State Ex Rel. Brown v. Bates, State Treas.

The petitioners ask for a rehearing in this case on the stated ground that the Court has not given consideration to the contention of the petitioners to the effect that the statute in question herein violates the constitutional direction (Article X, Sec. 3) that a tax may not be diverted from the object stated in the Act which levies the same.

In the opinion filed it is expressly stated as the Court's conclusion that the statutes with which we are dealing (Code Ch. 162 as amended) do not evince "a legislative purpose to allocate in a constitutional sense the special revenues obtained from the issuance of licenses to motor vehicle carriers for hire," and that the fund resulting from the operation of such statutes does not come within the purview of the State Highway Bond Act of 1929.

Thus it is apparent that the issues presented in the petition for rehearing have been definitely adjudicated adversely to the contentions of the petitioners.

It appears to us that the misapprehension under which able counsel for the petitioners are laboring lies in their subsidiary contention that the mere fact that a statute designates a particular use to be made of the proceeds of a tax levy is itself sufficient to bring it within the constitutional rule that the tax has been levied for (in the sense of "allocated" to) a stated object and that the fund may not be applied to any other purpose (Const. Art. X, Sec. 3.) There is, however, a fundamental difference between the mere statement in an Act levying a tax as to the use that shall be made of the same, and the "allocation" of the tax in a constitutional sense to the stated object.

When, as in the case of the enactment of the State Highway Bond Act of 1929, a definite project or "object" is undertaken by the Legislature, and to finance that object, a tax, whether levied or not by the same statute, is specifically allocated to the accomplishment of that object, it is not within the power of the Legislature, so long as the project or object has not been completed, to divert the tax to some other purpose.

This statement of the governing principle is made clear by the decisions of this Court in the cases of: Morton, Bliss Co. v. Comptroller General, 4 S.C. 430; State v. Leaphart,11 S.C. 458; State ex rel. McKinlay v. Cardozo, 8 S.C. 71, 28 Am. Rep., 275; State ex rel. Edwards et al. v.Osborne et al., 193 S.C. 158, 7 S.E.2d 526, 528; Stateex rel. Edwards et al. v. Osborne et al., 195 S.C. 295,11 S.E.2d 260.

But if, for example, the Legislature were to impose an additional income tax and were to direct that the same be applied to the maintenance of the educational institutions of the State, it would not follow that at some later date the Legislature could not direct the application of the same additional levy to other State purposes. The limitation on legislative power is directed against the creation of the confusion in fiscal affairs of the State which would arise from the concomitant initiation of new State projects and the levy of taxes to carry the same into execution, and the subsequent diversion of such taxes to other purposes before the projects have been carried to completion.

In the present case the project of the State Highway System is encompassed within a comprehensive tax plan that is in no sense dependent upon the fund created by the legislation with which we are dealing here. This legislation does, it is true, impose upon common carriers for hire a license which in a sense represents compensation for the use by such carriers of the highways of the State. Whether the proceeds of the license charge go directly into the State Highway Fund, or go into the treasury of the State for general State purposes, it is still true that out of the funds of the State the highways are constructed and maintained in part for the use and benefit of common carriers for hire, and that in paying the special license charges imposed by Chapter 162 of the Code as amended, they are paying for the identical public purposes and services when the funds go into the treasury of the State that they would be paying for if the funds went into the State Highway Fund.

We reiterate the statement in the opinion filed that we are not dealing in this case with the constitutional question of the right of the Legislature to impose license charges upon either interstate or intrastate common carriers for the privilege of doing business in South Carolina. That question is not presented by the record.

The petition for rehearing is refused.

Let this order be published with the opinion of the Court.

MR. CHIEF JUSTICE BONHAM, MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES, and MR. ACTING ASSOCIATE JUSTICE G. DUNCAN BELLINGER concur.