Supreme Court of South Carolina, 1915

Little v. Willimon

Supreme Court of South Carolina · Decided December 17, 1915 · Messrs, Hydrick, Watts, Gage, Prince, Devore, Shipp, Sease, Rice, Bowman, Moore, Smith, Fraser, Gary, Chiee, Mauldin

87 S.E. 435; 103 S.C. 50; 1915 S.C. LEXIS 245 (South Eastern Reporter)

Counsel

Messrs. O.K. Mauldin and Lewis W. Parker , for appellant, submit: Bonded indebtedness against county, except by a vote of the electors: 1 Dillon Munc. Corp., p. 162; Const., art. I, secs. 1 and 5; 42 S.C. 304 ; 2 Speer 644; 53 S.C. 28 ; 30 S.C. 604 . Rights of individuals protected: Const., art. XVII, sec. 11, par. 3; 7 How. Pr. 124; 111 S.W. 908; 83 S.C. 88 , questioned. Has the legislature the right to dictate to county officers their action in the matter of local affairs, such as the maintenance of roads, and can the legislature divest county authorities of the right to determine without its direction the character of improvements to be made in the roads and the expenditure therefor? 1 Dillon Mun. Corp., p. 162; 21 N.E. 278; Cooley Const. Lim. (5th ed.) 208; Const., art. I, sec. 29; art. X, sec. 6; Black Interpretation of Laws, p. 541; 50 S.E. 295; 51 N.Y. 401 ; 4 Wall. 446. A county is a body politic and corporate: Const., art. VII, sec. 9; Civil Code, secs. 587, 937; 6 S.C. 42 ; 30 S.C. 20 ; 61 S.C. 213 ; 24 Mich. 44 ; 9 Am. Rep. 103; 22 A. E. Ann. Cas. 1063; 51 Ill. 17 . Has the legislature assumed executive and administrative powers or conferred the same upon the legislative delegation from Greenville county? If so, are such actions of a character to render the statutes in question unconstitutional? 21 N.E. 252, 267 and 275; 15 Md. 455 ; 53 Conn. 76 ; 3 J.J. Marsh 401; 20 Ct. Cl. Rep. 438; 116 U.S. 483 ; 68 N.C. 429 . What is included in bonded indebtedness? 1 A. L. Dict. 141; Harper's L. 434; 4 A. E. Enc. of L. 620; 2 N. McC. 126; 60 S.C. 555 ; 14 S.E. 279 ; 92 S.C. 94 . Construction of amendment to Constitution with reference to limit of bonded indebtedness: 1 Cooley Const. Lim. 217; Endlich Inter. Stats., sec. 223; 36 Cyc. 1088; 1 Dillon Mun. Corp., sec. 235; 8 S.C. 207 ; 68 S.C. 415 . Not retroactive: 34 S.C. 468 ; 22 S.C. 504 ; 11 S.C. 328 ; 13 Rich. 280; 9 S.C. 293 ; 55 S.C. 302 . Messrs. Oscar Hodges and Haynsworth Haynsworth . for respondents, submit: Temporary notes not part of bonded indebtedness: 73 S.C. 94 ; 5 S.C. 156 ; 63 S.C. 438 ; Civil Code, secs. 1001; 127 S.W. 1072; 34 A. 916; 68 S.E. 118; 197 Pa. 41 ; 46 A. 1035 ; 80 Am. St. Rep. 812. Only the amount in excess of the limitation invalid: 50 N.E. 81; 32 So. 42; 47 Mich. 226 ; 10 N.W. 349 ; 127 Ill. 30 ; 18 N.E. 781 ; 43 Iowa 48 ; 22 Am. Rep. 115; 20 A. E Enc. L. (2d ed.) 1173; 10 L.R.A. (N.S.) 110; 117 U.S. 657 ; 21 A. E. Enc. of L. (2d ed.) 82; 114 Fed. 162; 52 C.C.A. 118; 78 Tex. 450 ; 14 S.W. 1003 ; 54 Fed. 487; 4 C.C.A. 460; 164 U.S. 599 ; 97 N.W. 1049, 1052; 150 U.S. 182 , distinguished; 117 U.S. 635 ; 164 U.S. 599 ; 198 Fed. 557; 212 Fed. 4. Amendment of Constitution excludes (b) in that they authorize the issue of bonds without submitting the question to a vote of the electors , and (c) whether the case of Carrison v. Kershaw, 83 S.C. 88 , should be overruled: 13 S.C. 300 ; 62 S.C. 29 ; 21 S.C. 414 ; 48 L.R.A. 465; 170 U.S. 310 , 370 ; 169 U.S. 557 ; 13 Mich. 481 ; 92 U.S. 312 ; 91 U.S. 540 ; 132 Am. St. Rep. 196; 59 Am. Dec. 759; Cooley Const. Lim. (7th ed.) 239, 240.

Opinion of the Court

Per Curiam.

1 The principles anounced in Lillard v. Melton, 103 S. C. 10, 87 S. E. 421, are conclusive of all questions presented in this case, except one: That the act creating the highway commission for Greenville county (29 Stat. 491) violates the provision of the Constitution (art. I, sec. 14), that the three departments of the government shall be separate and distinct, and no persons exercising the functions of one shall assume or discharge the duties of any other.

The provisions of the act which are alleged to be in contravention of the section of the Constitution above referred to are these: 1. That the members of the commission shall be appointed and removed b}^ the Governor, upon the recommendation of a majority of the Greenville delegation in the legislature. 2. That the commission “shall meet, confer with and report to the delegation from Greenville county every two months and from time to time as may be necessary with reference to the prosecution of said work and the discharge of their duties as herein provided.”

*54 2 It is contended that, in these matters, the act confers upon members of the legislature executive and administrative functions. As tothefirst of these contentions, learned counsel appear to have overlooked two decisions of this Court, which are conclusive of the question. Elledge v. Wharton, 89 S. C. 113, 71 S. E. 657; State v. Bowden, 92 S. C. 393, 396, 75 S. E. 393. The second contention is equally untenable. Clearly, the supervision of public work is not an inherent function of the executive department. The legislature had the power, as held in Lillard’s case, to have the work done by and

3 through such agencies as it saw fit. A fortiori, it had authority to have such agencies confer, with and report to the legislature itself, or to a committee of that body, or any other agency that it might select. It chose, for that purpose, the Greenville delegation, upon the supposition, no doubt, that, being residents of the county and directly interested in the proper prosecution of the work, they would give it most.careful attention. Though it is not necessary to the validity of such a provision that its wisdom should bemadeto appear, it is apparent, in the possibility that such conference and report might show the necessity for additional legislation for the most successful and enonomic prosecution and completion of the work.

Judgment affirmed.

Messrs. Justices Hydrick, Watts and Gage, and Circuit Judges Prince, DeVorE, Shipp, Sease, Rice, Bowman, Moore and Smith concur in the opinion of the Court. Mr. Justice Fraser and Circuit Judge Gary concur in the result. Mr. Chiee Justice Gary and Circuit Judge Mauldin dissent.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.