make them less or more. It is not given to the Judge to look to consequences for guide in decision. If he does so, he is looking for light where none is. Indeed, he has thereby entered a dark room, and becomes as one groping, with his fingers upon the wall. The Judge cannot know, if he would, the ultimate consequences of his decision. If the decision be truly sound, he may safely dare to trust the sequence of future events, early or late, to justify it."

It is plain, from the terms of the Act, that on account of the fact 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" (see the first "whereas" to the Act), the General Assembly, fretting over this enforced delay, determined to speed up the completion of the construction, by authorizing the issue of certificates in the amount of $65,000,000, the proceeds of the sale of which were to be available in a little more thanthree years.

They were confronted by the bar of the Constitution from authorizing the issue of the certificates without a submission of the issue to a popular vote, Article 10, § 11; they saw a gleam of hope in the decisions of this Court validating bonds issued by highway districts; they hit upon the plan, evidenced by the Act, of providing for the needed funds, by passing an Act, double-barreled, containing two alternative plans, set forth in Articles 1 and 2 of the Act; the one denominated "State Unit Plan of Financing," and the other "The District Plan of Financing."

The "State Unit Plan" contemplates the issue by the Governor and the State Treasurer of "State Highway certificates of indebtedness," in the aggregate amount of $65,000,000, not more than $20,000,000 of which shall be incurred (issued?) in any one year.

The "District Plan of Financing" contemplates a division of the entire State into two highway districts, each of which may, under certain conditions, issue certificates of indebtedness similar to the reimbursement plan of the "Pay-As-You-Go" Act of 1924, in the aggregate amount of $35,000,000, $70,000,000 in all, $5,000,000 more than the "State Unit Plan" allows.

THE STATE UNIT PLAN In Article I, Section 1 of the Act, it is provided: "For the purpose of completing the construction of the State Highway System, and carrying out the provisions of this Act, the Governor and the State Treasurer are hereby authorized to issue State Highway certificates of indebtedness and notes upon the conditions prescribed in this Article," to the amount of $65,000,000, not more than $20,000,000 of which shall be issued in any one year.

The Act provides that, before the certificates shall be issued, the State Highway Commission shall transmit to the Governor a written request for their issuance, accompanied by certain information detailed; and that, if the Governor shall be satisfied with the prospects, he and the State Treasurer shall issue the certificates. Then follows an authorization to the Governor and treasurer to borrow money and issue notes of the State under certain conditions named.

It further provides: "All certificates of indebtedness and notes issued under this Act shall be signed by the Governor and the State Treasurer. If they are issued in the name of the State, the great seal of the State shall be affixed to or impressed upon them and attested by the Secretary of State."

It further provides (Section 4): "The full faith, credit and taxing power of the State are hereby pledged for the payment of the principal and interest of the State Highway certificates of indebtedness and notes authorized by this Act."

The petitioners contend that so much of the Act as comprises Article I is violative of Sections 7 and 11 of Article 10 of the Constitution:

"§ 7. * * * No scrip, certificate or other evidence of State indebtedness shall be issued except for the redemption of stock, bonds or other evidence of indebtedness previously issued, or for such debts as are expressly authorized in this Constitution."

"§ 11. * * * 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. 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."

That the certificates of indebtedness would become, when issued, obligations, debts, of the State, we think cannot be controverted; they are directed to be signed by the Governor and the treasurer, in the name of the State, with the great seal of the State affixed, and "the full faith, credit and taxing power of the State" are specifically pledged to their payment. Upon its face then the authorization of their issuance flies directly in the face of the Constitution.

Counsel for the respondents however contend that this direct and primary obligation of the State cannot be considered a debt of the State, within the contemplation of Article 10, § 11 of the Constitution, for the reason that it is secured by the pledge of a fund, the gasoline tax, the motor vehicle license tax, and federal aid, which may reasonably be expected to be sufficient to meet it, without having to resort to the levy of a property tax.

In the first place, and with reference only to the State unit plan, it is not at all clear that such a pledge is created by the Act. From the provisions of Article 3, § 8 of the Act, it appears:

(1) That the amount of the income referred to, to be turned over to the highway commission, is limited, as to the gasoline tax, to 5 cents per gallon.

(2) That all of it is to be turned over to the commission to be dispensed as directed.

(3) That no part of said income, as such, is directed to be distributed by the commission, but that an amount equal to the estimate made by the commission of what shall be received during the ensuing calendar year, is appropriated to the purposes named. In other words the whole income is turned over to the commission, mingled with its general funds, and paid out as directed.

(4) That the entire expenses of the department for the ensuing calendar year, "including all expenses of administration, operation, collection of revenues and payment of accident claims," not exceeding $450,000, are first directed to be paid out of said income.

(5) Next is directed to be paid: "The amount necessary in order to make the payments required by this Act to be made to or on behalf of counties, highway districts and bridge districts during said calendar year or during the first fifteen days of the next succeeding year."

(6) And lastly:

"The amount necessary in order to pay the principal and interest falling due in said calendar year or during the first fifteen days of the next succeeding year on certificates of indebtedness issued under this Act"; and

"The amount necessary to make the annual sinking fund payment required by this Act to be made in said calendar year."

We assume that the income is to be distributed pari passu to the foregoing purposes; what may remain is to be expended upon the highways of the State.

We do not think that, under these conditions, it can be maintained that there was constituted an unimpaired source of income devoted to the payment of the certificates, not previously shared in by other objects of the Act's bounty.

But assuming the creation of a special fund from which the certificates were intended to be paid, we do not think that that at all relieves the State from its primary obligation upon them, any more than that the assignment of collateral to a note would relieve the maker from his primary obligation upon it.

A parallel is sought to be drawn between the question at issue (as to the constitutionality of the unit plan), and the decisions of this Court in the cases of Barnwell v. Matthews, 132 S.C. 314, 128 S.E., 712; Briggs v. Greenville, 137 S.C. 288,135 S.E., 153, and Evans v. Beattie, 137 S.C. 496,135 S.E., 538. The contention is that as the Court held in those cases, construing the "Pay-As-You-Go" Act, that the fact that the faith, credit, and taxing powers of the counties involved were pledged did not constitute the obligations debts of the promisors, the same rule should apply to the obligations of the State; and that notwithstanding the facts that the State was undertaking for itself a gigantic enterprise, that the certificates were to be issued in the name of the State, signed by its high officials, and the great seal attached, sold by the officers of the State and the faith, credit, and taxing power of the State pledged for their payment, due to the fact that collateral was pledged as additional security, they were not debts of the State.

It is important therefore to consider these cases, the points involved, and the extent to which they may be applicable to or controlling in the present issue.

In the Briggs case there were two entirely separate and distinct issues presented (besides several others which are not presently of interest): (1) Whether the proposed reimbursement agreement under the "Pay-As-You-Go" Act of 1924 would constitute a debt of the State, incurred without a vote of the people, in violation of Article 10, Section 11 of the Constitution; and (2) whether the proposed issue of bonds of Greenville County or the coterminous highway district of Greenville County would overwhelm the levy constructed by Article 10, Section 5 of the Constitution, limiting the amount of the bonded debt of the political divisions or subdivisions of the State. These issues are not in the remotest degree related, and as a matter of course no discussion or decision of either is pertinent to a discussion or decision of the other; it would but clutter the mental operation to make the attempt.

The Court, we are still convinced, with entire propriety, decided upon the first issue mentioned above:

"Will said reimbursement agreements constitute a debt of the State incurred without a vote of the people, in violation of Section 11 of Article 10 of the Constitution of South Carolina?

"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 theseobligations.

"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" — citing many cases.

The conclusion appears inevitable that, if the purpose of the Constitution was a limitation of taxation, and under the Act "no property tax can ever be levied to meet" the obligation of reimbursement, which is itself limited to specific sources of income away and apart from taxation, there can be no objection to the constitutionality of the Act upon this ground.

In the Florence case the learned Circuit Judge, whose decree was adopted by the Court as its judgment, went further than it was necessary to go and further than the Court went in either the Greenville or the Coastal Highway cases. It was there held that, under the "Pay-As-You-Go" Act, the obligation of the county upon its reimbursement notes was a contingent liability only; that the primary obligation was upon the State: "* * * 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 correspondingobligation of paying for them." If the Court should reaffirm this doctrine, which we do not consider it necessary to do, there would be no escape from the conclusion that the reimbursement provisions under the second Article of the Act of 1929 would constitute primary obligations of the State.

The respondents can gather no comfort from the Evansv. Beattie case, for the same doctrine is announced as in theBriggs case.

"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.Brock, 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, 130 S.E., 876. 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 SavingsBank, 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 (Sullivan v. City Council of Charleston) the obligations were secured by past-due and unpaid taxes. In another case (Barnwell 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."

The main ground upon which the Coastal Highway case was decided was that the Act constituted the counties affected a special highway district with practically a continuous highway from the North Carolina line to the Georgia line; that all contiguous to the proposed highway were to be benefited by it; and that the tax levied was a special assessment for local improvements, not within any constitutional inhibition. That was sufficient and all that was necessary to be decided.

The point mainly involved in the three cases referred to was a construction of Article 10, Section 5 of the Constitution, which provided a limitation upon the bonded indebtedness of counties, townships, school districts, or other political divisions or subdivisions of the State; this Section has no application to the provisions of Section 11 of the same Article in reference to increasing the debt of the State without a submission to the people. The Court decided that, inasmuch as there was provided an independent source of income applicable to the obligations issued under the Act reasonably sufficient to meet them, these obligations should not be added to the existing debts of the obligors in determining whether the limitation of Section 5 had been exceeded.It was not at all decided that the obligations werenot debts of the obligors; in fact the proceedings were instituted to test their validity, and it was sustained. The conclusion was assimilated to the principle frequently announced that the amount of a sinking fund, on hand, applicable later to the retirement of municipal bonds, may be deducted from the existing debt.

The cases are of no weight in determining the question now at issue, whether the proposed certificates of indebtednessof the State will constitute obligations forbidden by Section 11 without submission to an election. The situations are as dissimilar as could be conceived. There is no constitutional requirement that political divisions of the State, before issuing bonds, must submit the question to an election;Lillard v. Melton, 103 S.C. 10, 87 S.E., 421; they are affected only by Section 5 of Article 10, fixing a limit thereto. There is a constitutional requirement that the State shall not increase its debt without a submission to an election; there is no limitation or latitude whatever to the incurring of such debts, no zone of safety provided.

It is helpful at times, by showing what may be done, to determine what may not be done; it may be conceded that if the Act under review, under the unit plan, proposed to fix no liability upon the State, an undertaking by the State to devote certain sources of income to the payment of obligations assumed by a political division would not constitute a debt of the State, subject to the provisions of Section 11. The following cases are illustrative of this principle, and the implication is clear, that if, in addition to this collateral security, the State proposed "to create any further debt or obligation, either by the loan of the credit of the State, by guaranty, endorsement or otherwise," it would not be entitled to rely upon the principle stated to repudiate the duty imposed by Section 11.

In State v. Clausen, 134 Wn., 196, 235 P., 364, 366, an Act authorizing a bond issue for the erection of a state capital building, the principal and interest from the bonds to be payable only from revenues from the leasing and sale of lands granted to the State for such purposes by the federal government, it was held not to create a debt without a vote of the people, in violation of the Constitution of the State of Washington.

In this case, however, the Court also had the following to say: "In no possible way is the credit of the State involved. Not one dollar of its general property can be used to discharge those bonds or the interest on them. Not onedollar of taxes can be put to that purpose."

In Kasch v. Miller, 104 Ohio St., 281, 135 N.E., 813,814, bonds issued in the name of the State of Ohio, and payable exclusively out of the revenues derived from reservoirs, dams, etc., for which the bonds were issued, or out of the sale of the corpus in case of default, were held to be not a debt of the State within the meaning of the constitutional limitations.

In this case the Court says:

"As ordinarily understood, a debt is a sum which may be owing from one to another, and connotes an obligation upon the part of the debtor to pay. If the legislative Act saddles an obligation upon the State to pay a sum of money eitherin preasenti or in futuro, since such obligation does not come within the limitation provided for in Sections 1 and 2, Article 8, referred to, undoubtedly the Legislature would be exceeding its power in the passage of the Act. An inspection of the Act, however, discloses that under no circumstances, and under no possibility, can the State be made to answer for any of the obligation created by the Act, by reason of the construction of such improvement." * * *

"The Act itself explicitly provides in Sections 41-2, General Code, that said bonds ``shall create no liability upon, nor in any wise be considered an indebtedness of the State of Ohio." * * *

"Were this the creation of a state debt, or a pledging of its financial credit, directly or indirectly, this Court would not hesitate to pronounce the legislative Act void. But we fail to perceive, even by a strained construction, how the Act under consideration, or its mode of operation, violates the provisions of the Constitution. The debt created under the Act is not a state debt; the bonds authorized thereunder entail no obligation upon the State which it is required, either legally or morally, to assume; the mortgage attaches to no property owned by or purchased with the revenues of the State."

In Wright v. Hardwick, 152 Ga. 302, 109 S.E., 903,906, it was held that obligations of the State of Georgia, payable exclusively out of the rentals of a state-owned railroad, did not constitute debts incurred in violation of constitutional provisions prohibiting the creation of state debt, the majority opinion stating: "The warrants in pursuance of the Act are drawn against a certain specified fund which it is anticipated will be in the treasury to meet them at the time fixed therein for their payment, and they are to be paid exclusively out of that fund; and should it fail to materialize — that is, not be in the treasury to meet the warrants at their maturity — then the holders of the purchased and discounted warrants would have no recourse against the State on the warrants themselves."

In re Canal Certificates, 19 Colo., 63, 34 P., 274, 275, certificates of indebtedness issued by the State of Colorado were held to be exempt from the constitutional limitations upon the amount of state indebtedness, the Court saying: "The expenses of construction of the canal in question are to be met in part by certificates of indebtedness. Both principal and interest of these certificates are only to be paid out of funds received for the carriage of water or in payment for lands. The Act expressly provides against any indebtedness being incurred on the part of the State, and therefore is not in conflict with the constitutional provisions heretofore considered by this Court, fixing a limitation upon State indebtedness." See In re Appropriations,13 Colo., 316, 22 P., 464.

In Brown v. Ringdahl, 109 Minn., 6, 122 N.W., 469,470, certificates of indebtedness, issued in the name of the State of Minnesota, and made payable exclusively from a special tax, were held to be not state debts within the meaning of the constitutional limitations. In this case the Court said:

"The certificates in and of themselves create no indebtedness against the State. On the contrary they are mere evidence of the holder's right to demand and receive ``from the State Treasurer the proceeds of the tax authorized by the Act to be levied and collected, and known and classified as the "Prison Building Fund."' Fairly construed, the Act contemplates their payment from this fund exclusively, and they are not general obligations of the State. * * *

"If the certificates could be construed as creating an indebtedness against the State payable from the general revenue fund, a different question would be presented. But they are not. They are to be issued in anticipation of funds provided for and appropriated, rightfully under the Lambertoncase, and are valid only as respects that fund when paid into the State treasury."

The Minnesota case is an interesting one as regards both the main and the dissenting opinions. The certificates of indebtedness were sustained upon the ground, as indicated in the foregoing excerpt, that they, in themselves, created no indebtedness against the State, but were merely evidence of the holder's right to have them paid out of the tax levy provided. The dissenting opinion holds strongly that the certificates were obligations of the State. In the case at bar the certificates are not only to be issued in the name of the State, but the faith, credit, and taxing power of the State are behind them. Evidently the express obligation of the State was provided for in order to insure the profitable disposition of the bonds, the marketability of which would be seriously impaired if they had nothing behind them but the outside income.

In Shields v. City of Loveland, 74 Colo., 27, 218 P., 913,916, the Court said: "The public can never be overburdened by that which it is under no obligation to discharge, nor can the city become bankrupt by what it does not have to pay."

In Winston v. City of Spokane, 12 Wn., 524,41 P., 888, where the loan was to be paid out of a special fund created by the receipts derived from such waterworks, the opinion was predicated upon the principle that it was to be so paid "without imposing any further liability on the general funds of the city."

All of the authorities cited in support of this doctrine appear clearly to hinge on the proposition that in no possible way is the property of the State, which is subject to general taxation, or to special taxation for other purposes, to be liable for $1 of taxes for the payment of obligations incurred without the constitutional limitations in creating a special fund for a specific purpose. For if such liability does exist, however contingent, then the constitutional limitation is invoked and applied "as a protection to taxpayers, and especially those whose property might be subjected to taxation."Briggs v. Greenville County (supra).

Counsel for respondent says:

"The character of special funds for improvements is not changed by pledging the full faith, credit and taxing power of the State to the payment of the obligations issued in anticipation of the collection of special taxes, pledged to the payment thereof.

"Nor does such pledge transform such special funds for improvements into a public debt, because such pledge merely assures that upon failure or inadequacy of the special taxes pledged another special tax authorized, namely the advalorem tax upon property authorized in that contingency, will be used."

The very next paragraph reads: "This pledge of faith, credit and taxing power of the State is merely a pledge of honor, because the State cannot be sued for an enforcement thereof without its consent."

The last paragraph quoted contains a strange and dangerous doctrine which cannot be reconciled with the preceding paragraphs. Any one must know that the certificates and notes cannot be marketed and liquidated at anything like par, if at all, unless the "full faith, credit and taxing power of the State" are pledged to their redemption. No one would deny that that is why the pledge was written in the Act. It means that the pledge has a definite value of which the framers of the Act and the General Assembly were fully aware, otherwise they would not have jeopardized the whole Act by its insertion. That value is the liability of taxpayers whose property might be subjected to taxation "upon failure or inadequacy of the special taxes pledged," and it is inconceivable that the State could capitalize this asset and escape the obligations which its pledge necessarily brings, even though it is "merely a pledge of honor" upon which the State cannot be sued without its consent.

In Fowler v. City of Superior, 85 Wis. 411,54 N.W., 800, 802, it was held that, where improvement bonds of a city declared that it "acknowledges itself indebted to and promises to pay the bearer hereof the sum of ____ dollars, lawful money of the United States," and that they were payable out of the proceeds of the improvement assessments chargeable on the property benefited, and that they were issued on the faith and security of such assessments, that the city was bound absolutely for the payment of the bonds, though it might be reimbursed from the payment of the improvement assessments, and that they constituted municipal indebtedness, within the meaning of Const. Art. 11, § 3, prohibiting a municipality from incurring an indebtedness exceeding 5 per cent, of the value of the taxable property therein.

In Feil v. City, 23 Idaho, 32, 129 P., 643, 43 L.R.A. (N.S.), 1095, it was held that where a city, already indebted to the limit prescribed by the Constitution, passed an ordinance for the issuance of water bonds, and agreed to maintain rates to pay the expenses of the works, interest on the bonds, and the principal in 20 years, such bonds constituted a liability of the city and were invalid under the Constitution.

In Castle v. City, 187 Ky., 397, 219 S.W. 439, it was held that the fact that local improvement bonds which create an indebtedness in excess of constitutional limitation are to be paid out of special assessments does not render them legal on the theory that they do not create an indebtedness against the city, where the credit of the city is pledged for the payment of the principal and interest thereon; but if city's obligation is confined merely to collecting the assessments, its liability is not an indebtedness within the constitutional provision prescribing a debt limit.

In Butler v. City, 113 Or., 174, 232 P., 655, it was held that where a contract creating indebtedness provides for a special fund with which to meet indebtedness as it accrues, and no general liability is created against the municipality, such an indebtedness is not within a constitutional inhibition against debt in excess of a fixed amount.

In Jackson v. School District, 280 Pa., 601, 125 A., 310, it was held that a municipality may create debt within its current revenues regardless of its existing indebtedness, but cannot go beyond, even where payment is to be made solely out of a specially designated income.

The point is simply this: Where there is created no obligation on the part of the State, and the proposed improvements are to be paid for out of a designated special source of income, the State is but a trustee of an express trust, to apply such income to the stated purpose, incurring no liability itself other than what might spring from a discharge of that trust; but where, in addition to its trust relation, the State has expressly assumed the payment of the obligations, the existence of the trust relation will not relieve the express obligations from the character of debts.

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.

After providing for the issue of certificates of indebtednessby the State, in Article 1 of the Act (1929), the Act (Art. 2, § 1) provides that: "Instead of requesting the Governor to issue State Highway certificates of indebtedness or notes as provided in Article 1 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."

We do not think that such legislation is permissible.

The whole legislative power of this State, its whole capacity to make laws and to provide the means for their enforcement, is vested by the Constitution in the twobranches, Senate and House of Representatives, together constituting the General Assembly of South Carolina whenmet and in session as such. Constitution of 1895, Article 3, § 1; Massey v. Glenn, 106 S.C. 71, 90 S.E., 321, 322;State v. Hayne, 4 S.C. 420.

In the Massey case, our Court, quoting from the Haynecase in regard to a similar Article in the Constitution of 1868, says: "``Although the particular office of this Section is to fix certain important features of the body through which the function of legislation is to be exercised, yet it describes in an authoritative way the nature of the power thus vested. It is no less than the legislative power of the State. It is not such and so much of the legislative power of the State as were intended to be used by that particular body, but it was the whole legislative power of this State, its wholecapacity of making laws, and providing the means for their enforcement. It was not intended that the Legislature should exercise this power without limitation and restraint, for the Constitution that uses these words of grant imposes many such restrictions and limitations affecting the extent to which it may be effectively exercised.'" And the laws are to be enacted in the manner laid down in this Article of the Constitution, especially Section 18.

Mr. Cushing, in Law and Practice of the Legislative Assembly, p. 201, par. 496, says that the authority and power of members of the Legislature as such was confined to the term of sitting of the body as a whole.

It is equally clear in this State, as well as in all forms of American government, and is a primary principle that legislative, executive, and judicial powers must be kept separate and distinct. Constitution of 1895, Art. 1, § 14.

We have not found a case in this State dealing specifically with encroachment by the legislative on the executive department. The general principle has arisen in reference to encroachment on the judicial more often, and our Court has spoken emphatically in regard thereto in Segars v. Parrott,54 S.C. 27, 31 S.E., 677, 865; Lyon v. Patterson, 102 S.C. 525,87 S.E., 306.

And Mr. Tiffany in his work, Government and Constitutional Law, American Theory, p. 63, § 117, says: "The sphere of legislation is distinct both from the sphere of adjudication and execution. Congress can enact any constitutional law and make it binding upon the people individually. But it has no authority to interpret, construe or apply the law enacted."

Mr. Stimson in his book, Federal and State Constitutions of the United States, published in 1908, pp. 195-6 says: "Sec. 200. The Three Functions. — By the Constitutions of nearly all, the powers of Government are divided into three distinct department — legislative, executive, and judicial, ``to the end that it be a government of laws, not of men.' And in most of these it is declared that no person or collection of persons exercising the functions of one department shall assume or discharge the functions of any other. They (the three departments) ought to be kept as separate from and independent of each other as the nature of a freegovernment will admit."

In the other states the same thing is implied by the distribution of all such power in separate articles, as in the United States Constitution: "``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 to which alone the people have seen fit to confide this sovereign trust.' " Vesta Mills v. City Council, 60 S.C. 7-8,38 S.E., 226; 1 Cooley's Const. Lim. (8th Ed.), pp. 224-6, 240;Port Royal M. Co. v. Hagood, 30 S.C. 525, 9 S.E., 686, 3 L.R.A., 841. The quotation above is made by this Court in the Vesta Mills case from Cooley's Const. Limitations.

Mr. Cooley, in the 8th Edition, further says, at page 240:

"On this question of expediency the Legislature must exercise its own judgment definitely and finally * * * They appeal to no other man or men to judge for them in relation to its present or future expediency."

"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. The generally recognized principal is that a law must be so complete in all its terms and provisions when it leaves the legislative branch of the government that nothing is left to the judgment of the electors, or other appointee or delegate of the Legislature." 6 R.C.L., p. 165, § 166, and cases cited in note; State exrel. v. Butler, 105 Me., 91, 73 A., 560, 562, 24 L.R.A. (N.S.), 745; Arms v. Ayer, 192 Ill., 601, 61 N.E., 851, 58 L.R.A., 277, 85 Am. St. Rep., 358; Schaezlin v.Cabaniss, 135 Cal., 466, 67 P., 755, 56 L.R.A., 736, 87 Am. St. Rep., 122; Louisville H. St. L.R. Co. v. Lyons,155 Ky., 396, 159 S.W. 971, 48 L.R.A. (N.S.), 672; 6 R.C.L., p. 179, § 179, p. 175, § 175.

The Supreme Court of Maine, in State ex rel. v. Butler above, uses this language: "The people of Maine in organizing their government as a state vested the legislative power of the government in a body ``to be styled the Legislature of Maine' (Const. Art. 4, p. 1, § 1), and did not confer any such power on any other person or body, and did not authorize the Legislature to do so. It follows that the Legislature alone can exercise the legislative power, and alone is responsible for its wise exercise, and hence cannot transfer any of the power nor any of the responsibility to any other department or person."

Then follows a quotation from Cooley's Const. Limitations: "Though legislative power cannot be delegated to Boards and Commissioners, the Legislature may delegate to them administrative functions in carrying out the various purposes of a statute and various governmental powers for the more efficient administration of the laws. ``The suspension of a statute is a legislative Act (here the suspension of Art. I of the Act) unless based upon some condition, contingency, exigency, or state of facts declared by the legislative enactment to be sufficient to warrant the suspension by an executive or administrative body whose duty it is to execute or administer the law suspended.'" 1 Cooley's Const. Lim. (8th Ed.), pp. 230, 237, and Notes and Cases; 6 R.C.L., p. 179, § 179; p. 178, § 178.

The author of R.C.L., in Section 178, thus states the rule: "A legislature in enacting a law complete in itself, designed to accomplish the regulation of particular matters falling within its jurisdiction, may expressly authorize an administrative commission within definite valid limits to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose."

The distinction seems to be that, while the legislature cannot delegate power to make a law, 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 action dependent.Winslow v. Fleischner, 112 Or., 23, 228 P., 101, 34 A.L. R., 829-832, and cases; U.S. v. Grimaud, 220 U.S. 520,521, 31 S.Ct., 480, 55 L.Ed., 569; Field v. Clark,143 U.S. 649-700, 12 S.Ct., 495, 36 L.Ed., 310; Union BridgeCo. v. U.S., 204 U.S. 381-383, 27 S.Ct., 367,51 L.Ed., 531, 532; State v. Great Northern Ry. Co., 100 Minn., 445,111 N.W., 289, 10 L.R.A. (N.S.), 253; State ex rel.v. Levitan, 190 Wis. 646, 210 N.W., 111, 117, 48 L.R.A., 445; Dowling v. Lancashire Ins. Co., 92 Wis. 63,65 N.W., 738, 31 L.R.A., 114, 115; Hewitt v. Board ofExaminers, 148 Cal., 590, 84 P., 39, 3 L.R.A. (N.S.), 896, 113 Am. St. Rep., 315; Arms v. Ayer, 192 Ill., 601,61 N.E., 851, 854, 85 Am. St. Rep., 358, 359; Hurwitzv. U.S., 280 F., 111 (8th C.C.A. Mo., 1922).

Winslow v. Fleischner, 112 Or., 23, 228 P., 101, 34 A.L.R., 829. This was an order of a commission closing the right to hunt game for a year, and the Court held that it was legislation which could not be delegated by the Legislature. In the opinion is the following quotation from 1 Lewis' Sutherland, Statutory Construction (2d Ed.), pp. 148-170, §§ 89-101:

"Legislative power is delegated contrary to the maxim stated when the Legislature attempts to confer on others a power of substantive legislation, to be exercised independently or in connection with the Legislature, or when it constitutes an inferior Legislature or law-making body. At the same time it is necessary for the Legislature to confer more or less of discretion upon executive and administrative officers in applying a law and carrying it into effect, and in many cases it is expedient to vest in such officers more or less of power to make rules and regulations for the purpose of applying and executing the law. It is, perhaps, impossible to lay down any general rule by which it may be certainly and readily determined whether such a law is or is not an unlawful delegation of legislative power. 1 Lewis' Sutherland Stat. Const. (2d Ed.), 149.

"The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, ``is between the delegations of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring 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 valid objection can be made."

It cites and quotes from the United States Supreme Court cases mentioned above. Field v. Clark, 143 U.S. 692-694,12 S.Ct., 495, 504, 36 L.Ed., 310.

This case raised the question of the right of the President to suspend duties or tariffs on certain articles upon his finding that the regulations of other countries were reciprocally equal and reasonable, or the contrary. The question arose as to whether this was delegating a legislative power. Among other things, the Court says (opinion by Mr. Justice Harlan):

"That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution. * * * Congress itself prescribed, in advance, the duties to be levied, collected, and paid on sugar, molasses, coffee, tea, or hides, produced by or exported from such designated country while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the president. The words ``he may deem,' in the third section, of course implied that the president would examine the commercial regulations of other countries producing and exporting sugar, molasses, coffee, tea, and hides, and form a judgment as to whether they were reciprocally equal and reasonable, or the contrary, in their effect upon American products. But when he ascertained the fact that duties and exactions reciprocally unequal and unreasonable were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea, or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the president ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact, and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the president was required to do was simply in execution of the Act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect. It was a part of the law itself, as it left the hands of Congress, that the provisions, full and complete in themselves, permitting the free introduction of sugar, molasses, coffee, tea, and hides, from particular countries, should be suspended in a given contingency, and that in case of such suspension certain duties should be imposed.

"``The true distinction,' as Judge Ranney, speaking for the Supreme Court of Ohio, has well said, ``is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring 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 valid objection can be made.' * * * The proper distinction, the Court said, was 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.'"

This decision is recited and reaffirmed frequently by other Courts:

Union Bridge Co. v. U.S., supra. This was a case raising the question of the authority of the Secretary of War to prevent an unreasonable obstruction by a bridge over a navigable water, Allegheny River, near its junction with Monongahela, and the decision rests largely on the same principles as Field v. Clark, and it quotes extensively from it.

U.S. v. Grimaud, 220 U.S. 520, 521, 31 S.Ct., 480,55 L.Ed., 563, supra. This was a question as to the authority to punish persons who grazed sheep on public lands contrary to regulations issued by the Secretary of the Interior, and that the license prescribed was necessary to be obtained from him. The decision rests largely upon the Field v. Clark case, and that line of cases, and cites and quotes from the Fieldcase.

In State ex. rel. v. Levitan, the Supreme Court of Wisconsin thus lays down the true rule and distinction:

"And so, in the case at bar, when we bear firmly in mind the object and purpose of the Act we are forced to the conclusion that no legislative power was delegated to the department, but merely administrative power, and that such administrative power consisted in the finding of certain facts which the Legislature has seen fit to prescribe as necessary to the issuance of a license; and, such facts having been found, the license must issue under the Act as a matter of course. * * *

"The Legislature has thus in express language fixed the terms of the bond, leaving the department to determine in each particular case what amount shall be required as sufficient, and what sureties shall be approved in order to effectuate the carrying out of the purpose of the Act, which is the protection of the public from unfair and fraudulent dealing. Whether the bond is sufficient under any particular case depends upon facts, and it is clear that the Legislature intended that the department shall ascertain the facts, and when such facts shall be found, the bond shall be approved."

In Little Chute v. Van Camp, 136 Wis. 526,117 N.W., 1012, 128 Am. St. Rep., 1100, the Court says: "A legislative body cannot delegate to a mere administrative officerpower to make a law, but it can make a law with provisions that it shall go into effect or be suspended in its operation upon the ascertainment of a fact or state of facts by an administrativeofficer or board. Dowling v. Insurance Co.,92 Wis. 63, 65 N.W., 738, 31 L.R.A., 112; M., St. P. S.S.M.R. Co. v. R.R. Commission (Wis.), 116 N.W., 905. In the present case the ordinance by its terms gives power to the president to decide arbitrarily, and in the exercise of hisown discretion when a saloon shall close. This is an attempt to vest legislative discretion in him, and cannot be sustained.

In the case of Arms v. Ayer, the Supreme Court of Illinois says: "The general rule is that a statute must be complete when it leaves the Legislature — as to what the law is — leaving its execution to be vested in third parties. Thus it was said in Dowling v. Insurance Co., 92 Wis. 63,65 N.W., 738, 31 L.R.A., 112: ``The result of all the cases on this subject is that a law must be complete in all its terms and provisions when it leaves the legislative branch of the government, and nothing must be left to the judgment of the electors, or other appointee or delegate of the Legislature, so that in form and substance it is a law in all its details inpraesenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event.'" Then follows a quotation already made from Sutherland on Statutory Construction.

The principle is recognized by our Court in Lillard v. Melton,103 S.C. 18, 21, 87 S.E., 421, 425, 426, where Circuit Judge Smith, speaking for the Court, says: "It is clear that the Legislature did not attempt a delegation of power, as the most casual observation of the enactment will disclose. Itmakes a direct imposition, which is a fully authorized exercise of legislative power." And again at page 21: "The language of Section 1 of the Act is mandatory as to the issuance of the bonds by the commission therein created for permanent highway improvement. The only discretion vested in the commission is as to the denomination, times, and amounts of the issue, not to execeed a maximum amount."

"Our decision in Seattle v. Gibson, and those of the Federal and State Courts upon which that decision is rested rendered it plain 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 a license 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 anyofficer or set of officers, uncontrolled by any prescribed ruleof action." State ex rel. Makris v. Superior Court,113 Wn., 296, 193 P., 845, 847, 12 A.L.R., 1432. See exhaustive note to same case, pages 1437, 1438, 1443, 1444;P. De Ronde Co. v. U.S. Sugar Equal. Board (D.C.), 299 F., 659, 662.

In the Makris case, the Court further says at page 1434: "We are not deciding that a business of the nature here in question may not be regulated within reasonable limits through the passage and enforcement of ordinances by the city; but only that the city has not the power, neither can the Legislature confer upon it the power, to enact a valid ordinance by the terms of which some officer or set of officers controlled by no more specifically prescribed rule of action than is found in the revocation provisions of this ordinance may decide who may or may not conduct the manifestly ordinarily lawful business of a soft drink and candy store."

In the note at page 1436, the author says: "The generally accepted rule is to the effect that a statute or ordinance which vests arbitrary discretion with respect to an ordinarily lawful business, profession, appliances, etc., in public officials, without prescribing a uniform rule of action, or, in other words, which authorizes the issuing or withholding of licenses, permits, approvals, etc., according as the designated officials arbitrarily choose, without reference to all of the class to which the statute or ordinance under consideration was intended to apply, and without being controlled or guided by any definite rule or specified conditions to which all similarly situated might knowingly conform — is unconstitutional and void."

And District Judge Morris, of Delaware, in the De Rondecase above, says:

"From this premise it would seem inevitably to follow, not only that the recognition of moral claims against the government is solely a congressional power, but also that in the exercise of that power Congress alone can determine what claims shall be recognized and paid. This it may do by providing for the payment of specific claims absolutely, or by providing for the payment of claims having specified attributes or coming within a defined class. The Congress may decide for itself all the facts with respect to the claims, or it may prescribe the principal or major premise by which all claims to be paid must be tested, and leave to a specified tribunal or officer the determination of what claims fall within that rule. Guthrie National Bank v. Guthrie, 173 U.S. 528, 537, 19 Sup. Ct., 513, 43 L.Ed., 796; UnitedStates v. Realty Co., 163 U.S. 427, 441, 443,16 Sup. Ct., 1120, 41 L.Ed., 215; Town of Guilford v. Supervisors, etc.,13 N.Y., 143.

"But if the Congress goes further, and confers upon an officer or tribunal, not only the power to determine some specified fact or state of things, the minor premise with respect to the particular claims, but also the power to make its own controlling rule, principal, or major premise with respect to their payment or nonpayment, it confers or attempts to confer upon such officer or tribunal a complete and absolute discretion. Such an Act, however, would be a delegation of the full legislative power and discretion with respect to the payment of such claims, and hence invalid. Fieldv. Clark, 143 U.S. 649, 692, 694, 12 Sup. Ct., 495,36 L.Ed., 294."

It seems clear, therefore, that the Act in question has not committed to the Highway Commission the determination of a matter of fact upon the existence of which the law should take effect, but has committed to its uncontrolled discretion the determination of which of the two completed plans should be put into operation.

Another reason why this alternative legislation cannot be approved is thus expressed by the Nebraska Court in the case of Searle v. Yensen, 226 N.W., 464, 466: "The power of the Legislature to delegate a part of its legislative functions to municipal corporations or other governmental subdivisions, boards, commissions, and tribunals, to be exercised within their respective jurisdictions, cannot be denied;but the recipient of such powers must be members of thesame governmental department as that of the grantor. Otherwise a confusion and duplication of powers would result, against which the section of the Constitution above quoted is directed. The Legislature may not impose upon the judiciary or the executive the performance of acts or duties not properly belonging to those departments respectively. People v. Nussbaum, 55 App. Div., 245, 67 N.Y.S., 492. The above considerations are not to be deemed as prohibiting the Legislature from imposing upon the other departments the performance of new and additional duties, but the duties so imposedupon either must be of the character and quality whichsuch departments, respectively, are authorized or may be requiredto perform."

Unquestionably the Highway Commission is a factor of the executive department of the government; it has no legislative powers; they are purely administrative; and yet to them the Act proposes to commit not only the determination of what construction should be placed upon a statute, butwhat that statute shall be.

THE DISTRICT PLAN OF FINANCING This plan is subject of course to the objection that the Act as a whole proposes an alternative method of legislation. If that objection be valid, the whole Act passes out. We shall discuss it therefore as if the plan of two districts stood alone in the Act.

It is proposed to sustain this plan under the Evans v. Beattiecase, the Coastal Highway case. We do not think that it is possible to do so. The bonds in that case were sustained upon two grounds: (1) That there having been provided an independent source of income to meet the bonds issued under the Act of 1924, they could not be considered in determining the issue whether they would increase the bonded debt of the several counties beyond the 8 per cent. limitation in Section 5, Article 10 of the Constitution; (2) the Coastal Highway Act was explicitly sustained as the exercise of the right of the Legislature, "to carve out of the territory of the State a special district, and to order in the form of a tax upon all the property in that district a special assessment for local improvements."

The first ground has already been considered as affording no support for the two-district plan.

As to the second ground:

Under the Act construed in that case it was proposed to connect up certain highways in the counties composing the highway district, making a continuous highway extending from the North Carolina to the Georgia line, a link in a national highway from Canada to southern Florida, in which all of the people in all of the counties designated are interested and will be benefited. It was not proposed to create a highway district of these counties and authorize bonds to be issued to construct all improved highways in all of the counties. We doubt very much if that could have been done.

It was recited in the Act (Act March 12, 1926 [34 St. at Large, p. 1495], § 5): "Inasmuch as the highways above described, together with certain other section of highway situated in the Counties of Marion, Berkeley, Charleston and Hampton, constitute a continuous highway, commonly known as the Coastal Highway, running across the State of South Carolina from North Carolina to Georgia, through all of the counties in the highway district hereby established, with a branch highway running from said highway to the Town of Beaufort, it is hereby determined that the construction of the highways above described will be of special benefit to all property owners in the said highway district."

Acting upon the legislative declaration that the local improvement would "be of special benefit to all property owners in the said districts," stress was laid upon, and authorities cited to sustain the power of the Legislature to levy taxes upon a special district for local improvements; the Court declaring: "We think it is clear therefore that the Coastal Highway Act is the exercise of the power of the General Assembly to impose a special assessment for local improvements and not a general tax for public purposes, and that this power is derived from the general legislative powers of the General Assembly, not restricted by any constitutional provisions or by the absence of special constitutional authority. The question then is whether the Act is a proper exercise by the General Assembly of the power vested in it."

In the present Act there is no semblance of a provision for local improvements. It may as well have converted the entire state into one highway district as to divide it into two; the two comprise the entire State; or, instead of dividing the state into two approximately equal districts, to make a district out of one county and another district out of all of the remaining counties. The income of each of the districts is to be expended upon all of the highways in all of the counties, regardless of the vast sums of money already expended by many of the counties upon its own highways.

In the Coastal Highway case, the special assessment applicable to the territory through which the proposed highway passed was necessarily, because of its proximity to the highway, calculated to have reflected upon it, commensurateadvantages and benefits which would offset the special assessmentimposed for the construction of the highway; but here, many of the counties in the proposed two districts have had their state highways completed under the county reimbursement plan under the "Pay-As-You-Go" Act, and to subject the citizens and taxpayers of these counties to the extra assessment would certainly affect those who could not possibly receive a corresponding benefit from the tax.

Evidently what was in contemplation in the Coastal Highwaycase was such an undertaking as directly and proximately reflects itself in commensurable advantages to contiguous property. Here, we have counties in the State without completed state highways, or without completed concrete roads, and it is estimated that under the "Pay-As-You-Go" Act it will take a little more time to complete them. To obviate this extra time, it is said, that an immediate and available fund of $65,000,000 is necessary. To obtain this, a statewide plan is proposed which obviously runs counter to every fundamental principle of constitutional right and prerogative; then, a so-called "Two-District Plan" is ingeniously contrived, splitting the State, as a whole, into two highway districts. The effort is clearly to come within the sheltering wings of the Coastal Highway and other district cases, decided by this Court. But to justify such action on the part of the legislative body (1) there must be an inherent and special benefit inuring to those who bear the burden of the special assessments; (2) there must be a rational plan of equalization and apportionment of the burden. If no benefit inures to those through whose property the highways pass of a special character commensurate with the tax, or, if the plan is manifestly unfair and unjust as it is here, it necessarily invades the taxpayer's constitutional right of "due process of law" to deprive him of his property.

In the case of Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. R., 124, 66 L.Ed., 254, 27 A.L.R., 375, the Court said, in effect: That while no one has a vested right in a rule of the common law, yet the legislative power of a state can only be exercised in subordination to the fundamental principles of right and justice, which the guaranty of due process of law, in the United States Constitution,Fourteenth Amendment, is intended to preserve, and a purely arbitrary or capricious exercise of that power, whereby a wrongful and highly injurious invasion of property rights is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with these principles.

Another consideration rendering it impossible, in the exercise of good faith to the people of the State, to sustain the plan of two districts, is this: So long as the reimbursement agreement involves no more than the appropriation of that part of the proceeds from the gasoline tax and automobile licenses, which by statute is allotted to the county (or district), the agreement is within the terms of the decisions of this Court. But if the statute authorizing a reimbursement agreement should extend beyond this point, if it should seek to create without a vote of the people a public debt having all the essential characteristics of a state debt, its constitutionality will not be saved by the device of having the evidence of such public debt issued in the name of two districts into which the State for this very purpose is divided.

The fact that the certificates of bonds are to be issued in the name of the two districts does not determine the real nature of the indebtedness. These certificates or bonds aremerely evidences of the debt. The character of the debt — as to whether it is a public debt of the State — is to be determined by its real nature. If it is a public debt resting upon the people of the entire state and payable by taxes levied uniformly throughout the entire area of the State, then it is in fact a State debt.

The terms of the statute show that the debt which it seeksto create, whether evidenced by state or district bonds, is astate debt.

The terms of the Highway Act of 1929 demonstrate that the real purpose of the Act was the creation of a public debt, applying to the entire state and payable out of the resources of the State. This is the character of the debt whether evidenced by state or district bonds.

In the title it is declared that the purpose is to provide for the construction of the State Highway System and for the payment of the outstanding bonds issued by the State Highway Commission and by the counties and the districts, andto authorize the issue of evidences of indebtedness by theState, or to divide the State into two districts and to authorizethe issue of certificates of indebtedness of these districts. Note that it is the same public debt to be paid in thesame way, whether the evidences thereof be issued by theState or by the two districts.

The preamble of the Act declares that the method of issuing bonds by the counties and highway districts, backed by reimbursement agreements, is inadequate, and that the only practical way is to construct the State Highway System "with borrowed money" and to enable the State to make "animmediate investment" in a "complete state highway system."

In other words, the method, which has been declared by this Court to be constitutional, is abandoned as "inadequate," and the State is to make an "immediate investment" in a complete state highway system with borrowed money. TheState is to do this.

The body of the Act outlines two plans of financing this borrowing of money, one denominated "State Unit Plan of Financing," and the other "The District Unit Plan of Financing." Under the first plan, bonds or certificates of indebtedness of the State are to be issued and sold. The employment of the second plan is at the option of the highway commission; and, to this end, the Act divides the territory of the State into two highway districts, and authorizes the districts to enter into an agreement with the State Highway Commission by which the district agrees to advance the money for completing the highways within the district, the State Highway Commission agreeing to reimburse the district for the moneys so advanced out of the gasoline and motor vehicle license taxes; bonds or certificates of indebtedness are to be issued and these are to be paid out of these special taxes. The reimbursement is not limited to that part of the special taxes which would have been apportioned under the law to the roads within the district. There is nosuch feature in this reimbursement agreement. But the agreement binds the commission to the repayment of the moneys loaned and in the installments of principal and interest stipulated in the obligations of the district. In other words, the plan for financing this state-wide project — this immediate investment, "on the part of the State" — is that the two districts, into which the State has been divided, for this special purpose, shall advance to the commission moneys which shall be employed in the construction of the "complete State highway system," which debt the commission agrees to repay.

In other words, the debt created for this "borrowed money" is assumed by the State Highway Commission (a state agency), under an agreement to pay such debt out of the revenues derived from a state-wide tax upon gasoline and automobiles.

The agreement contemplated by this Act is not that the money advanced by each district shall be employed in that district, nor that the reimbursement shall be in the proportion indicated in the "Pay-As-You-Go" Act.

The Constitution prohibits the creation of a state debt of any kind without a vote of the people. All means, whether direct or indirect, whereby a state debt is sought to be created without a vote of the people, fall under the condemnation of the Constitution.

The debt sought to be created by this Act, whether represented by bonds of the State or of the two districts, is a public debt applying uniformly against all of the people of the State, to be paid by state taxation applicable throughout the State. It possesses all the essential characteristics ofa state debt.

In addition to what has been said, we think that the preamble of the Act is all that is needed to show that the debts proposed to be created by the districts are in reality the debts of the State.

It appears from the official record of the passage of the Bill, in the Journals of the Senate and of the House of Representatives, that as introduced in the Senate it contained only the State unit plan, and was so passed by the Senate. The two-district plan, containing the alternative choice committed to the State Highway Commission, was incorporated by the House as an amendment to the Bill. The preamble with its numerous "whereases" was not amended, and of course applies to one plan as well as the other. An examination of the preamble convinces one that the enterprise was essentially a State enterprise and consequently the two-district plan must be so considered.

The preamble recognizes the fact that the existing laws purported to provide a financial plan for the construction of a "State Highway System," an enterprise, a creature of theState; it declares that the existing plan was inadequate to accomplish this purpose within a reasonable time, and that, from estimates submitted by the State Highway Commission, "a more excellent way" had been devised for the completion and maintenance of this State institution, a state highway system. That it was intended as such abundantly appears in the preamble.

The disposition of the income from the gasoline tax and the motor vehicle license tax is exceedingly significant. Out of it was to be paid the interest payments upon a State loan sufficient in amount to complete the State Highway System; a sinking fund for the retirement of the loan; the administration and operation of the State Highway Department; the maintenance of the entire State highway system. The State was to assume the existing reimbursement obligations of the Highway Commission which were to be cared for out of said income. A surplus was to be accumulated for the construction of additional state highways. That the only way to construct a state highway system was "with borrowed money." That "an immediate investment by the Statein a complete State highway system" was in mind. That the advantages to the State were many and minutely detailed. The purpose of the Act was thus definitely and clearly expressed.

The application of the proceeds of the sale of the certificates of indebtedness to be issued by the highway districts is practically the same. Every indication is that they are intended to accomplish the identical purpose as the certificates issued under the State unit plan, and that the highway districts under the second plan are but the agents of the State, the conduit through which the purpose is to be accomplished. The certificates are to be executed, issued, and sold by the Governor and the State Treasurer, not by the districts, who are also authorized to issue notes in anticipation; the proceeds are to be paid to the State Treasurer and disbursed by him; the comptroller general is authorized annually to levy a tax upon all of the property within the districts; the county treasurers are directed to collect the same and pay it to the State Treasurer, for the purpose of paying the principal and interest upon the certificates as they mature. The district commissioners will have discharged their duties upon organization and countersigning the certificates.

Without intending in the slightest degree to reflect upon the bona fides of the General Assembly whose members were unquestionably moved by their conception of the best interests of the State, we cannot escape the conviction that the plan proposed runs counter to the express provisions of the Constitution.

It has been suggested that, if Article 1 of the Act of 1929, the State unit plan, should be declared unconstitutional, Article 2, the two-district plan, would not be affected thereby and would stand.

Judge Cooley, at page 361 of his work on Constitutional Limitations (8th Ed.), thus declares the test: "When therefore a part of a statute is unconstitutional, that fact does not authorize the Courts to declare the remainder void also,unless all the provisions are connected in subject-matter, dependingon each other, operating for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the Legislature would have passed the one without the other. * * * If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But ifits purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependenton each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature intended them as a whole, and if all could not be carried into effect the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditioned or connected must fall with them."

This is the logical and generally accepted test. It must be recognized that the scheme of the Act was to present an alternative choice of two well-defined financial plans for the completion of a state-wide highway system. That choice was committed to the State Highway Commission, who at their option might either call upon the Governor, with the information required in detail by the Act, to issue certificates of indebtedness of the State to the amount named, and that, if such representations appeared satisfactory to the Governor, the certificates should be issued; or, if the Highway Commission did not favor such plan, they could proceed under what was denominated "the District Plan of Financing." It seems perfectly clear that if either plan should be declared unconstitutional, to force the commission to proceed under the other would necessarily destroy the alternative choice which the Act explicitly confers upon the commission. Suppose for instance that the district plan should be declared unconstitutional, the commission would be forced to proceed under the State unit plan, when as a matter of fact they were not willing to do so, but preferred the other; or mutatismutandis; their option in either event would have been annihilated. It is impossible to say that either plan would have been originally adopted by the General Assembly. They had the opportunity of adopting either and declined, preferring to commit the option to the commission.

The counties and the highway districts which have been heretofore bonded to build highways, by the terms of the contracts which they have made under statutory authority with the State Highway Commission and with bondholders, have certain vested rights in both the gasoline tax for their interest and principal, and in and under their reimbursement agreements for the principal which cannot be fully protected and preserved from impairment if the present Act is to be carried out.

The Acts which have been passed, authorizing reimbursement agreements by counties and districts which are contracts, constitute obligations which the county and bondholders had a right to rely upon and which cannot be impaired, however minutely, under the provisions of our State and Federal Constitutions. Martin v. Saye, 147 S.C. 442,145 S.E., 186; 1 Cooley's Constitutional Limitations (8th Ed.), 582-4.

"A statute which deprives the holders of the bonds or interest coupons or certificates of indebtedness of the State of any rights to which they were entitled under the laws in force at the time of the issue of such obligations, or which withdraws from State officers the power of carrying out the contract evidenced by such instruments of indebtedness, or diverts to other uses funds or property created or held under existing laws for the purpose of paying particular debts of the State, is unconstitutional as impairing the obligations of contracts." 12 C.J., 998.

"A fund set apart for the payment of a debt according to the provisions of the Act under which the debt was contracted may not be diverted from such purpose by a subsequent statute or ordinance. A statute providing for the creation of a sinking fund for the payment of bondholders becomes a part of the contract between the city and its bondholders, and cannot subsequently be changed to their detriment." 12 C.J., 1013. Martin v. Saye, 147 S.C. 433,145 S.E., 186.

The judgment of this Court should be that the injunctions prayed for in each of the cases above stated be granted.

MESSRS. JUSTICES COTHRAN and BLEASE, and MESSRS. CIRCUIT JUDGES BONHAM, TOWNSEND and HENRY concur with MR. CHIEF JUSTICE WATTS.