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CODE TITLES WITH THEIR VOLUME NUMBERS 



Volume 1. 

1. Administration of the Government. 

2. Aeronautics. 

3. Agriculture. 

4. Alcohol and Alcoholic Beverages. 

5. Amusements and Athletic Contests. 

6. Animals. 

7. Appeals. 

8. Banking, Commercial Paper and Fi- 

nance. 

9. Boards and Commissions. 

10. Civil Remedies and Procedure. 

11. Contracts and Agency. 

12. Corporations. 

Volume 2. 

13. Cotton. 

14. Counties. 

15. Courts. 

16. Crimes and Offenses. 

17. Criminal Procedure. 

18. Dams and Drains ; Sanitary and 

Drainage Commissions and Dis- 
tricts. 

19. Decedents' Estates. 

20. Domestic Relations. 

Volume 3. 

21. Education. 

22. Educational Institutions. 

23. Elections. 

24. Electricity. 

25. Eminent Domain. 

26. Evidence. 

27. Fees anci Costs. 

28. Fish, Game, etc. 

29. Forestry. 

30. General Assembly. 

31. Guardian and Ward. 

32. Health. 

Volume 4. 

33. Highways, Bridges and Ferries. 

34. Homestead and Other Exemptions. 

35. Hotels, Boarding Houses, Restaurants 

and Tourist Camps. 



36. Housing and Redevelopment. 

37. Insurance. 

38. Juries and Jurors in Circuit Courts. 

39. Jurisdiction of State and United 

States. 

40. Labor and Employment. 

41. Landlord and Tenant. 

42. Libraries. 

43. Magistrates and Constables. 

44. Military, Civil Defense and Veterans' 

Affairs. 

45. Mortgages and Other Liens. 

46. Motor Vehicles. 

Volume S. 

47. Municipal Corporations. 

48. Names. 

49. Notaries Public and Commissioners 

of Deeds. 

50. Officers and Employees. 

51. Parks and Playgrounds. 

52. Partnerships and Joint Stock Com- 

panies. 

53. Peace Officers. 

54. Ports and Maritime Matters. 

55. Prisons and Other Methods of Cor- 

rection. 

56. Professions and Occupations. 

57. Property and Conveyances. 

58. Public Service Companies. 

Volume 6. 

59. Public Works and Certain Public Au- 

thorities. 

60. Registration and Recordation. 

61. Retirement Systems. 

62. Securities. 

63. Soil Conservation and Improvement. 

64. Sundays, Holidays and Other Special 

Days. 

65. Taxation. 

66. Trade and Commerce. 

67. Trusts and Fiduciaries. 

68. Unemployment Compensation. 

69. Warehouses. 

70. Waters and Watercourses. 

71. Welfare. 

72. Workmen's Compensation. 



^■^ 



■'M4/1/14/' 



CODE OF LAWS 

OF 

SOUTH CAROLINA 

1952 



IN EIGHT VOLUMES 



ANNOTATED 



Prepared under the supervision and direction of the 
Code Commissioner and the Committee on Statutory 
Laws of the General Assembly of South Carolina 



VOLUME 7 



THE MICHIE COMPANY 
Charlottesville, Va. 

THE LAWYERS CO-OPERATIVE PUBLISHING CO. 
Rochester, N. Y. 

1952 



Copyright 1952 

by 

The State of South Carolina 



Table of Contents 



VOLUME 7 



Page 

Constitution of the United States of 1787 1 

Constitution of the State of South Carolina, 1895 Il 

"Rules of Practice for the Courts of Probate of South Carolina 381 

Rules of Practice for the Circuit Courts of South Carolina 387 

Rules of the Supreme Court of South Carolina 425 

Rules and Regulations of the State of South Carolina 451 



111 



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in 2011 witii funding from 

LYRASIS IVIembers and Sloan Foundation 



http://www.archive.org/details/codeoflawsofsout07sout 



Constitution 

of the 

United States of America of 1787 
and Amendments 



ARTICLE L 

§ 1. Legislative powers. 

§2. House of Representatives; how con- 
stituted: power of impeachment. 

§3. The Senate; how constituted; im- 
peachment trials. 

§ 4. Election of Senators and representa- 
tives. 

§5. Quorum; journals; meetings; adjourn- 
ments. 

§6. Compensation; privileges; disabilities. 

§ 7. Procedure in passing bills and resolu- 
tions. 

§ 8. Powers of Congress. 

§ 9. Limitations upon powers of Congress. 

§ 10. Restrictions upon powers of states 

ARTICLE n. 

§ 1. President and Vice President. 
§ 2. Powers of the President. 
§ 3. Messages to Congress; additional pow- 
ers and duties. 
§ 4. Impeachment. 

ARTICLE IIL 

§ L Judicial power; tenure of office. 

§ 2. Jurisdiction. 

§3. Treason; proof and punishment. 

ARTICLE IV. 

§ 1. Full faith and credit among states. 

§2. Privileges and immunities; fugitives. 

§3. Admission of new states; power over 
territory and other property. 

§ 4. Guarantee of republican form of gov- 
ernment. 

ARTICLE V. 

Amendment of the Constitution. 
[7 SC Code] — I 



ARTICLE VL 

Debts; supremacy; oath. 

ARTICLE VII. 

Ratification and establishment. 

AMENDMENTS 
ARTICLE L 

Freedom of religion, of speech and of the 
press. 

ARTICLE IL 

Right to keep and bear arms. 

ARTICLE IIL 
Quartering of soldiers. 

ARTICLE IV. 
Searches and seizures. 

ARTICLE V. 

Rights of accused in criminal proceedings; 

due process; eminent domain. 

ARTICLE VI. 

Right to speedy trial, witnesses, etc. 

ARTICLE VIL 
Trial by jury in civil cases. 

ARTICLE VIIL 
Bail, fines and punishments. 
ARTICLE IX. 
Reservation of rights of the people. 

ARTICLE X. 
Powers reserved to states or people. 



Art. I, § 1 



Constitution of the United States 



Art. I, §2 



ARTICLE XI. 

Restriction of judicial power. 

ARTICLE XII. 

Election of President and Vice President. 

ARTICLE XIIL 

§ 1. Slavery abolished. 
§ 2. Enforcement. 

ARTICLE XIV. 

§ 1. Citizenship rights not to be abridged 
by states. 

§ 2. Apportionment of representatives in 
Congress. 

§ 3. Persons disqualified from holding of- 
fice. 

§ 4. What public debts are void. 

§ 5. Power to enforce article. 

ARTICLE XV. 

§ 1. Right to vote not to be abridged. 
§ 2. Power to enforce article. 



ARTICLE XVL 



Income tax. 



ARTICLE XVII. 

Election of Senators. 

ARTICLE XVIII. 

§ 1. National liquor prohibition. 

§ 2. Power to enforce article. 

§ 3. Ratification within seven years. 

ARTICLE XIX. 

Woman suffrage. 

ARTICLE XX. 

§ 1. Terms of office. 

§ 2. Time of convening Congress. 

§ 3. Death of President elect. 

§ 4. Election of the President. 

§ 5. Efifective date of sections 1 and 2. 

§ 6. Ratification within seven years. 

ARTICLE XXL 

§ 1. National liquor prohibition repealed. 
§ 2. Transportation of liquor into "dry" 

states. 
§ 3. Ratification within seven years. 

ARTICLE XXII. 

§ 1. Terms of office of the President. 
§ 2. Ratification within seven years. 



Preamble, 

We the People of the United States, in order to form a more perfect Union, 
establish justice, insure domestic tranquility, provide for the common defense, 
promote the general welfare, and secure the blessings of liberty to ourselves 
and our posterity, do ordain and establish this Constitution for the United 
States of America.' 

Article I. 
§ 1. Legislative powers. 

All legislative powers herein granted shall be vested in a Congress of the 
United States, which shall consist of a Senate and House of Representatives. 

Domestic insurance companies may be and not domestic insurance companies is 

excluded from tax. — Where Congress passed not violative of this provision. Prudential 

an act giving the states full authority to Ins. Co. v. Benjamin, 328 U. S. 408, 66 S. 

regulate and tax the business of insurance, Ct. 1142, 90 L. Ed. 1342 (1946). 
a statute taxing foreign insurance companies 

§ 2. House of Representatives ; how constituted ; power of impeachment. 

The House of Representatives shall be composed of tneinbers chosen every 
second year by the people of the several states, and the electors in each state 
shall have the qualifications requisite for electors of the most numerous branch 
of the state legislature. 



1. The headings appearing in boldface 
type have been inserted in this reprint of 
the original Constitution. The arrange- 
ment, except for capitalization and spelling, 



follows the arrangement of the reprint con- 
tained in the Constitution of the United 
States (4th ed., 1948), published by the 
Library of Congress. 

[7SCCode] 



Art. I, § 3 Constitution of the United States Art. I, § 3 

No person shall be a representative who shall not have attained to the age of 
twenty-five years, and been seven years a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that state in which he shall 
be chosen. 

[Representatives and direct taxes shall be apportioned among the several 
states which may be included within this Union, according to their respective 
numbers, which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and excluding 
Indians not taxed, three fifths of all other persons.]^ The actual enumeration 
shall be made within three years after the first meeting of the Congress of the 
United States, and within every subsequent term of ten years, in such manner 
as they shall by law direct. The number of representatives shall not exceed 
one for every thirty thousand, but each state shall have at least one repre- 
sentative ; and until such enumeration shall be made, the State of New Hamp- 
shire shall be entitled to choose three, Massachusetts eight, Rhode Island and 
Providence Plantations one, Connecticut five. New York six. New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North Carolina 
five. South Carolina five and Georgia three. 

When vacancies happen in the representation from any state, the executive 
authority thereof shall issue writs of election to fill such vacancies. 

The House of Representatives shall choose their speaker and other officers; 
and shall have the sole power of impeachment. 

§ 3. The Senate ; how constituted ; impeachment trials. 

[The Senate of the United States shall be composed of two Senators from 
each State, chosen by the legislature thereof, for six years; and each Senator 
shall have one vote.]' 

Immediately after they shall be assembled in consequence of the first elec- 
tion, they shall be divided as equalh- as may be into three classes. The seats 
of the Senators of the first class shall be vacated at the expiration of the second 
year, of the second class at the expiration of the fourth jxar, and of the third 
class at the expiration of the sixth year, so that one third may be chosen every 
second year; [and if vacancies happen by resignation, or otherwise, during 
the recess of the Legislature of any State, the executive thereof may make tem- 
porary appointments until the next meeting of the legislature, which shall 
then fill such vacancies.]* 

No person shall be a Senator who shall not have attained to the age of thirty 
years, and been nine years a citizen of the United States, and who shall not, 
when elected, be an inhabitant of that state for which he shall be chosen. 

The Vice President of the United States shall be president of the Senate, 
but shall have no vote, unless they be equally divided. 

The Senate shall choose their other ofificers, and also a president pro tempore, 
in the absence of the Vice President, or when he shall exercise the office of 
President of the United States. 



2. See 14th amendment, § 2, and 16th amendment. 

3. See 17th amendment. 

4. See 17th amendment. 

3 



Art. I, § 4 



Constitution of the United States 



Art. I, § 4 



The Senate shall have the sole power to try all impeachments. When 
sitting for that purpose, they shall be on oath or affirmation. When the 
President of the United States is tried, the Chief Justice shall preside: And 
no person shall be convicted without the concurrence of two thirds of the 
members present. 

Judgment in cases of impeachment shall not extend further than to removal 
from office, and disqualification to hold and enjoy any office of honor, trust 
or profit under the United States : but the party convicted shall nevertheless 
be liable and subject to indictment, trial, judgment and punishment, according 
to law. 



This section resembles S. C. Const., Art. 

5, §§ 2 and 3. — This section bears a strik- 
ing resemblance to S. C. Const, of 1868. 
Art. 4, §§ 2 and 3 (now S. C. Const, of 
1895, Art. S, §§2 and 3). so much so that 
we are unhesitatingly led to believe that the 
framers of our State Constitution intended 
to organize a Supreme Court upon the 
model of the Senate of the United States 
as to classification of its component parts 
and their periodical rotation, and also as 
to the mode of perpetuating the scheme 
by providing elections to fill vacancies in 
unexpired terms. Simpson v. Willard, 14 
S. C. 191 (1880). 

It has been given but one construction.^ 
All that we design to show is the fact 
that this section of tlie Constitution of the 
United States, so analogous in its phrase- 
ology and provisions to our Constitution, 
has never received by any legislative body, 
State or national, nor by any learned com- 
mentator on constitutional law but one ex- 
position. That is that the terms of office 
of the three classes of senators must fol- 
low each other in duration and end in regu- 
lar order of rotation and periodical succes- 
sion, and can never, by election to fill 
unexpired terms and casual vacancies, be 
so deranged as to destrov this sliding scale. 
Simpson v. Willard, 14 S. C. 191 '(1880). 

Original division of Senators is funda- 
mental law. — The original division of Sen- 
ators into three classes, to enter and to 
depart at stated periods in regular rota- 
tion, is a fundamental feature of the organic 
law, intended to be a continuing and per- 
petual feature of the Senate so long as 
that august body lasts. This succession 
of entry and departure by the classes of 



Senators cannot be interfered with nor 
deranged by any action, either executive 
or legislative, State or Federal. Hence, in 
every instance, under the Constitution, of 
an election of a Senator to fill a vacancy 
created by the death, resignation, or re- 
moval of an incumbent before the expira- 
tion of his term, the Senator-elect has 
only held until the expiration of the unex- 
pired term which he was chosen to fill, 
and no longer. It is needless to say that 
by no other construction could the origi- 
nal, leading, fundamental scheme of rota- 
tion of classes be maintained. Simpson v. 
Willard. 14 S. C. 191 (1880). 

Intended to be perpetuated. — That this 
scheme of rotation of Senators should be 
maintained and perpetuated was evidently 
the leading design and main object of the 
framers of the Constitution; and, being so, 
all minor provisions must be construed 
to be subordinate and subservient thereto. 
The supplying of vacancies in unexpired 
terms is incidental to the preservation of 
an existing term of office, and hence must 
be so conducted and carried out as not to 
derange, but to preserve this fundamental 
and leading design of succession and reg- 
ular rotation. As state after state has 
been admitted into the Union, two Sena- 
tors from each have been chosen by the 
legislature, invariably for tlie term of six 
years. But immediately upon entering that 
body they have each, by lot, been cast 
into one class or another of the three di- 
visions of Senators, and their respective 
terms of oflice have been made to con- 
form to that of the class to which lot had 
assigned them. Simpson v. Willard, 14 
S. C. 191 (1880). 



§ 4. Election of Senators and representatives. 

The times, places and manner of holding elections for Senators and repre- 
sentatives, shall be prescribed in each state by the legislature thereof; but the 
Congress may at any time by law make or alter such regulations, e.xcept as to 
the places of choosing Senators. 



Art. 1, § S CoNSTiTtTTioN OF tHE United States Art. I, § 6 

The Congress shall assemble at least once in every year, and such meeting 
shall be on the first Alonday in December, unless they shall by law appoint 
a different day.^ 

Quoted in Smith v. Blackwell, 115 F. (2d) 
186 (1940). 

§ 5. Quorum ; journals ; meetings ; adjournments. 

Each house shall be the judge of the elections, returns and qualifications of 
its own members, and a majority of each shall constitute a quorum to do busi- 
ness : but a smaller number may adjourn from day to day, and may be au- 
thorized to compel the attendance of absent members, in such manner and 
under such penalties as each house may provide. 

Each house may determine the rules of its proceedings, punish its members 
for disorderly behavior, and, with the concurrence of two thirds, expel a 
member. 

Each house shall keep a journal of its proceedings, and from time to time 
publish the same, excepting such parts as may in their judgment require 
secrecy ; and the yeas and na3's of the members of either house on any ques- 
tion shall, at the desire of one fifth of those present, be entered on the journal. 

Neither house, during the session of Congress, shall without the consent 
of the other, adjourn for more than three days, nor to any other place than 
that in which the two houses shall be sitting. 

§ 6. Compensation; privileges; disabilities. 

The Senators and representatives shall receive a compensation for their 
se xvices . to be ascertai ned bv 1a\v^ _and paid out o f the treasury of tbe TTnite. d 
States. They shall in all cases, except treason, felony and breach of the peace, 
be privileged from arrest during their attendance at the session of their re- 
spective houses, and in going to and returning from the same ; and for any 
speech or debate in either house, they shall not be questioned in any other 
place. 

No Senator or representative shall, during the time for which he was elected, 
be appointed to any civil office under the authority of the United States, which 
shall have been created, or the emoluments whereof shall have been increased 
during such time: and no person holding any office under the United States 
shall be a member of either house dtiring his continuance in office. 

"Privileged from arrest" means freedom their representative should be relieved from 
from civil process. — The words "privileged absenting himself from his public duty dur- 
from arrest" as used in this section mean ing the session of Congress for the pur- 
freedom from service of any civil process. pose of defending his private suits in 
These are the words of the common law court as to be exempt from imprisonment 
of the mother country. Worth v. Norton, on execution. If the people elect an 
56 S. C. 56, 33 S. E. 792 (1899). indebted person to represent them, this 

And these v?ords must be liberally con- construction of the Constitution must also 

strued. — A liberal construction must be be made to protect his rights and interests, 

given to these words upon principle and although it may operate to the prejudice 

reason. It is just as necessary for the of his creditors. But the claims of the 

protection of the rights of the people that people upon his personal attendance are 



5. See 20th amendment, § 2. 



Art. I, § 6 



Constitution of the United States 



Art. T, § 6 



paramount to those of individuals, and they 
must submit. Worth v. Norton, 56 S. C. 
56. 33 S. E. 792 dSPQ). 

Public policy demands this privilege. — • 
Public policy, as well as the Federal Con- 
stitution, demands that these gentlemen, 
who are elected by the people as their 
representatives in the lower house of Con- 
gress, shall not be harassed by civil suits 
while Congress is in session, and also 
for a reasonable time in going to and re- 
turning from Washington. A\'orth v. Nor- 
ton, 56 S. C. 56, 33 S. E. 792 (1899K 

Which is similar to that of member of 
Parliament. — The privilege of 9 member 
of Congress is the same as a member of 
Parliament. State v. Smalls, 11 S. C. 262 
(1879). 

Sustainment of privilege by Federal cir- 
cuit court. — In Miner v. ilarkham, 28 F. 
387 (1886), the court held that "a member 
of Congress is entitled to exemption from 
service of process, although n6t accom- 
panied with an arrest of the person, while 
on his way to attend a session of Congress." 
Worth V. Norton, 56 S. C. 56, 33 S. E. 792 
(1899). 

Sustainment of privilege by state courts. 
— There are other decisions of courts in 
other states which have construed the 
meaning of the word "arrest" in the Fed- 
eral Constitution, as used in this section, 
to include freedom from a summons in a 
civil action as well as actual arrest in such 
an action. The case of Doty v. Strong, 1 
Pin. (Wis.) 84, arose when a del^ate in 
Congress from the territory of Wisconsin 
had been served with summons in a civil 
action. He pleaded his privilege, as a 
member of Congress, of freedom from 
arrest and summons in a civil action. The 
Supreme Court held that as a member of 
Congress, under the Federal Constitution, 
he was free not only from actual arrest 
but also from any summons in a civil ac- 
tion. Here is the language used by Mr. 
Justice Miller in delivering the opinion of 
the court: "The defendant relied upon 
U. S. Const., Art. 1, § 6, which, in speak- 
ing of the Senators and Representatives 
in Congress, contains the following lan- 
guage: 'They shall in all cases, except 
treason, felony and breach of the peace, be 
privileged from arrest during their attend- 
ance at the session of their respective 
houses, and in going to or returning from 
the same.' The reason of this provision is 
obvious. The people elect their repre- 
sentatives to Congress to protect their 
riglits and advance their interests, which 
should not be jeopardized by the arrest of 
their representative for debt or private con- 



tracts of his own. It is equally necessary 
that his rights and interests should be pro- 
tected while absent in the public service. 
In order to render this provision avail- 
able to the extent of its necessity, it will 
not do to construe the words 'privileged 
from arrest' in a confined or literal sense." 
Worth v. Norton, 56 S. C. 56, 33 S. E. 792 
(1899). 

In the case of Geyer v. Irwin, 4 U. S. 
(4 Dall.) 107, 1 L. Ed. 752 (1790), the deci- 
sion was made upon the same provisions 
in the constitution of that state, and couched 
in the same language as that under con- 
sideration. The court in that case declared 
that "a member of the general assembly 
is undoubtedly privileged from arrest, sum- 
mons, citation, or other civil process dur- 
ing his attendance on the public business 
confided to him, and that, upon principle, 
his suits cannot be forced to a trial and 
decision while the session of the legisla- 
ture continues." Worth v. Norton. 56 S. 
C. 56. 33 S. E. 792 (1899). 

Construction of similar privilege in S. C. 
Constitution. — In our own State, in Tilling- 
hast & .Arthur v. Carr, 4 McC. (IS S. C. L.) 
152, when the privilege of a member of the 
House of Representatives of the State of 
South Carolina was invaded by a summons 
in a civil proceeding, the court held that 
the language of S. C. Const., Art. 3, § 14 
(which was then in these words: "The 
members of botli houses sliall be protected' 
in their persons and estates, during their 
attendance on, going to, and returning 
from the legislature, but these privileges 
shall not be extended so as to protect any 
member who shall be charged with treason, 
felony, or breach of the peace.") was broad 
enough to cover the case, not only of ar- 
rest but also summons in a civil proceed- 
ing. The court in its reasoning uses this 
language: "It must be obvious that a 
member may be much harassed by suits, 
although his body is not arrested. His 
mind must, of course, be greatly disturbed 
and drawn off from his business. Besides, 
it brings upon him a sort of odium which 
lessens his usefulness. If it be admitted 
that he may be served with a summons 
while attending the legislature, it follows 
that he may be served with a summons 
eundo et redeundo. Thus he might, by 
ill-natured and malicious creditors, be sued 
in every district through which he passed, 
going and returning, and might be required 
to attend a court which might be sitting 
while the legislature was convened, and 
thus perliaps an undue advantage be taken 
of him." Worth v. Norton, 56 S. C. 56, 
33 S. E. 792 (1899). 



Art. I, § 7 Constitution of the United States Art. I, § 8 

Dissent has held term to mean freedom actual arrest only. Worth v. Norton, 56 

from actual arrest only.— It has been said S. C. 56, 33 S. E. 792 dggQ"). 

in a dissenting opinion that the words Applied in State v. Smalls, 11 S. C. 262 

"privileged from arrest" mean freedom from (1879). 

§ 7. Procedure in passing bills and resolutions. 

All bills for raising revenue shall originate in the House of Representatives; 
but the Senate may propose or concur with amendments as on other bills. 

Every bill which shall have passed the House of Representatives and the 
Senate, shall, before it become a law, be presented to the President of the 
United States ; if he approve he shall sign it, but if not he shall return it, with 
his objections to that house in which it shall have originated, who shall enter 
the objections at large on their journal, and proceed to reconsider it. If after 
such reconsideration two thirds of that house shall agree to pass the bill, it 
shall be sent, together with the objections, to the other house, by which it shall 
likewise be reconsidered, and if approved by two thirds of that house, it 
shall become a law. But in all such cases the votes of both houses shall be 
determined by yeas and nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each house respectively. 
If any bill shall not be returned by the President within ten days (Sundays 
excepted) after it shall have been presented to him, the same shall be a law, in 
like manner as if he had signed it, unless the Congress by their adjournment 
prevent its return, in which case it shall not be a law. 

Every order, resolution, or vote to which the concurrence of the Senate 
and House of Representatives may be necessary (except on a question of 
adjournment) shall be presented to the President of the United States ; and 
before the same shall take effect, shall be approved by him, or being disap- 
proved by him, shall be repassed by two thirds of the Senate and House of 
Representatives, according to the rules and limitations prescribed in the case 
of a bill. 

§ 8. Powers of Congress. 

The Congress shall have power to lay and collect taxes, duties, imposts 
and excises, to pay the debts and provide for the common defense and general 
welfare of the United States ; but all duties, imposts, and excises shall be 
uniform throughout the United States ; 

To borrow money on the credit of the United States : 

To regulate commerce with foreign nations, and among the several states, 
and with the Indian tribes ; 

To establish an uniform rule of naturalization, and uniform laws on the 
subject of bankruptcies throughout the United States ; 

To coin money, regulate the value thereof, and of foreign coin, and fix the 
standard of weights and measures ; 

To provide for the punishment of counterfeiting the securities and current 
coin of the United States ; 

To establish post offices and post roads ; 

To promote the progress of science and useful arts, by securing for limited 

7 



Art. I, § 8 Constitution of the United States Art. I, § 8 

times to authors and inventors the exclusive right to their respective writings 
and discoveries ; 

To constitute tribunals inferior to the Supreme Court; 

To define and punish piracies and felonies committed on the high seas, and 
offenses against the law of nations ; 

To declare war, grant letters of marque and reprisal, and make rules con- 
cerning captures on land and water ; 

To raise and support armies, but no appropriation of money to that use shall 
be for a longer term than two years ; 

To provide and maintain a navy ; 

To make rules for the government, and regulation of the land and naval 
forces ; 

To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections and repel invasions ; 

To provide for organizing, arming and disciplining the militia, and for gov- 
erning such part of them as may be employed in the service of the United 
States, reserving to the states respectively, the appointment of the officers, 
and the authority of training the militia according to the discipline prescribed 
b}- Congress ; 

To exercise exclusive legislation in all cases whatsoever, over such district 
(not exceeding ten miles square), as may, by cession of particular states, and 
the acceptance of Congress, become the seat of the government of the United 
States, and to exercise like authority over all places purchased by the consent 
of the legislature of the state in which the same shall be, for the erection of 
forts, magazines and arsenals, dock yards, and other needful buildings ; — And 

To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by this Constitu- 
tion in the government of the United States, or in any department or officer 
thereof. 

I. General Consideration. commercial regulations, both in regard to 

II. What Constitutes Interstate Com- the relations of foreign nations and the 

merce. intercourse of the states with each other. 

III. Activities Not Violative of Commerce Chapman v. Miller, 2 Spears (29 S. C. L.) 

Clause. 769. 

IV. Activities Violative of Commerce Without discrimination against interstate 

Clause. commerce. — The commerce clause by its 

V. Other .Application of Section. own force prohibits discrimination against 

A. Power to Coin Money. interstate commerce, whatever its form or 

B. Power to Declare War. method. The decisions of this Court have 

^ _„--_„.- r-/-^xTc•TT^•c■r> ( T-T^-KT recognized that there is scope for its like 

I. GENERAL CONSIDER.ATION. ^ . , c. . i ■ i »• .^-,,11,, 

operation when State legislation, nominally 

Congress has exclusive power to regulate of local concern, is in point of fact aimed 

commerce. — By the terms used in this Ar- at interstate commerce or by its necessary 

tide, as well as from the nature of the operation is a means of gaining a local 

power conferred, Congress has exclusive benefit by throwing attendant burdens on 

power to regulate commerce in the most those without the State. South Carolina 

enlarged and liberal sense. Chapman v. State Highwav Dept. v. Barnwell Bros., 

Miller, 2 Spears (29 S. C. L.) 769. 303 U. S. 177, "58 S. Ct. 510, 82 L. Ed. 734 

To secure uniform commercial regula- (1938), reh. denied 303 U. S. 625, 58 S. Ct. 

tions.— The third paragraph of this section 483. 82 L. Ed. 702 (1938). 

originated in the design of its authors to All state action over interstate commerce 

impart harmony and uniformity to our is not forestalled. — While the constitutional 



Art. I, § 8 



Constitution of the United States 



Art. I, § 8 



grant to Congress of power to regulate 
interstate commerce has been held to op- 
erate of its own force to curtail state 
power in some measure, it did not forestall 
all state action affecting interstate com- 
merce. South CaroUna State Highway 
Dept. V. Barnwell Bros., 303 U. S. 177, 
58 S. Ct. 510, 82 L. Ed. 734 (1938), reh. 
denied 303 U. S. 625, 58 S. Ct. 483, 82 L. 
Ed. 702 (1938). 

But state tax may not discriminate 
against interstate commerce. — While a state 
may ta.x the entire income of domestic cor- 
porations, it cannot impose any tax in such 
way as to discriminate against interstate 
commerce. Piedmont & N. Ry. Co. v. 
Query, 56 F. (2d) 172 (1932). 

No state can regulate such commerce 
concurrently with the Federal Government 
under this section. Chapman v. ^filler, 2 
Spears (29 S. C. L.) 769. 

Unless Congress forbears exercise of its 
power. — .^s long as Congress forbears to 
e-xercise the constitutional power to reg- 
ulate coinmerce among the several states, 
each state may, for itself and within its 
own limits, regulate such commerce. State 
V. Pinckney, 10 Rich. (44 S. C. L.) 474. 

In absence of congressional enactment or 
valid regulation of Interstate Commerce 
Commission, the State's police power may 
be validly exercised to insure faithful and 
prompt performance of duty by those 
engaged in interstate commerce. Ford v. 
Atlantic Coast Line R. Co., 169 S. C. 41, 
168 S. E. 143 (1932), affirmed in 287 U. S. 
502. 53 S. Ct. 249, 11 L. Ed. 457 (1933). 

Although State may regulate commerce 
within its borders. — There can be no doubt 
that the State has the right to regulate 
cominerce within its borders, provided it 
is done in such manner as not to inter- 
fere with or impose a burden upon inter- 
state commerce. Ingram v. Hughes, 170 
S. C. 1, 169 S. E. 425 (1933). 

Statute is not obnoxious where interstate 
commerce not affected. — A statute is not 
obno-xious to this clause of the Federal 
Constitution which does not directly affect 
commerce as thus defined. State v. Napier, 
63 S. C. 60, 41 S. E. 13 (1902). 

Commodity not in interstate commerce 
may not be subject of appeal. — The question 
whether a statute violates this clause will 
not be reviewed on appeal when it does not 
appear tliat the commodity in question was 
under the protection of the interstate com- 
merce clause. State v. Fant, 88 S. C. 493, 
70 S. E. 1027 (1911). 

For additional related cases, see Shealy 
V. Southern Ry. Co., 127 S. C. 15, 120 S. E. 
561 (1924); Hall v. South Carolina Ry. Co., 



25 S. C. 564 (1886); Alexander v. Gibson, 
1 N. & McC. (10 S. C. L.) 480; Western 
Union Telegraph Co. v. Brown, 234 U. S. 
542, 34 S. Ct. 955, 58 L. Ed. 1457 (1914). 

Applied in Doscher v. Query, 21 F. (2d) 
521 (1927); Pickens County v. Southern 
Ry. Co., 131 S. C. 18, 127 S. E. 365 (1925); 
State V. Penny, 19 S. C. 218 (1883); South- 
ern Express Co. v. Hood, 15 Rich. (49 
S. C. L.) 66; Harbor Com'rs v. Pashley, 
19 S. C. 315 (1883). 

Cited in Duncan v. Record Pub. Co., 145 
S. C. 196, 143 S. E. 31 (1927); State v. 
Virginia-Carolina Chemical Co., 71 S. C. 
544, 51 S. E. 455 (1905); Williams v. West- 
ern Union Tel. Co. 138 S. C. 281, 136 S. E. 
218 (1927); Baker v. Western Union Tel. 
Co., 127 S. C. 535, 121 S. E. 593 (1923); 
Ex parte Chase, 62 S. C. 353, 38 S. E. 718 
(1901); State v. Liggett & Myers Tobacco 
Co., 171 S. C. 511, 172 S. E. 857 (1933); 
State V. Ford Motor Co., 208 S. C. 379, 38 
S. E. (2d) 242 (1946). 

II. WHAT CONSTITUTES INTER- 
STATE COMMERCE. 

What constitutes interstate commerce. 

— Interstate commerce, ordinarily, con- 
sists of three elements: (1) the purchas- 
ing of merchandise by a resident of one 
state from a resident of another state; (2) 
the delivery of the articles of commerce; 
and (3) the transportation thereof. The 
purchase may be made by the buyer in 
person, through a traveling salesman of 
the nonresident, or by an order sent by the 
purchaser to the nonresident. The delivery 
may be made directly to the purchaser when 
the goods are sold or when they reach their 
destination in cases where they have been 
consigned to him. State v. Holleyman, 55 
S. C. 207, 31 S. E. 362, Zl S. E. 366 (1899) ; 
State v. Yetter, 192 S. C. 1, S S. E. (2d) 
291 (1939). 

Commerce is not confined to interchange 
of commodities. — In its more limited sense, 
the term commerce might be confined to 
buying and selling or the interchange of 
commodities. But, by the Constitution, it 
was intended to have a much more extended 
meaning, as may be seen by referring to 
other articles of that instrument. Chap- 
man v. Miller, 2 Spears (29 S. C. L.) 769. 

But refers instead to act of shipping. — 
"Interstate commerce" has no reference 
to products which are shipped in such com- 
merce, but has reference rather to the act 
of shipping. When an article is delivered 
for the purpose of being transported from 
one state to another, it becomes an article 
of interstate commerce or the instruments 
by which it is transported are engaged in 



Art. I, § 8 



Constitution of the United States 



Art. I, § 8 



interstate commerce. Pacolet Mfsr. Co. v. 
Query, 174 S. C. 359, 177 S. E. 653 (1934). 

And to negotiation of sales of goods. — 
The negotiation of sales of goods which 
are in another state, for the purpose of 
introducing them into the state in which 
the negotiation is made, is interstate com- 
merce. State V. Yetter, 192 S. C. 1, 5 S. E. 
(2d) 291 (1939). 

And it includes navigation. — Commerce 
with foreign nations and among the states, 
strictly considered, consists in intercourse 
and traffic, including in these terms navi- 
gation, the transportation and transit of 
persons and property, and the purchase, 
sale, and exchange of commodities. Mobile 
County V. Kimball, 102 U. S. 691, 26 L. Ed. 
238 (1880); State v. Napier, 63 S. C. 60, 
41 S. E. 13 (1902). See also, Chapman v. 
Wilier, 2 Spears (29 S. C. L.) 769. 

As to commerce in liquors, see State 
ex rel. George v. Aiken, 42 S. C. 222, 20 
S. E. 221 (1894). See also Cantini v. Till- 
man, 54 F. 969 (1893); State v. Holley- 
man, 55 S. C. 207, 31 S. E. 362, 33 S. E. 
366 (1899); State v. Davis, 84 S. C. 512. 
66 S. E. 875 (1910). 

III. ACTIVITIES NOT VIOLATIVE 
OF COMMERCE CLAUSE. 

Railroad construction safety rules do not 
regulate interstate commerce. — The rules 
prescribed for the construction of railroads, 
and for their management and operation, 
designed to protect persons and property 
otherwise endangered by their use, are 
strictly within the scope of the local law. 
They are not in themselves regulations 
of interstate commerce, although they con- 
trol in some degree the conduct and liabil- 
ity of those engaged in such commerce. 
So long as Congress has not legislated 
upon the particular subject, they are 
rather to be regarded as legislation in aid 
of such commerce, and as a rightful exer- 
cise of the police power of the State to 
regulate the rights and duties of all per- 
sons and corporations within its limits. 
Crawford v. Southern Ry. Co., 56 S. C. 
136. 34 S. E. 80 (1899). 

Nor does act regulating size and weight 
of trucks. — In State v. John P. Nutt Co.. 
180 S. C. 19, 185 S. E. 25 (1935), an act 
regulating the size and weight of trucks 
was upheld as a valid exercise of the 
police power not in violation of this sec- 
tion of the Constitution, notwithstanding 
that the defendant owned several trucks 
which were made illegal by the terms of 
the act. 

If no discrimination is involved. — Statute 
which limited tlie width and weight of 



motor vehicles was held not violative of 
this provision, even though the regulation 
involves a burden on interstate commerce. 
As long as the State action does not dis- 
criminate, the burden is one which the 
Constitution permits because it is an in- 
separable incident of the exercise of a leg- 
islative authority which, under the Constitu- 
tion, has been left to the states. South 
Carolina State Highway Dept. v. Barnwell 
Bros., 303 U. S. 177, 58 S. Ct. 510, 82 L. Ed. 
734 (1938), reh. denied 303 U. S. 625, 58 
S. Ct. 483, 82 L. Ed. 702 (1938). 

Nor statute denying railroad right to 
escape common carrier liability. — In the 
case of Chicago, etc., Rv. Co. v. Solan, 169 
U. S. 133, 18 S. Ct. 289, 42 L. Ed. 688 
(1898), it was held that a statute of a state 
providing that no contract shall exempt any 
railroad corporation from the liability of 
a common carrier, or a carrier of passengers, 
which would have existed if no contract had 
been made, does not, as applied to a claim 
for an injury happening within the state 
under a contract for interstate transpor- 
tation, contravene this provision. Craw- 
ford V. Southern Ry. Co., 56 S. C. 136, 34 
S. E. 80 (1899). 

Statute may create rebuttable presump- 
tion as to collision cause. — In Ford v. 
.Atlantic Coast Line R. Co., 169 S. C. 41, 
168 S. E. 143 (1932), affirmed in 287 U. S. 
502, 53 S. Ct. 249, 11 L. Ed. 457 (1933), 
statutes construed as creating rebuttable 
presumption that failure to give crossing 
signals was proximate cause of crossing 
collision were held not violative of com- 
merce clause. 

Tax is valid on stock represented by mills 
outside State. — State license tax on that 
part of capital stock of domestic corpora- 
tion, which was represented by cotton 
mills located wholly beyond borders of 
State and engaged in manufacture of fin- 
ished cotton goods, was not invalid as 
burden on interstate commerce or as in 
violation of Fourteenth Amendment of 
the Constitution of the United States. 
Pacolet Mfg. Co. v. Query, 174 S. C. 359, 
177 S. E. 653 (1934). 

State may impose taxes on intrastate 
operation of motor carrier, though carrier 
is also engaged in interstate operations. 
State v. Hicklin, 168 S. C. 440, 167 S. E. 
674 (1933), affirmed in 290 U. S. 169, 54 
S. Ct. 142, 78 L. Ed. 247 (1933). 

Based on carrying capacity of carrier. — 
In statute regulating motor carriers, license 
fees required of contract carriers based 
on carrying capacity were held reasonable 
as to amount and not an undue burden on 
interstate commerce. State v. Hicklin, 168 



10 



Art. I, § 8 



Constitution of the United States 



Art. I, § 8 



S. C. 440, 167 S. E. 674 (1933), affirmed in 
290 U. S. 169, 54 S. Ct. 142, 78 L. Ed. 247 
(1933). 

Or on proportioned use of highway by 
truck. — A municipal license tax applying 
to a nonresident corporation making de- 
liveries in the municipality is a direct bur- 
den on interstate commerce and cannot be 
sustained imless, in some way, it appears 
affirmatively that it is levied only as com- 
pensation for use of the highways or to 
defray the expense of regulating motor 
traffic. This may be indicated by the na- 
ture of the imposition, such as a mileage 
tax directly proportioned to the use. South- 
ern Fruit Co. V. Porter, 188 S. C. 422, 199 
S. E. 537 (1938). 

Valid tax on gross receipts for business 
privilege within State. — .A-n annual license 
tax based on gross receipts for the priv- 
ilege of doing business in a countj', as a 
school district tax, is consistent with and 
not violative of this section. Hav v. Leon- 
ard, 212 S. C. 81. 46 S. E. (2d) 653 (1948). 

Tax may apply to foreign and not local 
insurance companies. — Where Congress 
passed an act giving the states full au- 
thority to regulate and tax the business of 
insurance, a statute taxing foreign insur- 
ance companies and not domestic insurance 
companies did not violate this provision. 
Prudential Ins. Co. v. Benjamin, 328 U. S. 
408. 66 S. Ct. 1142, 90 L. Ed. 1342 (1946). 

Or to gasoline after interstate shipment 
completed. — Statute imposing tax on gas- 
oline imported into the State and stored 
for future consumption was held not un- 
constitutional as a burden on interstate 
commerce in that it did not propose to tax 
any gasoline until twenty-four hours after 
it had lost interstate character as shipment 
in interstate commerce, at which time im- 
munity from State taxation ends. Gregg 
Dyeing Co. v. Query, 166 S. C. 117, 164 
S. E. 588 (1931), affirmed in 286 U. S. 
472, 52 S. Ct. 631, 76 L. Ed. 1232 (1932). 

Or to electricity after interstate trans- 
mission ended. — The State may not tax 
the interstate transmission or sale of elec- 
tricity. But after the interstate journey of 
the current is ended and it becomes mingled 
with the current which the power company 
distributes and sells within the State, its 
sale unquestionably becomes subject to ta.x- 
ation by the State. South Carolina Power 
Co. V. South Carolina Tax Coni'r, 60 F. 
(2d) 528 (1932), affirmed in 288 U. S. 178, 
53 S. Ct. 326, 77 L. Ed. 685 (1933). 

Telegrams may be sent by most "prac- 
tical" route in State. — State statute requir- 
ing telegraphic messages from one point 
within State to another to be transmitted 



by most direct and "practical" route with- 
in State was construed as not forbidding 
interstate transmission of message where 
more prompt and safe and thus was held 
not unconstitutional. Ingram v. Hughes 
170 S. C. 1, 169 S. E. 425 (1933). 

And impure foods may be prohibited. — - 
Statute making it unlawful to manufacture 
or sell impure food or drugs does not 
violate this provision of the Constitution. 
Hollis V. ./Vrmour & Co., 190 S. C. 170, 
2 S. E. (2d) 681 (1939). 

As to forfeiture of vessel for breach of 
State fishing laws, see Shipman v. Dupre, 
339 U. S. 321, 70 S. Ct. 640, 94 L. Ed. 877 
(1950). 

IV. ACTIVITIES VIOLATIVE OF 
COMMERCE CLAUSE. 

License tax for all occupations in city is 
void as to certain nonresidents. — .A.n ordi- 
nance of a city, fixing a special license tax 
for all occupations carried on within said 
city, is void under this section as to the 
agent of a nonresident company engaged 
in delivering pictures under a contract pre- 
viously made between the customer and 
said company and selling frames to cus- 
tomers only, with whom the purchase of 
the same is voluntary and independent of 
the contract for the picture. Laurens v. 
Ehiiore. 55 S. C. 477, 33 S. E. 560 (1899). 

As is tax on merchandise displayers ex- 
cepting regular retailers. — An act imposing 
a license tax upon every person displaying 
articles, except regular retail merchants, 
to secure orders for the retail sale thereof 
was held unconstitutional as a burden on 
interstate commerce as applied to a travel- 
ing salesman for a nonresident seller who 
took orders for merchandise and forwarded 
them to the nonresident seller, who in turn 
shipped from the foreign state to the resi- 
dent purchaser in this State, delivery being 
made by carrier. State v. Yetter, 192 S. C. 
1, 5 S. E. (2d) 291 (1939). 

Tax on interstate shipment of goods into 
city is invalid. — In Jewel Tea Co. v. Cam- 
den, 171 S. C. 353, 172 S. E. 307 (1934), 
an ordinance imposing a license tax on a 
foreign corporation whose car hauled into 
city goods being shipped in interstate coiu- 
merce was held invalid because it taxed 
interstate commerce and not the delivery 
cars which operated wholly within state 
of destination. 

And also tax on gross revenue of inter- 
state and intrastate hauling. — An act im- 
posing a tax on the gross revenue of both 
the interstate and intrastate contract haul- 
ing activities of the plaintiff, who operated 
a fleet of trucks, was held invalid as an 



11 



Art. I, § 9 



Constitution of the United States 



Art. I, § 9 



unreasonable burden on interstate com- 
merce. Nutt V. Ellerbe, 56 F. (2d) 1058 
(1932). 

Hiring laborers is not interstate com- 
merce. — The business of hiring laborers 
and soliciting emigrants is not an article 
of commerce within the meaning of this 
section. Thus, requiring an emigrant agent 
to obtain a Hcense therefor is in violation 
of such provision. State v. Napier, 63 S. C. 
60. 41 S. E. 13 (1902). 

Invalid statute of limitations on actions 
under Fair Labor Standards Act. — In Davis 
V. Rock-ton & Rion R, R., 65 F. Supp. 67 
(1946), affirmed in 159 F. (2d) 291 (1946). 
the court held that a special state statute 
of limitations on actions brought under the 
Fair Labor Standards Act violated this 
section of the Constitution. 

Validity of State order requiring inter- 
state train to stop at station. — When an or- 
der made under State authority to stop an 
interstate train is assailed because of its 
repugnancy to the interstate commerce 
clause, the question whether such order is 
void as a direct regulation of such commerce 
may be tested by considering the nature of 
such order, the character of the interstate 
commerce train to which it applies, and its 
necessity and direct effect upon the opera- 
tion of such train. Such order may also 
be tested by considering the adequacy of 
the local facilities existing at the station 
at which the interstate commerce train 
has been commanded to stop. Atlantic 
Coast Line Rv. Co. v. Wharton, 207 U. S. 
328, 28 S. Ct. 121, 52 L. Ed. 230 (1907). 



V. OTHER APPLICATION OF 
SECTION. 

A. Power to Coin Money. 

Treasury notes are lawful tender for all 
debts. — Congress has power under this sec- 
tion to pass a law making treasury notes 
lawful money and legal tender in payment 
of debts payable in dollars and cents, 
whether such debts were contracted before 
or after the law was passed. O'Neil v. 
McKewn, 1 S. C. 147 (1869). 

B. Power to Declare War. 

Undeclared war is not judicially noted. — 

The courts are bound by a declaration or 
determination by the proper department of 
government that a war exists. Until there 
has been such a declaration or determina- 
tion, the courts cannot take judicial notice 
of the existence of a war by their govern- 
ment. Greenville Enterprise v. Jennings, 
210 S. C. 163, 41 S. E. (2d) 868 (1947). 

Action on insurance policy relative to 
war declaration. — Where the insured was 
killed at Pearl Harbor on December 7, 
1941, while serving as a member of the 
United States Navy, the court held he was 
not killed while engaged in naval service 
in time of war, for under the provisions 
of this section of the Constitution the 
United States was not at war until the 
declaration of war by Congress on Japan 
on December 8, 1941. West v. Palmetto 
State Life Ins. Co., 202 S. C. 422, 25 S. E. 
(2d) 475 (1943) 



§ 9. Limitations upon powers of Congress. 

The migration or importation of such persons as any of the states now ex- 
isting shall think proper to admit, shall not be prohibited by the Congress prior 
to the year one thousand eight hundred and eight, but a tax or duty may be 
imposed on such importation, not exceeding ten dollars for each person. 

The privilege of the writ of habeas corpus shall not be suspended, unless 
when in cases of rebellion or invasion the public safety may require it. 

No bill of attainder or e.x post facto law shall be passed. 

No capitation, or other direct, tax shall be laid, unless in proportion to the 
census or enumeration hereinbefore directed to be taken. 

No tax or duty shall be laid on articles exported froin any state. 

No preference shall be given by any regulation of commerce or revenue to 
the ports of one state over those of another; nor shall vessels bound to, or 
from, one state, be obliged to enter, clear, or pay duties in another. 

No money shall be drawn from the treasury, but in consequence of appro- 
priations made by law; and a regular statement and account of the receipts and 
expenditures of all public money shall be published from time to time. 

No title of nobility shall be granted by the United States: and no person 

\2 



Art. I, § 10 



Constitution of the United States 



Art. I, § 10 



holding any office of profit or trust under them, shall without the consent of 
the Congress, accept of any present, emolument, office, or title of any kind 
whatever from any king, prince or foreign state. 



An ex post facto law is one that has 
retroactive effect. McCoy v. State High- 
way Dept., 169 S. C. 436, 169 S. E. 174 
(19J3). 

Appropriation bills are annual statutes. 
- — Appropriation of supplies is the mode 
by which the legislative branch of the gov- 
ernment regulates the manner in which 
the public money voted at each session is 
to be applied to the various objects of 
expenditure, and the appropriation bills are 
annual statutes passed for that purpose. 
Carolina Grocery Co. v. Burnet, 61 S. C. 
205, 39 S. E. 381 (1901). 



For additional related cases, see Charles- 
ton v. Oliver, 16 S. C. 47 (1881); Chapman 
V. Miller, 2 Spears (29 S. C. L.) 769; Har- 
bor Com'rs V. Pashlev, 19 S. C. 315 (1883); 
Cisson V. United States, il F. (2d) 330 
(1930). 

Applied in State v. Penny, 19 S. C. 218 
(1883). 

Cited in State v. Vaughn, 95 S. C. 455, 
79 S. E. 312 (1913), aflfirmed in 238 U. S. 
612, 35 S. Ct. 940, 59 L. Ed. 1489 (1915). 



§ 10. Restrictions upon powers of states. 

No state shall enter into any treaty, alliance or confederation; grant letters 
of marque and reprisal ; coin money ; emit bills of credit ; make any thing but 
gold and silver coin a tender in payment of debts ; pass any bill of attainder, 
ex post facto law or law impairing the obligation of contracts, or grant any 
title of nobility. 

No state shall, without the consent of the Congress, lay any imposts or duties 
on imports or exports, except what may be absolutely necessary for execut- 
ing its inspection laws ; and the net produce of all duties and imposts, laid by 
any state on imports or exports, shall be for the use of the treasury of the 
United States ; and all such laws shall be subject to the revision and control of 
the Congress. 

No state shall, without the consent of Congress, lay any duty of tonnage, 
keep troops, or ships of war in time of peace, enter into any agreement or com- 
pact with another state, or with a foreign power, or engage in war, unless 
actually invaded, or in such imminent danger as will not admit of delay. 



I. General Consideration. 
II. Impairing Obligation of Contracts. 

A. Intent of Clause. 

B. Obligation of a Contract. 

C. Existing State Laws. 

D. Impairment of Contract. 

E. Right and Reniedy. 

F. Contracts Included in Clause. 

G. Where Contract Impaired. 

H. Where Contract Not Impaired. 

I. GENERAL CONSIDERATION. 

Historical note. — When the Constitu- 
tion of 1868 of this State was adopted and 
ratified, South Carolina was not a terri- 
tory but a State within the L^nion, bound 
as such by all the obligations which the 
Constitution of the United States imposes 
upon the States. Calhoun v. Calhoun, 2 
S. C. 283 (1871). 



State constitution may not conflict with 
Federal Constitution. — The acceptance by 
Congress of a state constitution as repub- 
lican in form does not give the force of 
law to provisions therein which the Con- 
stitution of the United States inhibits. 
Calhoun v. Calhoun, 2 S. C. 283 (1871). 

This section applies only to states. — The 
prohibition of this section is only appli- 
cable to the legislation of states. In re 
Kennedy, 2 S. C. 216 (1870). 

"Bills of credit" refer to monetary in- 
struments. — "Bills of credit" embrace only 
such instruments as are intended to cir- 
culate as money. State v. Mooter, 152 S. C. 
455, ISO S. E. 269 (1929). 

In form of promissory notes. — The bills 
of credit prohibited to be issued by the 
states by this provision are promissory 
notes or bills for the payment of which 



13 



Art. I, § 10 



Constitution of the United States 



Art. I, § 10 



the faith of the state only is pledged. They 
are such bills as were emitted by Congress 
and the different states anterior to the adop- 
tion of the Constitution. State v. BilHs, 2 
McC. (13 S. C. L.) 12. 

Not drawn against particular fund.^ 
A note drawn on the Bank of South Car- 
olina on the credit of a particular fund is 
not a bill of credit. State v. Billis, 2 McC. 
(13 S. C. L.) 12. 

And issued on authority binding state. — 
To constitute a bill of credit within this 
provision, it must be issued by a state, 
on the faith of the state, and be designed 
to circulate as money. They who issue 
it must have authority to bind the state, 
and must act as agents and incur no per- 
sonal responsibility, nor impart, as in- 
dividuals, any credit to the paper. State 
V. Billis, 2 McC. (13 S. C. L.) 12. 

Retrospective laws may be passed. — The 
Constitution of the United States does not 
prohibit the states from passing retro- 
spective laws generally. In re Kennedy, 
2 S. C. 216 (1870), overruled on other 
grounds in 5 S. C. 125 (1874). 

But not ex post facto laws. — In re Ken- 
nedy, 2 S. C. 216 (1870). overruled on other 
grounds in 5 S. C. 125 (1874). 

Ex post facto prohibition applies only 
to criminal cases. — The provision as to ex 
post facto laws herein found applies to 
criminal cases only. Byrne v. Stewart, 3 De 
S. (3 S. C. Eq.) 466; Warren, Wallace & 
Co. V. Jones, 9 S. C. 288 (1878); Watson 
V. Mercer, 33 U. S. (8 Pet.) 88, 8 L. Ed. 
876 (1834); Baltimore, etc., R. Co. v. Nes- 
bit, 51 U. S. (10 How.) 395, 13 L. Ed. 
469 (1850); Locke v. New Orleans, 71 
U. S. (4 Wall.) 172, 18 L. Ed. 334 (1866); 
Carpenter v. Com., 58 U. S. (17 How.) 
456, IS L. Ed. 127 (1854); Cantini v. Till- 
man, 54 F. 969 (1893). 

And not to civil cases. — It was said by 
Mr. Justice Story in Watson v. Mercer, 
33 U. S. (8 Pet.) 88, 8 L. Ed. 876 (1834): 
"Ex post facto laws relate to criminal and 
penal proceedings which impose punish- 
ment and forfeiture, and not to civil pro- 
ceedings which affect private rights retro- 
spectively." Callahan v. Callahan, 36 S. C. 
454, 15 S. E. 727 (1892). 

Although it relates to all laws in some 
degree. — .\11 laws must in some degree 
have an ex post facto relation. Byrne v. 
Stewart, 3 De S. (3 S. C. Eq.) 466. 

Revival of jurisdiction is not ex post 
facto law. — An act reviving the jurisdic- 
tion of a superior court, to enable it to 
try persons for offenses committed during 
a period wherein an inferior court had ex- 



clusive jurisdiction, is not an ex post facto 
law. State v. Sullivan, 14 Rich. (48 S. C. L.) 
281. 

Section is intended to prevent discrimina- 
tion among ports. — The Constitution did 
not intend to control domestic regulations 
by the state or city affecting her own 
people. It intended that neither Congress, 
the states, nor any city should give such 
a preference to one port by discriminating 
legal advantages as to draw commerce or 
trade from ports of other states. State v. 
City Council, 4 Rich. (38 S. C. L.) 286. 

By forbidding tax upon vessels as such. 
— This section was designed to forbid the 
levying of any tax upon a vessel as such. 
Harbor Com'rs v. Pashlev, 19 S. C. 315 
(1883). 

Irrespective of mode of ascertaining such 
tax. — It is wholly immaterial whether the 
amount of the tax is to be ascertained by 
reference to the tonnage of the vessel eo 
nomine or in some other way, as is fully 
sliown by the fact that the Supreme Court 
of the United States has, in several cases, 
held that a charge imposed upon a vessel, 
even though measured by its tonnage eo 
nomine, is not in violation of the Constitu- 
tion of the United States where the charge 
is made as a compensation for services 
rendered such vessel, as, for example, a 
charge for the use of a wharf owned by a 
municipal corporation, even though the 
amount of such charge should in express 
terms be measured by the tonnage of the 
vessel because that is a matter resting in 
contract, is the exercise of a mere prop- 
erty right, and is not an exercise of sover- 
eign authority. Harbor Com'rs v. Pash- 
ley, 19 S. C. 315 (1883). 

Section requires consideration in con- 
tracts. — The term "contract" in this sec- 
tion is used in its ordinary sense as signi- 
fying the agreement of two or more minds 
for a consideration from one to the other 
to do or not to do certain acts. There is 
the same necessity for consideration to 
make a contract of tax exemption between 
the state and its citizens as there would 
be if the contract were between private 
parties. Grand Lodge v. New Orleans, 
166 U. S. 143, 17 S. Ct. 523, 41 L. Ed. 
951 (1897); Columbia Water Power Co. v. 
Campbell, 75 S. C. 34, 54 S. E. 833 (1906). 

Judgment is not contract. — A judgment 
is not in itself a contract, Biddcson v. 
Whytel, 3 Burr. 1545, and it cannot orig- 
inate rights of the class protected under 
the United States Constitution. In re 
Kennedy, 2 S. C. 216 (1870), overruled on 
other grounds in 5 S. C. 125 (1874); War- 



14 



Art. I, § 10 



Constitution of the United States 



Art. I, § 10 



ren. Wallace & Co. v. Jones, 9 S. C. 288 
(1878). 

Nor is office held by political officer. — 
A political oiTicer docs not Iiold by con- 
tract in the sense of the Constitution, nor 
has he any vested right of property in a 
constitutional sense in the office or in the 
salary thereof before he has earned it. 
Alexander v. McKcnzie, 2 S. C. 81 (1870). 

For additional related cases, see Colum- 
bia, etc., R. Co. V. Gibbes. 24 S. C. 60 
(ISSS); Charleston v. Oliver. 16 S. C. 47 
(1881); In re Malone, 21 S. C. 435 (1884); 
Harmon v. Wallace, 2 S. C. 208 (1870); 
Gilliland V. Phillips, 1 S. C. 152 (1870); 
O'Neil V. McKewn, 1 S. C. 147 (1869); 
Lumb V. Pinckney. 21 S. C. 471 (1884); 
State V. Solomons, 3 Hill (21 S. C. L.) 96; 
Blackman v. Gordon, 2 Rich. (19 S. C. Eq.) 
43; Havs v. Harley, 1 Mill. (8 S. C. L.) 
267; In re Gibbes, 1 De S. (1 S. C. Eq.) 
587; Rutland v. Copes, 15 Rich. (49 S. C. 
L.) 84; Witte Bros. v. Clarke, 17 S. C. 

313 (1882): State v. Penny, 19 S. C. 218 
(1883): Duke v. Williamsburg, 21 S. C. 
414 (1884); Norton v. Eradham, 21 S. C. 
375 (1884); Haves v. Clinkscales, 9 S. C. 
441 (1878); Johnstone v. Crooks, 3 S. C. 
200 (1872): Rose v. Charleston, 3 S. C. 
369 (1872); Withers v. Jenkins, 14 S. C. 597 
(1881): Walker v. State, 12 S. C. 200 
(1879); Ex parte Graham, 13 Rich. (47 S. 
C. L.) 277; State v. Gaillard, 11 S. C. 309 
(1879); Whaley v. Gaillard, 21 S. C. 560 
(18S4); Thomas v. Daniel, 2 McC. (13 
S. C. L.) 354; Barry v. Iseman, 14 Rich. 
(48 S. C. L.) 129: Paris Mountain Water 
Co. v. Greenville, 110 S. C. 36, 96 S. E. 545 
(1918). 

Applied in Alexander v. Wilmington, 
etc., R. Co., 3 Strob. (34 S. C. L.) ^594; 
Chapman v. Miller, 2 Spears (29 S. C. L.) 
769; Moore v Holland, 16 S. C. 15 (1881); 
Hand v. Savannah, etc., R. Co., 12 S. C. 

314 (1879): Graniteville Mfg. Co. v. Roper. 
15 Rich. (15 S. C. L.) 138; Alexander v. 
Gibson, 1 N. & McC. (10 S. C. L.) 480; 
.\ttorney-General v. Clergy Society, 10 
Rich. (31 S. C. Eq.) 604; Wood v. Wood, 
14 Rich. (48 S. C. L.) 148; Miles v. King. 
5 S. C. 146 (1874) ; Shelor v. Mason, 2 S. C. 
233 (1870); Gibbes v. Greenville, etc., R. 
Co., 13 S. C. 228 (1880): Robinson v. Lee, 
122 F. 1012 (1903), affirmed in 196 U. S. 64, 
25 S. Ct. 180, 49 L. Ed. 388 (1904); Can- 
tini V. Tillman, 54 F. 969 (1893); Columbia 
Water Power Co. v. Campbell, 75 S. C. 
34, 54 S. E. 833 (1906); McCandless v. 
Richmond & D. R. Co., 38 S. C. 103. 16 
S. E. 429 (1892); Central R., etc., Co. v. 
Georgia Const., etc., Co., Z2 S. C. 319, 11 



S. E. 192 (1890); Bouknight v. Epting, 11 
S. C. 71 (1878). 

Stated in Smith v. Greenville Countv, 
189 S. C. 424, 1 S. E. (2d) 502 (1939). 

Cited in State v. \'irginia-Carolina Chem- 
ical Co., 71 S. C. 544, 51 S. E. 455 (1905); 
Howze V. Howze, 2 S. C. 229 (1870); An- 
tonakas v. Anderson Ch?mber of Com- 
merce, 130 S. C. 215, 126 S. E. 35 (1924); 
Central R., etc., Co., v. Georgia Const., etc., 
Co., 32 S. C. 319, 11 S. E. 192 (1890): 
Wallace v. Sumter County, 189 S. C. 
395, 1 S. E. (2d) 345 (1939); Kirk v. 
Douglass, 190 S. C. 495, 3 S. E. (2d) 536 
(1939): State v. Osborne, 195 S. C. 295, 
11 S. E. (2d) 260 (1940). 

II. IMPAIRING OBLIGATION 
OF CONTRACTS. 

A. Intent of Clause. 

State may not impair obligation of con- 
tracts. — It was said by Mr. Justice Swayne, 
in delivering the opinion of the court in 
Walker v. Whitehead, 83 U. S. (16 Wall.) 
314, 21 L. Ed. 357 (1872): "The Constitu- 
tion of the United States declares that no 
state shall pass any 'law impairing the 
obligation of contracts.' These propositions 
may be considered consequent axioms in 
our jurisprudence: the law-s which exist at 
the time and place of the making of a 
contract, and where it is to be performed, 
enter into and form a part of it. This 
embraces alike those which affect its valid- 
ity, construction, discharge, and enforce- 
ment. Nothing is more material to the 
obligation of a contract than the means of 
enforcement. The ideas of validity and 
remedy are inseparable, and both are parts 
of the obligation which is guaranteed by 
the Constitution against impairment. The 
obligation of a contract 'is the law which 
binds the parties to perform their agree- 
ment.' .'\ny impairment of the obligation 
of a contract — the degree of impairment is 
immaterial — is within the prohibition of 
the Constitution. The states may change 
the remedy, provided that no substantial 
right secured by the contract is impaired. 
Whenever such a result is produced by the 
act in question, to that extent it is void. 
The states are no more permitted to impair 
the efficacy of a contract in this way than 
to attack its validity in any otiier manner. 
Against all assaults coming from that 
quarter, whatever guise they may assume, 
the contract is shielded by the Constitu- 
tion. It must be left with the same force 
and eft'ect, including the substantial means 
of enforcement, which existed when it was 
made. The guaranty of the Constitution 



15 



Art. I, § 10 



Constitution of the United States 



Art. I, § 10 



gives it protection to that extent." E,x parte 
Folsom, 131 F. 496 (1904). 

By legislative act or constitutional provi- 
sion. — .-^ state can no more impair an exist- 
ing contract by a constitutional provision 
than by an act of the legislature. Both 
methods are within the prohibition of this 
section. Shuler v. Bull, 15 S. C. 421 (1881), 
citing Gunn v. Barrv, 82 U. S. (15 Wall.) 
610, 21 L. Ed. 212 (1872). 

Or by any other means. — The prohibi- 
tion "that no state shall pass anj- law im- 
pairing the obligation of contracts" is not 
confined to acts or resolutions of the legis- 
lative bodies of a state, but is against the 
exercise of the forbidden power by a state. 
It is the state, no matter by what body 
represented, which is subjected to the 
restraint. Calhoun v. Callioun, 2 S. C. 283 
(1871.) 

United States Supreme Court decisions 
must be followed. — Upon questions aris- 
ing under the United States Constitution, 
the state courts must conform their deci- 
sions to those of the Supreme Court of 
the United States. Cochran v. Darcy, 5 
S. C. 125 (1874). 

Section keeps contracts unimpaired as 
created. — The great principle intended to 
be established by the Constitution was 
the inviolability of the obligation of con- 
tracts as the obligation existed and was 
recognized by the laws in force at the 
time the contracts were made. State v. 
Carew, 13 Rich. (47 S. C. L.) 498. 

Without disturbing proper state regula- 
tions. — Tlie constitutional provision in rela- 
tion to laws impairing the obligation of 
contracts was designed to operate only on 
some of the undertakings contained in the 
contract, and was not intended to inter- 
fere with the internal regulations which a 
state may think proper to adopt for the 
government of its citizens. Warren, Wal- 
lace & Co. V. Jones, 9 S. C. 288 (1878). 

B. Obligation of a Contract. 

Contract is legal obligation. — The obliga- 
tion of a contract, as spoken of in the 
Constitution, is a legal and not a mere 
moral obligation. It is the law which 
binds a party to perform his undertaking. 
The obligation does not inhere or subsist 
in the contract itself proprio vigore, but 
in the law applicable to the contract. This 
law is not the universal law of nations, 
but it is the law of the state where the 
contract is made. State v. Carew, 13 Rich. 
(47 S. C. L.) 498, 

Not based on mere moral obligation. — 
The civil obligation interpreted by nat- 
ural or universal law, modified by munici- 



pal law aid not mere moral obligation, 
is within the protection of the Constitu- 
tion. In re Kennedy, 2 S. C. 216 (1870), 
overruled on other grounds in 5 S. C. 125 
(1874). 

It depends on law for performance. — 
The obligation of the contract consists 
in the power and efficacy of the law which 
applies to and enforces the performance of 
the contract, or the payment of an equiv- 
alent for non-performance. It subsists 
in the law applicable to the contract. This 
definition looks principally to that part 
of the obligation which imposes on the 
government the duty of enforcement, treat- 
ing the power of enforcement residing in 
the government, under the duty imposed by 
the contract, as an element of value in 
the contract itself and protected under the 
Constitution. In re Kennedy, 2 S. C. 216 
(1870), overruled on other grounds in 5 
S. C. 125 (1874). 

By parties making it. — The obligation of 
a contract consists in its binding force on 
the party who makes it. This depends on 
the laws in existence when it is made, 
which are necessarily referred to in all 
contracts and form a part of them as the 
measure of the obligation to perform them 
by the one party and the right acquired 
by the other. There can be no standard 
to ascertain the extent of either other than 
that which the terms of the contract in- 
dicate according to their settled legal mean- 
ing. When it becomes consummated, the 
law defines the duty and the right, com- 
pels one party to perform the thing con- 
tracted for, and gives the other a right to 
enforce the performance by the remedies 
then in force. If any subsequent law 
affect to diminish the duty or to impair 
the right, it necessarily bears on the ob- 
ligation of the contract in favor of one 
party to the injury of the other. Hence 
any law, which in its operation amounts 
to a denial or obstruction of the rights 
accruing by a contract, though professing 
to act on the remedy, is directly obnoxious 
to the provisions of the Constitution. Mc- 
Cracken v. Hayward, 43 U. S. (2 How.) 
60S, 11 L. Ed. 397 (1844); Smith v. Jen- 
nings, 67 S. C. 324, 45 S. E. 821 (1903); 
Iklartin v. Saye, 147 S. C. 433, 145 S. E. 
186 (1928). 

And any impairment thereof is prohibited. 
— In Black on Constitutional Law, quoted 
with approval in Smith v. Jennings, 67 S. 
C. 324. 45 S. E. 821 (1903), we lind: "The 
obligation of a contract is that duty of 
performing the contract according to its 
terms and intent which the law recognizes 
and enforces. Any law which precludes 



16 



Art. I, § 10 



Constitution of the United States 



Art. I, § 10 



recovery for a breach of contract, excuses 
one of the parties from performing it, 
renders it invalid, enlarges or abridges the 
intention of the parties, postpones or ac- 
celerates the time of performance, or inter- 
poses such obstacles to its enforcement as 
practically to annul it thus impairs its 
obligation and is void." 

The objection to a law on the ground 
of impairing the obligation of a contract 
can never depend upon the extent of the 
change which the law effects in it. Any 
deviation from its terms, by postponing or 
accelerating the performance which it pre- 
scribes, imposing conditions not expressed 
in the contract, or dispensing with the per- 
formance of those which are, however 
minute or apparently immaterial in their 
effect upon the contract of the parties, 
impairs its obligation. Green v. Biddle. 
21 U. S. (8 Wheat.) 1, 5 L. Ed. 547 
(1923); Martin v. Saye, 147 S. C. 433. 145 
S. E. 186 (1928). 

C. Existing State Laws. 

Contract obligation includes everything 
within its scope. — The obligation of a con- 
tract includes everything within its oblig- 
atory scope. Martin v. Saye, 147 S. C. 
433, 145 S. E. 186 (1928). 

And depends on existing State laws. — 
The "obligation of contracts" as an ab- 
stract legal entity, in this State as in every 
other state, at any particular time must 
depend upon and be ascertained by the then 
existing laws of the State. Wood v. Wood, 
14 Rich. (48 S. C. L.) 148. 

Which become part thereof. — The law 
which exists at the time and place of mak- 
ing a contract enters into and forms a part 
of it. Shuler V. Bull, 15 S. C. 421 (1881); 
Walker v. Whitehead. 83 U. S. (16 Wall.) 
314. 21 L. Ed. 357 (1872). 

Among which is means of its enforce- 
ment. — The obligation of a contract, in the 
constitutional sense, is the means provid- 
ed by law by which it can be enforced and 
by which the parties can be obliged to 
perform it. Louisiana v. New Orleans. 102 
U. S. 203, 26 L. Ed. 132 (1880); Martin v. 
Saye, 147 S. C. 433, 145 S. E. 186 (1928). 

Without which it becomes imperfect.— 
Among these elements, nothing is more 
important than the means of enforcement. 
This is the breath of its vital existence. 
Without it, the contract as such, in the 
view of the law, ceases to be and falls into 
the class of those "imperfect obligations", 
as thej' are termed, which depend for their 
fulfillment upon the will and conscience of 
those upon whom they rest. Edwards v. 

[7SCCode]— 2 17 



Kearzey, 96 U. S. 595, 24 L. Ed. 793 
(1877); Martin v. Save, 147 S. C. 433, 145 
S. E. 186 (1928). 

Or impaired when efficacy of such 
means is lessened. — Whatever legislation 
lessens the efficacy of the means of enforc- 
ing a contract impairs its obligation. 
Louisiana v. New Orleans, 102 U. S. 203, 
26 L. Ed. 132 (1880): Martin v. Saye, 147 
S. C. 433, 145 S. E. 186 (1928). 

Contract cannot be impaired by later 
judicial decision. — The Supreme Court of 
the United States has in numerous cases 
held that where a contract is valid at tlie 
time it is made, under the laws of the state 
as then expounded, its validity or obliga- 
tion cannot be impaired by any subsequent 
judicial decision giving a different exposi- 
tion of the law. The Supreme Court of 
this State has in Walker v. State, 12 S. C. 
200 (1879), and Whaley v. Gaillard, 21 
S. C. 560 (1884), deferred to the authority 
of that -court in that class of cases which 
involve the question whether a particular 
law or decision is in violation of that 
clause of the Constitution which forbids 
a state from passing any law impairing the 
obligation of a contract. McLure v. Mel- 
ton, 24 S. C. 559 (1886). 

This doctrine applies only to contract 
cases. — This is a doctrine confined to cases 
of contract, and probably not even then 
where it depended upon a single case, never 
recognized nor followed, and overruled at 
the first opportunity. AIcLure v. Melton, 
24 S. C. 559 (1886). See also Walker v. 
State, 12 S. C. 200 (1879). 

D. Impairment of Contract. 

Legislative decrease in value is impair- 
ment test. — One of the tests of contract 
impairment is that its value has been di- 
minished by legislation. It is not, by the 
Constitution, to be impaired at all. This 
is not a question of degree or manner of 
cause, but of encroaching in any respect 
on its obligations and thus dispensing with 
any part of its force. Planters' Bank v 
Sharp, 47 U. S. (6 How.) 301. 12 L. Ed. 
447 (1848); Martin v. Saye, 147 S. C. 433, 
145 S. E. 186 (1928). 

Relative to state action on contract. — 
To impair a contract, tlie action of the 
state must be upon and in regard to it. 
Calhoun v. Calhoun, 2 S. C. 283 (1871); 
Charles River Bridge v. Warren Bridge, 
36 U. S. (11 Pet.) 420, 9 L. Ed. 77 i, 938 
(1837). 

Any change in contract's terms is im- 
pairment. — The objection to a law on the 
ground of its impairing the obligation of a 
contract can never depend upon the e-x- 



Art. I, § 10 



Constitution of the United States 



Art. I, § 10 



tent of the change which the law effects 
in it. Any deviation from its terms by 
postponing or accelerating the performance 
which it prescribes, imposing conditions not 
expressed in the contract, or dispensing 
with the performance of those which are, 
however minute or apparently immaterial 
in their effect upon the contract of the 
parties, impairs its obligations. Henry v. 
Alexander, 186 S. C. 17, 194 S. E. 649 
(1937). 

Any law which enlarges, abridges, or 
in any manner changes the intention of 
the parties resulting from the stipulations 
in the contract necessarily impairs it. 
State V. Carew, 13 Rich. (47 S. C. L.) 498. 

A law is within the true meaning of the 
Constitution if it in effect impairs the obli- 
gation of existing contracts. State v. Ca- 
rew, 13 Rich. (47 S. C. L.) 498. 

Violating this section and S. C. Const., 
Art. 1, § 8. — Any deviation from the terms 
of a contract by imposing conditions not 
expressed therein or dispensing with per- 
formance of those expressed impairs its 
obligation within the meaning of and in 
violation of this section and S. C. Const., 
Art. 1, § 8, however minute or apparent- 
ly immaterial in their effect on the con- 
tract they may be. Martin v. Saye, 147 
S. C. 433, 145 S. E. 186 (1928). 

But ending performance may not impair 
contract. — -.Anything that puts an end to 
the performance of a contract does not nec- 
essarily violate its obligation; but "it is the 
motive policy, the object, that must char- 
acterize the legislative act to affect it with 
the imputation of violating the obligation 
of contracts." In re Kennedy, 2 S. C. 
216 (1870), overruled on other grounds in 
5 S. C. 125 (1874). 

State may withdraw consent to be sued. 
— The state can witlidraw at any time its 
consent to be sued, and the right to with- 
draw it is not affected either by the con- 
tract clause of the Constitution, or, ordi- 
narily, by the limitations of the Fourteenth 
Amendment. Duke Power Co. v. South 
Carolina Tax Commission, 81 F. (2d) 513 
(1936), cert, denied 298 U. S. 669, 56 S. Ct. 
834, 80 L. Ed. 1392 (1936). 

E. Right and Remedy. 

Right and remedy are inseparable. — The 

ideas of right and remedy are inseparable. 
Want of right and want of remedy are 
the same thing. Edwards v. Kearzey, 96 
U. S. 595, 24 L. Ed. 793 (1877); Martin 
V. Saye. 147 S. C. 433, 145 S. E. 186 (1928). 
And distinction between them is clear. — 
The distinction between the obligation of 
a contract and the remedy for its enforce- 



ment is well established by the authorities. 
While the legislature has no right to im- 
pair the obligation of a contract, it has the 
undoubted right to change, modify, or vary 
the nature and extent of the remedy, pro- 
vided a substantial remedy is left the cred- 
itor. Under the United States Constitu- 
tion, the former power is denied to the 
several states, but the latter exists in full 
force. Von Hoffman v. Quincy, 71 U. S. 
(4 Wall.) 535, 18 L. Ed. 403 (1866); State 
v. County Treasurer, 4 S. C. 520 (1873); 
Warren, Wallace & Co. v. Jones, 9 S. C. 
288 (1878). 

Change in remedy must not impair right. 
— The legal remedies for enforcement of 
a contract which belong to it at the time 
and place where it is made are a part of 
its obligation. A state may change them, 
provided the change involves no impair- 
ment of a substantial right. Cochran v. 
Darcy, 5 S. C. 125 (1874). 

An act so changing existing remedies as 
materially to impair the rights and inter- 
ests of creditors is within the inhibition of 
the Constitution of the United States in 
reference to laws "impairing the obligation 
of contracts." State v. Bank of South Car- 
olina, 1 S. C. 63 (1869). 

But state may change remedy at will. — 
Whatever belongs merely to the remedj' 
may be altered according to the will of the 
state, provided such alteration does not 
impair the obligation of the contract. 
Bronson v. Kinzie, 42 U. S. (1 How.) 311, 
11 L. Ed. 143 (1843); Warren, Wallace & 
Co. V. Jones, 9 S. C. 288 (1878). 

Since changing remedy is not prohibited. 
— The obligation of a contract is not iden- 
tified with the means which the government 
may furnish to enforce it. A prohibition 
to pass any law impairing it does not im- 
ply a prohibition to vary the remedy, nor 
does a power to vary the remedy imply 
a power to impair the obligation derived 
from the act of the parties. In re Kennedy, 
2 S. C. 216 (1870), overruled on other 
grounds in 5 S. C. 125 (1874). 

Thus imprisonment for debt may be abol- 
ished. — A state may constitutionally abolish 
imprisonment for debt as to existing con- 
tracts. Although by so doing the rem- 
edy of the creditor is impaired, the obliga- 
tion of the contract is not impaired in the 
constitutional sense of the term. Ware 
V. Miller, 9 S. C. 13 (1877). 

And prior executions may be regulated. — 
A law which regulates the issuing of exe- 
cutions previously rendered affects the 
remedy merely, and does not impair the 
obligation of the contract. Warren, Wal- 
lace & Co. V. Jones, 9 S. C. 288 (1878). 



18 



[7SCCode] 



Art. I, § 10 



Constitution of the United States 



Art. I, § 10 



But suspending remedy may cause im- 
pairment. — All suspension by statute of 
remedies existing when the contract was 
made is more or less impairing its obliga- 
tion. State V. Carew, 13 Rich. (47 S. C. L.) 
498. 

As may diminution of remedy. — Any leg- 
islation which materially diminishes the 
remedy given by law to the creditor at 
the time his contract is made just so far 
impairs the obligation of the contract. 
State V. Carew, 13 Rich. (47 S. C. L.) 498. 

F. Contracts Included in Clause. 

Obligation of contracts includes mar- 
riage obligation. — A dissolution of the mar- 
riage obligation without any fault or as- 
sent of the parties may as well fall within 
the prohibition of the Constitution as any 
other contract for a valuable consideration. 
Callahan v. Callahan, 36 S. C. 454, 15 S. E. 
727 (1892). 

And act creating State debt. — The in- 
hibition of this section, which states that 
"no state shall pass any law impairing the 
obligation of contracts," inheres in a debt 
of the State created under an act provid- 
ing, as the Constitution of the State directs, 
for the levy of "a tax, annually, sufficient 
to pay the annual interest on such debts," 
and prevents the legislature of the State 
from depriving the public creditor of his 
remedy to enforce the collection of the 
tax under the law in force at the pas- 
sage of the act. Morton, Bliss & Co. v. 
Comptroller General, 4 S. C. 430 (1873). 

And bond issue creating contract with 
purchaser. — The issue of bonds by a school 
district is a contract between it and the 
purchaser which, in view of this section 
and S. C. Const., Art. 1, § 8, cannot be im- 
paired. Welch v. Getzen, 85 S. C. 156, 
67 S. E. 294 (1910); Dove v. Kirkland, 
92 S. C. 313, 75 S. E. 503 (1912). 

And pledge for payment of interest 
thereon. — When the State borrows money 
on bonds issued by it for that purpose 
and pledges a certain fund for the pay- 
ment of the interest to accrue thereon, such 
pledge is a part of the contract with the 
holders of the bonds, and the State has no 
right, under this section of the Constitution 
of the United States, to impair the obli- 
gation of the contract by diverting the fund 
to other purposes. State v. Cardozo, 8 
S. C. 71 (1876). 

And contract where executor assents to 
legacy. — After assent by an executor to a 
pecuniary legacy there is a contract, ex- 
press or implied, to pay it. And though 
no action at law may lie on such contract. 



it is, nevertheless, within the provision 
of this section which provides that no 
state shall pass any law impairing the ob- 
ligation of contracts. Dunham v. Elford, 
13 Rich. (34 S. C. Eq.) 190. 

G. Where Contract Impaired. 

Act withdrawing debtor's property from 
process. — .An act withdrawing the property 
of a debtor from the operation of all legal 
process by his creditors, leaving to them 
the barren right to sue, virtually destroys 
the remedy of a creditor and impairs the 
obligation of his contract. State v. Bank 
of South Carolina, 1 S. C. 63 (18.j9). 

Act relieving mortgagors from deficiency 
judgments. — An act approved May 2, 1933 
(38 St. at Large, p. 350), entitled "An act 
to provide for the relief of real estate mort- 
gagors and other judgment debtors from 
deficiency judgments in foreclosure to 
the extent of the true value of the mort- 
gaged property, and to prescribe the pro- 
cedure thereon," is unconstitutional, null, 
and void because it impairs the obligation 
of a mortgage contract executed prior to 
enactment of the statute. Federal Land 
Bank v. Garrison, 185 S. C. 255, 193 S. E. 
308 (1937). 

Act depriving sheriff of fees. — Act No. 
1135 of 1930 Acts is unconstitutional because 
it deprives the sheriff of Sumter County of 
civil fees prior to July 1, 1935, when Act 
No. 62 of 1935 Acts became effective. 
Hurst v. Sumter County, 189 S. C. 376, 1 
S. E. (2d) 238 (1939). 

Act regulating hours of workers. — .\ct 
No. 943 of the 1938 Acts, which regulates 
hours of workers, is invalid as violative 
of this section because (1) it is not a prop- 
er exercise of the public power of the State, 
and (2) the classifications therein are arbi- 
trary and without reasonable basis. 
Gasque v. Notes, 191 S. C. 271, 2 S. E. (2d) 
36 (1939). 

Statute denying validity of contract. — A 
statute that denies validity to, modifies, or 
refuses to enforce a contract impairs its 
obligation. Ogden v. Saunders, 25 U. S. 
(12 Wheat.) 213, 6 L. Ed. 606 (1827). 
In re Kennedy, 2 S. C. 216 (1870), over- 
ruled on other grounds in 5 S. C. 125 
(1874). 

Statute providing that certain debts bear 
interest. — An act of the State legislature, 
which provides that "debt due on open 
accounts and other demands not heretofore 
bearing interest by law shall bear interest," 
impairs the obligation of contracts at least 
so far as such act relates to debts contract- . 
ed before its passage. Goggans v. Turnip- 
seed, 1 S. C. 80 (1869). 



19 



Art. II, § 1 



Constitution of the United States 



Art. II, § 1 



H. Where Contract Not Impaired. 

Act suspending statute of limitations. — 

An act of the legislature suspending the 
statute of limitations in actions upon con- 
tracts then existing does not impair the ob- 
ligation of contracts and is constitutional. 
Wardlaw v. Buzzard, IS Rich. (49 S. C. 
L.) 158. 

Contract for sale of slaves. — A contract 
made in 1854 for the sale of slaves, being 
legal, binding, and in conformity to public 
policy then existing, was not invalidated 
by the subsequent emancipation of the 
slaves and a change of public policy in 
reference to slavery in vievv' of this section. 
Calhoun V. Calhoun, 2 S. C. 283 (1871). 

Distribution of motor vehicle license fees. 
— Section 58-1443 of the Code, providing 
for distribution of motor vehicle license 
fees, does not violate this section with re- 
gard to impairing the obligation of con- 
tracts. State v. Bates, 198 S. C. 430, 18 
S. E. (2d) 346 (1941). 

Partial refund of gasoline tax. — Sections 
65-1101 et seq. of the Code, providing for 
refund of all except one cent of the gasoline 
tax to purchasers of gasoline used only in 



farm operations, do not impair obligations 
of the contracts of holders of State high- 
way certificates of indebtedness. State v. 
Querv, 207 S. C. 500, 37 S. E. (2d) 241 
(1946). 

Statute changing time for procuring au- 
tomobile license does not impair obliga- 
tion of contract, since "'license" is not a 
contract but merely a privilege to do what 
otherwise would be unlawful. Heslep v. 
State Highway Dept., 171 S. C. 186, 171 
S. E. 913 (1933). 

Statutes providing for highway condem- 
nation proceedings. — The condemnation 
proceedings provided for in the Code, per- 
mitting the State Highway Department 
to condemn private lands, do not violate 
this section of the Constitution. Jennings 
V. Sawyer, 182 S. C. 427, 189 S. E. 746 
(1937). 

Statutes relating to collection of checks. 
—In Witt v. People's State Bank, 166 S. C. 
1, 164 S. E. 306 (1932), §§8-196 to 8-198 
of the Code, relating to the collection and 
payment by banks of checks and other 
instruments for the payment of money, 
were held not to violate this section of 
the Constitution. 



Article II. 

§ 1. President and Vice President. 

The executive power shall be vested in a President of the United States of 
America. He shall hold his office during tlie term of fotir years, and, together 
with the Vice President, chosen for the same term, be elected as follows 

Each state shall appoint, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole number of Senators and repre- 
sentatives to which the state may be entitled in the Congress ; but no Senator 
or representative, or person holding an office of trust or profit under the United 
States, shall be appointed an elector. 

[The electors shall meet in their respective states, and vote by ballot for 
two persons, of whom one at least shall not be an inhabitant of the same state 
with themselves. And they shall make a list of all the persons voted for, and 
of the number of votes for each ; which list they shall sign and certify, and 
transmit sealed to the seat of the government of the United States, directed 
to the President of the Senate. The President of the Senate shall, in the 
presence of the Senate and House of Representatives, open all the certificates, 
and the votes shall then be counted. The person having the greatest number 
of votes shall be the President, if such number be a majority of the whole 
number of electors appointed; and if there be more than one who have such 
majority, and have an equal number of votes, then the House of Represent- 
atives shall immediately choose by ballot one of them for President ; and if 
• no person have a majority, then from the five highest on the list the said house 
shall in like manner choose the President. But in choosing the President, 

20 



Art. II, § 2 Constitution of the United States Art. II, § 2 

the votes shall be taken by states, the representation from each state having 
one vote; a quorum for this purpose shall consist of a member or members 
from two thirds of the states, and a majority of all the states shall be necessary 
to a choice. In every case, after the choice of the President, the person having 
the greatest number of votes of the electors shall be the Vice President. But 
if there should remain two or more who have equal votes, the Senate shall 
choose from them by ballot the Vice President.]^ 

The Congress may determine the time of choosing the electors, and the day 
on which they shall give their votes ; which day shall be the same throughout 
the United States. 

No person except a natural born citizen, or a citizen of the United States, 
at the time of the adoption of this Constitution, shall be eligible to the office of 
President; neither shall any person be eligible to that office who shall not have 
attained to the age of thirty-five ^-ears, and been fourteen years a resident with- 
in the United States. 

In case of the removal of the President from office, or of his death, resigna- 
tion, or inability to discharge the powers and duties of the said office the same 
shall devolve on the Vice President, and the Congress may by law provide for 
the case of removal, death, resignation or inability, both of the President 
and Vice President, declaring what officer shall then act as President, and 
such officer shall act accordingly, until the disability be removed, or a President 
shall be elected. 

The President sliall, at stated times, receive for his services, a compensa- 
tion, which shall neither be increased nor diminished durinsf the nerind for . 



which he shall have been elected, and he shall not receive within that__g£riod 
any other emolument from the United States, or any of them. ' 

Before he enter on the execution of his office, he shall take the following oath 
or affirmation: — "I do solemnly swear (or affirm) that I will faithfull}' execute 
the office of President of the United States and will to the best of my ability, 
preserve, protect and defend the Constitution of the United States." 

§ 2. Powers of the President. 

The President shall be commander-in-chief of the Army and Navy of the 
United States, and of the militia of the several states, when called into the 
actual service of the United States ; he may require the opinion, in writing, 
of the principal officer in each of the executive departments, upon any subject 
relating to the duties of their respective offices, and he shall have power to 
grant reprieves and pardons for offenses against the United States, except in 
cases of impeachment. 

He shall have power, by and with the advice and consent of the Senate, to 
make treaties, provided two thirds of the Senators present concur; and he 
shall nominate, and by and with the advice and consent of the Senate, shall 
appoint ambassadors, other public ministers and consuls, judges of the Su- 
preme Court, and all other officers of the United States, whose appointments 
are not herein otherwise provided for, and which shall be established by law : 
but the Congress may by law vest the appointment of such inferior officers, 



6. See 12th amendment. 

21 



Art. II, § 3 Constitution of the United States Art. Ill, § 2 

as they think proper, in the President alone, in the courts of law, or in the 
heads of departments. 

The President shall have power to fill up all vacancies that may happen 
during the recess of the Senate, by granting commissions which shall expire 
at the end of their next session. 

§ 3. Messages to Congress; additional powers and duties. 

He shall from time to time give to the Congress information of the state 
of the Union, and recommend to their consideration such measures as he shall 
judge necessary and expedient ; he may, on extraordinary occasions, convene 
both houses, or either of them and in case of disagreement between them, with 
respect to the time of adjournment, he may adjourn them to such time as he 
shall think proper: he shall receive ambassadors and other public ministers; 
he shall take care that the laws be faithfully executed, and shall commission 
all the officers of the United States. 

§ 4. Impeachment. 

The President, Vice President and all civil officers of the United States, 
shall be removed from office on impeachment for, and conviction of, treason, 
bribery, or other high crimes and misdemeanors. 

Article III. 

§ 1. Judicial power ; tenure of office. 

The judicial power of the United States, shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from time to time or- 
dain and establish. The judges, both of the Supreme. and inferior courts, 
shall hold their offices during good behavior, and shall, at stated times, re- 
ceive for their services, a compensation, which shall not be diminished during 
their continuance in office. ''■ 

Section confers judicial power of United and to punish offenders against their au- 

States. — The judicial power provided for thority. State v. Wells, 2 Hill (20 S. C. 

under this and the following section is L.) 687. 

that of the United States: a power to ad- For additional related cases, see State 

minister, to expound, to enforce the laws v. McBride, Rice (24 S. C. L.) 400; Davis 

of the Federal Government, to hear and v. South Carolina, 107 U. S. 597, 2 S. Ct. 

determine causes arising under those laws, 636, 27 L. Ed. 574 (1882). 

§ 2. Jurisdiction. 

The judicial power shall extend to all cases, in law and equity, arising under 
this Constitution, the laws of the United States, and treaties made, or which 
shall be made, tmder their authority ; — to all cases affecting ambassadors, 
other public ininisters and consuls ; — to all cases of admiralty and maritime 
jurisdiction; — to controversies to which the United States shall be a party; — 
to controversies between two or more states ; — between a state and citizens of 
another state; — between citizens of different states, — between citizens of the 
same state claiming lands under grants of different states, and between a state, 
or the citizens thereof, and foreign states, citizens or subjects.'' 



7. See 11th amendment. 

22 



Art. Ill, § 2 



Constitution of the United States 



Art. Ill, § 2 



In all cases affecting ambassadors, other public ministers and consuls, and 
those in which a state shall be a party, the Supreme Court shall have original 
jurisdiction. In all the other cases before mentioned, the Supreme Court shall 
have appellate jurisdiction, both as to law and fact, with such exceptions, 
and under such regulations as the Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall be by jury; 
and stich trial shall be held in the state where the said crimes shall have been 
committed ; but when not committed within any state, the trial shall be at 
such place or places as the Congress may by law have directed. 



I. General Consideration. 
II. Source of Judicial Power, 
III. Application to Cases. 

I. GENERAL CONSIDERATION 

Judicial power is not identical with ju- 
risdiction. State V. Davis, 12 S. C. 528 
(1879), reversed on otlier grounds in 107 
U. S. 597, 2 S. Ct. 636, 27 L. Ed. 574 
(1882). 

But refers to power to hear cases. — The 
term "judicial power" is equivalent to a 
provision that "the judiciary of the United 
States shall have power to hear all cases." 
State V. Wells. 2 Hill (20 S. C. L.) 687. 

The Federal judiciary is additional to 
that existing in the states. State v. Wells, 
2 Hill (20 S. C. L.) 687. 

And Federal courts do not alone decide 
extent of their authority. State v. Wells, 
2 Hill (20 S. C. L.) 687. 

Thus state courts have jurisdiction over 
certain Federal oflenses concurrently with 
Federal courts. State v. Wells, 2 Hill (20 
S. C. L.) 687. 

Congress may select court in which to 
enforce Federal legislation. — Both state 
and Federal courts having jurisdiction, Con- 
gress might, in legislating upon a subject 
constitutionally wathin its power, select 
the agent which should enforce its sanc- 
tion, and the State authority must obey it, 
both as the declared will of the United 
States, and also of the State. State v. 
Wells, 2 Hill (20 S. C. L.) 687. 

For additional related cases, see State 
V. Bowen, 8 S. C. 382 (1876); Hyatt v. Mc- 
Burney, 18 S. C. 199 (1882); Carson v. 
Hyatt, 118 U. S. 279, 6 S. Ct. 1050, 30 
L. Ed. 167 (1886). 

Cited in Riser v. Southern Ry. Co., 67 
S. C. 419, 46 S. E. 47 (1903). 

II. SOURCE OF JUDICIAL POWER 

Constitution extended jurisdiction of 

Federal courts. — The Constitution of the 
United States has extended the jurisdic- 
tion of the Federal courts over several 



classes of cases of which the state courts 
already had jurisdiction and of which the 
Federal courts would not have taken cog- 
nizance WMthout such provision. State v. 
Wells, 2 Hill (20 S. C. L.) 687. 

Which is additional to that possessed 
by states. — The United States judiciary is 
additional to that existing in the states. 
Where the latter had a common-law ju- 
risdiction of subject matter, which either 
had arisen or else might arise, it was not 
taken from them, although courts of the 
United States were clothed with the same 
power. Thus Congress might direct pro- 
ceedings, civilly or criminally, to be in ei- 
ther one court or the other. State v. Wells, 
2 Hill (20 S. C. L.) 687. 

Each constitutional grant is limited to 
terms thereof. — Every grant to the govern- 
ment of the United States by the Constitu- 
tion is limited to the powers expressed 
in the terms of such grant or arising there- 
from by necessary implication. State v. 
Davis, 12 S. C. 528 (1879), reversed on 
other grounds in 107 U. S. 597, 2 S. Ct. 
636, 27 L. Ed. 574 (1882). 

The object of the Constitution was to ap- 
portion certain governmental powers be- 
tween the general and local governments, 
and such an apportionment is, in its nature, 
limitative. State v. Davis, 12 S. C. 528 
(1879), reversed on other grounds in 107 
U. S. 597, 2 S. Ct. 636, 27 L. Ed. 574 
(1882). 

Where such construction is possible. — 
The Tenth Amendment is as follows: "The 
powers not delegated to the United States 
by the Constitution, nor prohibited by it 
to the states, are reserved to the states 
respectively or to the people." This can- 
not with any propriety be read as a new 
grant to the states or the people of such 
power as had not been delegated or pro- 
hibited by the Constitution, for that would 
assume the existence of a considerable 
period of time when these powers were 
either in abeyance or vested somewhere 
else, which is an assumption inadmissible 
as inconsistent with the nature of govern- 



23 



Art. Ill, § 2 



Constitution of the United States 



Art. Ill, § 2 



mental powers. It must be concluded that 
Art. 10 was intended as declaratory of a 
pre-existing intent of the Constitution, and 
that would lead us to construe the Consti- 
tution precisely as if the Tenth Amend- 
ment had been incorporated in it at its first 
adoption. Reading, then, the Constitu- 
tion with this reservation, it is necessary 
that the terms of every grant should be 
construed as the express limitation of such 
grant where that is reasonablv possible. 
State V. Davis, 12 S. C. 528 (1879'), re- 
versed on other grounds in 107 U. S. 597. 
2 S. Ct. 636, 27 L. Ed. 574 (1882). 

Thus grant of judicial power is limited 
by U. S. Const., Art. 3.— It is clear that 
U. S. Const., Art. 3 was intended to lim- 
it as well as vest the judicial power of the 
United States. State v. Davis, 12 S. C. 
528 (1879). reversed on other grounds in 
107 U. S. 597, 2 S. Ct. 636, 27 L. Ed. 574 
(1882). 

In first two sections thereof. — The first 
limitation is perceived by comparing the 
first and second sections of .A.rt. 3. In the 
first section, the judicial power of the 
United States is described by a limitation 
that has its force from the mode in which 
that power shall be vested, namely, in the 
Supreme and inferior courts of the United 
States. The second section gives it a 
further definition as to the subjects that 
may be brought within it, among which 
are cases arising under the Constitution, 
and laws and treaties of the United States. 
As Congress can only establish the juris- 
dictions of courts, ordain their functions, 
and delegate their powers by virtue of 
the grant of judicial power, and as that 
grant is required to be exhausted upon 
the United States courts, it follows that 
Congress cannot mould the jurisdiction, 
remedial system, or process of the state 
courts and, therefore, cannot directly cut 
ofif that jurisdiction or accomplish that 
result in any other way than indirectly by 
means of constitutional jurisdiction con- 
ferred on the United States courts. State 
v. Davis, 12 S. C. 528 (1879), reversed on 
other grounds in 107 U. S. 597, 2 S. Ct. 
636, 27 L. Ed. 574 (1882). 

A further limitation is implied by the 
words "extend to." State v. Davis, 12 
S. C. 528 (1879), reversed on other grounds 
in 107 U. S. 597, 2 S. Ct. 636, 27 L. Ed. 
574 (1882). 

And Congress cannot enlarge such pow- 
er. — Congress cannot by any measure en- 
large the jurisdiction of the courts of the 
United States beyond the measure of Art. 
3 of the Constitution or grant them pow- 



ers that are not warranted by such grant 
of jurisdiction. State v. Davis, 12 S. C. 
528 (1879), reversed on other grounds in 
107 U. S. 597, 2 S. Ct. 636, 27 L. Ed. 574 
(1882). 

III. APPLICATION TO CASES 

Jurisdiction in civil and criminal cases. — 
The Constitution draws no distinction be- 
tween civil and criminal causes as regards 
the matter of jurisdiction. Thus, such mat- 
ter must be controlled by provisions com- 
mon to both civil and criminal cases. State 
V. Davis, 12 S. C. 528 (1879), reversed on 
other grounds in 107 U. S. 597, 2 S. Ct. 
636, 27 L. Ed. 574 (1882). 

Effect of grant of judicial power. — The 
grant of judicial power in the Constitution 
to certain prescribed cases is equivalent 
to its denial in all other cases. State v. 
Davis, 12 S. C. 528 (1879), reversed on 
other grounds in 107 U. S. 597, 2 S. Ct. 
636, 27 L. Ed. 574 (1882). 

Object of defining "cases." — The object 
of this section was to establish and limit 
judicial jurisdiction by defining the "cases" 
to which it should extend. Cases are the 
natural boundary of jurisdiction in one 
of its directions. In the other direction 
the character of parties is the boundary. 
That sense of the word "case" should then 
be taken as its intended sense that en- 
ables it to serve as the boundary of orig- 
inal jurisdiction where that jurisdiction 
is described by it. State v. Davis, 12 S. C. 
528 (1879), reversed on other grounds in 
107 U. S. 597, 2 S. Ct. 636, 27 L. Ed. 574 
(1882). 

Meaning of "case" is presumed under- 
stood. — The Constitution assumes to as- 
sign certain cases to certain jurisdictions. 
It assumes that what is meant by a "case" 
is well understood, and it attempts no new 
definition of the term. It signifies no in- 
tention to change any of the features of 
the great remedial system of the common 
law and equity. State v. Davis, 12 S. C. 
528 (1879). reversed on other grounds in 
107 U. S. 597, 2 S. Ct. 636, 27 L. Ed. 574 
(1882). 

Through legal exposition. — There is not 
the slightest doubt that it was intended 
that the word "case" should receive its 
definition and sense by means of legal ex- 
position and not according to any idea pop- 
ularly attached to the term. Its direct 
and primary sense is that technical sense 
in which the law understands it, and if 
that sense best satisfies the manifest ob- 
ject of the use of the expression, it must 
prevail. State v. Davis, 12 S. C. 528 (1879), 



24 



Art. Ill, § 2 



Constitution of the United States 



Art. Ill, § 2 



reversed on other grounds in 107 U. S. 
597, 2 S. Ct. 636, 27 L. Ed. 574 (1882). 

As demand made by party prosecuting 
another. — What the Constitution meant by 
a case for the purpose of determining a 
question of original jurisdiction is the 
statement of the claim or demand made by 
a party prosecuting another in a court. 
State V. Davis, 12 S. C. 528 (1879), re- 
versed on other grounds in 107 U. S. 597, 
2 S. Ct. 636, 27 L. Ed. 574 (1882). 

"Case" applies to suit or other proceed- 
ing. — The terni "case" is, according to 
famihar legal usage, applicable to a suit 
or other remedial proceeding in a court 
of justice, to matters brought into an ap- 
pellate court by means of a writ of error 
and assignment of errors, or to other sim- 
ilar proceeding. State v. Davis, 12 S. C. 
528 (1879), reversed on other grounds in 
107 U. S. 597, 2 S. Ct. 636, 27 L. Ed. 574 
(1882). 

And includes parties and matter in con- 
troversy. — When used to designate a suit 
or proceeding in a court of original juris- 
diction, the term "case" embraces the parties 
and subject matter in controversy between 
them, its character and description for ju- 
risdictional purposes being determined by 
the nature of the demand of the party ask- 
ing the court for relief. When applied to 
a writ of error and assignment of errors, 
it covers certain alleged errors in a legal 
judgment consisting in failure to apply 
proper law to a case for its adjudication. 
Every error assigned is a case in substance 
and effect, as it would separately and inde- 
pendently support a writ of error as such. 
It would follow that, in order to deter- 
mine for the purpose of appeal whether 
a case is one arising under the Constitu- 
tion, laws, and treaties of the United States, 
inquiry should be directed to ascertain 
whether any of the alleged errors concern 
propositions of law deriving their force 
from that Constitution or the laws or trea- 
ties made under it. If such errors are 
found, a case for the appellate jurisdiction 
of the United States courts appears. State 
V. Davis, 12 S. C. 528 (1879), reversed 
on other grounds in 107 U. S. 597, 2 S. 
Ct. 636, 27 L. Ed. 574 (1882). 

"Cases affecting ambassadors." — The in- 
stance of "cases affecting ambassadors," 
etc., is not a departure from the order 
of expression. On the contrary, the form 
of the expression openi the inference that 
it was intended to give this jurisdiction 
a scope beyond the instances where the 
ambassador or other public minister is a 
party in a legal sense, as consistent with 



the use of word cases instead of contro- 
versies. More exact and significant lan- 
guage could not have been emploved. 
State v. Davis, 12 S. C. 528 (1879), re- 
versed on other grounds in 107 U. S. 597, 
2 S. Ct. 636, n L. Ed. 574 (1882). 

Original jurisdiction of United States 
courts. — The United States courts can have 
original jurisdiction of cases only where 
there is a demand of affirmative relief by 
plaintiff or defendant, based upon the Con- 
stitution, laws, or treaties of the United 
States. State v. Davis, 12 S. C. 528 (1879), 
reversed on other grounds in 107 U. S. 
597, 2 S. Ct. 636, 27 L. Ed. 574 (1882). 

Denial of such original jurisdiction. — 
Congress cannot confer upon the United 
States courts original jurisdiction of a case 
involving an offense against the laws of 
a state because the defense depends for 
its force and effect upon the Constitution 
and laws of the United States. State v. 
Davis, 12 S. C. 528 (1879), reversed on 
other grounds in 107 U. S. 597, 2 S. Ct. 
636, 27 L. Ed. 574 (1882). 

Appellate jurisdiction of United States 
circuit courts. — The circuit courts of the 
United States have no appellate jurisdic- 
tion over cases properly instituted in the 
State courts. Cases are removable to the 
former courts from the latter under acts 
of Congress only when they could have 
been brought in the first instance in the 
courts of the United States. State v. Davis, 
12 S. C. 528 (1879), reversed on other 
grounds in 107 U. S. 597, 2 S. Ct. 636, 27 
L. Ed. 574 (1882). 

The United States circuit courts have 
no jurisdiction of a controversy between 
a state and a citizen of another state. It 
was not error, therefore, in the State 
court in such case to refuse an order re- 
moving the cause to the United States 
circuit court. State v. Corbin & Stone, 16 
S. C. 533 (1882). 

Bill for maritime tort will not lie in equi- 
ty. — This section was cited in Gillani v. Park- 
er, 19 F. (2d) 358 (1927), in support of 
the ruling that a bill against government 
officials for unlawfully seizing a foreign 
vessel on the high seas, bringing her into 
the jurisdiction of the courts of United 
States, and there continuing to hold her 
unlawfully, will not lie in equity since it 
involves a maritime tort within the juris- 
diction of admiralty. 

As to forfeiture of vessel for breach of 
State fishing laws, see Shipman v. Dupre, 
339 U. S. 321, 70 S. Ct. 640, 94 L. Ed. 877 
(1950). 



25 



Art. Ill, § 3 



Constitution of the United States 



Art. IV, § 1 



§ 3. Treason ; proof and punishment. 

Treason against the United States, shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid and comfort. No per- 
son shall be convicted of treason unless on the testimony of two vi^itnesses 
to the same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment of treason, but 
no attainder of treason shall work corruption of blood, or forfeiture except 
during the life of the person attainted. 



Article IV. 

§ 1. Full faith and credit among states. 

Full faith and credit shall be given in each state to the public acts, records 
and judicial proceedings of every other state. And the Congress may by gen- 
eral laws prescribe the manner in which such acts, records and proceedings 
shall be proved, and the effect thereof. 



I. General Consideration. 
II. Foreign Divorce, Alimony, Support. 
III. Matters of Record and of Parol. 
IV. Authentication of Foreign Judgment. 
V. Application of Section. 

I. GENERAL CONSIDER.ATION 

Judgment of one state is recognized by 
other states. — It will be at once seen that 
tlie framers of our Federal Constitution 
have by this section provided that, while 
under the law of nations, from principles 
of comity, the judgments of foreign coun- 
tries should be respected as such in every 
other country when produced provided 
such foreign judgments accord with domes- 
tic policy, it should be the duty of every 
state in this Union to give full force and 
effect to the judgments of any other state 
when duly authenticated. Hence, if this 
doctrine is sound law, holders of judg- 
ments obtained in a different state have 
the right to produce such judgments in 
the courts of this state. It is our duty 
to respect them and to give them the 
same force and effect that they have in the 
state where rendered as required by the 
Constitution. McCreery v. Davis, 44 S. 
C. 195, 22 S. E. 178 (1895). 

In Hampton v. McConnell, 16 U. S. (3 
Wheat.) 234, 4 L. Ed. 378 (1818), decided 
by Chief Justice Marshall, the syllabus 
thereof is as follows: 

"A judgment of a state court has the 
same credit . . . and effect in every 
other court within the United States as 
it has in the state where it was rendered. 
Whatever pleas would be good to a suit 
thereon, in such states and no otliers, can 
be pleaded in any other court within the 



United States." Cline v. Southern Ry. 
Co., 231 F. 238 (1916). 

Without amendment of such judgment. — 
A South Carolina court, under this sec- 
tion and under the doctrine of comity, has 
no right to amend or change a foreign 
decree established here. Johnson v. John- 
son, 196 S. C. 474, 13 S. E. (2d) 593 
(1941). 

Or re-examination on merits. — In Han- 
ley V. Donoghue, 116 U. S. 1, 6 S. Ct. 242, 
29 L. Ed. 535 (1885), it was said: "Judg- 
ments recovered in one state of the Un- 
ion, when proved in the court of another 
[state], differ from judgments recovered 
in a foreign country in no respect other 
than that of not being re-examinable on the 
merits, nor impeachable for fraud in obtain- 
ing them, if rendered by a court having 
competent jurisdiction of the cause and of 
the parties." McCreery v. Davis, 44 S. C. 
195, 22 S. E. 178 (1895). 

Such judgment is conclusive of issues 
raised. — Under this section and the act 
of Congress (1790) passed in pursuance 
thereof, a judgment of another state when 
properly authorized must be regarded in 
a cause in this State as a judgment of rec- 
ord, conclusive of everything decided by 
it and having precisely the same effect as 
if the case were being tried in the state 
where the judgment was rendered. Mor- 
ton & Co. V. Naylor, 1 Hill (19 S. C. L.) 
439. 

But is enforced according to laws of 
state recognizing it. — The extent to which 
a foreign judgment is enforced must be 
determined by local laws and usages. 
Johnson v. Johnson, 196 S. C. 474, 13 S. E. 
(2d) 593 (1941). 



26 



Art. IV, § 1 



Constitution of the United States 



Art. IV, § 1 



This section applies to a judgment of 
a United States circuit court. McCulIough 
V. Hicks, 63 S. C. 542, 41 S. E. 761 (1902); 
Holstein v. Board of Com'rs, 64 S. C. 374, 
42 S. E. 180 (1902). 

Statute of limitations plea fails unless 
valid where judgment rendered. — Under the 
act of Congress (1790) passed in pursuance 
of this section, the plea of the statute of 
limitations to an action of debt will not be 
good in the courts of this State if it would 
not be good in the state from which the 
judgment comes. Morton & Co. v. Nay- 
lor, 1 Hill (19 S. C. L.) 439. 

Applied in Shirley v. Parris, 121 S. C. 
260. 113 S. E. 788 (1922); Cantey v. Phil- 
adelphia Life Ins. Co., 166 S. C. 181, 164 
S. E. 609 (1932). 

Quoted in Livingston v. Atlantic Coast 
Line R. Co., 176 S. C. 385, 180 S. E. 343 
(1935). 

Cited in Ex parte Cannon, 75 S. C. 214, 
55 S. E. 325 (1906); Belue v. United 
Commercial Travelers, 121 S. C. 179, 113 
S. E. 364, 117 S. E. 591 (1922). 

IL FOREIGN DIVORCE, 
ALIMONY, SUPPORT. 

Conditions under which foreign divorce 
is recognized. — In Scheper v. Scheper, 125 
S. C. 89, 118 S. E. 178 (1923), the court 
held that a foreign judgment in a divorce 
action rendered by a competent court hav- 
ing jurisdiction of the parties and the 
subject matter is entitled, under the full 
faith and credit clause, to such force and 
effect in South Carolina courts as may 
properly be accorded the judgment of an- 
other state under the rules governing the 
extraterritorial effect of such judgments. 
Johnson v. Johnson, 194 S. C. 115, 8 S. E. 
(2d) 351 (1940). 

The question whether a judgment of di- 
vorce rendered by a foreign court is valid 
in this State and binding in the courts of 
this State was raised in Ex parte White, 
38 S. C. 41, 16 S. E. 286 (1892), but was 
not decided as its decision was not neces- 
sary to the verdict of that case. 

General appearance in foreign court bars 
collateral attack. — A Florida divorce de- 
cree is not subject to collateral attack based 
on the ground that the husband was not 
domiciled in Florida where the wife active- 
ly participated in the Florida proceedings 
by entering a general appearance, filing 
pleadings, and placing in issue the very 
matters she now seeks to contest. Kahn v. 
Kahn, 213 S. C. 369, 49 S. E. (2d) 570 
(1948). 

Foreign alimony decree may be enforced. 
—While this section places judgments of 



sister states on the same footing in most 
respects as domestic judgments and grants 
them a general faith and credit, it is clear 
that when the issue has to do with the 
method of enforcement, no greater effect 
need be given to an alimony decree of a 
sister state than is given to similar judg- 
ments in the state where such foreign judg- 
ments may be establislied. Johnson v. 
Johnson, 196 S. C. 474, 13 S. E. (2d) 593 
(1941). 

Decree of Maryland circuit court award- 
ing alimony to wife who obtained divorce 
a mensa et thoro was held entitled to full 
faith and credit as to alimony accrued and 
unpaid. Alexander v. Alexander, 164 S. 
C. 466, 162 S. E. 437 (1932). 

And also support decree for minor child. 
— The full faith and credit clause applies 
to an unalterable decree of alimony for 
a minor cliild. Yarborough v. Yarborough, 
290 U. S. 202, 54 S. Ct. 181, 78 L. Ed. 269 
(1933). 

Foreign property settlement is not re- 
opened where issues concluded. — Where by 
way of answer to a bill of complaint in 
a divorce proceeding in Florida, the wife 
prayed that a property settlement be set 
aside and charged that it had been obtained 
by fraud and coercion, and where this mat- 
ter was fully gone into and the wife availed 
herself of the opportunity to attack the 
validity of the property settlement which 
the Florida court by its final decree rati- 
fied and confirmed, and where appellant 
did not appeal from the judgment of the 
Florida court, any question now affecting 
the validity of the settlement must be re- 
garded as settled and ended. Kahn v. 
Kahn, 213 S. C. 369. 49 S. E. (2d) 570 
(1948). 

For case decided before amendment of 
S. C. Const., Art. 17, §3, see McCreery v. 
Davis, 44 S. C. 195, 22 S. E. 178 (1895). 

III. MATTERS OF RECORD 
AND OF PAROL. 

Matters of record must be proved by 
production of the record or that which is 
made by law of equal import with the rec- 
ord itself, namely, a duly authenticated 
copy. Campbell v. Home Ins. Co., 1 S. C. 
158 (1869). 

Matters resting in parol must be proved 
by parol. Campbell v. Home Ins. Co., 1 
S. C. 158 (1869). 

According to common-law rules. — Judi- 
cial proceedings which from their nature 
cannot be proved in the manner prescribed 
by the act of Congress are, nevertheless, 
in this State held entitled to full faith and 



27 



Art. IV, § 1 



Constitution of the United States 



Art. IV, § 1 



credit under the Constitution, and are to be 
proved in accordance with the rules of 
the common law. Lawrence v. Gaultney, 
Cheves (25 S. C. L.) 7; Campbell v. Home 
Ins. Co., 1 S. C. 158 (1869). 

Proving parol matters has not been de- 
fined by Congress. — Congress has exercised 
authority as to prescribing the manner 
in which acts, records, and proceedings 
shall be proved, but it has not defined the 
mode of proving such matters as rest in 
parol. Campbell v. Home Ins. Co., 1 S. 
C. 158 (1869). 

Although Constitution includes such 
matters. — It was evidently the intent of 
the Constitution, as expressed by the 
phrase "records and judicial proceedings," 
to include proceedings that could not prop- 
erly be described as "records," or, in other 
words, that could only be evidenced by 
matter of parol. Campbell v. Home Ins. 
Co., 1 S. C. 158 (1869). 

IV. AUTHENTICATION OF 
FOREIGN JUDGMENT. 

Authentication of judgment is evidence 
of its competent rendition. — Under this sec- 
tion a foreign judgment, properly authen- 
ticated, is prima facie evidence that it 
was rendered by a court of competent 
jurisdiction in conformity to the laws of 
the state in which it was rendered. Cos- 
kery v. Wood, 52 S. C. 516, 30 S. E. 475 
(1898). 

But inquiry may be made into court's 
jurisdiction. — In Thompson v. Whitman. 
85 U. S. (18 Wall.) 457, 21 L. Ed. 897 
(1873), it was said by Mr. Justice Bradley 
that: "Neither the constitutional provision 
that full faith and credit shall be given 
in each state to the public acts, records, 
and judicial proceedings of every other 
state, nor the act of Congress passed in 
pursuance thereof prevent an inquiry into 
the jurisdiction of the court in which a 
judgment offered in evidence was ren- 
dered." McCreery v. Davis, 44 S. C. 195, 
22 S. E. 178 (1895). 

In collateral proceeding in another state. 
— The want of jurisdiction of the court in 
which a judgment is rendered in any state 
may be questioned in a collateral proceed- 
ing in another state, notwithstanding the 
provisions of this section of the Con- 
stitution and the law of 1790, and not- 
witlistanding the averments contained in 
the record of the judgment itself. Mc- 
Creery V. Davis, 44 S. C. 195, 22 S. E. 
178 (1895), McCullough v. Hicks, 63 S. C. 
542, 41 S. E. 761 (1902). 

As to subject matter or person. — The 
want of jurisdiction may be shown either 



as to the subject matter or the person, 
or, in proceedings in rem, as to the thing. 
McCreery v. Davis, 44 S. C. 195, 22 S. E. 
178 (1895). 

And record is nullity if jurisdiction ab- 
sent. — The record of a judgment rendered 
in another state may be contradicted as to 
the facts necessary ^o give the court juris- 
diction. And, if it be shown that such 
facts did not exist, the record will be a 
nullity, notwithstanding it may recite that 
they did exist. McCreery v. Davis, 44 S. 
C. 195, 22 S. E. 178 (1895)» 

Objection is made when record offered 
in evidence. — The objection tliat the ex- 
emplification of the record of a foreign 
judgment is not properly authenticated, or 
that the court rendering it had not juris- 
diction, must be made when the record is 
offered in evidence. Coskery v. Wood, 52 
S. C. 516, 30 S. E. 475 (1898). 

V. APPLICATION OF SECTION. 

United States circuit court judgment is 
given full faith. — Where the United States 
circuit court declares a statute authorizing 
townships to subscribe bonds in aid of a 
railroad constitutional, the Supreme Court 
of the State will give full faith to such judg- 
ment and refuse to enjoin the corporate 
authorities of such township from carry- 
ing into effect such judgment, though such 
court had previously declared similar acts 
unconstitutional. Holstein v. Board of 
Com'rs, 64 S. C. 374, 42 S. E. 180 (1902). 
And mandamus therefrom is not enjoined 
by State courts. McCullough v. Hicks, 63 
S. C. 542, 41 S. E. 7t.l (1902). 

Judgment of state court is given full faith 
in Federal court. — Under this section, a 
Federal court gives the same effect to a 
judgment of a state court as it had in the 
state where it was rendered, and a judg- 
ment which bars an action in the state 
where it was rendered is res judicata in 
the Federal courts. Cline v. Southern Ry. 
Co.. 231 F. 238 (1916). 

Foreign administrator need not be rec- 
ognized for South Carolina estate. — The 
finding of fact by a court in Florida that 
appellant was a fit and proper person to 
administer an estate in South Carolina 
was not binding on a South Carolina court 
in appointing an administrator for the 
same estate. Burkhim v. Pinkhussohn, 58 
S. C. 469, 36 S. E. 908 (1900); Overby v. 
Gordon, 177 U. S. 214, 20 S. Ct. 603, 44 L. 
Ed. 741 (1900). 

Where appellant had been appointed ad- 
ministrator by a court in Florida for an 
estate in South Carolina, the appointment 



28 



Art. IV, § 2 



Constitution of the United States 



Art. IV, § 2 



of another administrator for the same estate 
by a court in South Carohna was not in 



violation of this section. Burkhim v. Pirtk- 
hussohn, 58 S. C. 469, Z6 S. E. 908 (1900). 



§ 2. Privileges and immunities ; fugitives. 

The citizens of each state shall be entitled to all privileges and immunities 
of citizens in the several states. 

A person charged in any state with treason, felony, or other crime, who shall 
flee from justice, and be found in another state, shall on demand of the exec- 
utive authority of the state from which he fled, be delivered up, to be removed 
to the state having jurisdiction of the crime. 

No person held to service or labor in one state, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor, but shall be delivered up on claim 
of the party to whom such service or labor may be due. 



I. Privileges and Immunities. 

A. General Consideration. 

B. Application. 

II. Fugitives from Justice. 

A. General Consideration. 

B. Application. 

Cross Reference. 
As to similar provision in State Constitu- 
tion, see S. C. Const., Art. 1, § S. 

I. PRIVILEGES AND IMMUNITIES. 
A. General Consideration. 

Purpose of "privileges and immunities" 
clause. — It will be observed that by the 
express terms of the Constitution the pur- 
pose of this section is to secure to citizens 
of one state the same privileges and im- 
munities as are enjo^'ed by citizens of other 
states. The Supreme Court of the United 
States has held that the privileges and 
immunities thus secured are those only 
whicli grow out of citizenship. Cummings 
v. Wingo, 31 S. C. 427, 10 S. E. 107 (1889); 
Conner v. Elliott, 59 U. S. (18 How.) 591, 
IS L. Ed. 497 (1855). 

Its sole purpose is to declare to the 
several states that whatever those rights 
you grant to or establish for your own 
citizens, or limit, qualify, or impose restric- 
tions on their exercise, the same, neither 
more nor less, shall be the measure of 
the rights of citizens of other states within 
your jurisdiction. La Tourette v. Mc- 
Master, 104 S. C. 501, 89 S. E. 398 (1916), 
affirmed in 248 U. S. 465, 39 S. Ct. 160. 
63 L. Ed. 362 (1919). 

"Privileges and immunities" refer to fun- 
damental rights. — The term "privileges and 
immunities" means those privileges and 
immunities which are in their nature fun- 
damental, which belong of right to the 
citizens of all free governments, and which 



have at all times been enjoyed by the citi- 
zens of the several states. It includes pro- 
tection by the government, the enjoyment 
of life and liberty, the right to acquire and 
possess property, and to pursue happiness 
and safety, subject to such restraints as 
the government may justly prescribe for 
the general good. La Tourette v. Mc- 
Master, 104 S. C. 501, 89 S. E. 398 (1916), 
affirmed in 248 U. S. 465, 39 S. Ct. 160, 
63 L. Ed. 362 (1919). 

Qualification as to "privileges and im- 
munities." — The "privileges and immuni- 
ties" clause is qualified by the clause fol- 
lowing it which deals with fugitives from 
justice. State v. Anderson. 1 Hill (19 S. 
C. L.) 327. 

Citizenship is not residence. — With re- 
spect to discrimination under this section, 
citizenship and residence are not the same 
thing, and tlie one does not include the 
other. Cummings v. Wingo, 31 S. C. 427, 
10 S. E. 107 (1889); La Tourette v. Mc- 
Master, 104 S. C. 501, 89 S. E. 398 (1916), 
affirmed in 248 U. S. 465, 39 S. Ct. 160, 
63 L. Ed. 362 (1919). 

Applied in Central R., etc., Co., v. Geor- 
gia Const., etc., Co.. 22 S. C. 319, 11 S. 
E. 192 (1890). 

Cited in State v. Napier, 63 S. C. 60, 41 
S. E. 13 (1902); State v. Virginia-Carolina 
Chemical Co., 71 S. C. 544, 51 S. E. 455 
(1905); Cantini v. Tillman, 54 F. 969 (1893). 

B. Application. 

The same laws must apply equally to all. 

—In State v. Goodwill, Zi VV. Va. 179, 10 
S. E. 285 (1889), the court uses this lan- 
guage: "The rights of every individual 
must stand or fall by the same rule of 
law that governs every other member of 
the body politic under similar circum- 
stances. Every partial or private law 



2y 



Art. IV, § 2 



Constitution of the United States 



Art. IV, § 2 



which directly proposes to destroy or af- 
fect individual rights, or does the same 
thing by restricting the privileges of cer- 
tain classes of citizens and not of others, 
when there is no public necessity for such 
discrimination, is unconstitutional and 
void." Laurens v. Anderson, 75 S. C. 62. 
55 S. E. 136 (1906"). 

Unless special privilege does not harm 
rights of others. — Privileges may be granted 
to particular individuals when by so doing 
the rights of others are not interfered with. 
But everyone has a right to demand that 
he be governed by general rules. A spe- 
cial statute which without one's consent 
singles him out for regulation by a law 
different from that applied in all similar 
cases would not be legitimate legislation, 
but would be an arbitrary mandate not in 
the province of free government. Those 
who make the laws are to be governed by 
promulgated, established laws which are 
not to be varied in particular cases, in 
order to have one rule for the rich and 
poor and for the favorite at court and the 
coimtrvman at the plough. Laurens v. 
Anderson. 75 S. C. 62. 55 S. E. 136 (19a6). 

Arbitrary classification of working hours 
violates section. — .\ct No. 943 of the 1938 
.Acts regulating hours of workers is invalid 
as violative of this section because it is not 
a proper exercise of the public power of 
the State and the classifications therein are 
arbitrary and without reasonable basis. 
Gasque v. Nates. 191 S. C. 271, 2 S. E. (2d) 
36 (1939). 

Distribution of assets of insolvent foreign 
corporation. — A state may through judicial 
proceedings take possession of the assets 
of an insolvent foreign corporation within 
its limits and distribute them or their pro- 
ceeds among creditors according to their 
respective rights. Yet it cannot, under this 
section, deny the right of citizens of other 
states to participate in such distribution on 
equal terms with its own citizens. Wilson 
V. Keels, 54 S. C. 545. i2 S. E. 702 (1899). 

Residence requirement for compensation 
for out-of-State injury. — The requirement 
of § 72-169 of the Code that an employee 
be a resident of this State before he can 
recover under the Workmen's Compensa- 
tion Law for accidents occurring without 
the State does not violate the constitutional 
guaranty of this section. Tedars v. Savan- 
nah River Veneer Co., 202 S. C. 363, 25 
S. E. (2d) 235 (1943). 

II. FUGITIVES FROM JUSTICE. 

A. General Consideration. 
Purpose of fugitive "from justice" clause. 
— The object of the Constitution is to en- 



able a state whose laws have been violated 
to secure the arrest of the person charged 
with such violation, even though such per- 
son may be beyond the reach of ordinary 
process of such state. Ex parte Swear- 
ingen. 13 S. C. 74 (1880). 

This section is fundamental law. — This 
section constitutes the fundamental law 
on this subject of all the states. It is a 
part of the municipal law of each, and is 
to be obeyed, observed, and respected by 
every citizen and officer. State v. Ander- 
son, 1 Hill (19 S. C. L.) 327. 

And its execution is defined by statute. — 
For several years after the adoption of 
the Constitution of the L'nitcd States, there 
was no legislation providing the mode by 
which this clause of the Constitution should 
be carried into efifect. As a natural con- 
sequence controversies arose between the 
states in regard to this matter, one of 
w-hich. between Pennsylvania and Virginia, 
doubtless gave rise to the passage of the 
act of 1793 prescribing the mode of carry- 
ing this clause of the Constitution into 
effect. For when the governor of Vir- 
ginia declined to comply with the requisi- 
tion from the governor of Pennsylvania, 
the latter sent all the papers to President 
Washington, calling especial attention to 
the objections of the authorities of the state 
of \'irginia based on the necessity of future 
legislation upon the subject, and suggest- 
ing that the matter be brought to the at- 
tention of Congress. The President re- 
ferred the papers to his attorney-general, 
Mr. Randolph, who gave an elaborate 
opinion ^s to the proper construction of 
the clause of the Constitution in question 
from which the necessity for further legisla- 
tion was apparent. The President accord- 
ingly brought the attention of Congress 
to the matter by a message in November, 
1792, and in the following February the 
act of 1793 was passed. That act, in so 
far as it is necessary for the purpose of 
this case to state, in substance provides 
that whenever the executive authority of 
a state shall demand any person as a fu- 
gitive from justice of the executive author- 
ity of any state to which such person shall 
have fled, and shall produce a copy of an 
indictment found or an affidavit made be- 
fore a magistrate of any state charging 
the person so demanded with having com- 
mitted treason, felony, or other crime in 
the state from which the demand proceeds, 
certified as authentic by the governor of 
the state from wlience the person so charged 
has fled, it shall be the duty of the governor 
of the state to which such person has fled 
to cause such person to be arrested, ge- 



30 



Art. IV, § 3 



Constitution of the United States 



Art. V 



cured, and delivered to the agent of the 
state from which such demand proceeds. 
It will be observed that three things are 
necessary to be done by the governor of 
the state making the demand: (1) he must 
demand the person as a fugitive from jus- 
tice; (2) he must produce a copy of an 
indictment found, or an aflidavit made be- 
fore a magistrate of a state, showing that 
tlie person demanded is charged with hav- 
ing committed some crime in the state 
from which he has fled; and (3) such copy 
of the indictment or affidavit must be 
certified as authentic by the governor of 
tlie state making the demand. Ex parte 
Swearingen, 13 S. C. 74 (1880). 

B. Application. 

Scope of term "flee from justice." — The 

term "Ree from justice" in this section in- 
cludes cases where a citizen of one state 
commits a crime in another state and then 
returns to his home. Ex parte Swearingen, 
13 S. C. 74 (1880). 

Fugitive may be arrested before demand 
on Governor. — A person may, before de- 
mand is made on the Governor, be arrested 
in the state in which he is found for the 
purpose of being surrendered to the state 



from whence he fled, either by v^-arrant 
from a magistrate or by private persons 
without a warrant who may justify the 
arrest by showing that prima facie a felony 
or other crime has been committed by the 
prisoner in another state, or that he there 
stands charged therewith. State v. Ander- 
son, 1 Hill (19 S. C. L.) 327. 

And this rule applies to fugitives from a 
foreign nation. State v, Anderson, 1 Hill 
(19 S. C. L.) 327. 

Prisoner should be delivered on demand. 
— It is an imperative obligation on South 
Carolina that a prisoner, charged with mur- 
der in Georgia, should be delivered on 
demand. State v. Anderson, 1 Hill (19 S. 
C. L.) 327. 

Mandate need not contain order of ar- 
rest. — \Vhere a prisoner is in the hands of 
the sheriff under a mandate issued by the 
Governor of this State in pursuance of a 
requisition from the governor of Georgia, 
and such mandate requires the deliver3' of 
the prisoner to an agent of the governor of 
Georgia, the prisoner will not be discharged 
because the mandate contains no order for 
his arrest. Ex parte Swearingen, 13 S. C. 
74 (1880). 



§ 3. Admission of new states ; power over territory and other property. 

New states may be admitted by the Congress into this Union ; but no new 
state sliall be formed or erected within the jurisdiction of any other state; nor 
any state be formed by the junction of two or more states, or parts of states, 
without the consent of the legislatures of the states concerned as well as of 
the Congress. 

The Congress shall have power to dispose of and make all needful rules and 
regulations respecting the territory or other property belonging to the United 
States; and nothing in this Constitution shall be so construed as to prejudice 
any claims of the United States, or of any particular state. 



§ 4. Guarantee of republican form of government. 

The United States shall guarantee to every state in this Union a republican 
form of government, and shall protect each of them against invasion ; and on 
application of the legislature, or of the executive (when the legislature can- 
not be convened) against domestic violence. 

Cited in Santee Mills v. Query, 122 S. C 
158, 115 S. E. 202 (1922). 

Article V. 

Amendment of the Constitution. 

The Congress, whenever two thirds of both houses shall deem it necessary, 
shall propose amendments to this Constitution, or, on the application of the 
legislatures of two thirds of the several states, shall call a convention for pro- 

31 



Art. VI Constitution of the United States Art. VII 

posing amendments, which, in either case, shall be valid to all intents and 
purposes, as part of this Constitution, when ratified by the legislatures of 
three fourths of the several states, or by conventions in three fourths thereof, 
as the one or the other mode of ratification may be proposed by the Congress: 
Provided that no amendment which may be made prior to the year one thou- 
sand eight hundred and eight shall in any manner affect the first and fourth 
clauses in the ninth section of the first article ; and that no state, without its 
consent, shall be deprived of its equal suffrage in the Senate. 

Cited in Drennan v. Southern Ry., 91 S. 
C. 507, 75 S. E. 45 (1912), 

Article VI. 
Debts; supremacy; oath. 

All debts contracted and engagements entered into, before the adoption of 
this Constitution, shall be as valid against the United States under this Con- 
stitution, as under the Confederation. 

This Constitution, and the laws of the United States which shall be made 
in pursuance thereof; and all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme law of the land ; and the 
judges in every state shall be bound thereby, anything in the Constitution or 
laws of any state to the contrary notwithstanding. 

The Senators and representatives before mentioned, and the members of 
the several state legislatures, and all executive and judicial officers, both of 
the United States and of the several states, shall be bound by oath or affirma- 
tion, to support this Constitution ; but no religious tests shall ever be required 
as a qualification to any office or public trust under the United States. 

Article VII. 
Ratification and establishment. 

The ratification of the conventions of nine states, shall be sufficient for the 
establishment of this Constitution between the states so ratifying the same.' 



8. The Constitution was submitted by resolution of the Constitutional Convention on 
September 17, 1787. It became effective on March 4, 1789, the day fixed for com- 
mencement of the operations of the government, by virtue of its ratification by the 
conventions of eleven states, as follows: Delaware, December 7, 1787; Pennsylvania, 
December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connec- 
ticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; 
South Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 26, 1788; 
New York, July 26, 1788. 

Subsequently the conventions of North Carolina and Rhode Island ratified the Consti- 
tution on November 21, 1789 and May 29, 1790, repectively. 



32 



Constitution of the United States 



Done in Convention by the unanimous consent of the States present the 
seventeenth day of September in the year of our Lord one thousand seven 
hundred and eighty-seven and of the Independence of the United States of 
America the Twelfth. In Witness whereof we have hereunto subscribed our 
names. 

Go. WASHINGTON— 
Presdt. and Deputy from Virginia 

New Hampshire • 

Nicholas Gilman. 

Massachusetts 

Nathaniel Gorman. 

Connecticut 

Roger Sherman. 
New York 



John Langdon, 

RuFus King, 

Wm. Saml. Johnson, 



Alexander Hamilton. 



WiL. Livingston, 
David Brearley, 



B. Franklin, 
RoBT. Morris, 
Tho. Fitzsimons, 
James Wilson, 

Geo. Read, 
John Dickinson, 
Jaco. Broom, 

James M'Henry, 
Danl. Carroll, 

John Blair, 

Wm. Blount, 
Hu. Williamson, 

J. Rutledge, 
Charles Pinckey, 

William Few, 

Attest : 
[7 SC Code]— 3 



New Jersey 

Jona. Dayton. 
Wm. Paterson, 

Pennsylvania 

Thomas Mifflin, 
Geo. Clymer, 
Jared Ingersoll, 
Gouv. Morris. 

Delaware 

Gunning Bedford, Jun'r, 
Richard Bassett. 

Maryland 

Dan. of St. Thos. Jenifer. 

Virginia 

James Madison, Jr. 
North Carolina 

Rich'd Dobbs Spaight. 

South Carolina 

Charles Cotesworth Pinckney, 
Pierce Butler. 

Ceorgia 

Abr. Baldwin. 
WILLIAM JACKSON, Secretary. 
33 



Amend. I Constitution of the United States Amend. IV 

AMENDMENTS TO THE CONSTITUTION. 

Article I. 

Freedom of religion, of speech and of the press. 

Congress shall make no law respecting an establishment of religion, or pro- 
hibiting the free exercise thereof ; or abridging the freedom of speech, or of 
the press ; or the right of the people peaceably to assemble, and to petition 
the government for a redress of grievances.' 

Amendment protects all religious denom- a less preferred position than the casual 
inations. — The provisions of this amend- worker. Follett v. McCormick, 321 U. S. 
ment, which prohibit the estabHshment 573. 64 S. Ct. 717, 88 L. Ed. 938 (1944). 
of any one denomination of Christians, Flat license tax on exangelist violates 
protect all in the peaceable enjoyment amendment. — A flat license tax applied to 
of their own mode of worsliip. Instead one who earns his HveHhood distributing 
of renouncing all reHgious denominations, religious pubHcations from door to door 
they protect all. Magee v. O'Neill, 19 S. on the street in his home town as an evan- 
C. 170 (1883). gelist or preacher is violative of the free- 
Since it is not limited to orthodox reli- dom of worship guaranteed by this amend- 
gions. — The protection of tlic First Amend- ment. Follett v. McCormick, 321 U. S. 
ment is not restricted to orthodox religious 573, 64 S. Ct 717, 88 L. Ed. 938 (1944). 
practices any more than it is to the expres- Cited in Gaffney v. Putnam, 197 S. C. 237, 
sion of orthodox economic views. He who 15 S. E. (2d) 130 (1941). 
makes a profession of evangelism is not in 

Article II. 
Right to keep and bear arms. 

A well regulated militia, being necessary to the security of a free state, 
the right of the people to keep and bear arms, shall not be infringed.^" 

Article III. 
Quartering of soldiers. 

No soldier shall, in time of peace be quartered in any house, without the con- 
sent of the owner, nor in time of war, but in a manner to be prescribed by law.^* 

Article IV. 
Searches and seizures. 

The right of the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not be violated, and 
no warrants shall issue, but upon probable cause, supported by oath or affirma- 
tion, and particularly describing the place to be searched, and the persons or 
things to be seized.^* 



9. Proposed by Congress on September 25, 1789, and declared ratified on December IS, 
1791. 

10. Proposed by Congress on September 25, 1789, and declared ratified on December IS, 
1791. 

11. Proposed by Congress on September 25, 1789, and declared ratified on December 15, 
1791. 

12. Proposed by Congress on September 25, 1789, and declared ratified on December 15, 
1791. 

34 [7SCCode] 



Amend. V 



Constitution of the United States 



Amend. V 



I. General Consideration. 
II. Application of Section. 

I. GENERAL CONSIDERATION. 

Amendment applies only to Federal Gov- 
ernment. — Tliis and the following amend- 
ments apply only to Federal officers. Ka- 
nellos V. United States, 282 F. 461 (1922); 
State V. Harley, 107 S. C. 304, 92 S. E. 
1034 (1917): State v. Atkinson, 40 S. C. 
363, 18 S. E. 1021 (1894). 

And not to states.— This amendment does 
not protect citizens against unreasonable 
searches by the state government and its 
agencies. Kanellos v. United States, 282 
F. 461 (1922); State v. Harley, 107 S. C. 
304, 92 S. E. 1034 (1917); State v. Atkin- 
son, 40 S. C. 363, 18 S. E. 1021 (1894). 

Amendment protects those whose rights 
are invaded. — The proliibition of this 
amendment is for the benefit of the person 
or individual whose rights have been in- 
vaded. Chicco v. United States, 284 F. 
434 (1922). 

No right is invaded if papers seized 
on disclaimed premises. — No constitutional 
right of a petitioner is invaded by the 
seizure of papers taken from premises with 
which he disclaims connection or relation- 
ship. Chicco v. United States, 284 F. 434 
(1922). 

Evidence secured with consent is admis- 
sible. — Where defendant on having his auto- 
mobile stopped by officers admitted he had 
whisky therein and voluntarily gave the 
officers the key to the rear compartment 
in which he had whisky, evidence of his 
confession and of the results of the search 
was admissible as not violating his con- 
stitutional rights, under this and the fol- 
lowing amendments relating to unreason- 
able search and compelling defendant to 
testify against himself. State v. Guest, 
118 S. C. 130, 110 S. E. 112 (1921). 

Accused can be searched if legally ar- 
rested. — .'\n accused, when legally placed 
under arrest, can be searched to discover 
and seize the fruits or evidences of crime. 
Woods V. United States, 279 F. 706 (1922). 

Warrant must describe objects with par- 
ticularity. — An affidavit for a warrant to 
search for property held in fraud upon 
revenue of the United States, which is 
substantially in the language of the stat- 
ute authorizing such search warrant, but 
which does not particularly describe the 



persons or things to be seized, does not 
conform to the requirements of this amend- 
ment. A warrant issued thereon and fol- 
lowing its language is void. Woods v. 
United States, 279 F. 706 (1922). 
Cited in In re Gourdin, 45 F. 842 (1891). 

II. APPLICATION OF SECTION. 

Amendment applies only to owner of 
searched premises. — Petitioner cannot com- 
plain that he had been obliged on demand 
by Federal officers to deliver to them keys 
which he testified he had surreptitiously 
and unlawfully had made to enable him 
to occupy premises to which he had no 
right for the storage of liquor, although 
by using such keys his liquor was found 
in such premises, for the prohibition of 
unlawful search and seizure in this amend- 
ment and in tlie Fifth Amendment can 
only be invoked by the owner of the 
premises and not by one clandestinely 
occupying them. Chicco v. United States, 
284 F. 434 (1922). 

State constable may search without war- 
rant. — In prosecution for possessing and 
transporting intoxicating liquor, evidence 
obtained by a state constable by search 
made without a search warrant against 
defendant's protest is competent, notwith- 
standing this amendment. Kanellos v. 
United States, 282 F. 461 (1922). 

And legislative committee may examine 
dispenser's books. — A committee appointed 
by the General Assembly to examine the 
books of a county dispenser does not 
violate in acting under such authority the 
provisions of this amendment and the 
State Constitution providing that the right 
of the people to be secure in their persons 
and property against unreasonable searches 
and seizures shall not be violated. State 
v. Farnum, 11 S. C. 165, 53 S. E. 83 (1905). 

Violation must be alleged to regain prop- 
erty. — Petitions for return of property 
seized in alleged unlawful search are 
properly denied when they contain no al- 
legation that such property is the property 
of petitioners, alleging neither in what 
respect its possession by the government 
affects the interests of petitioners nor any- 
thing else tending to show that its continued 
possession by the government or the man- 
ner in which it was obtained violates the 
constitutional rights of the petitioners. 
Chico V. United States, 284 F. 434 (1922). 



Article V. 

Rights of accused in criminal proceedings; due process; eminent domain. 

No person shall be held to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment of a grand jury, except in cases 

35 



Amend. V 



Constitution of the United States 



Amend. V 



arising in the land or naval forces, or in the militia, when in actual service 
in time of war or public danger; nor shall any person be subject for the same 
offence to be twice put in jeopardy of life or limb; nor shall be compelled in 
any criminal case to be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law ; nor shall private property 
be taken for public use, without just compensation.'^ 



I. General Consideration. 
II. Taking Property for Public Use. 
III. Due Process of Law. 
IV. Compelled To Be Witness. 

I. GENER.AL CONSIDERATION. 

This amendment is intended solely as a 
limitation on the Federal power, and does 
not apply to the power of the states. State 
V. Harley, 107 S. C. 304, 92 S. E. 1034 
(1917): Jackson v. Breeland, 103 S. C. 184. 
88 S. E. 128 (1916); Riley v. Charleston 
Union Station Co., 71 S. C. 457, 51 S. E. 
485 (1905); State v. Atkinson, 40 S. C. 363, 
18 S. E. 1021 (1894); Ex parte Schmidt, 24 
S. C. 363 (1886); State v. Shirer, 20 S. C. 
392 (1884); State v. Shumpert, 1 S. C. 85 
(1869). 

This amendment applies only to the 
enactments of Congress. Cheraw v. Tux- 
rage, 184 S. C. 76, 191 S. E. 831 (1937). 

Applied in United States v. Windham. 
264 F. 376 (1920). 

Cited in Shealy v. Southern Ry. Co., 127 
S. C. 15, 120 S. E. 561 (1924); South Car- 
olina & G. R. Co. V. American Tel. & Tel. 
Co., 65 S. C. 459, 43 S. E. 970 (1903); 
Bull V. Kirk, 37 S. C. 395, 16 S. E. 151 
(1892); Cantini v. Tillman, 54 F. 969 
(1893); Paris Mountain Water Co. v. Green- 
ville, 110 S. C. 36, 96 S. E. 545 (1918); 
Abbeville Elec. etc., Co. v. Western Elec- 
trical Supply Co., 66 S. C. 328, 44 S. E. 
952 (1902); Thomas v. Atlantic Coast Line 
R. Co., 168 S. C. 185, 167 S. E. 239 (1933); 
State V. Hicklin, 168 S. C. 440, 167 S. E. 
674 (1933), affirmed in 290 U. S. 169, 54 
S. Ct. 142, 78 L. ed. 247 (1933). 

11. TAKING PROPERTY FOR 
PUBLIC USE. 

Compensation is required for any taking. 

— Any attempted distinction between requi- 
sition or condemnation of property by the 
United States is largely technical in ordi- 
nary parlance, the word "requisition" be- 
ins more often used with reference to the 
taking of personal property, and the word 
"condemnation" to the taking of real es- 
tate. But, whether the taking is by requi- 



sition or condemnation, this amendment 
requires just compensation to be made. 
Filbin Corp. v. United States, 266 F. 911 
(1920). 

Taking may result from negligently 
flooding property. — Flooding and injuring 
property by negligently impounding a 
natural water course is a taking under this 
constitutional provision. Chick Springs 
Water Co. v. State Highway Dep't., 159 S. 
C. 481, 157 S. E. 842 (1931); Chick 
Springs Water Co. v. State Highway Dep't., 
178 S. C. 415, 183 S. E. 27 (1935). 

Or from exercise of police power relative 
to filling in land. — ."Xn act authorizing the 
city of Cliarleston to fill up low lots de- 
clared to be a public nuisance by the board 
of health and to recover the cost from 
the landowner if it does not exceed one 
half the value of the lot is a valid exercise 
of the police power not violative of this 
amendment. The General Assembly has 
the right to delegate such power to the 
city authorities. City Council v. Werner, 
38 S. C. 488, 17 S. E. 33 (1893). 

Electrification Authority may use high- 
ways for transmission lines. — Tlie use by 
the Electrification Authority of the high- 
ways for its transmission lines under the 
State Rural Electrification Authority Act 
is not an additional servitude on land 
granted by a private owner to the State 
for highway purposes, and such use by 
the Authority does not constitute taking 
private property for public use without 
just compensation. Lay v. State Rural 
Electrification Authority, 182 S. C. 32, 188 
S. E. 368 (1936). 

Highway condemnation proceedings in 
Code are valid. — The condemnation pro- 
ceedings provided for in the Code, permit- 
ting the State Higliway Department to 
condemn private lands, do not violate this 
amendment. Jennings v. Sawyer, 182 S. C. 
427, 189 S. E. 746 (1937). 

III. DUE PROCESS OF LAW. 

Insurance tax may exclude domestic com- 
panies. — Where Congress passed an act 
giving the states full authority to regulate 
and tax the business of insurance, a stat- 



13. Proposed by Congress on September 25, 1789, and declared ratified on December 15, 
1791. 

36 



Amend. VI 



Constitution of the United States 



Amend. VI 



ute taxing foreign insurance companies 
and not domestic insurance companies does 
not violate this provision. Prudential Ins. 
Co. V. Benjamin, 328 U. S. 408, 66 S. Ct. 
1142, 90 L.Ed. 1342 (1946). 

Judgment as vested right. — United States 
Rubber Co. v. McAIanus, 211 S. C. 342, 
45 S. E. (2d) 335 (1947). 

IV. COMPELLED TO BE WITNESS. 

Tax return is constitutional though in- 
come illegally derived. — The Fifth Amend- 
ment does not authorize one to refuse to 
state the amount of his income because 
it has been made in crime. United States 
V. Sullivan, 274 U. S. 259, 47 S. Ct. 607, 
71 L. ed. 1037 (1927). 

Witness in bankruptcy is protected. — 
This amendment, which provides that no 
person shall be compelled in any criminal 
case to be a witness against himself, may 
be invoked by a witness under examination 
in bankruptcy proceedings to insure that 
no testimony given by the bankrupt on 
examination concerning conduct of his busi- 
ness shall be offered in evidence against 
him in any criminal proceeding. This is 
a protection only against use of his testi- 
mony in a prosecution in a Federal court. 
In re Nachman, 114 F. 995 (1902). 



Evidence under void warrant is not 
admitted. — To admit evidence procured 
from defendant under a void search war- 
rant would in effect compel him to be- 
come a witness against himself in viola- 
tion of this amendment, and it will, there- 
fore, not be admitted. Woods v. United 
States, 279 F. 706 (1922). 

But evidence secured with consent is 
admitted.— State v. Guest, 118 S. C. 130, 
110 S. E. 112 (1921). 

As are questions about prior convictions. 
— Where accused admits prior arrests for 
other offenses and service on the chain 
gang, overruling objections to questions 
put to him about convictions for prior 
offenses, on the ground that they went 
into details of such offenses, is not preju- 
dicial to accused as compelling him to 
testify against himself within the meaning 
of this amendment. State v. Hilton, 87 S. 
C. 434, 69 S. E. 1077 (1911). 

Statute creating presumption of fraud is 
constitutional. — Section 16-364 of the Code, 
creating a presumption of fraudulent ap- 
propriation where officers and other persons 
charged with safekeeping of public funds 
fail to account for them as required by 
law, was held not to violate this amend- 
ment of the Constitution. State v. Brown, 
178 S. C. 294, 182 S. E. 838 (1935). 



Article VI. 

Right to speedy trial, witnesses, etc. 

In all criminal prosecutions, the accused shall enjoy the right to a speedy 
and public trial, b}- an impartial jury of the state and district wherein the crime 
shall have been committed, which district shall have been previously ascer- 
tained by law, and to be informed of the nature and cause of the accusation : 
to be confronted with the witnesses against him ; to have compulsory process 
for obtaining witnesses in his favor, and to have the assistance of counsel for 
his defense. ^^ 



Amendment limits only Federal powers. 

— This amendment is a limitation only on 
Federal powers. Ex parte Schmidt, 24 S. 
C. 363 (1886). 

Statute creating presumption of fraud 
is constitutional. — See note to Fifth .Amend- 
ment. 

Evidence at former trial is admissible. — 
The constitutional right of an accused to 
be confronted with the witnesses against 
him is not infringed by admitting in evi- 
dence the stenographer's notes of the testi- 
mony at a former trial given by a witness 



whose presence cannot be secured or who 
has since died. State v. Steadman, 216 
S. C. 579, 59 S. E. (2d) 168 (1950). 

Under certain conditions The evidence 

of a witness who has been examined at a 
former trial, where the point in issue is 
the same and the parties are the same, may 
be introduced at a second trial where (1) 
the witness is dead, (2) insane, (3) beyond 
the seas, and (4) the court is satisfied that 
the witness has been kept away by the 
contrivance of the opposite party. State 
v. Steadman, 216 S. C. 579, 59 S.' E. (2d) 



14. Proposed by Congress on September 25, 1789, and declared ratified on December IS, 
1791. 

Z7 



Amend. VII 



Constitution of the United States 



Amend. IX 



168 (1950); State v. Rogers, 101 S. C. 280. 
85 S. E. 636 (1915): McCall v. Alexander, 
84 S. C. 187, 65 S. E. 1021 (1909). 

One day has been held sufficient to pre- 
pare case. — The court, in vacating the con- 
ditions of suspended sentence imposed on 
defendant and ordering it to become im- 
mediately effective, may fix the time within 



which the defendant is required to make 
return to rule to show cause so as to leave 
him legally only one day in which to 
prepare the case without violating the pro- 
visions of this amendment as to right to 
counsel. State v. Stauss, 114 S. C. 445, 
103 S. E. 769 (1920). 



Article VII. 
Trial by jury in civil cases. 

In suits at common law, where the vahie in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved, and no fact tried by a 
jury shall be otherwise re-examined in any court of the United States, than 
accordin"- to the rules of the common law.^^ 



Amendment applies only to Federal 
courts. — This amendment, relating to the 
right of trial by jury, appHes only to courts 
sitting under the authority of the United 
States. Xcpapas v. Richardson, 149 S. C. 
52, 146 S. E. 686 (1929). 

Action on contractor's bond may be tried 
by jury. — An action by a subcontractor on 
the bond given by a government contractor 
is an action at law in which the parties 
are entitled to a trial by jury under this 
amendment, where more than twenty dol- 
lars is involved. Arnold v. United States, 
280 F. 338 (1922), error dismissed 263 U. 
S. 427, 44 S. Ct. 144, 68 L. Ed. 371 (1923). 



And also special dower admeasurement 
issue. — Notwithstanding this amendment, in 
an action for admeasurement of dower, 
the demandant has no right to submit to 
the jury tlie entire case but only special 
issues, the action not being one to recover 
possession of specific real or personal prop- 
erty, or for the recovery of money only. 
Frierson v. Jenkins, 75 S. C. 471, 55 S. 
E. 890 (1906). 

Highway condemnation proceedings in 
Code are valid. — See note to Fifth Amend- 
ment. 



Article VIII. 
Bail, fines and punishments. 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. ^^ 

Women may be sentenced to hard labor. Cited in State v. Kimbrough, 212 S. C. 

— Sentencing a woman to thirty months 348, 46 S. E. (2d) 273 (1948). 
hard labor does not constitute cruel or 
unreasonable punishment. State v. Huffes- 
tetler, 213 S. C. 319, 49 S. E. (2d) 585 
(1948). 



Article IX. 

Reservation of rights of the people. 

The enuineration in the Constitution, of certain rights, shall not be construed 
to deny or disparage other retained by the people." 



15. Proposed by Congress on September 25, 1789, and declared ratified on December 15, 
1791. 

16. Proposed by Congress on September 25, 1789, and declared ratified on December 15, 
1791. 

17. Proposed by Congress on September 25, 1789, and declared ratified on December IS, 
1791. 

38 



Amend. X 



Constitution of the United States 



Amend. XI 



Article X. 

Powers reserved to states or people. 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the states, are reserved to the states respectively, or to the 
people.^' 



Constitutional grant of power to United 
States is strictly construed. — Every grant 
to the government of the United States 
by the Constitution is limited to the pow- 
ers expressed in the terms of such grant 
or arising therefrom by necessary iniphca- 
tion. State v. Davis, 12 S. C. 528 (1879), 
reversed on other grounds in 107 U. S. 
597, 2 S. Ct. 636, 27 L. Ed. 574 (1882). 

Incidents of sovereignty given up by 
states. — Under this amendment, the Fed- 
eral government possesses no powers but 
such as are expressly given to it or neces- 
sarily incident to those given, and the 
states in the formation of this government 
surrendered none of the incidents of sov- 



ereignty except such as are enumerated in 
Art. 1, § 10 of the Constitution, which 
they are expressly prohibited from exercis- 
ing. State V. .Antonio, 2 Tread. (7 S. C. L.) 
776. 

Powers constructively withheld from 
states. — .Although the states retain all pow- 
ers not taken away, yet when a power is 
granted to the national government the 
exercise by the states of which would be 
inconsistent with the grant, that power is 
constructively withheld from the states. 
State V. Billis, 2 McC. (13 S. C. L.) 12. 

Insurance tax may exclude domestic com- 
panies. — See note to Fifth Amendment. 



Article XI. 
Restriction of judicial power. 

The judicial power of the United States shall not be construed to extend to 
any suit in law or equity, commenced or prosecuted against one of the United 
States by citizens of another state, or by citizens or subjects of any foreign 
state." 



I. General Consideration. 
II. Suits Not against State. 

III. Suits against State. 

I. GENERAL CONSIDERATION. 

Amendment applies only to United States 
courts. — This amendment is expressly ap- 
plicable only to the courts of the United 
States. Prudential Ins. Co. v. Murphy, 
207 S. C. 324, 35 S. E. (2d) 586 (1945), 
affirmed in 328 U. S. 408, 66 S. Ct. 1142, 
90 L. Ed. 1342 (1946). 

And state may not consent to suit. — 
The waiver by the state of its immunity 
from suit under this amendment and its 
consent to be sued in its own courts does 
not constitute consent to be sued in a Fed- 
eral court. Southern Ry. Co. v. Query, 
21 F. (2d) 333 (1927). 

II. SUITS NOT AGAINST STATE. 

Citizen may sue foreign corporation. — 

Notwithstanding this amendment, a citizen 
of one state can sue a corporation which 



has been created by and transacts its busi- 
ness in another state (the suit being brought 
in the latter state), although some of the 
members of the corporation are not citizens 
of the state in which the suit is brought, and 
although the state itself may be a mem- 
ber of the corporation. Louisville R. Co. 
v. Letson, 43 U. S. (2 How.) 497, 11 L. 
Ed. 353 (1844). 

And railroad may sue stats railroad com- 
mission for rate relief. — A proceeding by 
receivers of a railroad against state rail- 
road commissioners for relief against al- 
leged unjust and unreasonable rates for 
freight transportation established by such 
commissioners is not a proceeding against 
tlie state within this amendment which 
inhibits the exercise of jurisdiction by 
Federal courts in suits brought against one 
of the United States by citizens of another 
state. Clyde v. Richmond & D. R. Co., 57 
F. 436 (1893). 

Without making state party to suit. — 

The fact that the act authorizing state 



18. Proposed by Congress on September 25, 1789, and declared ratified on December 15, 
1791. 

19. Proposed by Congress on March 4, 1794, and declared ratified on January 8, 1798. 

29 



Amend. XII 



Constitution of the United States 



Amend. XII 



railroad commissioners to fix rates re- 
quires actions to recover penalties for dis- 
regarding them to be brought in the name 
of the state, and for its benefit, does not 
make the state in any sense a party or 
privy to the record. Clyde v. Richmond & 
D. R. Co., 57 F. 436 (1893). 

Though state may have material inter- 
est therein. — That the state has a material 
interest in a proceeding concerning unjust 
rates for the shipping of certain commodi- 
ties as a large and perhaps the only ship- 
per of those commodities does not make 
it a party to the proceedings so as to pre- 
clude the Federal court from exercising 
jurisdiction. Clvde v. Richmond & D. R. 
Co., 57 F. 436 (1893). 

Commission winding up affairs of State 
dispensary may not be sued. — There is no 
just ground for the conclusion that the 
State, in providing by legislation for the 
liquidation of the affairs of the State dis- 
pensary, intended to divest itself of its 
right of property in the assets of such 
agency so as to permit commissioners ap- 
pointed to liquidate dispensary affairs to be 
sued by creditors seeking payment from 
trust funds held by the commission for 
such liquidation. Mumav v. Wilson Dis- 
tilling Co., 213 U. S. 151, 29 S. Ct. 458. 
53 L. Ed. 742 (1909). 

Improper order of Governor may be set 
aside. — When oflicers of the State act un- 
der invalid authority, or exceed or abuse 
their lawful authority and thereby invade 
private rights that are secured by the Con- 
stitution, an action to redress injuries 
caused by the unauthorized act is not a 
suit against the State, since the acts of 



officials that are not legally authorized, 
or that exceed or abuse authority or dis- 
cretion conferred upon them, are not acts 
of the State. Thus an action to set aside 
an order of the Governor, which improper- 
ly suspended a member of the State High- 
way Commission, was not prohibited by 
this amendment. Dacus v. Johnston, 180 
S. C. 329, 185 S. E. 491 (1936). 

III. SUITS AGAINST STATE. 

Creditor may not sue State dispensary. — 

Where county dispensary board purchases 
supplies for the sale of intoxicating liquor, 
the title to such supplies vests in the State, 
so that, the board having paid the pro- 
ceeds of sales to other designated officers 
of the State as required by law, an action 
by a creditor having furnished supplies to 
recover therefor in quasi contracts is one 
to which the State is a necessary party 
within the prohibition of this amendment. 
Carolina Glass Co. v. Murray, 206 F. 635 
(1913). 

Nor may Federal bank sue State agency. 
— Actions by Federal land bank and Fed- 
eral intermediate credit bank against State 
Highway Department to recover auto li- 
cense fees paid under protest were "actions 
against State" and not maintainable with- 
out legislative authority. Federal Land 
Bank v. State Highwav Dept., 172 S. C. 
174, 173 S. E. 284 (193'4). 

Federal land bank's automobile used in 
conduct of its business was an "instru- 
mentality of the United States" not subject 
to State license fees. Federal Land Bank 
v. State Highway Dept., 172 S. C. 174, 
173 S. E. 284 (1934). 



Article XII. 

Election of President and Vice President. 

The electors shall meet in their respective states, and vote by ballot for 
President and Vice President, one of wliom, at least, shall not be an inhabitant 
of the same state with themselves ; they shall name in their ballots the person 
voted for as President, and in distinct ballots the person voted for as Vice 
President, and they shall make distinct lists of all persons voted for as Presi- 
dent, and of all persons voted for as Vice President, and of the ntimber of votes 
for each, which lists they shall sign and certify, and transmit sealed to the seat 
of the government of the United States, directed to the President of the 
Senate; — The President of the Senate shall, in presence of the Senate and 
House of Representatives, open all the certificates and the votes shall then 
be counted ; — The person having the greatest number of votes for President, 
shall be the President, if such number be a majority of the whole number of 
electors appointed ; and if no person have such majority, then from the persons 

40 



Amend. XIII Constitution of the United States Amend. XIII 

having the highest numbers not exceeding three on the list of those voted for 
as President, the House of Representatives shall choose immediately, by bal- 
lot, the President. But in choosing the President, the votes shall be taken by 
states, the representation from each state having one vote ; a quorum for this 
purpose shall consist of a member or members from two thirds of the states, 
and a majority of all the states shall be necessary to a choice. And if the 
House of Representatives shall not choose a President whenever the right of 
choice shall devolve upon them, before the fourth day of March next following, 
then the Vice President shall act as President, as in the case of the death or 
other constitutional disability of the President. The person having the great- 
est number of votes as Vice President, shall be the Vice President, of such 
number be a majority of the whole number of electors appointed, and if no per- 
son have a majority, then from the two highest numbers on the list, the Sen- 
ate shall choose the Vice President ; a quorum for the purpose shall consist 
of two-thirds of the whole number of Senators, and a majority of the whole 
number shall be necessary to a choice. But no person constitutionally in- 
eligible to the office of President should be eligible to that of Vice President 
of the United States.^" 

Article XHI. 
§ 1. Slavery abolished. 

Neither slavery nor involuntary servitude, except as a punishment for crime 
whereof the party shall have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction. 

§ 2. Enforcement. 

Congress shall have power to enforce this article by appropriate legisla- 
lation.^^ 

Amendment does not affect social dis- Third party may employ servant who 
tinctions between races. — This amendment, breaches contract. — .^s this and the follow- 
together with the Fourteenth and Fifteenth ing amendment abolish all invohmtary ser- 
Amendments, did not in any way affect the vitude except for crime, one who hires 
social distinctions subsisting between the a servant who has already broken his 
white and negro races at the time of their contract of service with knowledge of the 
enactment. Flood v. News & Courier Co., breach is not responsible to the servant's 
71 S. C. 112. 50 S. E. 637 (1903). master, despite the common-law holding 

Thus publication of white man as negro to that effect. For if anyone who engaged 
is libel. — This and the two following amend- a servant breaking his contract of employ- 
ments have not destroyed the law of the ment would be liable to servant's master, 
State making publication of a white man the servant would practically be compelled 
•as a negro a libel. Flood v. News & to remain in the service until the e.xpira- 
Courier Co., 71 S. C. 112, 50 S. E. 637 tion of his contract and thus be reduced to 
(1905). a state of involuntary servitude. Shaw v. 

Fisher, 113 S. C. 287, 102 S. E. 325 (1927). 

20. Proposed by Congress on December 9, 1803, and declared ratified on September 
25, 1804. 

21. Proposed by Congress on January 31, 1S6S, and declared ratified on December 18, 
1865. 



41 



Amend. XIV Constitution of the United States Amend. XIV 

Article XIV. 

§ 1. Citizenship rights not to be abridged by states. 

All persons born or naturalized in the United States, and subject to the juris- 
diction thereof, are citizens of the United States and of the state wherein they 
reside. No state shall make or enforce any law which shall abridge the priv- 
ileges or immunities of citizens of the United States; nor shall any state de- 
prive any person of life, liberty, or property, without due process of law ; nor 
deny to any person within its jurisdiction the equal protection of the laws. 

§ 2. Apportionment of representatives in Congress. 

Representatives shall be apportioned among the several states according to 
their respective numbers, counting the whole number of persons in each state, 
excluding Indians not taxed. But when the right to vote at any election for 
the choice of electors for President and Vice President of the United States, 
representatives in Congress, the executive and judicial officers of a state, 
or the members of the legislature thereof, is denied to any of the male 
inhabitants of such state, being twenty-one years of age, and citizens of the 
United States, or in any way abridged, except for participation in rebellion, 
or other crime, the basis of representation therein shall be reduced in the 
proportion which the number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such state. 

§ 3. Persons disqualified from holding office. 

No person shall be a Senator or representative in Congress, or elector of 
President and Vice President, or hold any office, civil or military, under the 
United States, or under any state, who having previously taken an oath, as a 
member of Congress, or as an officer of the United States, or as a member of 
any state legislature, or as an executive or judicial officer of any state, to sup- 
port the Constitution of the United States, shall have engaged in insurrection 
or rebellion against the same, or given aid or comfort to the enemies thereof. 
But Congress may by a vote of two thirds of each house, remove such disabil- 
ity. 

§ 4. What public debts are void. 

The validity of public debt of the United States, authorized by law, includ- 
ing debts incurred for payment of pensions and bounties for services in sup- 
pressing insurrection or rebellion, shall not be questioned. But neither the 
United States nor any state shall assume or pay any debt or obligation in- 
curred in aid of insurrection or rebellion against the United States, or any 
claim for the loss or emancipation of any slave; but all such debts, obligations 
and claims shall be held illegal and void. 

§ 5. Power to enforce article. 

The Congress shall have power to enforce by appropriate legislation, the 
provisions of this article.^^ 



22. Proposed by Congress on June 13, 1866. and declared ratified on July 28, 1868. 

42 



Amend. XIV 



Constitution of the Jnited States 



Amend. XIV 



I. General Consideration. 
II. Privileges and Immunities. 

III. Due Process of Law. 

A. Scope of Clause. 

B. Where Due Process Violated. 

C. Where Due Process Not Violated. 

IV. Equal Protection of the Laws. 

A. Scope of Clause. 

B. Where Equal Protection Violated. 

C. Where Equal Protection Not Vio- 

lated. 

Cross References. 

As to due process, privileges and immuni- 
ties, and equal protection of the laws, see 
S. C. Const., Art. 1, § 5. As to free and 
open elections, see S. C. Const., Art. 1, 
§10. 

I. GENERAL CONSIDERATION. 

Amendment does not affect social distinc- 
tions between races. — See note to Thirteenth 
Amendment. 

State police powers are broad. — In the 
matter of police regulation, the powers of 
the state are excessively broad, and laws 
enacted for that purpose may be impolitic, 
harsh, and oppressive without contraven- 
ing this amendment. Southern Bell Tel. 
& Tel. Co. V. Calhoun, 287 F. 381 (1923). 

And general exercise thereof is allowed. 
— The Fourteenth Amendment to the Con- 
stitution of the United States does not 
interfere with the proper exercise of the 
police power of the several states. Ac- 
cordingb", the provisions of this amend- 
ment prohibiting a state from depriving 
any person of life, liberty, or property with- 
out due process of law do not operate as a 
limitation upon the police power of the 
state to pass and enforce such laws as in 
its judgment will inure to the health, 
morals, and general welfare of the people. 
Shealy v. Southern Ry. Co., 127 S. C. 15, 
120 S. E. 561 (1924). 

Where not palpably unjust. — This section 
does not limit the state's exercise of police 
power to enact and enforce laws to protect 
health, morals, safety, and general welfare 
of the public, where such laws or regula- 
tions are not palpably arbitrary, unjust, 
or unreasonable, and do not unjustly or 
unreasonably impair private constitutional 
rights. Ford v. .Atlantic Coast Line Ry. Co., 
169 S. C. 41, 168 S. E. I43 (1932), affirmed 
in 287 U. S. 502, 53 S. Ct. 249, 11 L. Ed. 
457 (1933). 

Through antitrust legislation. — Section 
66-51, prohibiting trust or combinations 
with a view to lessen or which tend to 
lessen full and free competition, is .an ex- 



ercise of police power in defining, limiting, 
governing, or destroying trusts and monop- 
olies, and is not in violation of this amend- 
ment. State V. Virginia-Carolina Chemical 
Co., 71 S. C. 544, 51 S. E. 455 (19051. 

Or by regulating, taxing, and policing 
corporate business. — This amendment does 
not preclude the state from exercising very 
extensive power in regulating, taxing, and 
policing the business of a corporation. It 
permits a single foreign corporation to be 
expelled from tlie state by a special act 
and allows classification for the purposes 
of taxation. Southern Bell Tel. & Tel. Co. 
V. Calhoun, 287 F. 381 (1923). 

Applied in Xepapas v. Richardson, 149 
S. C. 52, 14<3 S. E. 686 (1929); .\tkinson v. 
Southern Express Co., 94 S. C. 444, 78 S. 
E. 516 (1913); Cantini v. Tillman, 54 F. 
969 (1893); State v. Berhn, 21 S. C. 292 
(1884). 

Cited in Fairev v. Haynes, 111 S. C. 132, 
96 S. E. 694 (1918); State v. Rouse. 86 S. 
C. 344, 68 S. E. 629 (1910); Kcnninston 
V. Catoe, 68 S. C. 470, 47 S. E. 719 (1904); 
Abbeville Elec, etc., Co. v. Western Elec- 
trical Supply Co., 66 S. C. 238, 44 S. E. 
952 (1902); Burnett v. Southern Rv. Co., 
62 S. C. 281, 40 S. E. 679 (1902); Des 
Fortes v. Hunter, 51 S. C. 250, 28 S. E. 
530 (1897); In re Langford, 57 F. 570 
(1893); Paris Mountain Water Co. v. 
Greenville, 110 S. C. 36, 96 S. E. 545 (1918); 
Mathenv v. Aiken, 68 S. C. 163, 47 ",. E. 
56 (1904); Pineland Club v. Berg, 110 S. 
C. 505, 96 S. E. 915 (1918); Fripp v. Co- 
burn, 101 S. C. 312, 85 S. E. 774 (1915); 
State V. Coop, 52 S. C. 508, 30 S. E. 609 
(1898); State v. Aiken, 42 S. C. 222, 20 S. 
E. 221 (1894); Robertson v. Peeples, 120 
S. C. 176, 115 S. E. 300 (1919); Spartan- 
burg V. South Carolina Gas & Elec. Co., 130 
S. C. 125, 125 S. E. 295 (1924); Fowler v. 
Anderson, 131 S. C. 473, 128 S. E. 410 
(1925); Barringer v. Fidelity & Deposit 
Co., 161 S. C. 4, 159 S. E. 373 (1931); 
Thomas v. Atlantic Coast Line R. Co., 168 
S. C. 185, 167 S. E. 239 (1933); State v. 
Rawleigh Co., 172 S. C. 415, 174 S. E. 
385 (1934) ; Pacolet Mfg. Co. v. Query, 174 
S. C. 359, 177 S. E. 653 (1934); Wallace 
V. Sumter County, 189 S. C. 395, 1 S. E. 
(2d) 345 (1939); State v. Yetter, 192 S. 
C. 1, 5 S. E. (2d) 291 (1939); State v. 
Osborne, 195 S. C. 295, 11 S. E. (2d) 260 
(1940); State v. Meredith, 197 S. C. 351, 
15 S. E. (2d) 678 (1941); Follett v. Mc- 
Cormick, 321 U. S. 573, 64 S. Ct. 717, 88 
L. Ed. 938 (1944); South Carolina Power 
Co. V. Baker, 212 S. C. 358, 46 S. E. C2d) 
278 (1948). 



43 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



II. PRIVILEGES .A.ND 
IMMUNITIES. 

Amendment secures citizenship rights to 
negro. — The leading purpose in the adop- 
tion of this and the following; amendments 
to the Constitution of the United States 
is to secure to persons of African descent 
the full enjoyment of the privileges of citi- 
zenship, including the right to vote. Mills 
V. Green, 67 F. 818 (1895). reversed on 
other grounds in 69 F. 852 (1895), appeal 
dismissed in 159 U. S. 651, 16 S. Ct. 132. 
40 L. Ed. 293 (1895). 

Either at law or in equity. — The equity 
jurisdiction of the Federal courts cannot 
take cognizance of a suit by a colored person 
on behalf of himself and others similarly 
situated against the officers of the state of 
which he and such others are citizens to 
restrain such officers from acting under 
a statute of that state claimed to violate 
this and the following amendment by 
abridging or denying his right to vote, since 
he has an adequate remedv at law. Gowdy 
V. Green, 69 F. 865 (1895), appeal dis- 
missed in 17 S. Ct. 994, 41 L. Ed. 1179 
(1897). 

Bill must allege infringement of prop- 
erty or civil rights. — Where a bill is brought 
to restrain a State election officer from 
discharging certain duties relative to en- 
forcement of State registration laws and 
where the plaintiff fails to allege infringe- 
ment of property or civil rights, such bill 
cannot be maintained in a court of equity. 
Green v. Mills, 69 F. 852 (1895), appeal 
dismissed in 159 U. S. 651, 16 S. Ct. 132, 
40 L. Ed. 293 (1895). 

Poll tax is allowed. — Even if payment 
of a poll ta.x is a prerequisite to voting, 
this does not deny any privilege or immu- 
itj' under this amendment. State v. Alid- 
dleton, 207 S. C. 478, 36 S. E. (2d) 742 
(1946). 

Religious views may not be barred. — A 
state or municipality may not by statute 
or ordinance wholly debar the right to 
preach or to disseminate religious views. 
Gaffney v. Putnam, 197 S. C. 237, 15 S. E. 
(2d) 130. See also, Follett v. McCormick, 
321 U. S. 573, 64 S. Ct. 717, 88 L. Ed. 
938 (1944). 

Emigrant agents may be licensed. — Pro- 
hibiting the business of emigrant agent 
without a license is not in violation of this 
amendment, as abridging the privileges of 
citizens. State v. Napier, 63 S. C. 60, 41 S. 
E. 13 (1902). 

And mortgage descriptions regulated. — 
Section 45-151. providing that no chattel 
mortgage shall be valid unless the prop- 



erty mortgaged shall be described in writ- 
ing or typewriting, but not printed, on the 
face of the mortgage, is not unconstitution- 
al and in violation of this amendment and 
S. C. Const., Art. 1, § 5, as an unreason- 
able restraint of the liberty of citizens to 
contract. Rose v. Harllee, 69 S. C. 523, 
48 S. E. 541 (1904). 

Accepting relief from employer does not 
bar damage suit.— Section 40-456, provid- 
ing that acceptance of benefits by an in- 
jured employee from employer maintain- 
ing a relief department for employees 
shall not bar recovery of damages for the 
injuries sustained, is not an unreasonable 
interference with the right of contract and 
does not violate this amendment or S. C. 
Const., Art. 1, § 5. Miller v. Atlantic Coast 
Line R. Co., 90 S. C. 249, 73 S. E. 71 
(1911), affirmed in 231 U. S. 741, 34 S. Ct. 
318, 58 L. Ed. 462 (1913). 

III. DUE PROCESS OF LAW. 
A. Scope of Clause. 

Amendment should be liberally con- 
strued. — In view of the importance of this 
amendment, which guarantees a citizen 
against being deprived of his property with- 
out due process of law to protect citizens 
from arbitrary governmental action, it 
should be liberally construed. Southern 
Bell Tel. & Tel. Co. v. Calhoun, 287 F. 381 
(1923). 

Definition of due process. — Due process 
of law in each particular case means such 
an e.xercise of the powers of the govern- 
ment as the settled maxims of the law per- 
mit and sanction, and under such safe- 
guards for the protection of individual 
rights as those maxims prescribe for the 
class of cases to which the one in question 
belongs. Dacus '. Johnston, 180 S. C. 329, 
185 S. E. 491 (1936). 

Due process requires proper hearing and 
trial. — Due process of law requires that a 
person shall have a reasonable opportunity 
to be heard by a legally appointed and qual- 
ified impartial tribunal before any binding 
decree, order, or judgment can be made 
affecting his rights to life, liberty, or prop- 
erty. State V. Brown, 178 S. C. 294, 182 
S. E. 838 (1935). 

"Due process of law", as provided for in 
this amendment, is afforded litigants given 
opportunity to be heard at any time be- 
fore entry of final judgment. Shealy v. 
Seaboard, etc., Ry. Co., 131 S. C. 144, 126 
S. E. 622 (1924). 

Of issues alleged to violate amendment. 
— A party affected by an ordinance is en- 
titled to show that it is so unreasonable 



44 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



as to amount to a confiscation of property 
under the guise of regulation, in violation 
of this amendment. State v. Earle, 66 S. 
C. 194, 44 S. E. 7S1 (1903). 

Pleading violation confers jurisdiction. — 
In a suit by foreign railroad corporation 
against town to recover amount of paving 
assessment paid under protest, an allegation 
in the bill that enforcement and collection 
of assessment constituted both a taking of 
plaintiff's property without due process of 
law and a denial of equal protection of the 
laws under this amendment gives the Fed- 
eral district court jurisdiction. Carolina & 
N. W. Ry. Co. V. Clover, 34 F. (2d) 480 
(1929), reversed on other grounds in 46 
F. (2d) 395 (1931). 

Jurisdiction may be submitted to freely. 
— The due process clauses of the State and 
Federal Constitutions place no limitation 
upon the competency of a corporation to 
submit voluntarily to jurisdiction or upon 
the right of the State to require such sub- 
mission as a prerequisite to doing business 
within the State. Ezell v. Rust Engineer- 
ing Co., 75 F. Supp. 980 (1948). 

State may validly exercise police power. 
— All privileges and rights acquired by rail- 
road companies are subject to a valid ex- 
ercise of the State police power which it- 
self is always subject to judicial scrutiny. 
Legitimate exercise of such police power by 
the State is not in contravention of the due 
process of law clause of this amendment. 
Ford V. Atlantic Coast Line R. Co., 169 
S. C. 41, 168 S. E. 143 (1932) affirmed in 
287 U. S. 502, 53 S. Ct. 249, 11 L. Ed. 457 
(1933). 

Or withdraw its consent to be sued. — 
The State can withdraw at any time its 
consent to be sued, and the right to with- 
draw it is not affected by the contract 
clause of the Constitution or, ordinarily, by 
the limitations of the Fourteenth Amend- 
ment. Duke Power Co. v. South Carolina 
Tax Comm. 81 F. (2d) 513 (1936), cert, 
denied 298 U. S. 669, 56 S. Ct. 834, 80 L. Ed. 
1392 (1936). 

And hire or discharge personnel with- 
out judicial approval. — The idea that due 
process requires judicial approval of mat- 
ters relating to the hiring or discharge of 
a public employee is one which has no 
foundation either in reason or authority. 
Shirer v. Anderson, 88 F. Supp. 858 (1950). 

B. Where Due Process Violated. 

Arbitrary paving assessment. — A paving 
assessment p'ainly arbitrary or unreason- 
ably discriminatory denies due process and 
equal protection, and will not be upheld. 



Carolina N. & W. Ry. Co. v. Clover, 46 
F. (2d) 395 (1931), appeal dismissed in 
63 F. (2d) 1017 (1932). 

Barbecue stand ordinance. — K city ordi- 
nance which made it unlawful for any per- 
son owning, operating, or employed at a 
barbecue stand located in any residential 
area of the city to allow it to remain open 
between eleven p. m. and si.x a. m., except 
on Saturdays when it could remain open 
until twelve p. ni., and which defined "resi- 
dential area" as any section of the city 
where two or more houses used for residen- 
tial purposes are located on abutting prop- 
erty, was held unconstitutional insofar as 
it defined "residential area" because it un- 
reasonably deprived the barbecue owner of 
the lawful use of his property without due 
process of law. Fincher v. Union, 186 S. C. 
232, 196 S. E. 1 (1938). 

Burdening particular corporation. — A 
state legislature cannot single out a corpo- 
ration any more than it can single out a 
natural person for subjection to burdens 
and liabilities not cast on others similarly 
situated without contravening the limita- 
tions of this amendment. Southern Bell 
Tel. & Tel. Co. v. Calhoun, 287 F. 381 
(1923). 

Confession of murder. — Evidence revealed 
that murder confession was obtained by 
coercion so as to denv due process. Harris 
v. South Carolina. 338 U. S. 68, 69 S. Ct. 
1354, 93 L. Ed. 1815 (1949). 

Constructing telephone exchanges. — .\n 
act requiring the Southern Bell Telephone 
& Telegraph Company to construct and 
maintain telephone exchanges in two des- 
ignated towns, when there were numerous 
other telephone companies in the state and 
the designated company was not obliged 
by its charter, franchise, or contract to 
construct such e-xchanges, deprives the 
company of its property without due proc- 
ess of law and is void. Southern Bell Tel. 
& Tel. Co. v. Calhoun, 287 F. 381 (1923). 

Damages in vacating street. — .K land- 
owner is not entitled to recover damages 
because of the vacation of a street unless 
he has sustained a-; injury dififerent in kind, 
and not merely in degree, from that suf- 
fered by the public at large. If it appears 
that there is a special injury, the owner 
may recover damages, notwithstanding his 
property does not abut on the part of the 
street vacated, because this amounts to a 
"taking" within the meaning of this amend- 
ment. Rock Hill V. Cothran, 209 S. C. 357, 
40 S. E. (2d) 239 (1946). 

Depriving sheriff of fees. — .\cts depriv- 
ing the sheriff of Sumter County of civil 
fees prior to July 1, 1935, were held uncon- 



45 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



stitutional in Hurst v. Sumter County, 189 
S. C. 376, 1 S. E. (2d) 238 (1939). 

Act No. 131, 1933 Acts, enacted prior to 
the amendment of S. C. Const., Art. 3, § 34, 
subdiv. 9, -n-hich act devolved upon the 
chief of rural police of the county all du- 
ties, powers, and privileges formerly ex- 
ercised by the sheriff with regard to col- 
lection of delinquent taxes, levying upon 
property of delinquent ta.xpayers, execu- 
tion of deeds in case of sale, and which also 
provided that the sheriff of Sumter County 
should keep the books and records pertain- 
ing to tax collections, was held unconsti- 
tutional insofar as it deprived the sheriff 
of Sumter County of fees and commissions 
on delinquent taxes after its effective date. 
Hurst v. Sumter County, 189 S. C. 376, 1 
S. E. (2d) 238 (1939). 

Emptying sewage into river. — Under this 
amendment, a municipality is prohibited 
from emptying sewer pipes into a river to 
the detriment of property owners outside 
the city limits without compensation. 
Matheny v. Aiken, 68 S. C. 163, 47 S. E. 56 
(1904). 

Exempting lands from stock laws. — Com- 
plainant owned a tract of land wliich was 
valuable solely for grazing purposes. After 
he acquired it, the legislature passed an act 
exempting this land, with other tracts, from 
the provisions of the law requiring owners 
to keep thier cattle fenced in, the effect 
of which was to require complainant either 
to fence his whole tract against cattle or 
to submit to have it trespassed upon with- 
out redress by any cattle whose owners 
chose to let them run at large. The act 
was held not to be within the police power 
of the state and violative of this amend- 
ment, inasmuch as it deprived complain- 
ant of his property without due process 
of law. Smith v. Bivens, 56 F. 352 (1893). 

Flooding land of lower owner. — Where 
land of lower owner was injured by de- 
fendant's accumulating water behind un- 
finished dam and releasing same during 
flood time, there was a "taking" of prop- 
erty without due process which authorized 
recovery for resulting injury. Taylor v. 
Lexington Water Power Co., 165 S. C. 
120, 163 S. E. 137 (1932). 

Insurrection wrongfully declared.— 
Where the Governor declared a state of 
insurrection in existence, used militia to 
take over the State Highway Department, 
and removed the State higliway commis- 
sioners from oflice, a denial of due process 
obtained as to the commissioners and the 
Governor's action contravened this amend- 
ment. Hearon v. Calus, 178 S. C. 381, 183 
S. E. 13 (1936). 



Law case wrongfully ruled out. — Where 
a North Carolina case was wrongfully ruled 
out by trial judge because he mistakenly 
put the place of performance of the con- 
tract in South Carolina instead of North 
Carolina, the defendant was deprived of 
the benefit of due process of law. Living- 
ston V. Atlantic Coast Line R. Co., 176 S. C. 
385, 180 S. E. 343 (1935). 

License fees for foreign corporation. — 
In State v. Liggett & Myers Tobacco Co., 
171 S. C. 511, 172 S. E. 857 (1933), a stat- 
ute imposing graduated fees upon author- 
ized capital of foreign corporations for priv- 
ilege of doing busines was held to be un- 
constitutional as violative of due process of 
law. 

Obtaining murder confession. — In Harris 
V. South Carohna, 338 U. S. 68, 69 S. Ct. 
1354, 93 L. Ed. 1440 (1949), the U. S. Su- 
preme Court held that a confession of mur- 
der, under the circumstances therein set 
out, was obtained in such manner as to be 
violative of the due process clause of this 
amendment. 

Ordinance closing street. — .\n ordinance 
of a town purporting to authorize closing 
a street, in view of a contract between 
municipality and a railroad purporting to 
require municipality to close certain streets 
and the railroad to open others, violates 
this amendment prohibiting taking private 
property without just compensation or 
without due process, and the town is liable 
to a property owner for damages caused 
by closing the street. Houston v. West 
Greenville. 126 S. C. 484, 120 S. E. 236 
(1923). 

Requiring railroad to build connecting 
track. — Railroads cannot be required to 
build a connecting track under §58-1145 
unless it is established at a hearing, at 
■which the railroads are given an oppor- 
tunity to be heard, that the connection 
is necessary for the public good and that 
the amount of expenditure will not be con- 
fiscatory, since otherwise the order would 
constitute taking private property without 
due process in violation of this amendment. 
Shealy v. Seaboard, etc., Ry. Co., 131 S. C. 
144. 126 S. E. 622 (1924). 

Suspending public officers. — In Dacus v. 
Johnston, 180 S. C. 329, 185 S. E. 491 
(1936), the court held that if §§ 1-702 and 
14-315 of the Code were open to the con- 
struction that they granted to the Gov- 
ernor the power of indefinite suspension 
of officers without hearing, they would be 
against public policy and in the teeth of the 
manifest principles of this amendment. 

Taking property without actual entry. — 
There may be a taking of property in the 



46 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



constitutional sense although there has 
been no actual entry within its bounds and 
no artificial structure erected upon it. And 
when a public agency acting under author- 
ity of statute uses land which it has law- 
fully acquired for public purposes in such 
a way that neighboring real estate belong- 
ing to a private owner is actually invaded 
by superinduced additions of water, earth, 
sand, or other material, so as effectually 
to destroy or impair its usefulness, there is 
a taking within the meaning of the Con- 
stitution. Baynham v. State Highway 
Dept., 181 S. C. 435, 187 S. E. 528 (1936). 
Unfair business competition statute. — An 
act (§ 6626 of 1932 Code) directed against 
unfair discrimination between different pur- 
chasers of a commodity in general use for 
the purpose of injuring the business of a 
competitor was held to violate this consti- 
tutional provision, in that vague and indefi- 
nite language used in the act caused it to 
be unreasonable, arbitrary, and capricious 
in its effects. State v. Standard Oil Co., 
195 S. C. 267, 10 S. E. (2d) 778 (1940). 

C. Where Due Process Not Violated. 

Arrest without warrant. — An act author- 
izing arrest without warrant for freshly 
committed crime is not a taking of liberty 
without due process where persons are ar- 
rested after being discovered in act of vio- 
lating law. State v. Quinn, 111 S. C. 174. 
97 S. E. 62 (1918). 

Auto lien for injuries. — Section 45-551, 
providing that when a motor vehicle is 
operated in violation of law or negligently 
or carelessly, and that when any one re- 
ceives personal injuries thereby or when 
any property is damaged thereby, such 
damages shall be a lien on such motor 
vehicle next in priority to the lien for State 
and county ta.xes, recoverable in any court 
of competent jurisdiction with the right 
to attach such vehicle as provided by law 
for attachment, does not violate the due 
process of law provisions of this amend- 
ment. Merchants' & Planters' Bank v. 
Brigman, 106 S. C. 362. 91 S. E. 352 (1917). 

Automobile license statute. — A statute 
which changes time for procuring auto- 
mobile license, permitting deduction where 
previous license was obtained for a full 
year but not where previous license was 
only for six months, does not violate this 
amendment. Heslep v. State Highway 
Dept., 171 S. C. 186. 171 S. E. 913 (1933). 

Breach of fishing laws. — Shipman v. Du- 
pre, 339 U. S. 321, 70 S. Ct. 640, 94 L. Ed. 
877 (1950). 

Collection and payment of checks. — In 
Witt V. People's State Bank, 166 S. C. 1, 



164 S. E. 306 (1932), §§8-181 et seq. of 
the Code, relating to collection and pay- 
ment by banks of checks and otlier instru- 
ments for the payment of money, were 
held not to violate this amendment. 

Condemning land for depot. — An act 
granting a corporation the right to con- 
demn lands for union depot purposes is not 
a violation ot the Fourteenth Amendment 
of the Federal Constitution, the condemna- 
tion being for pul)lic use and the statute 
having made ample provision for the pro- 
tection of property owners and compensa- 
tion for property condemned. Riley v. 
Charleston Union Station Co., 71 S. C. 457, 
51 S. E. 485 (1905). 

Confession of murder. — Evidence did 
not show that murder confession was ob- 
tained by any means which would consti- 
tute a denial of due process. State v. Judge, 
208 S. C. 497, 38 S. E. (2d) 715 (1946) ; State 
V. Harris, 212 S. C. 237, 47 S. E. (2d) 
521 (1948). 

Destroying gambling equipment. — A 
statute providing for the summary forfei- 
ture and destruction of gambling apparatus 
is a valid exercise of the police power of 
the State, and is not in conflict with the 
Constitution as depriving the owner of his 
property without due process of law. Du- 
rant v. Bennett, 54 F. (2d) 634 (1931). 

A statute authorizing summary destruc- 
tion of slot machines if found by a magis- 
trate to be gambling devices was held not 
unconstitutional as denying due process 
nor being an unconstitutional exercise of 
police power on the part of the State. 
State v. Kizer, 164 S. C. 383, 162 S. E. 444 
(1932). 

Electric power generation tax. — Statute 
imposing excise tax on persons, firms, or 
corporations manufacturing or generating 
electric power was held not unconstitu- 
tional under this section as depriving tax- 
payer of due process or equal protection of 
the laws. Duke Power Co. v. Query, 10 
F. Supp. 669 (1935), affirmed in 81 F. (2d) 
513 (1936), cert, denied 298 U. S. 669, 56 
S. Ct. 834, 80 L. Ed. 1392 (1936). 

Electric wire ordinance. — Where the evi- 
dence shows that stretching electric wires 
over and upon the roofs of buildings is 
extremely dangerous, both as being liable 
to originate fires and as obstructions to the 
extinguishment of fires otherwise origi- 
nated, a city ordinan; absolutely prohibit- 
ing such practice is a valid exercise of 
the police power not denying due process 
under this amendment. Electric Imp. Co. 
V. San Francisco, 45 F. 593 (1891). 

Emergency bank statute. — Emergency 



47 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



statute temporarily vesting in Governor 
the control of banks and forbidding legal 
proceedings against banks ■without Gov- 
ernor's approval was held not unconstitu- 
tional as depriving depositors of property 
without due process or as denying to them 
right of speedy remedy in court for wrong 
sustained. State v. Gibbes, 171 S. C. 209, 
172 S. E. 130 (1933), affirmed in 290 U. S. 
326, 54 S. Ct. 140, 78 L. Ed. 342 (1933). 

Eminent domain statute. — A statute 
which provides that in eminent domain pro- 
ceedings the condemnor can enter upon 
and use the land upon his payment or de- 
posit of the amount awarded by referees 
was held not a violation of the due process 
clause, even though upon appeal from the 
award by the referees there is no provision 
for security to the condemnee for the pay- 
ment by the condeinnor of the amount of 
damages which may be assessed by the ver- 
dict of a jury. Oakland Club v. South 
Carolina Public Service Authority, 110 F. 
(2d) 84 (1940). 

Ending terms of public officers. — In an- 
swer to the contention that the action 
of the General Assembly in terminating the 
terms of office of certain of the highway 
cominissioners, whose terms have not ex- 
pired, deprived those commissioners of 
their property without due process of law, 
it was held that, while it is true that un- 
der the decision of Hearon v. Calus, 178 
S. C. 381, 183 S. E. 13 (1936), the title 
of the commissioner's office was held to be 
a property right entitled to protection of 
the due process clauses of the State and 
Federal Constitutions, it is due process for 
the legislature which created the office and 
fixed the term to change it at its will. 
The commissioners took title to the office 
subject to the knowledge that the legisla- 
ture could abolish the office or provide 
for the election of members in a method 
different from that established in the Code 
of 1932. State v. Lewis, 181 S. C. 10, 186 
S. E. 625 (1936). 

"Enrolled bill" rule. — In Parrott v. Gour- 
din, 205 S. C. 364, i2 S. E. (2d) 14 (1944), 
it was held that the application of the "en- 
rolled bill" rule does not constitute a de- 
nial of due process. 

Federal habeas corpus writ for state 
prisoner. — Where a person is arrested on 
a peace warrant from one state judge and 
committed to jail after hearing before an- 
other judge acting within his jurisdiction 
according to state practice, he cannot be 
released by a Federal district court on ha- 
beas corpus for deprivation of his liberty 
without due process of law contrary to this 



amendment. In re Enslow, 45 F. 351 
(1891). 

Fertilizer analysis tags. — A statute re- 
quiring tags stating amount and analysis 
of each material or source to be placed on 
each container of fertilizer sold does not 
violate the due process provisions of this 
amendment. National Fertilizer Ass'n v. 
Bradley, 18 F. Supp. 263 (1936), affirmed 
in 301 U. S. 178, 57 S. Ct. 748, 81 L. Ed. 
990 (1937). 

Forbidding insurance company to operate 
funeral business. — In Daniels v. Family 
Ins. Co., 336 U. S. 220, 69 S. Ct. 550, 93 
L. Ed. 632 (1949), the United States Su- 
preme Court held constitutional as not in 
violation of the due process and equal pro- 
tection clauses an act prohibiting a life 
insurance company to operate or maintain 
a funeral business. 

Highway condemnation proceedings. — 
The condemnation proceedings provided 
for in the Code permitting the State High- 
way Department to condemn private lands 
do not violate this amendment. Jennings 
V. Sawyer, 182 S. C. 427, 189 S. E. 746 
(1937). 

Judgment as vested right. — A judgment 
of this State more than ten years old is 
not a vested right, property, or contract 
as contemplated by the due process clause. 
United States Rubber Co. v. McManus, 211 
S. C. 342, 45 S. E. (2d) 335 (1947). 

Leasing public lands. — An act leasing 
land theretofore used as public square for 
erection of building to contain offices of 
county and home demonstration age.its and 
other county offices or auditorium for pub- 
lic assemblage, free of rent, does not vio- 
late this amendment prohibiting the taking 
of property without due process of law. 
Antonakas v. Anderson Chamber of Com- 
merce, 130 S. C. 215, 126 S. E. 35 (1924). 

Mental anguish for telegram. — Section 
58-255, authorizing actions against tele- 
graph companies for mental anguish caused 
by negligence in transmitting or delivering 
messages, is not in violation of this amend- 
ment as class legislation. Simmons v. 
Western Union TeL Co., 63 S. C. 425, 41 
S. E. 521 (1902). 

Ordinance regulating keeping cows in 
town. — An ordinance regulating the keep- 
ing of cows within the town limits of Dar- 
lington does not violate this section. Ward 
v. Darlington, 183 S. C. 263, 190 S. E. 
826 (1937). 

Parking meter ordinance. — A city ordi- 
nance providing for parking meters to reg- 
ulate the privilege of parking does not vio- 
late the due process clause of this section. 



48 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



Owens V. Owens, 193 S. C. 260, 8 S. E. 
(2d) 339 (1940). 

Penalty for receiving stolen goods. — It 
is not a denial of due process of law or 
of equal protection of the laws for the 
legislature by § 16-362 to make the penalty 
for receiving stolen goods imprisonment 
without the alternative of a fine, though 
differing in that respect from other offenses. 
State V. Johnson, 119 S. C. 55, 110 S. E. 
460 (1919). 

Presumption of fraudulent appropriation. 
— Section 16-364 of the Code, creating a 
presumption of fraudulent appropriation 
where officers and other persons charged 
with safekeeping of public funds fail to 
account for them as required by law, was 
held not to violate this amendment. State 
V. Brown, 178 S. C. 294, 182 S. E. 838 
(1935). 

Process on foreign corporation. — Sections 
10-424, 12-721, and 12-722 of the Code, con- 
cerning service of process on a foreign 
corporation, comply with the fairest con- 
cept of due process. State v. Ford Motor 
Co., 208 S. C. 379, 38 S. E. (2d) 242 (1946). 

Public improvements assessment. — The 
imposition of assessments for pubhc im- 
provements does not violate the Fourteenth 
Amendment to the Federal Constitution. 
Cheraw v. Turnage, 184 S. C. 76, 191 S. E. 
831 (1937). 

Punitive damages for negligence. — .\n act 
allowing punitive damages in actions for 
negligence of a railroad company is not 
unconstitutional as a taking of property 
without due process of law. Osteen v. 
Southern Ry., 76 S. C. 368, 57 S. E. 196 
(1907). 

Railroad crossing requirements, etc. — 
Railroad companies may be required at 
their own expense not only to establish 
crossings, but also to abolish grade cross- 
ings, to build and maintain suitable bridges 
or viaducts, to carry highways newly laid 
out over their tracks, or to carry their 
tracks over such highways without being 
unlawfully deprived of property without 
compensation or due process. Prosser v. 
Seaboard Air Line R. Co., 216 S. C. 33, 
56 S. E. (2d) 591 (1949). 

Railroad liability for fires. — Section 58- 
1198, making every railroad company liable 
for property injured by fire from its loco- 
motives, but allowing it to insure any such 
property, is not a taking of property from 
a railroad without due process of law or a 
denial of equal protection within this 
amendment. Mobile Ins. Co. v. Columbia 
& G. R. Co., 41 S. C. 408, 19 S. E. 858 
(1894). See also, McCandless v. Rich- 
mond & D. etc., R. Co., 38 S. C. 103, 16 

[7 SC Code]— 4 49 



S. E. 429 (1892); Brown v. Carolina Mid- 
land Ry. Co., 67 S. C. 481, 46 S. E. 283 
(1903). 

Railroad negligence exception. — The fol- 
lowing exception is not well taken: "To 
allow the plaintiff, after alleging a joint 
and concurrent tort by the railway com- 
pany and its servants, to recover without 
evidence of such joint and concurrent tort, 
but simply on evidence of a negligent act 
of the servant in which the master did not 
participate and which he neither author- 
ized nor ratified, would deprive the defend- 
ant railway company of its property without 
due process of law, contrary to this amend- 
ment, for this reason: it would deprive said 
company of the right of reimbursement from 
the defaulting servant which would other- 
wise exist." Carson v. Southern Rv. Co., 

68 S. C. 55. 46 S. E. 525 (1904). affirmed 
in 194 U. S. 136, 24 S. Ct. 609, 48 L. Ed. 
907 (1904); Dagnall v. Southern Ry. Co., 

69 S. C. 110, 48 S. E. 97 (1904); Reeves 
V. Southern Ry., 68 S. C. 89, 46 S. E. 543 
(1904). 

Recovery for pollution of property. — A 
landowner's right to recover under §§ 59- 
494 to 59-499 of the Code for the taking 
by pollution, and for the impairment of 
the value of his real estate by reason of 
such taking, affords him full and complete 
remedv and is due process of law. Oates 
V. Easley, 182 S. C. 91, 1S8 S. E. 504 (1936). 

Regulations of board of fisheries. — Ship- 
man V. Dupre, 339 U. S. 321, 70 S. Ct. 640, 
94 L. Ed. 877 (1950). 

Review of insurance ruling. — Former 
statutory provision for review of decision 
of Insurance Commissioner by certiorari or 
mandamus held not exclusive and not vio- 
lative of due process clause as denying ap- 
peal to Federal courts. King v. Aetna Ins. 
Co., 168 S. C. 84, 167 S. E. 12 (1932). 

School district tax. — Acts creating a 
school district and authorizing the levy 
of a tax for school purposes by a board 
of trustees on petition of twenty taxpayers, 
are not in violation of this amendment as 
depriving petitioner of his property with- 
out due process of law, nor as denj'ing the 
equal protection of the laws, since the Irj- 
islature has power to delegate its taxing 
power for specified purposes to the electors 
of subdivisions of the State without viola- 
tion of such provisions. Martin v. School 
Dist., 57 S. C. 125. 35 S. E. 517 (1900). 

Statute governing railroad crossing acci- 
dents. — Section 58-1004, changing the com- 
mon-law rule as to contributory negli- 
gence in actions involving accidents at 
railroad crossings, is not in violation of 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



this amendment prohibiting the deprivation 
of life, liberty, or property without due 
process of law. The right to have one's 
controversies determined by the existing 
rules of evidence is not a vested right, and 
reasonable changes ma; be made. Dren- 
nan v. Southern Ry., 91 S. C. 507, 75 S. 
E. 45 (1912). 

Statutory negligence presumption. — In 
Ford V. Atlantic Coast Line R. Co., 169 
S. C. 41. 168 S. E. 14,3 (1932), affirmed in 
287 U. S. 502, 53 S. Ct. 249, 11 L. Ed. 457 
(1933), statutes construed as creating re- 
buttable presumption that a failure to give 
crossing signals was proximate cause of 
crossing collision were held not violative 
of due process clause of this section. 

Stopping trains at station. — Where a 
railroad company has been notified, has 
appeared, and has contested a matter before 
the railroad commission, an order of such 
commission requiring it to stop certain 
trains at a station does not deprive such 
railroad company of its property without 
due process of law within the meaning of 
this amendment. Railroad Com'rs v. At- 
lantic Coast Line R. Co., 71 S. C. 130, 50 
S. E. 641 (1905). 

Suing unincorporated associations. — Sec- 
tions 10-215, 10-429 and 10-1516, relating 
to the suing, service of process, and judg- 
ment and execution against an unincor- 
porated association, do not contravene the 
due process clause of this amendment. 
Edgar v. Southern Ry. Co., 213 S. C. 445, 
49 S. E. (2d) 841 (1948). 

Tax on places of amusement. — Sections 
65-801 et seq., imposing a tax on places of 
amusement, are not invalid as taking prop- 
erty without due process of law in viola- 
tion of S. C. Const., Art. 1, § S, or of this 
amendment. Curdts v. South Carolina Tax 
Comm., 131 S. C. 362, 127 S. E. 438 (1925), 
affirmed in 273 U. S. 669, 47 S. Ct. 471, 
71 L. Ed. 831 (1927). 

Tax on promissory notes. — Section 65- 
681, laying ta.x on documents, is not in 
violation of this amendment though ap- 
plied to notes mailed outside of state with 
right of revocation. Graniteville Mfg. Co. 
V. Query, 44 F. (2d) 64 (1930), affirmed in 
283 U. S. 376, 51 S. Ct. 515, IS L. Ed. 
1126 (1931). 

Taxes on condemned land. — Section 25- 
81 of the Code, providing that taxes due 
on land condemned by the State authority, 
including pro rata taxes for the year in 
which the land is condemned, is not viola- 
tive of this amendment to the Constitution 
in the sense that it provides for paying 
the owner of the property taken an 



amount less than the sum fixed as just 
compensation and therefore constitutes 
taking property without compensation. 
South Carolina Public Service Authority v. 
11,754.8 Acres of Land, Iilore or Less, 123 
F. (2d) 738 (1941). 

Teacher dismissal. — The State Board of 
Education's action in dismissing a teacher 
for cheating on a certification examination 
was held not a denial of due process, even 
though the statute attacked did not provide 
for judicial review of the Board's action, 
since such Board action is subject to ju- 
dicial review by writ of certiorari. Shirer 
V. Anderson, 88 F. Supp. 858 (1950). 

Telephone line construction. — Section 
58-305, providing for the construction of 
telephone lines on the rights of way of 
railroad companies, is not unconstitutional 
as not furnishing due process of law be- 
cause it does not provide for making all 
persons having an interest in the land par- 
ties or that the telephone company shall, 
after construction, help to maintain the 
right of way. South Carolina & G. R. Co. 
v. American Tel. & Tel. Co., 65 S. C. 459, 
43 S. E. 970 (1903). 

Unemployment compensation act. — The 
unemployment compensation act of South 
Carolina does not violate this amendment 
as to due process and equal protection of 
the laws. Pickelsimer v. Pratt, 198 S. C. 
225, 17 S. E. (2d) 524 (1941). 

IV. EQUAL PROTECTION 
OF THE LAWS. 

A. Scope of Clause. 

Clause protects all persons. — The equal 
protection of the laws extends to the 
guilty as well as the innocent, and to the 
criminal as well as the law-abidding citi- 
zen. State V. Middleton, 207 S. C. 478, 36 
S. E. (2d) 742 (1946). 

And must be enforced by courts. — When 
a right guaranteed under this amendment 
and under corresponding sections of the 
State Constitution has been violated, a Fed- 
eral court is not only vested with the pow- 
er but is also charged with the duty of 
protecting that right, even to the extent 
of declaring unconstitutional an enactment 
of the State legislature. Southern Bell 
Tel. & Tel. Co. v. Calhoun, 287 F. 381 
(1923). 

By uniform rules. — If an ordinance is 
passed by a municipal corporation which 
upon its face restricts the right or domin- 
ion which the individual might otherwise 
exercise over his property without ques- 
tion, not according to any general or uni- 

50 l7SCCode] 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



form rule but so as to make the due en- 
joyment of his own depend upon tlie arbi- 
trary will of the governing authorities 
of the town or city, it is unconstitutional 
and void because it fails to furnish a uni- 
form rule of action and leaves the right 
of property subject to the despotic will of 
city authorities who may exercise it so as 
to give exclusive profits or privileges to 
particular persons. Schloss Poster Adv. 
Co. V. Rock Hill, 190 S. C. 92, 2 S. E. (2d) 
392 (1939). 

With respect to education. — A negro is 
entitled to the same opportunity and facil- 
ities afforded to wliites for obtaining a legal 
education by and in the State of South 
Carolina. Wrighton v. Board of Trustees, 
72 F. Supp. 948 (1947). 

And also ad valorem taxes. — Constitu- 
tional requirements, both State and Fed- 
eral, as to equality and uniformity are in 
strictness applicable only to ad valorem 
taxes on property and not to excises. 
Gregg Dyeing Co. v. Query, 166 S. C. 117, 
164 S. E. 588 (1931), affirmed in 286 U. S. 
472, 52 S. Ct. 631, 76 L. Ed. 1232 (1932). 

Taxes may not be tyrannical. — Where 
plaintiff wishes to show tax unconstitution- 
al because of arbitrary discrimination, the 
plaintiff must be able to satisfy the court 
that the classification has its origin in noth- 
ing better than whim, fantasy, and tyran- 
nical exercise of arbitrary power before 
the tax in question will be stricken down. 
Marshall v. South Carolina Tax Com'r, 178 
S. C. 57, 182 S. E. 96 (1935). 

But must be reasonably applied. — A state 
may classify railroad corporations separate- 
ly from other corporations for purposes of 
taxation, but such classification must have 
reasonable relation to some proper legis- 
lative purpose. Piedmont & N. Ry. v. 
Query, 56 F. (2d) 172 (1932). 

B. Where Equal Protection Violated. 

Billboard ordinance. — In Schloss Poster 
Adv. Co. v. Rock Hill, 190 S. C. 92, 2 S. 
E. (2d) 392 (1939), a city ordinance which 
read, "Hereafter it shall be unlawful to 
erect or maintain any billboard facing any 
public street or other public place within 
the corporate limits of the city without 
having first obtained from the city council 
a permit to do so," was held to violate 
this amendment because it vested in the 
city council a discretion which was purely 
arbitrary. 

Damage suit against State. — An act per- 
mitting one person to bring an action 
against the State for damages to his auto- 
mobile is in effect granting a special privi- 



lege to one citizen of the State in violation 
of the equal protection of laws clauses of 
tliis amendment and S. C. Const., Art. 1, 
§ 5, notwithstanding S. C. Const., Art. 17, 
§ 2, providing that the General Assembly 
may direct in what manner claims against 
the State mav be established and adjusted. 
Sirrine v. State, 132 S. C. 241, 128 S. E. 
172 (1925). 

Democratic Party primaries. — Where the 
State legislature repealed all laws relat- 
ing to primary elections, and where a negro 
was denied the right to vote in a primary 
election because of the rules of the Dem- 
ocratic Party which limited primary elec- 
tions to white persons, the negro was held 
entitled to injunctive relief as the primary 
elections were still part of the election 
machinery of the State. Rice v. Elmore, 
165 F. (2d) 387 (1947), cert, denied 333 
U. S. 875, 68 S. Ct. 905, 92 L. Ed. 1151 
(1948). 

Regulating hours of workers. — .^ct No. 
943 of the 1938 Acts, which regulates the 
hours of workers, is invalid as it violates 
this section because it is not a proper ex- 
ercise of the public power of the State 
and the classifications therein are arbitrary 
and without reasonable basis. Gasque v. 
Nates, 191 S. C. 271, 2 S. E. (2d) 36 
(1939). 

Statute of limitations on salaries. — .'\cts 
1938, p. 1893, which fixed a period of lim- 
itations for actions against counties for 
salaries, fees, etc., but which excluded from 
its operation claims against four counties 
of the State, violated the equal protection 
and due process clauses of the State and 
Federal Constitutions. Gillespie v. Pickens 
County, 197 S. C. 217, 14 S. E. (2d) 900 
(1941). 

Statute of limitations on wage claims. — 

In Davis v. Rockton & Rion R.R., 65 F. 
Supp. 67 (1946), affirmed in 159 F. (2d) 
291 (1946), the court held invalid as a de- 
nial of equal protection of the laws a spe- 
cial State statute of limitations on claims 
brought under the Federal Fair Labor 
Standards Act. 

A statute of limitations is unconstitu- 
tional when directed exclusively at claims 
arising under Federal law, and this is par- 
ticularly true when the statute is discrim- 
inatory in its effect in favor of state claims 
and against Federal claims. Rockton & 
Rion Ry. v. Davis, 159 F. (2d) 291 (1946). 

Suits against foreign corporations. — A 
statute which permits suits to be main- 
tained against foreign corporations in any 
county of the State, but which limits the 
place of trial of actions against individuals 



51 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



and domestic corporations to counties 
through which they operate, manifestly de- 
nies the equal protection of the laws with- 
in the meaning of this constitutional provi- 
sion. Windham v. Pace, 192 S. C. 271, 6 
S. E. (2d) 270 (1939). 

Tax on contract hauling. — An act impos- 
ing a tax on contract hauling, which ex- 
empted farmers, dairymen, and lumbermen 
from such tax, was held invalid as an un- 
reasonable classification. Nutt v. EUerbe, 
56 F. (2d) 1058 (1932). 

C. Where Equal Protection 
Not Violated. 

Appraisal of mortgaged property. — No 

denial of equal protection of the laws re- 
sults from not applying the statute which 
called for appraisal of mortgaged prop- 
erty after sale, where such land sold was 
not located within the State. Fidelity- 
Bankers Trust Co. V. Little, 178 S. C. 133. 
181 S. E. 913 (1935). 

Bakery license tax. — A city license tax 
ordinance which required local bakeries to 
pay twenty-five dollars and out-of-town 
bakeries selling or delivering their products 
within the city to pay fifty dollars per year 
was held valid, since there was nothing to 
show that imposition of a higher license 
on nonresidents was unreasonable, capri- 
cious, or confiscatory, .•\merican Bakeries 
Co. V. Sumter, 173 S. C. 94, 174 S. E. 919 
(1934). 

Bonds for State building site. — .^ct No. 
889, 1946 Acts [1946 (44) 2612], allowing 
counties required to furnish land for con- 
struction of new buildings for any State 
institution to issue bonds to pay for such 
land, was held not to violate this amend- 
ment. Smith V. Robertson, 210 S. C. 99. 
41 S. E. (2d1 631 (1947). 

Business license tax. — A license tax 
which applies uniformly to all persons and 
property within the area to which it is appli- 
cable does not deny equal protection of the 
laws. Hay v. Leonard, 212 S. C. 81, 46 
S. E. (2d) 653 (1948). 

Business tax on wholesalers. — The clas- 
sification as to wholesalers set up by § 47- 
271 of the Code is neither arbitrary, ca- 
pricious, nor unreasonable, and does not 
violate the equal protection clauses of this 
section and Art. 1. § 5 of the State Con- 
stitution. Ponder v. Greenville, 196 S. C. 
79, 12 S. E. (2d) 851 (1941). 

Carrier as agent of connecting carrier. — 
Section 58-574, making each carrier the 
agent of its connecting carrier from which 
it receives freight and liable for neglect 
of such connecting carrier, is not a viola- 



tion of this amendment as denying to the 
carrier the equal protection of the law. 
Venning v. Atlantic Coast Line R. Co., 
78 S. C. 42, 58 S. E. 983 (1907). Editor's 
note. — This section was declared unconstitu- 
tional as to interstate commerce, in the 
above case, as a restraint on such com- 
merce). 

County exempt from stock law. — An a;t 
exempting a certain portion of a named 
county from the operation of the general 
stock law between certain dates in each 
year does not violate S. C. Const., Art. 1, 
§ 5, and this amendment by denying the 
equal protection of the laws because it im- 
poses on citizens in said exempt section the 
burden of fencing the cultivated lands when 
the same burden is not required of other 
citizens of the countv. Brown v. Tharpe, 
74 S. C. 207, 54 S. 'e. 363 (1906). 

Delay in transporting freight. — Section 
58-562, imposing a penalty on railroad com- 
panies for delay in transporting freight, 
does not contravene this amendment. 
Thweat v. Atlantic Coast Line R. Co. 
(S. C.) 67 S. E. 15 (1910); McCutchen v. 
Atlantic Coast Line R. Co., 81 S. C. 71, 
61 S. E. 1108 (1908). 

Discretion of Insurance Commissioner. — 

In the exercise of discretion given him by 
statute (1942 Code § 7967, repealed by 1947 
(45) 322), providing that before licensing 
an insurance company, he may require it 
to deposit an approved bond or securities 
and shall be satisfied that the applicant 
is qualified, safe, and solvent, the act of 
the Insurance Commissioner in requiring 
one applicant to deposit an approved bond 
and another to deposit approved securities 
is not a denial of the equal protection of 
the law guaranteed bv this amendment. 
State V. McMaster, 94 S. C. 379, 77 S. E. 
401 (1912), affirmed in 237 U. S. 63, 35 
S. Ct. 504, 59 L. Ed. 839 (1915). 

Failure to pay subcontractors. — Section 
45-3021, providing that a contractor may be 
imprisoned for failure to pay his subcon- 
tractors, does not violate this amendment. 
State V. Hertzog, 92 S. C. 14, 75 S. E. 
374 (1912). 

Foreign insurance company agent. — .\n 
act providing the conditions on which a li- 
cense to do business in the State may be 
issued to the agent of a foreign insur- 
ance company, and providing that the war- 
rant of his appointment required to be filed 
with the comptroller general shall continue 
valid and irrevocable until another agent 
has been substituted in order that the com- 
pany may continually have in the State 
an agent on whom process may be served, 



52 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



confers no right on the company to con- 
tinue business in the State after its license 
has expired so as to entitle it to the pro- 
tection of this amendment providing that 
the State shall not deny to any person 
within its jurisdiction the equal protection 
of its laws. Iilut. Life Ins. Co. v. McMas- 
ter, 84 S. C. 495. 66 S. E. 877 (1910). 

Gasoline tax refund. — Section 65-1101, 
providing for refund of five cents of the 
gasoline tax to purchasers of gasoline 
used only in farm operations, does not vio- 
late the equal protection of the laws pro- 
vision. State V. Querv, 207 S. C. 500, 27 
S. E. (2d) 241 (1946). 

Graduated income tax. — A former sec- 
tion of the Code (see 1902 Code §325) 
which placed a graduated tax on incomes 
was held not unconstitutional as denying 
equal protection of the laws required by 
this amendment, since the State legislature 
has the right to make reasonable classifica- 
tions of persons and property for public 
purposes, provided they bear a reasonable 
relation to the purposes to be affected. If 
the constituents of each class are all treat- 
ed alike under similar circumstances and 
conditions, the rule of equal protection of 
the law is satisfied. Alderman v. Wells, 85 
S. C. 507, 67 S. E. 781 (1910). 

Hairdresser regulation. — Section 56-452, 
relating to regulation of hairdressers and 
cosmetologists, does not violate this 
amendment. State v. Ross, 185 S. C. 472, 
194 S. E. 439 (1937), decided prior to 1948 
amendment to this section. 

Hiring road construction labor. — A stat- 
ute providing that, relative to the con- 
struction of highways in Richland Coun- 
ty and whether the construction be by 
contract or otherwise, all laborers and em- 
ployees, except officers, superintendents, or 
skilled mechanics who cannot be obtained 
in the county, shall be actual inhabitants 
of such county as far as practicable is 
merely suggestive or directory in the ab- 
sence of any penalty to enforce it. .^nd 
even if it is mandatory, it does not violate 
this amendment or S. C. Const., Art. 1, 
§ 5, as the legislature, in directing the use 
or disposition of public property or funds 
of the State or a county raised by taxation 
upon the people of either, has the power 
to limit the benefits to be derived there- 
from to the residents of the State or county. 
Lillard v. Melton, 103 S. C. 10, 87 S. E. 421 
(1915). 

Insurance business tax. — Where Con- 
gress passed an act giving the states full 
authority to regulate and tax the business 
of insurance, a statute taxing foreign in- 



surance companies and not domestic insur- 
ance companies does not violate this amend- 
ment. Prudential Ins. Co. v. Benjamin, 
328 U. S. 408, 66 S. Ct. 1142, 90 L. Ed. 
1342 (1946). 

Insurance license fees. — See Prudential 
Insurance Co. v. Murpliv, 207 S. C. 324, 
35 S. E. (2d) 586 (1945), afl^rmed in 328 
U. S. 408, 66 S. Ct. 1142, 90 L. Ed. 1342 
(1946). 

Jury without negro members. — For case 
holding that this amendment was not vio- 
lated where a jury convicted colored defend- 
ants without colored juror sitting on it, see 
State V. Grant, 199 S. C. 412, 19 S. E. (2d) 
638 (1941). 

Evidence did not show that there had 
been an exclusion of negroes from the 
jury in violation of this section of the 
Constitution. State v. Gatlin, 208 S. C. 
414. 38 S. E. (2d) 238 (1946). 

Law school education. — The court cannot 
lay down any definite rule as to just how 
the State College shall set up a law school. 
It is peculiarly a matter for the State 
to regulate and direct its own educational 
facilities. The only restriction to be put 
upon it is the very broad and very definite 
restriction that equal facilities must be 
given to white and colored. If the pro- 
posed law school at the State College places 
negro students on a parity with white stu- 
dents at the University, then the consti- 
tutional rights of the plaintifif and others 
who desire legal education will have been 
satisfied and the State of South Carolina 
will have performed its duty as required by 
the Constitution of the United States and 
the decisions of its courts. Wrighten v. 
Board of Trustees, 72 F. Supp. 948 (1947). 

Motor carrier license fee regulation. — 
Statute regulating motor carriers which ex- 
empted farmers or dairymen hauling dairy 
or farm products, and also lumber haulers 
engaged in transporting lumber and logs 
from forest to shipping points, was held 
not unconstitutional as discriminatory. 
State V. Hicklin, 168 S. C. 440, 167 S. E. 
674 (1933), affirmed in 290 U. S. 169, 54 S. 
Ct. 142, 78 L. Ed. 247 (1933). 

Motor vehicle weight regulation. — A stat- 
ute regulating the width and weight of 
motor vehicles was held not to violate this 
amendment for the State legislature, in 
adopting this regulation, acted within its 
province, and the means of regulation 
chosen were reasonably adapted to the 
end sought. South Carolina State High- 
way Dept. V. Barnell Bros., 303 U. S. 177, 
58 S. Ct. 510, 82 L. Ed. 734 (1938). reh. 
denied 303 U. S. 625, 58 S. Ct. 483, 82 
L. Ed. 702 (1938). 



53 



Amend. XIV 



Constitution of the United States 



Amend. XIV 



In State v. John P. Nutt Co., 180 S. C. 
19, 185 S. E. 25 (1935), an act regulat- 
ing the size and weight of trucks was up- 
held as a valid exercise of the police pow- 
er not in violation of this amendment to 
the Constitution, notwithstanding the fact 
that the defendant owned several trucks 
which were made illegal by the terms of 
the act. 

Paying damages on freight. — Section 
58-594, providing a penalty on common 
carriers for failure to pay or refusal to pay 
damages on freight within a certain time, 
is not in violation of this amendment as 
denying equal protection of law. Porter v. 
Charleston & S. Ry. Co., 63 S. C. 169, 
41 S. E. 108 (1902); Seegers Eros. v. Sea- 
board, etc., Rv., 71 S. C. 71, 52 S. E. 797 
(1905), affirmed in 207 U. S. 73, 28 S. Ct. 
28, 52 L. Ed. 108 (1907). 

Paying wages other than by money. — 
Sections 40-132 and 40-133, declaring it un- 
lawful for any corporation, person, or firm 
to issue or circulate for payment of wages 
any order, check, memorandum, or evi- 
dence of indebtedness payable otherwise 
than in lawful money of the United States, 
unless the same is negotiable in cash or 
in goods at the option of the holder at the 
store of such firm, etc., do not violate this 
amendment guaranteeing equal protection 
of the laws. Johnson, Lvtle & Co. v. Spar- 
tan Mills, 68 S. C. 339, 47 S. E. i.9S (1904). 

Presumption of negligence as to railway 
crossing collision. — In Ford v. Atlantic 
Coast Line R. Co., 169 S. C. 41, 168 S. E, 
143 (1932), afllrmed in 287 U. S. 502, 53 
S. Ct. 249, n L. Ed. 457 (1933), a statute 
construed as creating a rebuttable presump- 
tion that failure to give crossing signals 
was the pro.ximate cause of a crossing col- 
lision was held not repugnant to equal 
protection of laws clause because such 
presumption applies only to railroads and 
not to motor carriers or others. 

Probate court estate settlement fees. — 
Section 27-319 of the Code, in effect a local 
inheritance tax law, is entirely uniform in 
its application within the territory to which 
it applies, and thus does not run counter 
to the equal protection and due process 
clauses of the Constitution. Anderson -. 
Page, 208 S. C. 146, Zl S. E. (2d) 289 
(1946). 

Railroad for corporate use only. — Section 
12-103, giving corporations organized under 
Title 12, Chapter 2 the power to construct 
railroads and canals for their own use and 
to eft'ect a crossing with an\ existing rail- 
road or public road, but giving no power 
to condemn lands except for crossing exist- 
ing railroads or public roads, is not in vio- 



lation of this amendment as denying equal 
protection of the laws because it denies to 
existing railroads the right to condemn 
crossing over tramroads, electric railways, 
turnpikes, and canals. Alderman & Sons 
Qo. V. Wilson Lumber Co., 11 S. C. 165, 
57 S. E. 756 (1907). 

Subdistrict improvement costs. — Where 
in an improvement district a new subdis- 
trict is formed or one already existing is 
enlarged, those owning property therein 
are not entitled to be heard on distribution 
of the costs of the sewer systems among 
the different properties in the district. Re- 
specting this the legislature itself has fixed 
the basis of assessment, and has deter- 
mined that the cost of these improvements 
should be borne by a uniform assessment 
on all property within the district. It is not 
necesary, therefore, to determine whether 
one lot of land will be benefited more than 
another, nor to apportion the burden of 
the costs among the particular property 
owners. Sanders v. Greater Greenville 
Sewer District, 211 S. C. 141. 44 S. E. (2d) 
185 (1947). 

Suit against foreign corporations. — A 
statute relating to venue is not unconstitu- 
tional as discriminatory because it singles 
out individuals and domestic and foreign 
corporations operating as motor carriers 
and permits actions to be maintained 
against them in counties other than those 
in which they reside or have an agent and 
maintain an oflice, while other individuals 
or corporations making the same or similar 
use of the highways, but not operating as 
motor carriers for hire, may be sued only 
in the county in which they reside or main- 
tain an office and have an agent. This classi- 
fication is not arbitrarv or unreasonable. 
Windham v. Pace, 192 S. C. 271, 6 S. E. 
(2d) 270 (1939). 

Tax exempt stadium bonds. — An act au- 
thorizing city to construct a stadium, and 
exempting from ta.xation bonds issued there- 
for, was held not invalid because con- 
stituting unfair discrimination against 
bonds of other business enterprises. Cath- 
cart V. Columbia, 170 S. C. 362, 170 S. E. 
435 (1933). 

Tax on dividends and interest. — Tax on 
dividends and interest received by in- 
dividuals in excess of one hundred dollars 
is not unconstitutional for the reason that 
corporations, estates, and fiduciaries are 
e-xempted, for the two are in separate and 
distinct classes, and the legislature has ex- 
ercised its discretion and power to classify 
in this respect. Marshall v. South Carolina 
Tax Comm., 178 S. C. 57, 182 S. E. 96 
(1935). 



54 



Amend. XV 



Constitution of the United States 



Amend. XVIl 



Tax on imported gasoline. — Section 65- 
1081 of the Code, imposing a tax on gaso- 
line imported into the State and stored 
for future consumption, was held not un- 
constitutional as discriminatory. Gregg 
Dyeing Co. v. Query, 166 S. C. 117, 164 
S. E. 588 (1931), affirmed in 286 U. S. 472, 
52 S. Ct. 631, 76 L. Ed. 1232 (1932). 

Usury law penalty. — When §8-9, provid- 
ing for penalty for violations of usury law, 
and § 30-203, pertaining to construction of 
words, are construed together, corporations 
are included within the usury provisions and 



hence that section does not amount to a 
denial of equal protection of the laws. 
State V. Riddle, 160 S. C. 477, 158 S. E. 
833 (1931). 

Workmen's compensation residence re- 
quirement. — The requirement of § 72-169 
of the Code, making an employee be a 
resident of this State before he can recover 
under the Workmen's Compensation Law 
for accidents occurring without the State, 
does not violate this amendment. Tedars 
v. Savannah River Veneer Company, 202 
S. C. 363, 25 S. E. (2d) 235 (1943). 



Article XV. 

§ 1. Right to vote not to be abridged. 

The right of citizens of the United States to vote shall not be denied or 
abridged by the United States or by any state on account of race, color, or 
previous condition of servitude. 



§ 2. Powrer to enforce article. 

The Congress shall have power to enforce this article by appropriate legis- 
lation.^^ 



Inhibition of negro voting. — Where a bill 
is brought to restrain a State election 
officer from discharging certain duties rela- 
tive to enforcement of State registration 
laws and where the plaintiff fails to allege 
infringement of property or civil rights, 
such bill cannot be maintained in a court 
of equity. Green v. Alills, 69 F. 852 (1895), 
appeal dismissed in 159 U. S. 651, 16 S. 
Ct. 132, 40 L. Ed. 293 (1895). 

State election machinery includes pri- 
maries. — Where the State legislature re- 
pealed all laws relating to primary electons 



and a negro was denied the right to vote 
in a primary election because of Democratic 
party rules limiting primary elections to 
white persons, the court held that the 
negro was entitled to injunctive relief as 
the primary elections were still part of the 
election machinery of the State. Rice v. 
Elmore, 165 F. (2d) 387 (1947), cert, 
denied 333 U. S. 875, 68 S. Ct. 905, 92 L. Ed. 
1151 (1948). 

Cited in Butler v. EUerbe, 44 S. C. 256, 
22 S. E. 425 (1895). 



Article XVI. 
Income tax. 

The Congress shall have power to levy and collect taxes on incomes, from 
whatever source derived, without apportionment among the several states, 
and without regard to any census or enumeration.^* 

Quoted in United States v. Woodside, 34 
F. Supp. 281 (1940), modified in 118 F. (2d) 
963 (1941). 

Article XVII. 
Election of Senators. 

The Senate of the United States shall be composed of two Senators from 
each state, elected by the people thereof, for six years ; and each Senator shall 



23. Proposed bv Congress on February 26, 1869, and declared ratified on March 30, 
1870. 

24. Proposed by Congress on July 12, 1909, and declared ratified on February 25, 1913. 

5S 



Amend. XVIII Constitution of the United States Amend. XIX 

have one vote. The electors in each state shall have the qualifications requisite 
for electors of the most numerous branch of the state legislatures. 

When vacancies happen in the representation of any state in the Senate, 
the executive authoritj' of such state shall issue writs of election to fill such 
vacancies : Provided, That the legislature of any state may empower the exec- 
utive thereof to make temporary appointment until the people fill the vacancies 
by election as the legislature may direct. 

This amendment shall not be so construed as to affect the election or term 
of any Senator chosen before it becomes valid as part of the Constitution.*^ 

Article XVIII. 

§ 1. National liquor prohibition. 

After one year from the ratification of this article the manufacture, sale, or 
transportation of intoxicating liquors within, the importation thereof into, or 
the exportation thereof from the United States and all territory subject to the 
jurisdiction thereof for beverage purposes is hereby prohibited. 

§ 2. Power to enforce article. 

The Congress and the several states shall have concurrent power to enforce 
this article by appropriate legislation. 

§ 3. Ratification within seven years. 

This article shall be inoperative unless it shall have been ratified as an 
amendment to the Constitution by the legislatures of the several states, as 
provided in the Constitution, within seven years from the date of the sub- 
mission hereof to the states by the Congress.*^ 

Article XIX. 

Woman suffrage. 

The right of citizens of the United States to vote shall not be denied or 
abridged by the United States or by any state on account of sex. 

Congress shall have power to enforce the provisions of this article by ap- 
propriate legislation." 

Amendment itself does not confer suf- women, it does not thereby give them the 

frage. — This amendment, providing that right to serve as jurors. State v. Mittle. 

the right to vote shall not be denied on 120 S. C. 526, 113 S. E. 335 (1922). 

account of sex, does not itself confer the Excluded party only may raise jury duty 

right of suffrage upon women. It merely issue. — The defendant in a criminal case 

prohibits discrimination, leaving the states cannot raise the question that the exclu- 

to confer the right. State v. Mittle, 120 sion of woman from jury duty violated this 

S. C. 526, 113 S. E. 335 (1922). amendment, since he is not a member of 

Or permit jury duty. — Even if this amend- the alleged excluded class. State v. Mittle, 

ment granted the right of suffrage to 120 S. C. 526, 113 S. E. 335 (1922). 



25. Proposed by Congress on May 13, 1912, and declared ratified on May 31, 1913. 

26. Proposed by Congress on December 18, 1917, and declared ratified on January 29, 
1919. Repealed by 21st Amendment. 

27. Proposed by Congress on June 4, 1919, and declared ratified on August 26, 1920. 

56 



Amend. XX Constitution of the United States Amend. XXI 

Article XX. 
§ 1. Terms of office. 

The terms of the President and Vice President shall end at noon on the 
20th day of January, and the terms of Senators and representatives at noon on 
the 3rd day of January, of the years in which such terms would have ended 
if this article had not been ratified; and the terms of their successors shall then 
begin. 

§ 2. Time of convening Congress. 

The Congress shall assemble at least once in every year, and such meeting 
shall begin at noon on the 3rd day of January, unless they shall by law appoint 
a different day. 

§ 3. Death of President elect. 

If, at the time fixed for the beginning of the term of the President, the 
President elect shall have died, the Vice President elect shall become Presi- 
dent. If a President shall not have been chosen before the time fixed for the 
beginning of his term, or if the President elect shall have failed to qualify, then 
the Vice President elect shall act as President imtil a President shall have 
qualified ; and the Congress may by law provide for the case wherein neither 
a President elect nor a Vice President elect shall have qualified, declaring who 
shall then act as President, or the manner in which one who is to act shall be 
selected, and such person shall act accordingly until a President or Vice Pres- 
ident shall have qualified. 

§ 4. Election of the President. 

The Congress may by law provide for the case of death of any of the persons 
from whom the House of Representatives may choose a President whenever 
the right of choice shall have devolved upon them, and for the case of the 
death of any of the persons from whom the Senate may choose a Vice Pres- 
ident whenever the right of choice shall have devolved upon them. 

§ 5. Effective date of sections 1 and 2. 

Sections 1 and 2 shall take effect on the 15th day of October following the 
ratification of this article. 

§ 6. Ratification within seven years. 

This article shall be inoperative unless it shall have been ratified as an 
amendment to the Constitution by the legislatures of three fourths of the 
several states v^rithin seven years from the date of its submission.^' 

Article XXI. 

§ 1. National liquor prohibition repealed. 

The eighteenth article of amendment to the Constitution of the United 
States is hereby repealed. 



28. Proposed by Congress on March 2, 1932, and declared ratified on February 6, 1933. 

57 



Amend. XXII Constitution of the United States Amend. XXII 

§ 2. Transportation of liquor into "dry" state. 

The transportation or importation into any state, territory, or possession of 
the United States for delivery or use therein of intoxicating liquors, in violation 
of the laws thereof, is hereby prohibited. 

§ 3. Ratification within seven years. 

This article shall be inoperative unless it shall have been ratified as an 
amendment to the Constitution b}- conventions in the several states, as pro- 
vided in the Constitution, within seven years from the date of the submission 
hereof to the states by the Congress.** 

Liquor is now regulated by states. — Under in each state. One Hundred Second Cav- 
this amendment the matter of controlHng airy Officers Club v. Heise, 201 S. C. 68, 
alcoholic liquors is now completely vested 21 S. E. (2d) 400 (1942). 

Article XXII. 
§ 1. Terms of office of the President. 

No person shall be elected to the office of the President more than twice, 
and no person who has held the office of President, or acted as President, for 
more than two years of a term to which some other person was elected Pres- 
ident shall be elected to the office of the President more than once. But this 
article shall not apply to any person holding the office of President when this 
Article was proposed by the Congress, and shall not prevent any person who 
may be holding the office of President, or acting as President, during the term 
within which this article becomes operative from holding the office of President 
during the remainder of such term. 

§ 2. Ratification within seven years. 

This article shall be inoperative unless it shall have been ratified as an 
amendment to the Constitution by the legislatures of three fourths of the 
several states within seven years from the date of its submission to the states 
by the Congress.^" 



29. Proposed by Congress on February 20, 1933, and declared ratified on December 5, 
1933. 

30. Proposed by Congress on March 24, 1947, and declared ratified on March 1, 1951. 



58 



INDEX TO THE CONSTITUTION OF THE 
UNITED STATES 



Absence — 

members of Congress, compelling at- 
tendance of. US Const, Art. 1, § 5, 
cl. 1. 
Vice President, Senate to choose presi- 
dent pro tern, in case of. US Const, 
Art. 1, §3, cl. 5. 
Account of receipts and expenditures, to be 
published. US Const, Art. 1, § 9, par. 
7. 
Accused persons, rights of. US Const, 6th 

Amend. 
Adjournment of Congress, see Congress, 

infra. 
Admiralty jurisdiction, judicial power to 
extend to. US Const, Art. 3, § 2. cl. 1. 
Admission of States to Union, see States, 

infra. 
Adoption of Constitution — 

debts, etc. validity of, not to be affected. 

US Const, Art. 6, cl. 1. 
provision for. US Const, Art. 7. 
Advice and consent of senate, when Presi- 
dent must have. US Const, Art. 2, § 2, 
cl. 2. 
Affirmation, see Oath, infra. 
Age requirement — 

President. US Const, .A-rt. 2, § 1, cl. 5. 
representative in Congress. US Const, 

Art. 1, § 2, cl. 2. 
senator. US Const, Art. 1, § 3, cl. 3. 
Vice President. US Const, 12th Amend. 
Aid to enemies of the United States as dis- 
qualifying to hold office. US Const, 
Amend. § 3. 
Aliens — 

naturalization, power of congress. US 

Const, Art. 1, §8, cl. 4. 
officers to which ineligible. US Const, 
Art. 1, §2, cl. 5. 
Alliance, states not to enter into. US 

Const, Art. 1, § 10, cl. 1. 
Ambassadors^ 

appointment. US Const, Art. 2, § 2, cl. 
2. 

judicial power in cases affecting. US 

Const, Art. 3, §2, cl. 1. 
nomination. US Const, Art. 2, § 2, cl. 2. 
president to receive. US Const, Art. 2, 

§3. 
Supreme Court's original jurisdiction in 

cases affecting US Const, Art. 3, 

§ 2, cl. 2. 



Amendments — 

Constitution, amendments to-^ 

Congress, power to propose. US 

Const, Art. 5. 
conventions for proposing and rati- 
fying. US Const, Art. 5. 
how made. US Const, Art. 5. 
revenue bills. Senate may propose 
amendments to. US Const, Art. 
1, §7, cl. 1. 
Appointments — 

militia officers, see Militia, infra. 
President, appointment by, see Presi- 
dent, infra, 
public office, appointment to, see Pub- 
lic Office, infra, 
senators, see Senate, infra. 
Apportionment — 

direct taxes. US Const, .Art. 1, § 2, cl. 3. 
representatives. US Const, Art. 1, § 2, 
cl. 3. 
Appropriations — 

army, appropriation for, not to be for 
more than two years. US Const, 
Art. 1, § 8. cl. 12. 
withdrawal of money from treasury 
conditioned upon. US Const, Art. 
1, § 9, cl. 7. 
Approval — 

bills by President. US Const, .■\rt. 1, 

§ 7, cl. 2. 
orders, resolutions, etc. of Congress. 
US Const, Art. 1, § 7, cl. 3. 
Armies — 

appropriations for, limited to two years. 

US Const, Art. 1, § 8, cl. 12. 
Congress may raise and support. US 

Const, Art. 1, § 8, cl. 12. 
Congress may make rules for govern- 
ment of. US Const, Art. 1, §8, cl. 
14. 
President as Commander in Chief of. 
US Const, Art. 2, §2, cl. 1. 
Arms, right to bear, not to be infringed. 

US Const, 2nd .■\mend. 
Arrest, privilege from, of Senators and 
Representatives. US Const, Art. 1, § 6, 
cl. 1. 
Arsenals, Congress to exercise jurisdiction 

over. US Const, Art. 1, §8, cl. 17. 
Arts, Congress may promote. US Const, 

Art. 1, §8, cl. 8. 
Assembly, right of, not to be abridged. 
US Const, 1st Amend. 



59 



Constitution of the United States 



Attainder — 

Congress may not pass bill of. US 

Const, Art. 1, §9, cl. 3. 
state may not pass bill of. US Const, 

Art. 1, § 10. cl. 1. 
treason, attainder of. not to work cor- 
ruption of blood. US Const, Art. 
3, §3, cl. 2. 
Attendance — 

absent members, Congress mav compel. 

US Const, Art. 1, §5, cl. 1. 
arrest during, members of Congress 
privileged from. US Const, Art. 
1, §6, cl. 1. 
Authors, protection of rights of. US 

Const, Art. 1, § 8, cl. 8. 
Bail, excessive, not to be required. US 

Const, 8th Amend. 
Ballot- 
electors to vote by, for President and 
Vice President. US Const. 12th 
Amend. 
House of Representatives to choose 
President by, when. US Const, 
12th Amend. 
Bankruptcy, Congress to establish uni- 
form laws on. US Const, Art. 1, § 8, 
cl. 4. 
Basis of Representation — 

generally. US Const, Art. 1, §2, cl. 3. 
reduction where right to vote is denied. 
US Const, 14th Amend. §2. 
Bills- 
attainder, see Attainder, supra, 
how passed, approved, objected to or 
passed over objection. US Const, 
Art. 1, § 7, cl. 2. 
revenue, to originate in House but may 
be altered in Senate. US Const, 
Art. 1. §7, cl. 1. 
Bills of credit, states not to emit. US 

Const, Art. 1, § 10, cl. 1. 
Borrowing money. Congress, power of. 

US Const, Art. 1, § 8, cl. 2. 
Bounties, payment of debt for, not to be 
questioned. US Const, 14 Amend. § 4. 
Breach of peace, arrest of member of Con- 
gress for. US Const, Art. 1, § 6, par. 
1. 
Bribery, removal of civil officers convicted 

of. US Const, Art. 2, §4. 
Capital crime, presentment or indictment 
of grand jury, when necessary. US 
Const, Sth .A.mend. 
Capitation tax, census as basis of. US 

Const, Art. 1, §9, cl. 4. 
Captures, Congress may make rules con- 
cerning. US Const, .Art. 1, §8, cl. 11. 
Casting vote, Vice-President to have, in 
case of tie in Senate. US Const, Art. 
1, § 3, cl. 4. 



Census — 

capitation tax to be laid on basis of. 

US Const, Art. 1, §9, cl. 4. 
ten years, to be taken at intervals of. 
US Const, Art. 1, § 2, cl. 3. 
Citizen — 

President must be natural-born citizen. 

US Const, Art. 2, § 1, cl. 6. 
privileges and immunities of citizens — 
abridgment of, forbidden. US Const, 

14th Amend., § 1. 
equality of, in several states. US 
Const, .A.rt. 4, §2, cl. 1. 
representative in Congress must have 
been, for seven j'ears. US Const, 
Art. 1, § 2, cl. 2. 
senator must have been citizen for nine 
years. US Const, .\rt. 1, §3, cl. 3. 
suffrage, right of, unabridged on ac- 
count of color, etc. US Const, 15th 
Amend., § 1. 
suits by, against State as not within 
judicial power of United States. 
US Const, 11th Amend. 
United States, citizens of — 

denial of vote to, effect. US Const, 

14th Amend. § 2. 
persons born or naturalized in. US 

Const, 14th Amend., § 1. 
who are. US Const, 14th Amend., 
§1. 
Civil officers, see Public Officers, infra. 
Claims — 

insurrection or rebellion, debts or obli- 
gations occurred in aid of, as il- 
legal. US Const, 14th Amend., §4. 
slaves, claims for loss on emancipation 
of, not to be paid. US Const. 14th 
Amend., § 4. 
state, claims of, not to be prejudiced by 
construction of Constitution. US 
Const, Art. 4, § 3, cl. 2. 
United States, claims of. not to be prej- 
udiced by any construction of Con- 
stitution. US Const, Art. 4, § 3, 
cl. 2. 
Clearance not to be required of vessels 
bound to or from another state. US 
Const, .\rt. 1, § 9, cl. 6. 
Coin — 

foreign. Congress may regulate value of. 

US Const, Art. 1, § 3, cl. 5. 
states may not make anything but. ten- 
der in payment of debts. US Const, 
Art. 1, § 10, cl. 1. 
Coinage of Money — 

Congress, power as to. US Const, Art. 

1, § 8. cl. 5. 
counterfeiting, power of Congress to 
provide for punishment of. US 
Const, Art. 1, §8, cl. 6. 



60 



Index to the Constitution of the United States 



Coinage of Money — Cont'd 

states, coinage as prohibited to. US 
Const, Art. 1, §8, cl. 1. 
Color, right of suffrage, unabridged on ac- 
count of. US Const, 15th .^mend. § 1. 
Comfort given to enemies of United States 
as disqualification for holding office. 
US Const, 14th Amend., § 3. 
Commander in chief of army and navy. 
President to be. US Const, Art. 2, § 2, 
cl. 1. 
Commerce — 

Congress, power of. to regulate. US 

Const, Art. 1, §8, cl. 3. 
officers of United States to receive com- 
missions from president. US 
Const, Art. 2, §3. 
preference in, not to be given to one 
state over another. US Const, .Art. 
1, §9, cl. 6. 
President's power to grant, to fill va- 
cancy in office during recess of Se- 
nate. US Const, Art. 2, §2, cl. 3. 
Common defense, power of Congress to 
provide for. US Const, Art. 1, § 8, cl. 
1. 
Common Law Suits — 

jury trial, right to. US Const, 7th 

Amend, 
rules of common law to prevail in re- 
examination of facts tried by jury. 
US Const, 7th Amend. 
Compacts, States not to make with each 
other, or within foreign powers. US 
Const, Art. 1, § 10, cl. 1. 
Compensation — 

Congress, members of, to receive. US 

Const, Art. 1, §6, cl. 1. 
judges, not to be altered during term 

of office. US Const, Art. 3, § 1. 
President, compensation of, not to be 
altered during term. US Const, 
Art. 2, § 1, cl. 7. 
private property not to be taken for 
public use witliout. US Const, Sth 
Amend. 
Compulsory process, accused to have, for 
obtaining witnesses. US Const, 6th 
Amend. 
Condemnation of private property for pub- 
lic use as requiring compensation. US 
Const, Sth Amend. 
Confederation — 

debts contracted under, to be valid. US 

Const, Art. 6, cl. 1. 
states not to enter into. US Const, Art. 
1, § 10, cl. 1. 
Confessions in open court, persons may be 
convicted for treason on. US Const, 
Art. 3, § 3, cl. 1. 



Confrontation of witnesses, right of ac- 
cused persons to. US Const, 6th 
Amend. 
Congress — 

adjournment — 

consent of either House to adjourn- 
ment of other, when required. 
US Const, Art. 1, § 5, cl. 4. 
President's concurrence not required. 

US Const, Art. 1, § 7, cl. 3. 
President to adjourn in case of dis- 
agreement on adjournment. US 
Const, Art. 2, § 3. 
quorum not required for adjourn- 
ment from dav to day. US 
Const, Art. 1, § S, cl. 1. 
veto as affected by. US Const, .^rt. 
1, § 7, cl. 2. 
arrest, privilege of members from. US 

Const, Art. 1, § 6, cl. 1. 
arts, power of Congress to promote. 

US Const, Art. 1, § 8, cl. 8. 
borrowing power. US Const, Art. 1, 

§ 8. cl. 2. 
Constitution, power of Congress to 
make laws for executing require- 
ments of. US Const, Art. 1, § 8, 
cl. 18. 
death of persons from whom House 
may choose President and Senate a 
■Vice-President, power to provide 
for case of. US Const, 20th Amend., 
§4. 
debates, members not to be questioned 
for speech in. US Const, Art. 1, 
§6, cl. 1. 
election of members — 

judge of. US Const, Art. 1, § 5, cl. 

1. 
time, place and manner of, powers of 
Legislature and Congress as to. 
US Const, Art. 1, §4, cl. 1. 
expulsion of member. US Const, Art. 

1, § 5, cl. 2. 
extraordinary occasion, President may 
convene on. US Const, Art. 2, § 3. 
House of Representatives, see House of 

Representatives, infra, 
incidental powers. US Const, Art. 1, 

§ 8, cl. 18. 
journal, see Journal, infra. 
Legislative powers. Congress as reposi- 
tory of. US Const, Art. 1, § 1. 
members — 

arrest, privilege from. US Const, 

Art. 1, § 6, cl. 1. 
debates, speech in, not to be ques- 
tioned for. US Const, Art. 1, 
§6, cl. 1. 
disorderly behavior, punishment for. 
US Const, Art. 1, § S, cl. 2, 



61 



Constitution of the United States 



Congress — Cont'd 
members — Cont'd 

election, see Election of Members, 

supra, this group, 
expulsion. US Const, Art. 1, § 5, cl. 

2. 
House of Representatives, infra, 
number of. US Const, Art. 1, §2, 

cl. 3. 
Senate, infra, 
powers of^ 

generally. US Const, Art 1, §§ 7, 8. 
particular matters, see appropriate 
lines. 
President — 

convening of Congress by. US Const, 

Art 2, § 3. 
designation by Congress in case of 
failure of President-elect and 
Vice President-elect to qualify. 
US Const, 20th Amend., § 3. 
proceedings — 

journal of, to be kept. US Const, 

Art. 1, § 5 cl. 3. 
rules governing, power to determine. 
US Const, Art 1, § 5 cl. 2. 
quorum, majority of each House to con- 
stitute. US Const, Art. 1, § 5, cl. 1. 
reconsideration of bills returned to. US 

Const, Art 1, § 7, cl. 2. 
representation in — 

abridgment of, by denial of right to 

vote at elections. US Const, 

14th .Amend., § 2. 

apportionment among States. US 

Const, 14th Amend., § 2. 

resolutions to go to President US 

Const, .A.rt. § 7, cl. 3. 
revenue bills, how acted upon. US 

Const, Art. 1, §7, cl. 1. 
rules of proceeding, power of each 
House to determine. Art. 1, § 5, cl. 
2. 
Senate, see Senate, infra, 
sessions of. US Const, .Art. 1, § 4, cl. 2. 
date for beginning. US Const, 20th 
Amend., § 2. 
speeches delivered in, as privileged. US 

Const, Art. 1, § 6, cl. 1. 
two-thirds vote, when required, see Two- 
thirds vote, infra. 
Constitution — 

federal Constitution, provisions of, see 

appropriate lines, 
state constitutions subordinate to that of 
United States. US Const, .Art. 6, 
cl. 2. 

Consuls, judicial power to extend to cases 
affecting. US Const. Art. 3, §2, cl. 1. 

Contracts, impairment of, see Impairment 
of Contracts, infra. 



Conventions for proposing and ratifying 
amendments to the Constitution. US 
Const, Art. S. 
Copyrights, Congress mav provide for grant 

of. US Const. Art. 1, §8, cl. 8. 
Corruption of blood, attainder of treason not 

to work. US Const, Art. 3, § 3, cl. 2. 
Counsel, right of accused to. US Const, 

6th Amend. 
Counterfeiting, Congress may provide for 
punishment of. US Const, Art. 1, § 8, 
cl. 6. 
Courts — 

Congress, power of, to establish, US 

Const, Art. 1, § 8, cl. 9. 
inferior. Congress can constitute. US 

Const, Art. 1, § 8, cl. 9. 
inferior officers in courts of law, who 
may appoint. US Const, Art. 2, 
_ §2, cl. 2. 

judicial power of United States, in what 
courts vested. US Const, Art. 3, 
§ 1. 
jury trial, see Jury Trial. 
Supreme Court, see Supreme Court, 
infra. 
Credit- 
bills of, states not to emit. US Const, 

Art, 1, § 10, cl. 1. 
other states, acts, records, etc. of, see 

Full Faith and Credit. 
United States, borrowing money on 
credit of. US Const, Art. 1, §8, 
cl. 2. 
Crime — 

accused persons, rights of. US Const, 

6th .Amend, 
capital, how persons held to answer for. 

US Const, Sth .Amend, 
extradition, see Extradition, 
fugitives from justice, see Fugitives 

from Justice, 
jury trial, right of. see Jury Trial, 
place of trial, power of Congress to 
prescribe when not committed with- 
in any state. US Const, .Art. 3, 
§2, cl. 3. 
punishment of, as exception to prohibi- 
tion of involuntary servitude. US 
Const, 13th Amend, 
suffrage, right of, may be denied to 
persons convicted of. US Const, 
14th Amend., § 2. 
Criminal cases, none compelled to testify 
against themselves in. US Const, 14th 
Amend., § 2. 
Cruel punishments, not to be inflicted. US 

Const. Sth .Amend. 
Customs Duties — 

Congress, power of, to lay and collect. 
US Const, Art 1, §8, cl. 1. 



62 



Index to the Constitution of the United States 



Customs Duties — Cont'd 

exportations from any State, duties not 
to be laid on. US Const, Art. 1, 
§ 9, cl. S. 
importation of persons. US Const, .'\rt. 

1, §9, cl. 1. 

State may not impose without consent 
of Congress. US -Const, Art. 1, § 10, 
cl. 2. 
Death- 
President and Vice-President, duty of 
Congress in case of. US Const, Art. 

2, § 1, cl. 6. 

President-elect, provision in case of. US 
Const, 20th .\mend., §3. 
Debate, speech in, as privileged. US Const, 

Art. 1, § 6, cl. 1. 
Debts- 
insurrection, debts incurred in support 
of not to be assumed. US Const, 
14th Amend., § 4. 
legal tender in payment of, see Legal 

Tender, 
public debt, see Public Debt. 
Defense — 

criminal prosecution, rights of accused. 

US Const, 5th .■\mend. 
United States, provision for. US Const, 
Preamble; Art. 1, §8, cl. 1. 
Delaware, representation of. in first Con- 
gress. US Const, Art. 1, § 2, cl. 3. 
Departments — 

appointing powers may be vested by 
Congress in heads of. US Const, 
Art. 2, § 2, cl. 2. 
opinions of heads of, may be recjuired 
by President. US Const, Art. 2, 
§ 2, cl. 1. 
Direct Taxes — 

apportionment. US Const, Art. 1, § 2, 

cl. 3. 
census as governing laying of. US 
Const, Art. 1, § 9, cl. 4. 
Disabilities to hold office, removal of. US 

Const, 14th .A.mend., § 3. 
Discoveries, securing exclusive rights to 
inventors. US Const, Art. 1, § 8, cl. 8. 
Disorderly behavior. Congress may punish 
members for. US Const, Art. 1, § 5, 
cl. 2. 
Disqualifications — 

members of Congress, see House of 

Representatives; Senate, infra. 

public officers, see Public Ofticers, infra. 

District of Columbia, Congress to legislate 

exclusively for. US Const, Art. 1, § 8, 

cl. 17. 

Dock yards, exclusive power of Congress 

over. US Const, Art. 1, §8, cl. 17. 
Domestic tranquility, Constitution as estab- 
lished to insure. US Const, Preamble. 



Domestic violence. United States to protect 
each State against. US Const, .^rt. 
4, §4. 
Double jeopardy forbidden. US Const, 5th 

Amend. 
Due process, constitutional guarantees of. 
US Const, 5th Amend.; 14th Amend., 
§1. 
Duties — 

customs duties, see Custom Duties, 
tonnage duties, see Tonnage Duties. 
Effect, right to security in. US Const, 4th 

Amend. 
Elections — 

Congress, members of, see House of 

Representatives, Senate, infra, 
decreased representation as consequence 
of denial of right to vote at. US 
Const, 14th Amend., § 2. 
electoral college, see Electoral College, 

infra, 
members of Congress, see Congress, 

supra. 
President. US Const, Art. 2, § 1. 
Vice President, see Vice President, infra. 
Electoral College — 

appointment of electors. US Const, 

Art. 2, § 1, cl. 2. 
ballot, vote to be by. US Const, 12th 

Amend. 
Congress maj' appoint time of choosing 
electors. US Const, .^rt. 2, § 1, cl. 
4. 
majority vote as necessary to elect 
President or Vice President. US 
Const, 12th Amend, 
member of House of Representatives 
cannot be an elector. US Const, 
Art. 2, § 1, cl. 2. 
office holders under United States dis- 
qualified as electors. US Const, 
Art. 2, § 1, cl. 2. 
qualifications of members. US Const, 
Art. 2, § 1, par. 2; 14th Amend., 
§3. 
senator cannot be an elector. US Const, 

Art. 2, § 1, cl. 2. 
vote, how given and transmitted. US 
Const, 12th Amend. 
Electors, see Electoral College, supra. 
Eligibility for public office, see Public Of- 
ficers, infra. 
Emancipated slaves, claims for, not to be 

paid. US Const, 14th Amend., § 4. 
Eminent domain, taking of private property 
by, as requiring compensation. US 
Const, 5th Amend. 
Emolument — 

compensation of Federal officers, see 
Compensation, supra. 



63 



Constitution of the United States 



Emolument — Cont'd 

United States officer not to accept from 
foreign power without consent of 
Congress. US Const, Art. 1, § 9, 
cl. 8. 
Enemies of United States — 

disqualification for office by giving aid 
or comfort to. US Const, 14th 
Amend., § 3. 
treason by adherence to. US Const, .A.rt. 
3, §3, cl. 1. 
Enumeration — 

Constitution, enumeration of rights in, 
not to disparage other rights. US 
Const, 9th .Amend, 
inhabitants, see Census. 
Equal protection, constitutional guaranty 

of. US Const, 14th Amend., § 1. 
Equal suffrage in Senate, no State to be 
deprived of, without its consent. US 
Const, Art. S. 
Equity, judicial power to extend to cases 

in. US Const, Art. 3, § 2. 
Establishment of religion not within power 

of Congress. US Const, 1st Amend. 
Excises, see Taxation. 

Exclusive rights to writings and discoveries, 
securing of, to authors and inventors. 
US Const, Art. 1, §8, cl. 8. 
Executive .Authority — 

executive power as invested in President. 

US Const, Art. 2, § 1, cl. 1. 
of any state to issue writs for election 
to fill vacancies in House of Repre- 
sentatives. US Const, .Art. 1, § 2, 
cl. 4. 
Expenditures, statements of, to be pub- 
lished. US Const, Art. 1, § 9, cl. 7. 
Exports — 

state not to lay duty on, without consent 

of Congress. US Const, Art. 1, 

§ 10, cl. 3. 

United States not to lay duty on. US 

Const, Art. 1, § 9, cl. 5. 

E.x post facto laws, prohibited. US Const, 

Art, 1, §9, cl. 3; Art. 1, §10, cl. 1. 
Expulsion, member of Congress. US 

Const, Art. 1, §5, cl. 2. 
Extradition, fugitives from justice. US 

Const, Art. 4, §2, cl. 2. 
Extraordinary occasion. President may con- 
vene Congress on. US Const, -Art. 
2, §3. 
Felony^ 

arrest of member of Congress charged 

with. US Const, .Art. 1, §6, cl. 1. 

fugitives charged with, to be delivered 

up. US Const. .Art. 4, § 2, cl. 2. 
high seas, felonies on, power of Congress 
to define and punish. US Const. 
Art. 1, § 8, cl. 10. 



Fines, excessive, not to be imposed. US 

Const, 8th -Amend. 
Foreign coin, power of Congress to regulate 
value of. US Const, Art. 1, § 8, cl. 5. 
Foreign commerce, see Commerce, supra. 
Foreign Nations — 

commerce with, power of Congress to 
regulate. US Const, .Art." 1, §8, 
cl. 3. 
compacts with, not to be entered into 
by states. US Const, Art. 1, § 10, 
cl. 3. 
presents from, not to be accepted with- 
out consent of Congress. US Const, 
Art. 1,§9, cl. 8. 
suits by subject of. against state, as not 
within judicial power of United 
States. US Const, Art. 11. 
Forfeiture, attainder of treason not to work 
forfeiture beyond life of person at- 
tainted. US Const, .Art. 3, § 3, cl. 2. 
Forts, exclusive power of Congress over. 

US Const, Art. 1, §8, cl. 17. 
Freedom of religion, see Religious Free- 
dom, infra 
Freedom of speech and press, constitutional 

guaranty of. US Const, 1st Amend. 
Fugitives — 

from justice, to be delivered up by 
asylum state on requisition. US 
Const, .Art. 4, § 2, cl. 2. 
from servitude, to be delivered up. US 
Const, .Art. 4, § 2, cl. 3. 
Full Faith and Credit — 

judicial proceedings of a state. US 

Const, .Art. 4, § 1. 
public acts, etc. of a state. US Const, 
Art. 4, § 1. 
General Welfare — 

Congress, power of to provide for. US 

Const, .Art. 1, § 8, cl. 1. 
Constitution established to promote. US 
Const, Preamble. 
Georgia, representation of, in first Congress. 

US Const, Art. 1, §2, cl. 3. 
Gold coin, power of state to make legal 

tender. US Const, Art. 1, § 10, cl. 1. 
Good behavior, judges to hold office during. 
US Const, Art. 3, § 1. 

Government — 

republican form of, guaranteed. US 

Const, .Art. 4, §4. 
seat of. exclusive power of Congress to 
legislate for. US Const, Art. 1, 
§8, cl. 17. 
United States, Congress to make laws 
for. US Const, Art. 1, § 1. 
Grand jury, necessity of presentment by. 

US Const, Sth Amend. 
Grievances, right to petition for redressal. 
US Const, 1st Amend. 



64 



Index to the Constitution of the United States 



Habeas corpus, restrictions on suspension 
of. US Const, Art. 1, § 9, cl. 2. 

Head Tax — 

census as basis. US Const, Art. 1, § 9, 

cl. 4. 
importation of persons. US Const, Art. 
1, §9, cl. 1. 
Honors, receipt of. power of Congress to 
regulate. US Const, Art. 1, § 9, cl. 8. 
House of Representatiifes — 
adjournment — 

day to day, by less than quorum. US 

Const, Art. 1, § 5, cl. 1. 
Senate's consent, when required. US 
Const, Art. 1, § 5, cl. 4. 
election of members^ 

every second year. US Const, Art. 

1, §2, cl. 1. 
judge of, House to be. US Const, 

Art. 1. § 5, cl. 1. 
time, place and manner of holding, 
power to prescribe. US Const, 
Art. 1, §4, cl. 1. 
writs of election to be issued in 
vacancies. US Const, Art. 1, §2, 
cl. 4. 
emoluments of office, increase of, by 
Congress, as precluding appoint- 
ment of member to office. US 
Const, Art. 1, § 6, cl. 2. 
impeachment, power of. US Const, Art 

1, § 2, cl. S. 
journal, see Journal, infra, 
members — 

attendance of, penalties to secure. 

US Const, Art. 1, § 5, cl. 1. 
compensation. US Const. Art. 1, 

§6, cl. 1. 
election, supra, this group, 
expulsion. US Const, Art. 1, § 5, cl. 

2. 
number. US Const, Art. 1, §2, cl. 3. 
oath to support Constitution. US 
Const, .\rt. 6, cl. 3. 
breach of, effect. US Con;t, 14th 
Amend., § 3. 
Presidential elector, member shall not 

be. US Const, Art. 2, § 1, cl. 2. 
privilege from arrest. US Const, Art. 
1, § 6, cl. 1. 
breach of peace an exception. US 

Const, Art. 1, §6, cl. 1. 
treason an exception. US Const, 
Art. 1, § 6, cl. 1. 
punishment. US Const, Art, 1, § S, cl. 

2. 
qualifications — 

age requirement. US Const, .^rt. 
1, §2, cl. 2. 
generally. US Const, Art. 1, § 2, 
cl. 2. 

[7 SC Code]— 5 



House of Representatives — Cont'd 
members — Cont'd 

qualifications — Cont'd 
inhabitancy of State. US Const, 

Art. 1, §2, cl. 2. 
office held under United States as 
disqualifving. US Const, Art. 
1. § 6, cL 2. 
rebellion, participation in, as dis- 
qualifying. Art. 1, § 6, cl. 2. 
returns of. House shall judge of. US 

Const. Art. I, §5, cl. 1. 
terms, beginning and ending of. US 
Const, 20th .\mend., § 1. 
President, when may choose. US Const, 

12th Amend, 
quorum, majority to constitute. US 

Const. Art. 1, § 5. cl. 1. 
revenue bills to originate in. US Const, 

Art. 1, §7, cl. 1. 
rules, power to make. US Const, Art. 

1, § 5, cl. 2. 
speaker and officers, power to choose. 

US Const, Art. 1, §2, cl. S. 
two-thirds vote, when required, see 

Two-thirds vote, infra, 
voting for members of, qualifications of 
voters. US Const, Art. 1, §2, cl. 1. 
Houses, right of people to be secure in. 

4th Amend. 
Immigration, power of Congress to reg- 
ulate. US Const, Art. 1, § 9, cl. 1. 
Immunities, see Privileges and immunities. 
Impairment of contract by state legislation, 
prohibited. US Const, Art. 1, § 10, cl. 
1. 

Impeachment — 

civil officers, removed on impeachment 
and conviction. US Const, Art. 2, 
§4. 
judgment to extend only to removal and 
disqualification. US Const, Art. 1, 
§ 3, cl. 7. 
oath of senators trying. US Const, Art. 

1, § 3, cl. 6. 
pardon in case of, may not be granted 
by President. US Const, Art. 2, 
§2, cl. 1. 
power of, vested in House of Repre- 
sentatives. US Const, Art. 1, § 2, cl. 
5. 
punishment bv law of person convicted 

on. US Const, Art. 1, § 3, cl. 7. 
trial of — 

by Senate. US Const, Art. 1, § 3, cl. 

6. 
jury not required. US Const, Art. 

3, § 2, cl. 3. 
President, Chief Justice to preside. 
US Const, Art. 1, § 3, cl. 6. 



65 



Constitution of the United States 



Impeachment — Cont'd 
trial of — Cont'd 

two-thirds vote necessary for convic- 
tion. US Const, Art. 1, §3, cl. 
6. 
Importation of Persons — 

Congress may prohibit. US Const, Art. 

1, §9, cl. 1. 
head tax on. US Const, Art. 1, § 9, 
cl. 1. 
Imports — 

federal taxation of. US Const, Art. 1, 

§ 8, cl. 1. 
State may not tax without consent of 
Congress. US Const, Art. 1, § 10, 
cl. 2. 
Inability of President or Vice-President, 
who to act in case of. US Const, Art. 
2, § 1, cl. 6. 
Incidental powers of Congress. US Const, 

Art. 1, §8. cl. 18. 
Income tax, power to levy. US Const, 

16th Amend. 
Indians — 

commerce with, power of Congress to 

regulate. US Const, Art. 1, § 8, cl. 3. 

not taxed, excluded in representative 

enumeration. US Const, Art. 1, § 2, 

cl. 3; 14th Amend., §2. 

Indictment, necessity for, to hold to answer 

for crime. US Const, 5th Amend. 
Inferior Courts — 

Congress, power of, to create. US 

Const, Art. 1, § 8, cl. 9. 
judicial power, investment with. US 
Const, Art. 3, § 1. 
Inhabitants, denial of right to vote to, as 
reducing representation. US Const, 
14th Amend., §2. 
Inspection laws. State's power to lay duties 
on imports or exports when necessary 
to execution of. US Const, Art. 1, 
§ 10, cl. 2. 
Insurrection — 

Congress, power of, to provide for sup- 
pression. US Const, Art. 1, § 8, 
cl. IS. 
debts in suppression of, not to be ques- 
tioned. US Const, 14th Amend., 
§ 4. 
disqualification to hold office by partici- 
pation on. US Const, 14th Amend. 
§3. 
militia may be called out to suppress. 

US Const. Art. 1, §8, cl. 15. 
United States to protect each state 
against. US Const, .-Xrt. 4, § 4. 
International law, power of Congress to 
punish offenses against. US Const, 
Art. 1, §8, cl. 10. 
Interstate commerce, see Commerce. 



Intoxicating Liquors — 

prohibition of traffic in. US Const, 18th 
Amend, 
repeal of 18th Amendment. US 
Const, 21st Amend., § 1. 
restrictions of traflic in. US Const, 21st 
Amend., § 2. 
local law, transportation or importa- 
tion in violation of, prohibited. 
US Const, 21st Amend., §2. 
Invasion — 

habeas corpus may be suspended in case 

of. US Const, Art. 1, §9, cl. 2. 
militia may be called out to repel. US 

Const, Art. 1, §8, cl. 15. 
state may engage in war in case of. 
US Const, Art. 1, § 10, cl. 3. 
Inventors, securing exclusive rights to. US 

Const, Art. 1, § 8, cl. 8. 
Jeopardy, persons not to be twice put into. 

US Const, 5th .^mend. 
Journal — 

President's objections and votes on re- 
consideration to be entered on. US 
Const, Art. 1, §7, cl. 2. 
Senate and House to keep and publish. 

US Const, Art. 1, §5, cl. 3. 
yeas and nays, when to be entered on. 
US Const, .A.rt. 1, § 5, cl. 3. 
Judges — 

compensation, not to be altered during 
term of office. US Const, .^rt. 3, 
§1. 
Supreme Court, see Supreme Court, 
infra. 
Judgment — 

full faith and credit, see Full Faith and 

credit, supra, 
impeachment cases, limitations on. US 
Const, Art. 1, § 3, cl. 7. 
Judicial Officers — 

denying of right to vote for, effect of. 

US Const, 14th .■\mend., § 2. 
disqualification by engaging in insur- 
rection. US Const, 14th .\mend., 
§3. 
oath to support Constitution. US Const, 
Art. 6, cl. 3. 
Judicial Power of United States — 

admiralty cases. US Const Art. 3, § 2, 

cl. 1. 
Constitution, cases arising under. US 

Const, Art. 3, § 2, cl. 1. 
consuls, cases affecting. US Const, Art. 

3, §2, cl. 1. 
equity, cases in. US Const, Art. 3, § 2, 

cl. 1; 11th Amend, 
foreign subjects, when extends to actions 

by. US Const, .^rt. 3, §2, cl. 1. 
lands claimed under grants of different 
state, controversies involving. US 
Const, Art. 3, § 2, cl. 1. 

66 [7SCCodeJ 



Index to the Constitution' of the United States 



judicial Power of United States — Cont'd 
limitations on. US Const, Art. 3, § 2, 

cl. 1. 
maritime jurisdiction. US Const, Art. 

3, § 2, cl. 1. 
treaties, cases under. US Const, Art. 3, 

§ 2, cl. 1. 
where vested. US Const, Art. 3, § 1. 
Judicial proceedings, full faith and credit. 

US Const, Art. 4, § 1. 
Jurisdiction of Supreme Court, see Supreme 

Court, infra. 
Jury trial, constitutional guaranty of. US 
Const. -Art. 3, § 2, cl. 3; 6th Amend; 7th 
Amend. 
Justice — 

Constitution ordained to establish. US 

Const, Preamble, 
extradition of fugitives from. US Const, 
Art. 4, § 2, cl. 2. 
Lame duck amendment. US Const, 20th 
Amend. 

Land — 

claimed under grants by different States, 
judicial power as extending to con- 
troversies over. US Const, Art. 3, 
§ 2, cl. 1. 
owned by United States, Congress to 
have power over. US Const, .Art, 
1, §8, cl. 17. 
to be taken only by due process of law. 
US Const, 5th Amend; 14th Amend., 
§1. 
Land and naval forces. Congress to make 
rules for government of. US Const, 
Art. 1, §8, cl. 14. 
Law of nations, see International Law. 
Legal tender. States' power to define, 
restricted to gold and silver coin. US 
Const, Art. 1, § 10, cl. I. 
Legislature of States — 

consent of, to purchase of lands by 
United States. US Const, Art. 1, 
§ 8, cl. 17. 
consent of, when required in forming 
new states. US Const, Art. 4, § 3, 
cl. 1. 
Constitutional amendments, power to 
apply for or ratify. US Const, Art. 
5. 
domestic violence, may apply to United 
States for protection against. US 
Const, Art. 4, § 4. 
elections for members of Congress, legis- 
lature to prescribe time, places, and 
manner holding. US Const, Art. 1, 
§4. cl. 1. 
oath of members to support Constitu- 
tion. US Const, -Art. 6, cl. 3. 
breach of, effect. US Const, 14th 
Amend., § 3. 



Letters of Marque and Reprisal — 

Congress mav grant. US Const, .^rt. 

1, §8. cl. ii. 
State may not grant. US Const, .'\rt. 
1, § 10, cl. 1. 
Liberty, constitutional guaranty of. US 

Const., 5th Amend.; 14th Amend. 
Liquor traffic, see Intoxicating liquors, 

supra. 
Magazines, Congress to have exclusive pow- 
er over. US Const, Art. 1, §8, cl. 17. 
Maritime jurisdiction, judicial power to ex- 
tend to. US Const. .Art. 3, §2, cl. 1. 
Marque, Letters of — 

Congress mav grant. US Const, .Art. 

1, §8, cl. il. 
State may not grant. US Const, Art. 
1, § 10, cl. 1. 
Maryland, representation of, in first Con- 
gress. US Congress. US Const, Art. 
1, § 2, cl. 3. 
Massachusetts, representation of, in first 
Congress. US Const, Art. 1, § 2, cl. 3. 
Measures, standard of. Congress may pre- 
scribe. US Const, Art. 1, § 8, cl. 5. 
Militia — 

arming, power of Congress as to. US 

Const, Art. 1, §8, cl. 16. 
calling out. Congress may provide for. 

US Const, .Art. 1, §8, cl. IS. 
crime during service in time of war or 
public danger, presentment by grand 
jury not required. US Const, 5th 
Amend, 
discipline. Congress mav provide for. 

US Const, Art. 1, §8, cl. 16. 
insurrection, calling out to suppress. US 

Const, Art. 1, §8, cl. 15. 
laws of Union, Congress may call militia 
to execute. US Const, Art. 1, § 8, 
cl. 15. 
necessary to security of free state. US 

Const, 2nd .Amend. 

officers, appointment of, reserved to 

States. US Const, Art. 1, § 8, cl. 15. 

organization of. Congress may provide 

for. US Const, Art. 1, §8, cl. 15. 

president to be commander in chief of. 

US Const, Art. 2, §2, cl. 1. 
right to maintain not to be infringed. 

US Const, 2nd Amend, 
training of, authoritv for, reserved to 
the States. US Const, Art. 1, §8, 
cl. IS. 
Ministers to represent L'nited States abroad, 
appointment of. US Const, Art. 2, 
§ 2, cl. 2. 
Money — 

appropriation as requisite to withdrawal 
from Treasury. US Const, Art. 1, 
§ 9, cl. 7. 



67 



Constitution of the United States 



Money — Cont'd 

borrowing, power of Congress. US 

Const, Art. 1, §8, cl. 2. 
coinage of, see Coinage of money, supra, 
foreign coin, power of Congress to reg- 
ulate value of. US Const, Art. 1, 
§ 8, cl. 5. 
Naturalization — 

citizenship as consequent on. US Const, 

14th Amend., § 1. 
Congress may establish uniform rule for. 
US Const, Art. 1, § 8, cl. 4. 
Navy — 

Congress may make rules for govern- 
ment of. US Const, Art. 1, §8, cl. 
14. 
Congress may provide and maintain. US 

Const, Art. 1, § 8, cl. 13. 
criminal charge against member of, in 
time of war, does not require indict- 
ment or presentment by grand jury. 
US Const, Sth Amend. 
President as commander in chief of. US 
Const, .\rt. 2, §2, cl. 1. 
New Hampshire, representation of mem- 
bers in first Congress. US Const, Art. 
1, §2, cl. 3. 
New States — 

admission, see States, infra, 
erection of, within jurisdiction of an- 
other state, forbidden. US Const, 
Art. 4, § 3, cl. 1. 
New York, representation of, in first Con- 
gress. US Const, Art. 1, § 2, cl. 3. 
Nobility, title of, not to be granted by 
United States or by State. US Const, 
Art. 1, § 10, cl. 1. 
Nominations, President's power to make. 

US Const, Art. 2, § 2, cl. 2. 
North Carolina, representation of, in first 
Congress. US Const. Art. 1, § 2, cl. 3. 
Oath- 
Constitution, oath to support. US Const, 
Art. 2, § 1, cl. 8: Art. 6, cl. 3. 
effect of breaking. US Const, 14th 

Amend., § 3. 
of whom required. US Const, .\rt. 
2, § 1, par. 8; Art. 6, cl. 3. 
office, oath of — • 

President, see President, infra, 
representatives, see House of Repre- 
sentatives, 
senators, see Senators, infra, 
search warrant, oath as required for is- 
suance of. US Const., 4th Amend. 
Obligations of contracts not to be impaired. 

US Const, Art. 1, § 10, cl. 1. 
Office, see Public office. 
Officers — ■ 

House of Representatives to choose 
its own. US Const, Art. 1, § 2, cl. 
5. 



Officers — Cont'd 

public officers, see Public officers, infra. 
Senate to choose its own. US Const, 
Art. 1, § 3, cl. S. 
Opinion of heads of departments. Presi- 
dents, may require. US Const, Art. 2, 
§ 2, cl. 1. 
Order concurred in by both houses of Con- 
gress, presentation to President. US 
Const. Art. 1, § 7, cl. 3. 
Original jurisdiction of Supreme Court, see 

Supreme Court, infra. 
Overt act, testimony of two witnesses, re- 
quired to convict of treason. US Const, 
Art. 3, §3, cl. 1. 
Papers to be secured against unreasonable 

searches. US Const, 4th Amend. 
Pardons — 

impeachment, President mav not pardon. 

US Const, Art. 2, § 2. cl. 1. 
Presidential power. US Const, Art. 2, 
§ 2, cl. 1. 
Peace, Time of — 

quartering of soldiers in any house in. 

US Const, 3rd Amend. 
State not to keep troops in. US Const, 
Art. 1, § 10, cl. 3. 
Pennsylvania, representation of, in first 
Congress. US Const, Art. 1, § 2, cl. 3. 
Pensions, debts incurred in payment of, 
not to be questioned. US Const, Nth 
Amend., § 4. 
People, reserved powers. US Const, 10th 

Amend. 
Petition, right of people to. US Const, 

1st Amend. 
Piracies, on high seas, power of Congress 
to define and punish. US Const, Art. 
1, § 8, cl. 10. 
Pocket veto. US Const, Art. 1, § 7, cl. 2. 
Ports, regulation as to preference, clearing, 

etc. US Const, Art. 1, §9, cl. 6. 
Post offices, power of Congress to establish. 

US Const, Art. 1, §8, cl. 7. 
Post roads, power of Congress to establish. 

US Const, Art. 1, § 8, cl. 7. 
Presents from foreign power not to be 
accepted without consent of Congress. 
US Const, Art. 1, § 9, cl. 8. 
Presentment of grand jury, as required to 
charge crime. US Const, Sth Amend. 

President — 

appointments by, what and how made. 

US Const, Art. 2, § 2, cl. 2. 
approval by, of bills passed by Congress. 

US Const, Art. 1, § 7, cl. 2. 
bills passed by Congress to be presented 

to. US Const, Art. 1, § 7, cl. 2. 
canvassing of vote for. US Const, 12th 

Amend. 



68 



Index to the Constitution of the United States 



President — Cont'd 

commander in chief of army and navy. 

US Const, Art. 2, §2, cl. 1. 
compensation not to be altered during 
term of office. US Const, Art. 2, 
§ 1, cl. 7. 
election of — 

generally, see Electoral College, 
when by House of Representatives. 
US Const. 12th .\mend. 
eligibility for office, see Qualifications 

infra, this group, 
emolument not to be received from any 
state. US Const. Art. 2, § 1, cl. 7. 
executive powers invested in. US Const, 

Art. 2, § 1. cl. 1. 
impeachment. Chief Justice to preside 
at trial. US Const, Art. 1, §3, cl. 6. 
joint resolutions of Congress to be pre- 
sented to. US Const, Art. 1, § 7, 
cl. 2. 
message to Congress. US Const, .Art. 

2, §3. 
nominations, power to make. US Const, 

Art. 2, § 2, cl. 2. 
oath of office. US Const, .\rt. 2, § 1, 

cl. 8. 
pardoning power. US Const, .\rt. 2, § 2, 

cl. 1. 
qualifications — - 

age requirement. US Const, Art. 2, 

§1, cl. 5. 
alien not eligible. US Const, Art. 

2, § 1, cl. S. 
citizenship. US Const, .^rt. 2, § 1, 

cl. S. 
residence. US Const. Art. 2, § 1, cl. 
5. 
removal on conviction on impeachment. 

US Const, Art. 2, § 4. 
reprieves, power to grant. US Const, 

Art. 2, § 2, cl. 1. 
Senate's advice and consent, when neces- 
sary to exercise of powers. US 
Const, Art. 2, §2, cl. 2. 
succession to Presidency, Congress to 
declare. US Const Art. 2, § 1, cl. 6. 
term of office. US Const, Art. 2, § 2, 
cl. 1. 
beginning and ending of. US Const, 
20th .^mend. § 1. 
treaties, power to make. US Const, Art. 

2, § 2, cl. 2. 
vacancy in office — 

power of Congress to provide for. 

US Const, 20th .\mend., §4. 
recess vacancies, power to fill. US 
Const, Art. 2, § 2, cl. 3. 
veto powers, see Veto, infra. 
Vice President, when to act as Presi- 
dent. US Const, .'\rt. 2, § 1, cl. 6. 



President-Elect — 

death of, provision in case of. US 

Const, 20th Amend. §3. 
failure to qualif\'. succession to office in 
case of. US Const, 20th .\mcnd., 
§3. 
Presidential electors, see Electoral college, 

supra. 
President pro tem of Senate. US Const, 

Art. 1, §3, cl. 5. 
Press, constitutional guaranty of freedom 

of. US Const, 1st .-Kniend. 
Private property, taking of for public use 
to be compensated. US Const, 5th 
Amend. 
Privilege from arrest. Congress, members 

of. US Const, Art. 1, § 6, cl. 1. 
Privileges and Immunities of Citizens — • 
abridgement prohibited. US Const, 14th 

.Amend.. § 1. 
equality of treatment. US Const, 4th 
Amend., § 2. 
Process of law. see Due Process, supra. 
Prohibition Amendment. 18th .Amend. 

repeal of. US Const, 21st .Amend. 
Property of United States, power of Con- 
gress over. US Const, .Art. 4, § 3, cl. 2. 
Property rights, constitutional guaranties 
of. US Const, 5th Amend., 14th 
Amend., § 1. 
Proportion of representation. US Const, 

14th .Amend., §2. 
Prosecutions, criminal, rights of accused 

persons in. US Const, 6th .Amend. 
Protection of law, see Equal protection, su- 
pra. 
Public danger, no state to engage in war 
without consent of Congress except in 
time of. US Const, Art. 1, § 10, cl. 3. 
Public debts- 
adoption of Constitution not to affect 

validity. US Const, .Art. 6, cl. 1. 
assumption of. US Const, .Art. 6, cl. 1. 
payment of, power of Congress. US 

Const, Art. 1, § 8, cl. 1. 
validity of, not to be questioned. US 
Const, 14th -Amend. § 4. 
Public Money — 

appropriation required for withdrawal 
from Treasury. US Const, Art. 1, 
§ 9, cl. 7. 
receipts and expenditures of, to be pub- 
lished. US Const, Art. 1, § 9, cl. 7. 
Public ofiice, see Public Officers, infra. 
Public Officers — 

appointment, power of. US Const, .Art. 

2, § 2, cl. 2. 
commission from President. US Const, 

Art. 2, §3. 
disability to hold office, power of Con- 
gress to remove. US Const, 14th 
Amend., § 3. 



69 



Constitution of the United States 



Public Officers — Cont'd 

eligibility, see qualifications, infra, tliis 

group, 
emolument not to be accepted from for- 
eign power without consent of Con- 
gress. US Const, Art. 1, § 9, cl. 8. 
oath to support Constitution. US 

Const, Art. 6, cl. 3. 
presents from foreign power not to be 
accepted by, without consent of 
Congress. US Const, Art. 1, § 9, cl. 
8. 
qualifications — 

aid given to enemies of United States 
as disqualifying to hold office. 
US Const, 'l4th Amend. § 3. 
Congress, members of, disqualified to 
hold other office. US Const, 
Art. 1, §6, cl. 2. 
rebellion, participation in, as disqual- 
ification. US Const, 14th 
Amend. § 3. 
religious test not to be prescribed. 

US Const, Art. 6, cl. 3. 
removal on impeachment and on con- 
viction for various ofienses. US 
Const, Art. 2, §4. 
representatives not to hold other of- 
fice, US Const, Art. 1, § 6, cl. 3. 
senators not to hold other office. US 
Const, Art. 1, §6, cl. 3. 
Public records, full faith and credit. US 

Const, Art. 4, § 1. 
Public safety, suspension of habeas corpus 
in furtherance of. US Const, .•\rt. 1, 
§ 9, cl. 2. 
Public trust, religious test not to be re- 
quired for office of. US Const, .A.rt, 6, 
cl. 3. 
Public use, compensation for property to 
be taken for. US Const, 5th Amend. 
Punishments, cruel and unusual, not to be 

inflicted. US Const, 8th Amend. 
Qualifications — 

Congress, members of, each House shall 
judge of. US Const, Art. 1, §5, 
cl. 1. 
President, see President, supra, 
public ofl'icers, see Public Ofiicers, su- 
pra, 
representative in Congress, see House of 

Representatives, supra, 
senator, see Senate, infra. 
Vice-President, see Vice President, in- 
fra. 
Quartering soldiers in private house, when 

permissible. US Const, 3rd Amend. 
Quorum — 

Congress, see Congress, supra. 
House of Representatives, for election 
of President. US Const, 12th 
Amend. 



Quorum — Cont'd 

Senate, for election of Vice-President. 

US Const, 12th .A.mend. 
what constitutes, in each House. US 
Const, Art. 1, §5, cl. 1. 
Race, right of suffrage not to be abridged 
on account of. US Const, 15th .\mend. 
§1. 
Ratification — - 

amendment, see .\mendments, supra, 
necessary, to put Constitution into ef- 
fect. US Const, Art. 7. 
Rebellion — 

debt incurred in aid of, not to be as- 
sumed. US Const, 14th Amend., 
§4. 
debts for suppression of, not to be ques- 
tioned. US Const, 14th .Amend., 
§4. 
habeas corpus may be suspended in case 
of, where public safety requires. 
US Const, Art. 1, §9, cl. 2. 
participation in, as disqualification for 
holding office. US Const, 14th 
Amend., § 3. 
Receipts and expenditures, statement of, to 
be published. US Const, .A.rt. 1, § 9, 
cl. 7. 
Recess of Senate, President may fill vacan- 
cies during. US Const, Art. 2, § 2, cl. 
3. 
Reconsideration — 

bills objected to by President. US 

Const, Art. 1, §7, cl. 2. 
joint resolution objected to by Presi- 
dent. US Const, Art. 1, § 7, cl. 3. 
Records of each State to have full faith 

and credit. US Const, Art. 4, § 1. 
Redress of grievances, rights of people to 
assemble and petition for. US Const, 
1st .^mend. 
Religion, establishment of, not within pow- 
er of Congress, US Const, 1st Amend. 
Religious freedom, constitutional guaranty 

of. US Const, 1st Amend. 
Religious test, not to be required for qual- 
ification for office. US Const, Art. 6, 
cl. 3. 
Representation in Congress, see Congress. 
Representatives in Congress, see House of 

Representatives. 
Reprieves, President may grant. US 

Const, .A.rt. 2, §2. cl. 1. 
Reprisal — 

Congress mav grant letters of. US 

Const, An. 1, §8, cl. 11. 
State may not grant letters of. US 
Const, Art. 1, § 10, cl. 1. 
Republican form of government guaran- 
teed to states. US Const, Art. 4, § 4. 



;^o 



Index to the Constitution of the United States 



Reserved powers of States or people. US 

Const, 10th Amend. 
Residence, term of, required for President 
or Vice-President. US Const, Art. 2, 
§1, cl. 5. 
Resolution adopted by Congress to be pre- 
sented to President. US Const, Art. 
1, § 7, cl. 2. 
Retained rights. US Const, 9th Amend. 
Returns of its members, each House shall 

judge of. US Const, Art. 1, § 5, cl. 1. 
Revenue Bills — 

amendability by Senate. US Const, Art. 

1, §7, cl. 1. 
origination in House of Representatives. 
US Const. Art. 1, §7, cl. 1. 
Rhode Island, representation of in first 
Congress. US Const, -Art. 1, § 2, cl. 3. 
Rights, enumeration of, in Constitution, not 
to disparage others. US Const, 9th 
Amend. 
Science, Congress may promote, by grant- 
ing exclusive rights. US Const, Art. 
1, §8, cl. 8. 
Searches and seizures, security from. US 

Const. 4th Amend. 
Search Warrant — 

oath required for issuance of. US 

Const, 4th Amend, 
probable cause as essential to issuance. 
US Const, 4th Amend. 
Seat of government, exclusive power of 
Congress over. US Const, Art. 1, § 8, 
cl. 17. 
Secrecy, desirability of, as ground for ex- 
emption from requirement that pro- 
ceedings of Congress be published. US 
Const, Art. 1, § 5, cl. 3. 
Securities of United States, punishing coun- 
terfeiters of, power of Congress to pro- 
vide for. US Const, Art. 1, §8, cl. 6. 
Seizures, right to be secure against. US 

Const, 4th Amend. 
Self-crimination, accused not to be required 
to testify against self. US Const, 5th 
Amend. 
Senate — 

adjournment over three days requiring 
consent of House. US Const, Art. 

1, §5, cl. 4. 

advice and consent of, when President 
must have. US Const, .A.rt. 2, § 2, 
cl. 2. 

appointment of Senators temporarily by 
executives of states. US Const, 
Art. 1, §3, cl. 2, 17th Amend. 

appointments made by President, pow- 
er in respect of. US Const, Art. 

2, § 2, cl. 2. 

arrest, privilege of senators from. US 
Const, .Art. 1, § 6, cl. 1. 



Senate — Cont'd 

attendance of absent members, power to 

compel. US Const, Art. 1, § 5, cl. 1. 
certificates of electors of President, etc. 

to be opened by president of Senate. 

US Const, 12th Amend, 
classification of senators. US Const, 

Art. 1, § 3, cl. 2. 
compensation of senators. US Const, 

Art. 1, §6, cl. 1. 
composition of Senate. US Const, Art. 

1, §3, cl. 1; 17th Amend, 
disqualification of senators to hold cer- 
tain otlier offices. US Const, Art. 

1, § 6, cl. 2. 
election of senators — 

by legislature of State, prior to Con- 
stitutional amendment for elec- 
tion directly by the people. US 
Const, Art. 1,"§3, cl. 1. 
by people. US Const, 17th Amend, 
election returns of own members. Se- 
nate as judge of. US Const, .Art. 

1, § 5, cl. 1. 
emoluments not to be enjoyed by sena- 
tors. US Const, Art. 1, § 6. cl. 2. 
equal suffrage of states in. US Const, 

Art. 5. 
expulsion of member. US Const, Art. 

1, § 5, cl. 2. 
impeachment — 

judgment of. effect. US Const, .Art. 

1, §3, cl. 7. 
sole power to try. US Const, Art. 
1, §3, cl. 6. 
journal, see Journal, supra. 
legislative powers as vested in. US 

Const, Art. 1, § 1. 
list of votes for President and Vice 

President sent to presiding officer. 

US Const, 12th Amend, 
nominations made by President, powers 

in respect of. US Const, .'^rt. 2, 

§ 2, cl. 2. 
oath to support Constitution to be taken 

by members. US Const, Art. 6, 

cl. 3. 
officers, power to choose. US Const, 

Art. 1, § 3, cl. 5. 
president pro tem to be chosen when 

Vice President is absent. US 

Const, Art. 1. § 3. cl. 5. 
privilege from arrest, treason an excep- 
tion. US Const, Art. 1, §6, cl. 1. 
punishment of senators for disorderly 

behavior. US Const, Art. 1, § 5, cl. 

2. 

qualifications of senators — 

age requirement. US Const, .^rt. 1, 
§ 3, cl. 3. 
citizenship. US Const, Art. 1, § 3, 
cl. 3. 



71 



Constitution of the United States 



Senate — Cont'd 

qualifications of senators — Cont'd 

inhabitancy of State. US Const, Art. 

1, §3,cl. 3. 
office holding under United States as 
disqualifying. US Const, Art. 
1, § 6, cl. 2. 
quorum, majority to constitute. US 

Const, Art. 1, § 5, cl. 1. 
returns of members. Senate as judge of. 

US Const, Art. 1, § 5, cl. 1. 
revenue bills, powers in respect of. US 

Const, Art. 1, § 7, cl. 1. 
rules of procedure, power to determine. 

US Const, Art. 1, § S, cl. 2. 
scats of senators, terms at which va- 
cated. US Const, Art. 1, §3. cl. 2. 
term of office of senators. US Const, 
Art. 1. § 3, cl. 2; 17th .^mend. 
beginning and ending of. US Const, 
20th Amend, 
tie vote as entitling Vice President to 
vote. US Const, Art. 1, §3, cl. 4. 
treaties, powers in respect of. US 

Const, Art. 2, § 2, cl. 2. 
two senators from each State. US 
Const, Art. 1, §3, cl. 1; 17th Amend, 
two thirds vote, when required, see Two- 
thirds vote, infra, 
vacancies, how filled. US Const, Art. 

1, § 3, cl. 2; 17th Amend. 
Vice President to be president of. US 

Const, Art. 1, § 3, cl. 4. 
Vice President, when may choose, and 

how. US Const, 12th Amend, 
vote, each senator to have one. US 
Const, Art. 1, § 3, cl. 1; 17th Amend. 
Senators, see Senate, supra. 
Service or labor, person held to, under laws 
of one state, not discharged by escap- 
ing into another. US Const, .'Vrt. 4, 
§ 2, cl. 3. 
Servitude — 

involuntary, prohibited in United States. 

US Const, 13th Amend., § 1. 
previous condition of, not to abridge 
right to vote. US Const, 15th 
Amend., § 1. 
Session of Congress, see Congress. 
Ships of war, no state to keep, without con- 
sent of Congress. US Const, Art. 1, 
§ 10, cl. 3. 
Slaves — 

fugitive, to be delivered up. US Const, 

Art. 4, § 2, cl. 3. 
importation of, how long permitted. US 

Const, Art. 1, § 9, cl. 1. 
loss on emancipation of, not to be paid 
for. US Const, 14th Amend., §4. 
prohibition of slavery in United States. 
US Const, 13th Amend., § 1. 



Slaves — Cont'd 

three-fifths of, included in representa- 
tive numbers. US Const, Art. 1, 
§2, cl. 3. 
Soldiers, not to be quartered in houses in 
time of peace without consent. US 
Const, 3rd Amend. 
South Carolina, representation of in first 
Congress. US Const, Art. 1, § 2, cl. 
3. 

Speaker, election of, by House of Repre- 
sentatives. US Const, Art. 1, § 2, cl. 
5. 
Speech — 

freedom of, not to be abridged. US 

Const, 1st .Amend, 
in debate, members of Congress not to 
be questioned for. US Const, Art. 
1, § 6, cl. 5. 
Standards, weights and measures. Congress 
has power to fix. US Const, Art. 1, 
§ 8, cl. 5. 
State legislature, see Legislature of States, 

supra. 
States — 

admission to Union. US Const, Art. 

4, §3, cl. 1. 
agreements with other state, or foreign 
power, not to be made without con- 
sent of Congress. US Const, Art. 
1, § 10, cl. 3. 
alliances, may not enter into. US Const, 

Art. 1, § 10, cl. 1. 
citizenship in, of resident citizens of 
United States. US Const, 14th 
Amend., § 1. 
citizens of, entitled to privileges of those 
of other states. US Const, Art. 
4, §2, cl. 1. 
commerce among, regulation of, by Con- 
gress. US Const. Art. 1, § 8. cl. 3. 
compacts not to be made by. US Const, 

Art. 1, § 10, cl. 3. 
constitutional amendments to be ratified 
by three fourths of. US Const, Art. 
S. 
custom duties, power to lay, restricted. 

US Const, Art. 1, § 10, cl. 2. 
due process requirement. US Const, 

14th Amend., § 1. 
equal protection requirement. US 

Const., 14th Amend., § 1. 
exports from, not taxable. US Const, 

Art. 1, §9, cl. 5. 
ex post facto laws may not be passed by. 

US Const, Art. 1, § 10, cl. 1. 
extradition of fugitives from justice, see 

Extradition, 
full faith and credit to be given to rec- 
ords, etc. of. US Const, Art. 4, 
§1. 



72 



Index to the Constitution of the United States 



States — Cont'd 

impairment of contract obligations by, 
prohibited. US Const, Art. 1, § 10, 
cl. 1. 

insurrection, state may not assume debt 
incurred in aid of. US Const, 14th 
Amend., § 4. 

invasion, powers in case of. US Const, 
Art. 1, § 10, cl. 3. 

judges in, bound by Constitution and 
laws of United States. US Const, 
Art. 6, cl. 2. 

judicial power over, extent of. US 
Const, Art. 3, §2, cl. 1. 

legal tender, powers in respect of. US 
Const, Art. 1, § 10, cl. 1. 

legislature, see Legislature of States, su- 
pra. 

letters of marque and reprisal, may not 
grant. US Const, Art. 1, § 10, cl. 
1. 

militia, see Militia. 

new states — 

admission to Union. US Const, Art. 

4, § 3, cl. 1. 
not to be erected within jurisdiction 
of another state. US Const, 
Art. 4, §3, cl. 1. 

one vote to each on election of Presi- 
dent by House of Representatives. 
US Const, 12th Amend. 

ports of one not to have preference over 
another. US Const, Art. 1, §9, 
cl. 6. 

powers of, in particular matters, see ap- 
propriate words. 

public acts, records and judicial proceed- 
ings, power of Congress to pre- 
scribe manner of proof in other 
state and effect thereof. US Const, 
Art. 4. § 1. 

republican form of government guar- 
anteed to. US Const, Art. 4, § 4. 

reserved powers. US Const, 10th 
Amend. 

ships of war not to be kept by. US 
Const, Art. 1, § 10, cl. 3. 

Supreme Court's original jurisdiction 
over suits by or against. US Const, 
Art. 3, §2, cl. 3. 

titles of nobility not to be granted by. 
US Const, Art. 1, § 10, cl. 1. 

tonnage duties not to be laid by. US 
Const, .Art. 1, § 10, cl. 3. 

troops not to be kept by. US Const, 
Art. 1, § 10, cl. 3. 

war, not to be engaged in by. US 
Const, Art. 1, § 10, cl. 3. 
Suffrage — 

abridgment of right of, as reducing ba- 
sis of representation. US Const, 
14th Amend., § 2. 



Suffrage — Cont'd 

color, right of suffrage not to be 
abridged on account of. US Const, 
15th Amend., § 1. 
women to have right of. US Const, 
19th Amend. 
Sundays, excepted from ten days allowed 
President to return bill. US Const, 
Art. 1, §7. cl. 2. 

Supremacy of Federal Constitution and 

laws. US Const, .Art. 6, cl. 2. 
Supreme Court — 

appellate jurisdiction — 

as to fact and law. US Const, Art. 

3, § 2, cl. 2. 
Congress, power to regulate. US 
Const, Art. 3, §2, cl. 2. 
Chief Justice to preside on trial of im- 
peached President. US Const, .Art. 
1, § 3, cl. 6. 
judicial power as vested in. US Const, 

Art. 3, § 1. 
jurisdiction. US Const, Art. 3, § 2, cl. 2. 
Justices — 

compensation of. US Const. Art. 3, 

§1. 
how nominated and appointed. US 

Const. Art. 2, § 2, cl. 2. 
term of office. US Const, .Art. 3, § 1. 
original jurisdiction. US Const, Art. 3, 

§2, cl. 2. 
states, suits by or against as within orig- 
inal jurisdiction, of. US Const, Art. 
3, §2, cl. 2. 
Taxation — 

capitation ta.x, census as basis of. US 

Const, Art. 1, § 9, cl. 4. 
Congress, power of, to lay and collect 
taxes. US Const, Art. 1, §8, cl. 1. 
direct taxes, see Direct ta.xes, supra, 
exports from any state not to be taxed. 

US Const, Art. 1, §9, cl. S. 
head tax, see Head tax, supra, 
income tax, see Income tax. supra. 
Indians not taxed excluded from repre- 
sentative numbers. US Const, Art. 
1, §2, cl. 3; 14th Amend., §2. 

uniformity, requirement of. US Const, 

Art. 1, §8, cl. 1. 
Tender, see Legal tender. 
Term of office — • 

President. US Const, Art. 2, § 1, cl. 1. 
representative in Congress. US Const, 

Art. 1, §2, cl. 1. 
senator. US Const, Art. 1, §3, cl. 1; 

17th Amend. 
Supreme Court justice. US Const, xArt. 

3, §1. 
Vice-President. US Const, .Art. 2, § 1, 

cl. 1. 



73 



Constitution of the United States 



Territories. Congress to have exclusive ju- 
risdiction over. US Const, Art. 4, § 3, 
cl. 2. 
Test, religious, not to be required as qual- 
ification for ofiice. US Const, Art. 
6, cl. 3. 
Tie vote in Senate as entitling Vice Presi- 
dent to vote. US Const, Art. 1, § 3, 
cl. 4. 
Titles of Nobilit}- — 

not to be conferred by United States, 
or accepted without consent. US 
Const, Art. 1, § 9, cl. 8. 
State may not grant. US Const, Art. 
1, § 10, cl. 1. 
Tonnage duties. States not to lay without 
consent of Congress. US Const, Art. 
1, §10. 
Treason — 

attainder of, not to work corruption of 
blood. US Const, Art. 3, § 3, cl. 2. 
civil ofilcers to be removed on convic- 
tion of. US Const, Art. 2, § 4. 
confession in open court as basis for 
conviction. US Const, ."Krt. 3, § 3, 
cl. 1. 
Congress, power to punish. US Const, 

Art. 3, § 3. cl. 2. 
in what consists. US Const, Art. 3, 

§ 3, cl. 1. 
overt act, proof as necessary. US 

Const, Art. 3, §3, cl. 1. 
punishment of, powers of Congress. US 

Const, Art. 3, §3, cl. 2. 
removal of civil officers on conviction of. 

US Const, Art, 2, § 4. 
representative in Congress may be 
arrested for. US Const. Art. 1, § 6, 
cl. 1. 
senator mav be arrested for. US Const. 

Art 1, § 6, cl. 1. 
war, levying against United States. US 

Const, Art. 3, §3, cl. 1. 
witnesses, testimony of two, required to 
convict. US Const, Art. 3, §3, cl. 
1. 
Treasury, money drawn from, only on legal 
appropriation. US Const, Art. 1, § 9, 
cl. 7. 
Treaties — 

judicial power to extend to cases under. 

US Const, Art. 3, §2, cl. 1. 
President to make with advice, etc. of 
Senate. US Const, Art. 2, § 2, cl. 
2. 
State may not make. US Const. Art. 

1, § 10. cl. 1. 
supreme law of the land. US Const, 
Art. 6, cl. 2. 
Trial- 
impeachments, see Impeachment, supra, 
jury trial, see Jury Trial, supra. 



Trial — Cont'd 

place of commission of crime as place 
of trial. US Const, Art. 3, § 2, cl. 3. 
speedy and public trial, right of accused 
to. US Const, 6th Amend. 
Troops — - 

not to be kept by State without consent 
of Congress. US Const, Art. 1, 
§ 10, cl. 3. 
quartering in houses, when permissible. 
US Const, 3rd Amend. 
Two-Thirds Attendance, when required — 
election of President by House of Repre- 
sentatives. US Const, 12th Amend. 
Two-Thirds Vote, when required — 

Constitutional amendments, proposal of, 

by Congress. US Const, Art. 5. 
disability to hold office, removal of. US 

Const, 14th Amend., § 3. 
expulsion of member of Congress. US 

Const, Art. 1, § 5, cl. 2. 
impeachment, conviction on. US Const, 

Art. 1, §3, cl. 6. 
treaties, ratification of, by Senate. US 

Const, Art. 2, § 2, cl. 2. 
veto, passing bill over. US Const, Art. 
1, § 7, cl. 2. 
Union, admission to, see States, supra. 
Vacancies in Office — 

House of Representatives, calling elec- 
tion to fill. US Const, Art. 1, §2, 
cl. 4. 
President may temporarily fill. US 

Const, Art. 2, § 2, cl. 3. 
Senate, how filled. US Const, Art. 1, 
§ 3, cl. 2; 17th Amend. 
Value of coin to be regulated by United 

States. US Const, Art. 1, §8, cl. 5. 
Vessels bound to or from one State not to 
be obliged to clear, etc., in another. 
US Const, Art. 1, § 9, cl. 6. 
Veto — 

adjournment, question of, excepted from 
veto power. US Const, .\rt. 1, § 7, 
cl. 3. 
bills passed by Congress. US Const. 

Art. 1, § 7, cl. 2. 
passing bills over. US Const, Art. 1, 

§7, cl. 2 and 3. 
pocket veto. US Const. .Art. 1, § 7, 

cl. 2. 
two-thirds vote required to pass bill 
over. US Const, Art. 1, § 7, cl. 2 
and 3. 
Vice President — 

absence of. Senate to choose president 
pro tem in case of. US Const, Art. 
1,§3, cl. S. 
list of votes for, sent to president of 
Senate. US Const, 12th Amend. 



74 



Index to the Constitution of the United States 



Vice President — Cont'd 

President, when Vice President to act 

as. US Const, Art. 2, § 1, cl. 6. 
president of Senate. US Const, Art. 

1, § 3, cl. 4. 
qualifications — 

age requirement. US Const, 12th 

Amend, 
alien not eligible to office of. US 

Const, 12th Amend, 
residence. US Const, 12th Amend. 
Senate, election by. US Const, 12th 

Amend, 
succession to Presidency. US Const, 
Art. 2, § 1, cl. 6. 
in case of President-elect's death be- 
fore beginning of term or failure 
to qualify. US Const, 20th 
Amend., § 3. 
term of office. US Const, Art. 2, § 1, cl. 
1. 
beginning and ending of. US Const, 
20th Amend., § 1. 
tie vote, power to resolve. US Const, 

Art. 1, § 3, cl. 4. 
vacancy in office, power of Congress to 
provide for. US Const, 20th 
Amend., § 4. 
vote in Senate in case of tie. US Const, 
Art. 1, § 3, cl. 4. 
Vice President-elect, failure to qualify, 
succession to office in case of. US 
Const, 20th Amend., §3. 
Virginia, representation of. in first Con- 
gress. US Const, Art. 1, § 2, cl. 3. 
Vote- 
aid to enemies of United States as dis- 
qualifying voter. US Const, 14th 
Amend., § 3. 
ballot, vote by, when required, see Bal- 
lot, 
electoral college, see Electoral college, 

supra. 
Right to vote, see Suffrage, supra. 



Vote — Cont'd 

Two-thirds vote, when required, see 

Two-Thirds Vote, supra. 
Yeas and nays, see Yeas and nays, 
infra. 
War- 
Congress to declare. US Const, ."Vrt. 1, 

§8, cl. 11. 
grand jury presentment as dispensable 
in certain cases in time of. US 
Const, 5th Amend, 
quartering of soldiers in houses in time 

of. US Const, 3rd Amend. 
State may not make, without consent 
of Congress. US Const, Art. 1, 
§ 10, cl. 3. 
treason, in levying against United States. 
US Const, Art. 3, § 3, cl. 1. 
Warrants, see Search Warrants, supra. 
Weight, standards of. Congress may pre- 
scribe. US Const. Art. 1, § 8, cl. S. 
Welfare, general. Congress has power to 
provide for. US Const, Art. 1, § 8, cl. 
1. 
Witness against himself, no person shall 
be compelled to be. US Const, Sth 
Amend. 
Witnesses — 

compulsory process to obtain attendance 
of, as right of accused. US Const, 
6th .^mend. 
confrontation by, right of accused to. 

US Const, 7th Amend. 

two necessary for conviction on charge 

of treason. US Const, Art. 3, § 3, 

cl. 1. 

Women's suffrage. US Const, 19th .Amend. 

Writings, exclusive right to, may be secured. 

US Const, Art. 1, §8, cl. 8. 
Yeas and Nays of either House — • 

when to be entered on journal. US 

Const. Art. 1, § 5, cl. 3. 
when vote must be taken bv. US Const, 
Art. 1, §7, cl. 2 and 3. 



75 



Constitution 

of the 

State of South Carolina 
1895 

(As amended through the 1951 Session of the General Assembly) 



Article I. 
Declaration of Rights. 

Sec. 

1. Political power in people. 

2. Apportionment of representatives. 

3. Meeting of General Assembly. 

4. Religious worship; freedom of speech; 

petition. 

5. Privileges and immunities; protection 

of laws. 

6. Taxation. 

7. No tax without consent. 

8. Attainder; ex post facto law. 

9. Suffrage. 

10. Elections free and open. 

11. Property qualifications; term of office; 

dueling. 

12. Residence. 

13. Suspension of laws. 

14. Departments separate. 

15. Courts; remedy. 

16. Searches and seizures. 

17. Presentment of grand jury; not tried 

twice; private property. 

18. Trial by jury; witnesses. 

19. Excessive bail; corporal punishment; 

contempt. 

20. Right of bail; sureties. 

21. Libel. 

22. Treason. 

23. Habeas corpus. 

24. Imprisonment for debt. 

25. Trial by jury. 

26. Keep and bear arms; General Assem- 

bly may maintain armies; how sol- 
diers quartered. 

27. Marital law. 

28. Navigable waters free; no tax for use 

of wharf. 

29. Provisions of Constitution mandatory. 

Article II. 

Right of Suffrage. 

1. Elections by ballot. 

2. Qualification for office; two offices. ^ 



Sec. 

3. Electors. 

4. Qualifications for sufiFrage. 

5. Appeal; crimes against election laws./ 

6. Persons disqualified from voting. - 

7. Residence gained or lost. 

8. Registration provided; elections; board 

of registration; bocks of registration. 

9. Polling precincts. 

10. Primary elections. [Eliminated.] -^ 

11. Closing books of registration. 

12. Municipal elections 

13. Special election for bonding municipal- 

ity. 

14. Arrest of electors. 

15. Right of suffrage free. 

Article III. 
Legislative Department. 

1. Legislative power vested in two 

branches. 

2. House of Representatives. 

3. Number of members; enumeration of 

inhabitants. 

4. Assignment of representatives. 

5. When apportionment takes effect. 

6. Senate. 

7. Qualification of Senators and members 

of House. 

8. Election of Senators and representa- 

tives; classification of Senators. 

9. Sessions of General ."Assembly. 

10. Terms of office. 

11. Election returns; quorum; absent mem- 

bers. 

12. Officers; rules; punishment and expul- 

sion of members. 

13. Punishment of persons not members. 

14. Members in attendance protected. 

15. Bills for revenue; other bills. 

16. Style of laws. 

17. One subject. 

18. Formalities of act. 

19. Mileage; increase of per diem; com- 

pensation during e-xtra session. 



17 



Constitution of the State of South Carolina 



Sec. 

20. Election "viva voce." 

21. Adjournments. 

22. Journal; yeas and nays. 

23. Doors open. 

24. Holding two offices. 

25. Vacancies. 

26. Oath of office. 

27. Removal of ofiicer. 

28. Homestead; married w'oman's exemp- 

tion; taxes; purchase money; waiver; 
husband and wife; exemption for un- 
married person. 

29. Taxes laid upon actual value. 

30. Extra compensation not permitted; ap- 

propriations for repelling invasion. 

31. Public lands. 

32. Salary of deceased ofiicer; pensions. 

[Eliminated.] 

33. Alarriages of whites and negroes; 

sexual intercourse. 

34. Special laws prohibited. 

35. Lands owned by aliens. 

Article IV. 
Executive Department. 

1. Chief Magistrate. 

2. Election of Governor; State officers. 

3. Qualifications of Governor. 

4. Boards of canvassers transmit returns 

of election for Governor; returns de- 
livered to Speaker of House of Rep- 
resentatives; contested elections. 

5. Lieutenant Governor. 

6. Vote of Lieutenant Governor. 

7. President pro tempore of Senate. 

8. Member of Senate acting as Governor. 

9. Vacancy in office of Governor; how 

filled. 

10. Commander-in-Chief. 

11. Pardons; Probation, Parole and Par- 

don Board. 

12. Laws executed. 

13. Compensation of Governor and Lieu- 

tenant Governor. 

14. Officers and boards report to Governor. 

15. Information to legislature. 

16. Extra sessions; Governor may adjourn 

General Assembly. 

17. Commissions. 

18. Seal of State. 

19. Grants and commissions. 

20. Oath of Governor and Lieutenant Gov- 

ernor. 

2L Residence of Governor. 

22. Suspension of officers. 

23. Bill or joint resolution must be signed 

or vetoed by the Governor. 

24. Other State oflicers. 



Article V. 
Judicial Department. 
Sec. 

1. Judicial power vested in certain courts. 
1-A. County court for Marlboro County. 

2. Supreme Court. 

3. Present Chief Justice and associate jus- 

tices. 

4. Jurisdiction of Supreme Court. 

5. Held twice a year at capital. 

6. Disqualification of judges in certain 

cases; how vacancies filled; tempo- 
rary appointments for holding circuit 
courts. 

7. Reporter; clerl-:. 

8. Judgment of Supreme Court. 

9. Compensation of judges and justices. 

10. Qualifications. 

11. Vacancies; conservators of the peace; 

unexpired term. 

12. Three necessary for reversal; constitu- 

tional questions; trial judge shall not 
sit. 

13. Judicial circuits; election of judges; 

present judges. 

14. Interchange of circuits. 

15. Jurisdiction of courts of common pleas. 

16. Sit twice. 

17. Decisions; when filed. 

18. Court of general sessions. 

19. Court of probate. 

20. Magistrates; term of office; constables; 

salary. 

21. Jurisdiction of magistrates; examining 

courts. 

22. Trial by jury; jury in inferior courts; 

grand jury. 

23. Actions in magistrates' courts. 

24. Compensation for all other officers. 

25. Powers at chambers. 

26. Charge to juries. 

27. Clerk of court. 

28. Attorney General. 

29. Solicitor. 

30. Sheriff and coroner. 

31. Writs; indictments. 

32. Decisions of Supreme Court. 

33. Sentence to labor on highways. 

34. Matters now pending. 

Article VI. 
Jurisprudence. 

1. Arbitration. 

2. Change of venue. 

3. Law and equity. 

4. Statute public law. 

5. Codification of laws. 

6. Prisoner lynched through negligence of 

officer: penalty on officer; county li- 
able for damages. 



78 



Constitution of the State of South Carolina 



Article VII. 
Counties and County Government 

Sec. 

1. Formation of new counties; county 

seats and name. 

2. Section of old county to be cut off. 

3. Inhabitants; taxable property; area of 

new county. 

4. Area, taxable property and inhabitants 

of old county. 

5. Eight mile limit. 

6. Indebtedness. 

7. .Alteration of county lines. 

8. Removal of county seat. 

9. Election district; body corporate. 

10. Consolidation of two or more counties. 

11. Townships; body corporate; township 

government. 

12. Boundaries of counties; boundaries of 

Saluda and Edgefield. 

13. Judicial and Congressional districts. 

14. No county line through city or town. 

Article VIII. 

Municipal Corporations and Police 
Regulations. 

1. Organization and classification of mu- 

nicipal corporations. 

2. Electors must consent to organization. 

3. Taxes. 

4. Street railway, etc. 

5. Waterworks systems; 

lights and ice. 

6. Corporate taxes must 

cense taxes. 

7. Bonded debt; certificates of indebted- 

ness; sinking fund; refunding bonded 
debt; provisos as to certain cities 
added by amendment. 

8. Manufactories may be e.xempt from 

taxation. 

9. Armed police force. 

10. Boards of health. 

11. Alcoholic liquor and beverages. 

12. Prize fighting. 

13. Municipal ice plants. 

14. Extension of corporate limits of Green- 
ville. 

Article IX. 

Corporations. 

Corporation defined. 

Charter of incorporation. 

Transporting and transmitting corpo- 
rations ta.xed as such; connnon law 
liability. 

Agent of corporation; office. 

Discrimination in charges. 

Transportation company may connect 
or cross lines of another. 



Sec, 
7. 



plants furnish 
be uniform; li- 




9. 

10. 
11. 
12. 
13. 
14. 
IS. 

16. 
17. 

IS. 
19. 



20. 
21. 



Consolidation of stock with competing 
line; jury may decide whether lines 
are parallel or competing. 

No foreign corporation can build or 
operate a railroad in this State; no 
general or special law for foreign 
corporation, except on conditions. 

Banks. 

Stock issued for money or labor. 

Election of officers of corporations. 

Business of corporations. 

Trusts, combinations, etc. 

The Public Service Commission. 

Rights and remedies of railroad em- 
ployees. 

Existing charters. 

Laws for benefit of corporation passed 
only on conditions. 

Liability of stockholders. 

Corporations cannot do act prohibited 
through controlling interest in other 
corporations. 

Right of way. 

Provisions not self-executing. 

Article X. 



Finance and Taxation. 

1. Taxation and assessment. 

2. E.xpenses of State government. 

3. Tax shall be levied in pursuance of law. 
\ 4,' Property exempt from ta.xation. 

■o. Taxes may be levied for corporate pur- 
poses; shares of stockholders; limit 
of bonded debt. 

6. Credit of State; for what purposes tax 

levied or bonds issued; provisos. 

7. Scrip, certificate, or evidence of State 

debt. 

8. Receipts and expenditures. 

9. Money. 

10. Fiscal year. 

11. Public debt; State bonds. 

12. Safe-keeping of public funds; embezzle- 

ment thereof felony; General As- 
sembly may remove disability. 

13. One assessment for all taxes. 

13-A. Assessments for improvement of 
bridges and highways, Beaufort 
County. 

14. Certain cities maj' levy assessment on 

abutting property; provisos. 
14a. Assessments on abutting property in 
Charleston and Beaufort. 

15. Tax abutting property in Chester, 

Woodruff, Gaft'ney and Georgetown 
for permanent improvements. 
15(1). Chester may levy assessments against 
abutting property for certain im- 
provements. 



79 



Constitution of the State of South Carolina 



Sec. 

15(1) (a"). Chester may extend water and 
sewer service; levy assessments for 
costs thereof. 

15a. Latta and Dillon may assess abutting 
property. 

16. Assessment of abutting property own- 
ers by Pendleton. 

16. Sumter, Darlington, Belton and Wal- 
halla may assess abutting property. 

16. Florence, Orangeburg and Landrum 
may assess abutting property for 
permanent improvements. 

16. Anderson, Greenwood, Bennettsville, 

Timmonsville and Honea Path may 
assess abutting property. 

17. Assessments in incorporated cities and 

towns for permanent improvements. 

17. Fort Mill may assess abutting prop- 

erty. 

18. Assessments on abutting property in 

Clinton and Easley. 

19. Assessment upon abutting property for 

street improvements in Greer. 

20. Assessments in County of Florence for 

highway improvement. 

21. Paving assessments in Forest Acres in 

Richland County. 

Article XI. 
Education. 

1. Superintendent of Education. 

2. State Board of Education. 
.3. School officers. 

4. Salaries of school officers and county 

treasurer. 

5. Free public schools; school districts. 

6. Enrollment; trustees; poll tax; supple- 

mentary tax. 

7. Separate schools. 

8. Clemson Agricultural College; South 

Carolina School for the Deaf and 
Blind; University of South Carolina; 
Winthrop Normal and Industrial 
College; Colored Normal, Industrial, 
Agricultural and Mechanical College. 

9. Property or credit of State shall not 

benefit sectarian institutions. 

10. Gifts for educational purposes. 

11. Gifts to State; assets of unclaimed es- 

tates or co-partnerships; direct tax; 
State school fund. 

12. Income froin sale or license for sale of 

liquors. 

Article XII. 
Charitable and Penal Institutions. 

1. Institutions for care of insane and poor. 

2. Board of Regents; powers. 

3. County poor. 



Sec. 

4. Directors of benevolent and penal 

State institutions. 

5. Directors of Penitentiary. 

6. Convicts sentenced to hard labor. 

7. Reformatory for juvenile ofifenders. 

8. Vacancies. 

9. Control of convicts. 

Article XIII. 

Militia. 

1. Militia. 

2. When exempt from arrest. 

3. Governor may call out. 

4. Adjutant and Inspector General; staff 

officers. 

5. Confederate pensions. 

Article XIV. 
Eminent Domain. 

1. Boundary rivers. 

2. Title to certain lands. 

3. Ultimate property in lands. 

Article XV. 
Impeachment. 

1. Power of impeachment; impeachment 

of officer. 

2. Senate try impeachment; Chief Justice 

preside. 

3. Officers liable to impeachment. 

4. Removal of officers. 

Article XVI. 

Amendment and Revision of the 

Constitution. 

1. Amendments. 

2. Two or more amendments. 

3. Constitutional convention. 

Article XVII. 
Miscellaneous Matters. 

1. Qualification of officers. 

2. Claims against State. 

3. Divorces. 

4. Supreme Being. 

5. Public printing. 

6. Removal of causes. 

7. Lotteries. 

8. Officers gambling and betting. 

9. Property of married women. 

10. Laws now of force. 

11. Schedule. 



80 



Constitution of the State of South Carolina 



THE STATE OF SOUTH CAROLINA: 

At a Convention of the People of the State of South Carolina begun and 
holden at Columbia on the Tenth day of September, in the year of our Lord 
One Thousand Eight huntlred and Ninety-five, and thence continued by divers 
adjournments to the Fourth day of December in the year of our Lord One 
Thousand Eight hundred and Ninety-five. 

CONSTITUTION OF THE STATE OF SOUTH CAROLINA 

We, the people of the State of South Carolina, in Convention assembled, 
grateful to God for our liberties, do ordain and establish this Constitution 
for the preservation and perpetuation of the same. 



Constitution is delineated by the people. 
— The Constitution "is a form of govern- 
ment deUneated by the mighty hand of 
the people." Greir v. Taylor, 4 McC. (15 
S. C. L.) 206. 

Object of Constitution. — Its object is to 
lay down the fundamental principles and 
limit the powers of government. E.x parte 
Lynch. 16 S. C. 32 (ISSl). 

It should be construed as a whole. Smith 
V. McConnell, 44 S. C. 491, 22 S. E. 721 
(1895); Norton v. Bradham, 21 S. C. 375 
(1884). 

And contemporaneous construction of 
Constitution is entitled to weight. State v. 
Williams, 40 S. C. 373. 19 S. E. 5 (1893); 
Simpson V. WiUard, 14 S. C. 191 (1880). 

Courts must determine the constitutional- 
ity of a statute. Byrne v. Stewart, 3 De S. 
(3 S. C. Eq.) 466; White v. Kendrick, 1 
Brev. (3 S. C. L.) 469. 

But they will not declare a statute un- 
constitutional unless clearly so. Colunihia 
& G. R. Co. V. Gibbes, 24 S. C. 60 (1885); 
Pelzer, Rogers & Co. v. Campbell, IS S. C. 
581 (1881); State ex rel. George v. Aiken, 
42 S. C. 222, 20 S. E. 221 (1894); Mc- 
Cullough V. Brown, 41 S. C. 220, 19 S. E. 
458 (1894); Maudin v. Greenville, 42 S. C. 
293, 20 S. E. 842 (1895); Feldman & Co. 
V. Charleston, 23 S. C. 57 (1885). 

Where other grounds exist upon which 
the case can be decided. — Butler v. Ellerbe, 
44 S. C. 256. 22 S. E. 425 (1895); Scottish 
.•\merican Mortg. Co. v. Deas, 35 S. C. 42, 
14 S. E. 4S6 (1892); Ex parte Florence 
School, 43 S. C. 11, 20 S. E. 794 (1895). 

As where case presents two questions. — 
The rule in the United States Supreme 
Court is well settled that when a case pre- 



sents two questions, one of which is a 
Federal question and the other is not, the 
Court will not take jurisdiction of the case 
if the view taken by the lower court of 
the latter question is decisive of the case. 
Johnson v. Charleston & S. Rv. Co., 55 
S. C. 152, 32 S. E. 2, 33 S. E. 174 (1899), 
dis. op. of Mclver, C. J. 

Unconstitutionality of an act must be 
raised by exceptions. Frazee v. Beattie, 
26 S. C. 348, 2 S. E. 125 (1887). 

To article, section, or principle in Con- 
stitution. — An exception alleging the un- 
constitutionality of an act must state the 
article, section, or principle of the Constitu- 
tion with which it conflicts. State v. Wash- 
ington, 55 S. C. 372, 33 S. E. 453 (1899). 

It is not necessary in raising a consti- 
tutional question that the section and ar- 
ticle infringed be stated in the pleadings 
and proceedings, since it is suflicient to 
state the principle involved. Porter v. 
Charleston & S. Ry. Co., 63 S. C. 169, 41 
S. E. 108 (1902). 

And it cannot be first raised on appeal. 
Tompkins v. Augusta & K. R. Co., 21 S. 
C. 420 (1884). 

Constitutional questions not raised in or 
passed on by the circuit court will not be 
considered on appeal. Burnett v. Southern 
Ry. Co., 62 S. C. 281, 40 S. E. 679 (1902); 
Hunter v. I'amberg County, 63 S. C. 149, 
41 S. E. 26 (1902); Key v. Carolina & N. 
W. R. Co., 165 S. C. 43, 162 S. E. 582 
(1931). 

Waiver of objection to constitutionality 

of act.— Goodale v. Sowell, 62 S. C. 516, 40 
S. E. 970 (1902); State v. Faile, 43 S. C. 
52, 20 S. E. 798 (1895); Ex parte Hilton, 
64 S. C. 201, 41 S. E. 978 (1902). 



[7 SC Code]— 6 



81 



Art. 1, § 1 Constitution of the State of South Carolina Art. 1, § 5 

ARTICLE I. 
Declaration of Rights. 

§ 1. Political power in people. 

All political power is vested in and derived from the people only, therefore 
they have the right at all times to modify their form of government. 
See Const. 1868, Art. I, § 1. 

§ 2. Apportionment of Representatives. 

Representation in the House of Representatives shall be apportioned ac- 
cording to population. 
See Const. 1868, Art. I, § 34. 

§ 3. Meeting of General Assembly. 

The General Assembly ought frequently to assemble for the redress of 
grievances and for making new laws, as the common good may require. 
See Const. 1868, Art. I, § 27. 

§ 4. Religious worship ; freedom of speech ; petition. 

The General Assembly shall make no law respecting an establishment of 
religion or prohibiting the free exercise thereof, or abridging the freedom of 
speech or of the press ; or the right of the people peaceably to assemble and to 
petition the Government or anj- department thereof for a redress of grievances. 

See Const. 1868, Art. I, §§ 6, 7, 9 and 10. 

Section guarantees religious freedom to Statute may not wholly bar practice of 

minority. — The right of tlic minority to con- religion. — A slate or municipaHty may not 

tinue to worship God in sucli manner and by statute or ordinance wholly debar the 

form as they have always done is guaranteed right to preach or to disseminate religious 

by the First Amendment to the Federal views. GafFney v. Putnam, 197 S. C. 237, 

Constitution and by this section, both of IS S. E. (2d) 130 (1941). 

wdiich constitutional provisions use the Cited in State v. Hondros, 100 S. C. 242, 

same phraseology to extend the guaranty 84 S. E. 781 (1915); Xepapas v. Richardson, 

of freedom in matters pertaining to the 149 S. C. 52, 146 S. E. 686 (1929); Carolina 

worship of God. Purcell v. Summer, 54 Music Co. v. Query, 192 S. C. 308, 6 S. E. 

F. Supp. 279 (1944). ' (2d) 473 (1939); State v. Meredith, 197 

S. C. 351, 15 S. E. (2d) 678 (1941). 

§ 5. Privileges and immunities; protection of laws. 

The privileges and immunities of citizens of this State and of the United 
States under this Constitution shall not be abridged, nor shall any person be 
deprived of life, liberty or property without due process of law, nor shall any 
person be denied the equal protection of the laws. 

See Const. 1868, Art. I, § 12. 
I. General Consideration. Cross Reference. 

II. Due Process of Law. For treatment of above provisions in 

A. Scope of Due Process Clause. the United States Constitution, see notes 

B. Where Due Process Not Denied. to the Fourteenth Amendment. 

C. Where Due Process Denied. 

III. Equal Protection of Laws. I. GENERAL CONSIDERATION. 

A. Scope of Equal Protection Clause. 

B. ^\■here Equal Protection Not Construction. — This section must be con- 

Denied, strued with reference to principles of the 

C. Where Equal Protection Denied. common law. State v. Rector, 158 S. C. 

IV. Privileges and Immunities. 212, 155 S. E. 385 (1930). 

82 [7 SO Code] 



Art. 1, § 5 Constitution of the State of South Carolina Art. 1, § 5 



The object of this section is to prevent 
discriminatory legislation. Porter v. Charles- 
ton & S. Ry. Co., 63 S. C. 169, 41 S. E. 108 

(i"ni). 

The word "deprived" connotes w?ant of 
consent. Sandel v. State, 115 S. C. 168, 104 
S. E. 567 (1920). 

Section prevents arbitrary legislative dep- 
rivation of rights. — The legislature cannot 
witliout violating this section arbitrarily 
deprive one of his fundamental rights ap- 
pertaining to life, hberty, and property. 
Simmons v. Western Union Tel. Co., 63 
S. C. 425, 41 S. E. 521 (1902). 

While the legislature is empowered to 
alter or amend the charter of a corporation, 
it is imperative upon it to respect the prop- 
erty of the corporation under the guaranties 
of this section in so doing. Mays v. Sea- 
board, etc., Ry., 75 S. C. 455, 56 S. E. 30 
(1906). 

But permits reasonable police power legis- 
lation. — The legislature has inherent police 
power to pass any law it judges fit for the 
protection and welfare of its people in trav- 
eling over the public highways of the State. 
It is a matter within the discretion of the 
legislature of the State to determine what 
interests the public requires, to adopt such 
measures and means as are reasonably nec- 
essary for the protection of such interests, 
and to make reasonably safe the traveling 
public. Merchants' & Planters' Bank v. 
Brigman, 106 S. C. 362, 91 S. E. iiZ (1917). 

Such as reasonable regulation of contracts. 
— This section docs not forbid the General 
Assembly to pass laws regulating the sub- 
stance of contracts, the form in which they 
shall be made, and the manner of execution 
and attestation if the regulation tends to 
protect the public or a class of individuals 
from fraud or unfair dealing. Rose v. Harl- 
lee, 69 S. C. 523, 48 S. E. 541 (1904) ; Miller 
v. .A.tlantic Coast Line R. Co., 90 S. C. 249, 
7i S. E. 71 (1911). 

An act providing that the description of 
property conveyed by chattel mortgage 
should be in writing or typewriting is not 
an arbitrary or unreasonable restraint on 
the right to contract. Rose v. Harllee, 69 
S. C. 523, 48 S. E. 541 (1904). 

Appeal. — The Supreme Court will not 
consider the provisions of this section on 
appeal where they were not raised in the 
circuit court below. Burnett v. Southern 
Ry. Co., 62 S. C. 281, 40 S. E. 679 (1902). 

For additional related cases, see Hill v. 
City Council, 59 S. C. 396, i-& S. E. 11 (1901) ; 
Holler V. Rock Hill School Dist., 60 S. C. 
41, 38 S. E. 220 (1901); Riley v. Charleston 
Union Station Co., 67 S. C. 84, 45 S. E. 
149 (1903) ; Severance v. Murphy, 67 S. C. 



409, 46 S. E. 35 (1903): Railroad Com'rs 
V. .Atlantic Coast Line R. Co., 71 S. C. 130, 
50 S. E. 641 (1905); Riley v. Charleston 
Union Station Co., 71 S. C. 457, 51 S. E. 
485 (1905); Columbia, N. & L. R. Co. v. 
Laurens Cotton Mills. 82 S. C. 24, 61 S. E. 
1089, 62 S. E. 1119 (1908); Jellico v. Com'rs, 
83 S. C. 481, 65 S. E. 725 (1909); Lvon v. 
Patterson, 102 S. C. 525, 87 S. E. 306 (1915); 
Fairey v. Havnes, 111 S. C. 132. 96 S. E. 
694 (1918); State v. Ferri, 111 S. C. 219, 
97 S. E. 512 (1918); Mullinax v. Ham- 
bright, lis S. C. 22, 104 S. E. 309 (1920); 
State v. Harvey, 128 S. C. 494, 122 S. E. 
860 (1924); Benton v. Yarborough, 128 
S. C. 481, 123 S. E. 204 (1924). 

Applied in Hav v. Leonard, 212 S. C. 
81, 46 S. E. (2d") 653 (1948). 

Stated in Cowart v. City Council. 67 S. 
C. 35, 45 S. E. 122 (1903); Spartanburg v. 
Cudd, 132 S. C. 264, 128 S. E. 360 (1925); 
Matheny v. Aiken, 68 S. C. 163, 47 S. E. 
56 (1904); State v. McMaster, 84 S. C. 
495, 66 S. E. 877 (1910); Pineland Club v. 
Berg, 110 S. C. 505, 96 S. E. 915 (1918); 
State V. Gossett, 117 S. C. 76. 108 S. E. 290 
(1921); Sandel v. State, 126 S. C. 1, 119 S. 

E. 776 (1923). 

Cited in State v. Cheraw & D. R. Co., 
54 S. C. 564, 22 S. E. 691 (1899); State v. 
Tucker, 56 S. C. 516, 35 S. E. 215 (1900); 
Fowler v. Anderson, 131 S. C. 473, 128 
S. E. 410 (1925); Ideal Theater v. Southern 
Enterprises, 132 S. C. 352, 128 S. E. 166 
(1925); State v. Virginia-Carolina Chemical 
Co., 71 S. C. 544. 51 S. E. 455 (1905) ; Murph 
v. Landrum, 76 S. C. 21, 56 S. E. 850 (1907) ; 
Hopkins v. Clemson Agricultural College, 
77 S. C. 12, 57 S. E. 551 (1907); Sturgiss 
v. .'^itlantic Coast Line R. Co., 80 S. C. 167, 
60 S. E. 939, 1135, 61 S. E. 261 (1908) ; Dren- 
nan v. Southern Ry., 91 S. C. 507, 75 S. E. 
45 (1912); Webber v. Jonesville, 94 S. C. 
189, 77 S. E. 857 (1913); State v. Rouse, 
86 S. C. 344, 68 S. E. 629 (1910); Robertson 
V. Peeples, 120 S. C. 176, 115 S. E. 300 
(1919); In re Langford, 57 F. 570 0893); 
Duke Power Co. v. Query, 10 F. Supp. 669 
(1935); Duke Power Co. v. Rutland, 60 

F. (2d) 194 (1932); State v. Riddle, 160 
S. C. 477, 158 S. E. 833 (1931); State v. 
Huntley, 167 S, C. 476, 166 S. E. 637 (1932) ; 
State v. Liggett & Myers Tobacco Co., 171 
S. C. 511, 172 S. E. 857 (1933); State v. 
Rawleigh Co., 172 S. C. 415, 174 S. E. 385 
(1934); Payne v. .'\tlantic Grevhound Bus 
Lines, 182 S. C. 58, 188 S. E.'426 (1936); 
Wallace v. Sumter County, 189 S. C. 395, 
1 S. E. (2d) 345 (1939); Marion v. Baxley, 
192 S. C. 112, 5 S. E. (2d) 573 (1939); State 
V. Osborne, 195 S. C. 295, 11 S. E. (2d) 260 
(1940); GalTfuey v. Putnam, 197 S. C. 237, 



83 



Art. 1, § 5 Constitution of the State of South Carolina Art. 1, § 5 



15 S. E. (2d) 130 (1941); Prudential Ins. 
Co. V. Murphy, 207 S. C. 324, 35 S. E. (2d) 
586 (1945); Henderson v. Greenwood, 172 
S. C. 16, 172 S. E. 689 (1934); Conway v. 
Lee & Drayton, 209 S. C. 11, 38 S. E. (2d) 
914 (1946). 

II. DUE PROCESS OF LAW. 
A. Scope of Due Process Clause. 

Requisites of due process. — By "due proc- 
ess of law" is meant a process wliicli, fol- 
lowing the forms of law, is appropriate 
to the case and just to the parties to be 
affected. It must be pursued in the ordi- 
nary mode prescribed by the law; it must 
be adapted to the end to be attained; and, 
whenever it is necessary for the protec- 
tion of the parties, it must give them an 
opportunity to be heard respecting the jus- 
tice of judgment sought. The clause in 
question means, therefore, that there can 
be no proceeding against life, liberty, or 
property which may result in the depriva- 
tion of either without the observances of 
those general rules established in our sys- 
tem of jurisprudence for the security of 
private rights. State v. Earle, 66 S. C. 194, 
44 S. E. 781 (1903). 

"Due process of law" means the law of 
the land. And the law of the land means 
that law which hears before it condemns, 
which proceeds upon inquiry, and which 
renders judgment only after trial. South 
Carolina & G. R. Co. v. American Tel. 
& Tel. Co., 65 S. C. 459, 43 S. E. 970 (1903). 

It includes common law in State's back- 
ground. — "Due process of law" means the 
common law and the statute law existing 
in tliis State at the adoption of the Con- 
stitution. Altogether they constitute the 
body of the law and prescribe the course of 
justice to which a freeman is to be con- 
sidered amenable in all times to come. 
Stehmeyer v. City Council, 53 S. C. 259, 31 
S. E. 322 (1898), 

And involves defending and enforcing 
legal rights. — "Due process of law", as a 
general rule, involves an opportunity be- 
fore a proper tribunal under established 
procedure to defend or enforce a legal right. 
Simmons v. Western Union Tel. Co., 63 
S. C. 425, 41 S. E. 521 (1902). 

Due process of law is afforded litigants 
if they have an opportunity to be heard at 
any time before final judgment is entered. 
Shealy v. Seaboard, etc., R. Co., 131 S. C. 
144, 126 S. E. 622 (1924). 

Due process ol law requires that a person 
shall have a reasonable opportunity to be 
heard before a legally appointed and qual- 
ified impartial tribunal before any binding 
decree, order, or judgment can be made 



affecting his rights to life, liberty, or prop- 
erty. State v. Brown, 178 S. C. 294, 182 
S. E. 838 (1935). 

Under safeguards for their protection. — 
Due process of law in each particular case 
means such an exercise of the powers of 
the government as the settled maxims of 
the law permit and sanction, under such 
safeguards for the protection of individual 
rights as those maxims prescribe for the 
class of cases to which the one in question 
belongs. Dacus v. Johnston, 180 S. C. 329, 
185 S. E. 491 (1936). 

Interference with legal enjoyment of prop- 
erty is prohibited. — This section prohibits 
not only tlie actual taking of property with- 
out due process, but also the passing of 
laws or ordinances which interfere with 
legal use and enjoyment of such property. 
Henderson v. Greenwood, 172 S. C. 16, 172 
S. E. 689 (1934). 

B. Where Due Process Not Denied. 

Admissibility of incompetent evidence. — 

The admission of incompetent testimony on 
the trial of a defendant who is not rep- 
resented by counsel does not amount to 
a denial of due process of law within the 
meaning of this section. State v. Owens, 
124 S. C. 220. 117 S. E. 536 (1922). 

Arrest without warrant of occupants of 
car containing whiskey. — State v. Quinn, 
111 S. C. 174, 97 S. E. 62 (1918). 

Authorizing sewer district bonds without 
hearing of property owners. — Rutledge v. 
Greater Greenville Sewer Dist., 139 S. C. 
188, 137 S. E. 597 (1927). 

Bakery license tax ordinance. — A license 
tax ordinance which required local bakeries 
to pay twenty-five dollars and bakeries 
with established place of business out of the 
city, but selling or delivering their products 
within the city, to pay fifty dollars per year, 
is valid where there is nothing to show 
that the imposition of a higher license on 
such nonresidents was unreasonable, capri- 
cious, or confiscatory. American Bakeries 
Co. v. Sumter, 173 S. C. 94, 174 S. E. 919 
(1934). 

Bridge construction bonds. — Legislature 
directing the issuance of bonds does not 
violate due process clause. Fripp v. Coburn, 
101 S. C. 312, 85 S. E. 774 (1915); Evans 
V. Beattie, 137 S. C. 496, 135 S. E. 538 
(1926). 

Compensation for out-of-State injury. — 
The requirement of § 72-169 of the Code that 
an employee be a resident of this State be- 
fore he can recover under the Workmen's 
Compensation Law for accidents occurring 
without the State does not violate the con- 
stitutional guaranty of due process. Tedars 



84 



Art. 1, § 5 Constitution of the State of South Carolina Art. 1, § 5 



V. Savannah River \'eneer Conipanv, 202 
S. C. 363, 25 S. E. (2cn 235 (1943)'. 

Condemnation of land by State Highway 
Department. — The condemnation proceed- 
ings provided for in tlie Code, which permit 
the State Highway Department to condemn 
private lands, do not violate tliis section 
of tlie Constitution. Jennings v. Sawyer, 
182 S. C. 427. 189 S. E. 746 (1937). 

Condemnation of lands for drainage of 
swamp lands. — Tackson v. Breeland, 103 S. 
C. 184, 88 S. E.' 128 (1916). 

Construction and operation of hydroelec- 
tric project. — Statute providing for construc- 
tion and operation of hydroelectric and 
navigation project by Public Service .'Au- 
thority is not unconstitutional as providing 
for confiscation of business of individuals 
and corporations engaged in electrical util- 
ity enterprises. Clarke v. Soutli Carolina 
Public Service .Authority. 177 S. C. 427. 181 
S. E. 481 (1935). 

Creating school district and authorizing 
tax levy. — Martin v. School Dist., 57 S. C. 
125. 35 S. E. 517 (1900). 

Damages against telegraph companies for 
mental anguish. — Simmons v. Western 
Union Tel. Co., 63 S. C. 425, 41 S. E. 521 
(1902). 

Dismissal of appeal where death sentence 
suspended. — Act requiring Supreme Court 
clerk to notify Penitentiary superintendent 
of dismissal of appeal suspending execution 
of death sentence was held not unconstitu- 
tional as abridging appellant's privileges 
and immunities, or denying him due process 
or equal protection of law, because Supreme 
Court was not in session until four days 
before date fixed for execution. Ex parte 
Howell, 168 S. C. 197, 167 S. E. 230 (1932). 

Dividing county into representation areas. 
— Section 14-1162 of the Code, dividing 
Charleston County into five areas of repre- 
sentation for election of members to the 
coimty council, is not violative of the due 
process and equal protection clauses. Gaud 
v. Walker, 214 S. C. 451, S3 S. E. (2d) 316 
(1949). 

Emergency statute temporarily vesting 
in Governor control of banks and forbid- 
ding legal proceedings against banks with- 
out Governor's approval W'as held not un- 
constitutional as depriving depositors of 
property without due process or as denying 
them the right of speedy remedy in court 
for wrong sustained. State v. Gibbes, 171 
S. C. 209, 172 S. E. 130 (1933). 

Ending terms of oifice of highway com- 
missioners. — Where it was contended that 
the action of the General Assembly in end- 
ing the terms of oflice of certain of the 
highway commissioners, whose terms had 



not expired, deprived those commissioners 
of their property without due process of 
law, it was held that while it is true that 
under the decision of Hearon v. Calus. 178 
S. C. 381, 183 S. E. 13 (1936), the title of 
the commissioner's office was held to be 
a property right entitled to protection of 
the due process clauses of the State and 
Federal Constitutions, it is due process for 
the legislature that created the office and 
fixed the term to change it at its will. The 
commissioners took title to the office sub- 
ject to the knowledge that the legislature 
could abolish the office or provide for the 
election of members in a method different 
from that established in the Code of 1932. 
State V. Lewis, 181 S. C. 10, 186 S. E. 625 
(1936). 

Extension of municipal boundaries. — The 
extension of the boundaries of a municipal 
corporation is not unconstitutional as de- 
priving people in the annexed territory of 
their propertv without due process of law. 
Harrell v. Columbia, 216 S. C. 346. 58 S. E. 
(2d) 91 (1950). 

Financing State highway construction 
through gasoline tax.— State v. Moorer, 152 
S. C. 455. 150 S. E. 269 (1929). 

Imposing tax on place of amusement. — 
Curdts V. South Carolina Tax Comm., 131 
S. C. 362, 127 S. E. 438 (1925). 

Judgment more than ten years old as 
property right. — A judgment more than ten 
years old is not a vested right, property, or 
contract as contemplated by the due proc- 
ess clause. United States Rubber Co. v. 
McManus, 211 S. C. 342, 45 S. E. (2d) 335 
(1947). 

Leasing State lot for erection of build- 
ings. — .\ntonakas v. Anderson Chamber of 
Commerce, 130 S. C. 215, 126 S. E. 35 
(1924). 

Licensing of coin-operated devices. — The 

appropriation act of 1939 [1939 (41) 650], 
in providing for the licensing of coin-oper- 
ated devices, did not violate this section of 
the Constitution. Carolina Music Co. v. 
Query, 192 S. C. 308, 6 S. E. (2d) 473 (1939). 
(Editor's note. — For statutory counterpart 
of above cited act, see §§ S-660 to 5-664.) 

Making motor vehicle inflicting injury 
liable for damages. — Merchants' & Planters' 
Bank v. Brigman, 106 S. C. 362, 91 S. E. 
332 (1917). 

Murder confession. — For case where the 
evidence did not show murder confession 
of accused to be obtained in violation of 
due process, see State v. Judge, 208 S. C. 
497, 38S. E. (2d) 715 (1946). 

Opening and closing arguments for State. 
— Permitting the assistant counsel to make 



85 



Art. 1, § 5 Constitution of the State of South Carolina Art. 1, § 5 



opening and dosing arguments for the 
State and to assist in the examination of 
witnesses does not deprive the accused of 
the right to a trial conducted by the officer 
charged with the conduct of such criminal 
prosecution. State v. Gregory, 172 S. C. 329, 
174 S. E. 10 (1934). 

Parking meter ordinance. — A city ordi- 
nance providing for parking meters to 
regulate the privilege of parking does not 
violate the due process clause of this sec- 
tion. Owens V. Owens, 193 S. C. 260, 8 
S. E. (2d) 339 (1940). 

Payment less than sum fixed as just com- 
pensation for condemned land. — Section 25- 
81 of the Code, providing for statement of 
taxes due on land condemned by the State 
authority, including pro rata taxes for the 
year in which tlie land is condemned, is not 
violative of this section of the Constitution 
in the sense that it provides for payment 
to the owner of the property taken an 
amount less than the sum fixed as just com- 
pensation and, therefore, allegedly constitutes 
taking of property without compensation. 
South Carolina Public Service Authority 
V. 11.754.8 Acres of Land, 123 F. (2d) 738 
(1041). 

Presumption of fraudulent appropriation 
of public funds. — Section 16-364 of the Code, 
creating presumption of fraudulent appro- 
priation where officers and other persons 
charged with safekeeping of public funds 
fail to account for them as required by law, 
does not violate this section of the Con- 
stitution. State V. Brown, 178 S. C. 294, 
182 S. E. 838 (1935). 

Presumption of proximate cause of rail- 
road collision. — In Ford v. Atlantic Coast 
Line R. Co., 169 S. C. 41, 168 S. E. 143 
(1932), a statute, construed as creating a 
rebuttable presumption that the failure 
to give railroad crossing signals was prox- 
imate cause of crossing collision, was held 
not to violate due process clause of this 
section of the Constitution. 

Punitive damages in actions for negligence 
of railroad. — Osteen v. Soutlicrn Ry., 76 
S. C. 3(:8, 57 S. E. 196 (1907). 

Regulating cows within town limits. — 
An ordinance regulating the keeping of 
cows within the town limits of Darlington 
does not violate this section. Ward v. 
Darlington, 183 S. C. 263, 190 S. E. 826 
(1937). 

Regulating size and weight of trucks. — 
In State v. John P. Nutt Co., 180 S. C. 
19, IBS S. E. 25 (1935), an act regulating 
the size and weight of trucks was upheld 
as a valid exercise of the police power not 
in violation of this section of the Constitu- 
tion, notwithstanding that the defendant 



owned several trucks which were made 
illegal by the terms of the act. 

Requiring owner to connect property to 
sewer without hearing. — Columliia v. Shaw, 
131 S. C. 462, 127 S. E. 722 (1925). 

Statutes allowing recovery for taking land. 
— A landowner's right to recover under §§ 
59-494 to 59-499 of the Code for the taking 
and impairment of the value of his real 
estate by reason of such taking affords him 
full and complete remedy and is due proc- 
ess of law. Gates v. Easlev. 182 S. C. 
91. 188 S. E. 504 (1936). 

Statutes relating to collection and pay- 
ment of checks. — In Witt v. Peoples State 
Bank, 166 S. C. 1, 164 S. E. 306 (1932), §§ 
8-181 to 8-200 of the Code, relating to the 
collection and payment by banks of checks 
and other instruments for the payment of 
money, was held not to violate this section 
of the Constitution. 

Submission of corporation to jurisdiction. 
— Tlie due process clauses of tlie State 
and Federal Constitutions place no limita- 
tion upon the competency of a corporation 
to submit voluntarily to jurisdiction or upon 
the right of the State to require such sub- 
mission as a prerequisite to doing business 
within the State. Ezcll v. Rust Engineering 
Co., 75 F. Supp. 980 (1948). 

Suit against unincorporated association. 
—Sections 10-215, 10-429, and 10-1516, re- 
lating to the suing, service of process, judg- 
ment, and execution against an unincor- 
porated association, do not contravene the 
due process clause of this section. Edgar 
v. Soutliern Rv. Co., 213 S. C. 445, 49 S. E. 
(2d) 841 (1948). 

Tax on income of foreign corporation 
from interstate operations within State. — 
Western L^nion Tel. Co. v. Querv, 144 S. 
C. 234, 142 S. E. 509 (1927). 

Tax on soft drink retailers. — Wingfield v. 
South Carolina Tax Comm., 147 S. C. 116, 
144 S. E. 846 (1928). 

Unemployment Compensation law. — The 
Unemployment Compensation law does not 
violate this section as to due process and 
equal protection of the law. Pickelsimer 
V. Pratt, 198 S. C. 225, 17 S. E. (2d) 524 
(1941). 

Unfair competition statutes. — Sections 66- 
93 and 66-94 of tlie Code, which authorize 
contracts fixing minimum resale prices for 
trade-marked goods and make actionable as 
unfair competition the selling of such com- 
modities by any person at less than the 
fixed price, do not violate the due process 
clause of this section upon the al!e,ged 
ground that they make contracts signed by 
the parties applicable to third parties who 



86 



Art. 1, § 5 Constitution of the State of South Carolina Art. 1, § 5 



do not sisTi the contract, since there is no 
constitutional rijrht to sell free of legislative 
control. Wiles Lahoratories v. Seignious, 
30 F. Supp. 549 (19,39). 

Zoning ordinance. — The zoning ordinance 
of the city of Charleston does not violate 
this section as to due process of law. Mo- 
mcicr V. lifcMister, 203 S. C. 353, 27 S. E. 
(2d] 504 (1943). 

C. Wliere Due Process Denied. 

Acquisition of property by school district. 

—Sections 5 and 6 of Act No. 502. 1944 
Acts, which permit a school district to ac- 
quire the absolute ownership of property 
and the require the citizens of other school 
districts to help pay for it without acquir- 
ing any legal interest whatever therein, 
constitute a denial of due process and equal 
protection of the laws. Moselev v. Welch, 
209 S. C. 19, 39 S. E. (2d) 133 (1946). 

Barbecue stand ordinance. — A city ordi- 
nance, which made it unlawful for any per- 
son owning, operating, or employed at a 
barbecue stand located in any residential 
area of the city to allow it to remain open 
between 11:00 P. M. and 6:00 A. M., except 
on Saturdays when it may remain open until 
12:00 midnight, and which defined "resi- 
dential area" as any section of the city 
where two or more houses used for resi- 
dential purposes are located on abutting 
property, was held unconstitutional in so 
far as it defined "residential area," because 
it unreasonably deprived the barbecue owner 
of the lawful use of his property without 
due process of law. Fincher v. Union, 186 
S. C. 232. 196 S. E. 1 (1938). 

Billboard on public street. — In Schloss 
Poster Adv. Co. v. Rock Hill, 190 S. C. 
92, 2 S. E. (2d) 392 (1939), a city ordi- 
nance which read. "Hereafter it shall be 
unlawful to erect or maintain any bill- 
board facing on any public street or other 
public place within the incorporate limits 
of the city without having first obtained 
from the city council a permit to do so." 
was held to violate this constitutional provi- 
sion because it vested in the city council a 
purely arbitrary discretion. 

H an ordinance is passed by a municipal 
corporation which upon its face restricts 
the right or dominion which an individual 
might otherwise exercise over his property 
without question, not according to any gen- 
eral or uniform rule but so as to make due 
enjoyment of such property depend upon 
the arbitrary will of the governing authori- 
ties of the town or city, it is unconstitutional 
and void because it fails to furnish a uniform 
rule of action and leaves the right of prop- 
erty subject to the despotic will of citj' 



authorities who may exercise it to give 
exclusive profits or privileges to particular 
persons. Schloss Poster .-\dv. Co. v. Rock 
Hill, 190 S. C. 92. 2 S. E. (2d) 392 (1939). 

City charter of Rock Hill.— The statutory 
charter of the city of Rock Hill is defi- 
cient insofar as its attempts to provide the 
procedure by which private property may 
be taken or by which just compensation 
should be paid, for it lacks the necessary 
essentials of due process. Rock Hill v. 
Cothran, 209 S. C. 357, 40 S. E. (2d) 239 
(1946). 

County board of education fund.— That 
portion of an act [19-14 (43) 1368. § 2] which 
directed that an offset be made between all 
current operation deficits and balances of 
the several school districts, and which di- 
rected the difference placed to tlie credit 
of the county board fund subject to tlie 
order of the county board of education, was 
held violative of this section of the Constitu- 
tion. Moseley v. \\'elch, 209 S. C. 19, 39 
S. E. (2d) 133 (1946). 

Depriving sheriff of commissions on delin- 
quent taxes.— Act No. 131 of the Acts of 
1933, enacted prior to the amendment of 
S. C. Const., .Art. 3, § 34, subdiv. 9. devolv- 
ing upon the chief of rural police of Sumter 
County all duties, powers, and privileges 
exercised by the sheriff with regard to col- 
lection of delinquent ta.xes, levying upon 
the property of delinquent taxpayers, and 
execution of deeds in case of sale, and also 
providing that the sheriff of said county 
shall keep the books and records pertain- 
ing to tax collections, is unconstitutional 
insofar as it deprives the sheriff of Sumter 
County of fees and commissions on delin- 
quent taxes after its effective date. Hurst 
v. Sumter Countv, 189 S. C. 376, 1 S. E. (2d) 
238 (1939). 

Discriminatory delegation of legislative 
power. — The delegation by the legislature 
to persons, groups, or organizations, un- 
related to government, of power to appoint 
or elect public oflicers is invalid if there is 
no substantial and rational relation between 
the appointive or elective power and the 
function of government which the appoint- 
ees or electees are to perform. Such dele- 
gation is discriminatory to the degree of 
violating the equal protection and due proc- 
ess clauses. Ashmore v. Greater Greenville 
Sewer District, 211 S.C. 77, 44 S. E. (2d) 88 
(1947). 

Injury to land by released dam water. — 
Where land of lower owner was injured 
by defendant's accumulating water behind 
unfinished dam and then releasing such wa- 
ter during flood time, a taking of property 
without due process occurred which author- 



87 



Art. 1, § 5 Constitution of the State of South Carolina Art. 1, § 5 



ized recovery for resulting injury. Taylor 
V. Lexington Water Power Co., 165 S. C. 
120, 163 S. E. 137 (1932). 

Insurrection declared to take over State 
Highway Department. — A state of insur- 
rection declared by the Governor in order 
to take over the State Highway Depart- 
ment and remove the State highway com- 
missioners from office w'as a denial of due 
process to such commissioners, and, there- 
fore, the Governor's action contravened 
this section of the Constitution. Hearon v. 
Calus, 178 S. C. 381, 183 S. E. 13 (1936). 

Judge's order disposing of case on merits. 
— -Where an order of a trial judge disposed 
of a case on its merits, it was held that 
it constituted a denial of due process be- 
cause, whether the pleading of the respond- 
ents be treated as an answer or merely 
as a return, appellants were entitled to be 
heard after a trial of the facts held either 
before the circuit judge or before a master 
in the manner prescribed bv law. Latham 
V. York, 210 S. C. 565. 43 S. E. (2d) 467 
(1947). 

Negotiable instruments statute. — Stat- 
ute authorising domestic forwarding banks 
to forward negotiable instruments direct- 
ly to drawee banks in other cities for col- 
lection was held violative of due process 
since it discriminated against foreign banks, 
banks receiving for collection items drawn 
on banks in same city, and parties sending 
drafts direct to bank for collection. Kx 
parte \\'achovia Bank & Trust Co., 160 
S. C. 104, 158 S. E. 214 (1931). 

Power of Governor to suspend officers 
without hearing. — In Dacus v. Johnston, 
180 S. C. 329, 185 S. E. 491 (1936). it was 
held that if § 1-702 of the Code granted to 
the Governor the power of indefinite sus- 
pension of officers without hearing, such 
section would be against public policy and 
in the teeth of the manifest principles of 
this section of the Constitution. 

Railroad commission's order to restore 
train service. — Railroad commission's order 
requiring a railroad company to restore 
certain trains was held confiscatory in 
B lease v. Charleston &: W. C. R. Co., 146 S. 
C. 496, 144 S. E. 233 (1928). 

Refusal of trial based on indictment. — 
Thus one demanding but refused the right 
to be tried only upon indictment presented 
by legal grand jury, where such indictment 
is legally required, is "deprived of life, 
liberty or property" without due process 
of law. State v. Rector, 158 S. C. 212, 
155 S. E. 385 (1930). 

Regulating hours of workers. — .^ct No. 
943 of the 1938 .\cts, which regulates hours 



of workers, is invalid under this section in 
that it is not a proper exercise of the public 
power of the State and the classifications 
therein are arbitrary and without reason- 
able basis. Gasque v. Nates, 191 S. C. 271, 
2 S. E. (2d) 36 (1939). 

Requiring railroads to build industrial 
sidetracks. — ilays v. Seaboard, etc., Ry., 75 
S. C. 455, 56 S. E. 30 (1906). 

Statute retroactive as to all estates not 
finally settled, whicli amended former law 
by providing that legitimate as well as 
illegitimate children could inherit from an 
illegitimate child of the same mother, was 
held unconstitutional as to heir entitled to 
estate at illegitimate intestate's death be- 
cause depriving such heir of property with- 
out due process. Muldrow v. Caldwell, 173 
S. C. 243, 175 S. E. 501 (1934). 

Taking property without actual entry 
thereon. — There may be a taking of property 
in the constitutional sense although there 
has been no actual entry within its bounds 
and no artificial structure has been erected 
upon it. When a public agency acting 
under authority of statute uses land which 
it has lawfully acquired for public purposes 
in such a way that neighboring real estate, 
belonging to a private owner, is actually 
invaded by superinduced additions of water, 
earth, sand, or other material so as effectual- 
ly to destroy or impair its usefulness, there 
is a taking within the meaning of the Con- 
stitution. Bavnham v. State Highway 
Dept., 181 S. C. 435, 187 S. E. 528 (1936). 

III. EQU.\L PROTECTION OF 
LAWS. 

A. Scope of Equal Protection Clause. 

Equal protection clauses admit wide scope 
of discretion. Tliey avoid legislative enact- 
ments only when they are without any 
reasonable basis. Witt v. People's State 
Bank. 166 S. C. 1, 164 S. E. 306 (1932); 
Ward v. Darlington, 183 S. C. 263, 190 S. 
E. 826 (1937). 

Meaning of "equal protection" clause. — 
The "equal protection" clause in this sec- 
tion means that no person or class of 
persons shall be denied the protection of 
the laws enjoyed by other persons or classes 
in the same place and under like circum- 
stances. Harrison v. Caudle, 141 S. C. 407. 
139 S. E. 842 (1927); State v. Brown, 178 
S. C. 294, 182 S. E. 838 (1935); Ward v. 
Darlington, 183 S. C. 263, 190 S. E. 826 
(1937). 

Legislature may classify citizens. — This 
section cannot be construed to deprive the 
law making department of the government 
of the power to make a classification of its 



88 



Art. 1, § 5 Constitution of the State of South Carolina Art. 1, § 5 



citizens. TIuis laws may be passed, if ap- 
plicable alike to all persons, natural or 
artificial, belonging to a given class, which 
are not violative of the provisions of the 
Constitution forbidding denial to any per- 
son of the equal protection of the laws. 
Porter v. Charleston & S. Ry. Co., 63 S. C. 
169, 41 S. E. 108 (1902); McCandlcss v. 
Richmond & D. R. Co., 38 S. C. 103, 16 
S. E. 429 (1904); Blum v. Richland County, 
38 S. C. 291, 17 S. E. 20 (1893); Brown v. 
Carolina Midland Rv. Co., 67 S. C. 481, 46 
S. E. 283 (1903). 

For public purposes. — The legislature has 
power to make a classification of persons 
or property for public purposes, provided 
such classification is not arbitrary, and bears 
reasonable relation to the purpose to be 
effectuated, and that the equality clause is 
not violated, when all within the designated 
class are treated alike. Simmons v. West- 
ern Union Tel. Co., 63 S. C. 425, 41 S. E. 
521 (1902); Ex parte Hollman, 79 S. C. 
9, 60 S. E. 19 (1908). 

If classification reasonably relates to leg- 
islative purpose. — Requirement of equal pro- 
tection of the laws is fully complied with 
if the legislative classification bears a rea- 
sonable relation to the legislative purpose 
sought to be effected. Duke Power Co. v. 
Bell, 156 S. C. 299, 152 S. E. 865 (1930). 

The equal protection of the laws guar- 
anteed by this section is not violated where 
there is a classification which rests upon 
some difference which bears a reasonable 
and just relation to the act in respect to 
which tlie classification is proposed. Har- 
rison V. Caudle, 141 S. C. 407, 139 S. E. 
842 (1927); Laurens v. Anderson, 75 S. C. 
62, 55 S. E. 136 (1906); State v. Brown, 
178 S. C. 294. 182 S. E. 838 (1935). 

Even though some inequality results. — 
A classification having soine reasonable 
basis does not ofTend this section merely 
because it is not made with mathematical 
nicety or because in practice it results in 
some inequality. State v. Hertzog, 92 S. C. 
14, 75 S. E. 374 (1912). 

And also if constituents of each class are 
treated alike. — Duke Power Co. v. Bell, 156 
S. C. 299, 152 S. E. 865 (1930); Alderman 
& Sons Co. V. Wilson Lumber Co., 11 S. 
C. 165, 57 S. E. 756 (1907). 

Since legislation may be limited to special 
class. — Legislation is not unequal nor dis- 
criminatory in the sense of the equality 
clause of the Constitution merely because 
it is special or limited to a particular class. 
Simmons v. Western Union Tel. Co., 63 S. 
C. 425, 41 S. E. 521 (1902). 

For example, building contractors are 
usually of a much less financial responsi- 



bility than railroad and paving contractors. 
State v. Hertzog, 92 S. C. 14, 75 S. E. 374 
(1912). 

B. Where Equal Protection Not Denied. 

Act dealing with landlords as class. — 
State V. Elmore, 68 S. C. 140, 46 S. E. 939 
(1904). 

Act making each carrier agent of con- 
necting carrier. — Venning v. Atlantic Coast 
Line R. Co., 78 S. C. 42, 58 S. E. 983 (1907); 
Glenn v. Atlantic Coast Line Co., 96 S. C. 
357. 80 S. E. 898 (1914) 

Classification as to wholesalers. — The 
classification as to wholesalers established 
in §47-271 is not arbitrary, capricious, or 
unreasonable, and does not violate the equal 
protection clauses of this section and the 
Fourteenth .\mendment to the Federal Con- 
stitution. Ponder v. Greenville, 196 S. E. 
79, 12 S. E. (2d) 851 (1941), 

Construction of city stadium. — An act 
authorizing city to construct stadium and 
exempting from taxation bonds issued there- 
for was held not invalid as constituting un- 
fair discrimination against bonds of otlier 
business enterprises. Cathcart v. Columbia, 
170 S. C. 362, 170 S. E. 435 (1933). 

E.xempting portions of county from gen- 
eral stock law.— Utscv v. Hiott, 30 S. C. 360, 
9 S. E. 338 (1889); Goodale v. Sowell, 62 
S. C. 516, 40 S. E. 970 (1902); Brown v. 
Tharpe, 74 S. C. 207, 54 S. E. 363 (1907). 

Failure to appraise mortgaged land out- 
side State. — It was not a denial of equal 
protection of laws not to apply the stat- 
ute which called for appraisal of mortgaged 
property after sale, where such land was 
not located within the State. Fidelity-Bank- 
ers Trust Co. V. Little, 178 S. C. 133, 181 S. 
E. 913 (1935). 

Hairdresser and cosmetologist statutes. — 
Sections 56-451 to 56-482, relating to regu- 
lations of hairdressers and cosmetologists, 
do not violate this section. State v. Ross, 
185 S. C. 472, 194 S. E. 439 (1937). (Editor's 
note. — The above case was decided prior 
to the 1948 amendment to the cited Code 
sections.) 

Imposing vehicle license tax in only one 
county. — State v. Touchberry, 121 S. C. 5, 
113 S. E. 345 (1922). 

Motor carrier regulation. — The fact that 
a statute which regulated motor carriers 
also exempted farmers or dairymen haul- 
ing farm or dairy products, as well as lum- 
ber haulers engaged in transporting lumber 
and logs from forest to shipping points, was 
held not to render such statute unconstitu- 
tional as discriminatory. State v. Hicklin, 
168 S. C. 440, 167 S. E. 674 (1933), 



89 



Art. 1, § 5 CONSTITUTIOX OF THE StATE OF SoUTH CAROLINA Art. 1,§5 



"Pay-as-you-go" gasoline and automobile 
taxes. — Bris;a;s v. Greenville County. 137 S. 
C. 288. 135''S. E. 153 (1926): Standard Oil 
Co. V. Spartanburg, 66 S. C. 37, 44 S. E. 
377 (19031. 

Paying highway indebtedness by gasoline 
and motor vehicle taxes. — State v. Moorer, 
152 S. C. 455, 150 S. E. 259 (1929). 

Penalizing carriers failing to pay freight 
damages on time. — Porter v. Charleston & 
S. Ry. Co., 63 S. C. 169, 41 S. E. 108 
(1902): Seeders Bros. v. Seaboard, etc., Ry., 
73 S. C. 71." 52 S. E. 797 (1905). 

Penalizing railroad failing to transport 
goods on time. — Sanford v. Seaboard, etc., 
Ry., 79 S. C. 519. 61 S. E. 74 (1908). 

Probate court fee statute. — Section 27- 
319, in effect a local inheritance tax law 
and providing a schedule of probate court 
fees for the probate court of Spartanburg 
County, is entirely uniform in its applica- 
tion within the territory. Anderson v. Page, 
208 S. C. 146. 37 S, E. (2d) 289 (1946). 

Refund of gasoline tax. — Section 65-1101, 
providing for partial refund of the im- 
posed gasoline ta.x to purchasers of gasoline 
used only in farm operations, does not 
violate the equal protection of the law 
clause. State v. Query, 207 S. C. 500, 37 
S. E. (2d) 241 (1946). 

Requiring county highway to be con- 
structed only by county residents. — Lillard 
v. Melton, 103 S. C. 10, 87 S. E. 421 
(1915). 

Requiring insurance company to deposit 
either bond or securities. — State v. McMas- 
ter, 94 S. C. 379, 77 S. E. 401 (1912). 

State warehouse act for storing lint cot- 
ton only. — State v. State Warehouse 
Comm., 92 S. C. 81, 75 S. E. 392 (1912). 

Tax on gasoline imported into State. — 
Section 65-1081 of the Code, imposing a tax 
on gasoline imported into State and stored 
for future consumption, is not unconstitu- 
tional as discriminatory. Gregg Dveing 
Co. V. Query, 166 S. C. 117, 164 S. E. 588 
(1932). 

Taxing electric power companies. — A 
statute which taxes companies producing 
electric current by water power and steam, 
without taxing gas companies and the com- 
paratively insignificant companies which 
produce current by the use of internal com- 
bustion engines, cannot be said to make 
an arbitrari' classification, which denies the 
equal protection of the laws. South Car- 
olina Power Co. v. South Carolina Tax 
Comm.. 52 F. (2d) 515 (1931). 

Taxing or exempting municipality from 
taxation. — Legislation of the State taxing 
or exempting a municipality from ta.xa- 



tion is not open to the objection that 
it offends the equal protection clause. South 
Carolina Power Co. v. South Carolina Tax 
Comm., 52 F. (2d) 515 (1931). 

C. Where Equal Protection Denied. 

Discrimination in fishing law. — State v. 
Higgins, 51 S. C. 51. 28 S. E. 15 (1897). 

Discrimination in punishment between 
landlord and laborer. — State v. Williams, 
32 S. C. 123, 10 S. E. 876 (1890). 

Exempting Confederate veterans from 
paying business licenses. — Laurens v. An- 
derson, 75 S. C. 62, 55 S. E. 136 (1905). 

Exempting corporations from general 
penalty for Sunday sales. — Xepapas v. Rich- 
ardson. 149 S. C. 52. 146 S. E. 686 (1929). 
But see State v. Hondros, 100 S. C. 242, 
84 S. E. 781 (1915). 

Permitting one person to sue State for 
damaged automobile. — Sirrine v. State, 132 
S. C. 241, 128 S. E. 172 (1925). 

Statute of limitations in actions against 
counties for salaries.— .\cts 1938, p. 1893, 
which fi.xed a period of limitation for ac- 
tions against counties for salaries, fees, etc., 
but which excluded from its operation claims 
against four counties of the State, violated 
the equal protection and due process clauses 
of the State and Federal Constitutions. Gil- 
lespie V. Pickens County, 197 S. C. 217, 14 
S. E. (2d) 900 (1941). 

Unfair competition statute. — The unfair 
competition statute (1932 Code §6626), di- 
rected against discrimination between dif- 
ferent purchasers of a commoditj' in general 
use in order to injure the business of a 
competitor, violated this section because 
its vague and indefinite language caused 
it to be unreasonable, arbitrary, and capri- 
cious in its effects. State v. Standard Oil 
Co., 195 S. C. 267, 10 S. E. (2d) 778 (1940). 

IV. PRIVILEGES AND 
IMMUNITIES. 

Emigrant agent's statute does not violate 
section. — The emigrant agent's act (now 
§ 16-564 of the Code), prohibiting the carry- 
ing on of the business of emigrant agent 
without a license, is not in violation of 
this section as abridging the privileges 
of citizens. State v. Xapicr, 63 S. C. 60, 
41 S. E. 13 (1902>. 

Privileges and immunities clause applies 
to custody of children. — The privileges, im- 
munities, and liberties protected by this 
section include the rights of parents to the 
custody of children given them by law as 
well as the liberty of the children from 
illegal restraint or custody after the parent 
has forfeited the right of custody. A stat- 



90 



Art. 1, § 6 Constitution of the State of South Carolina Art. 1,§7 



ute authorizing the father to convey the 
custody of his cliildrcn to another during 
minority against the mother's wishes, 
without permitting any judicial investiga- 
tion by habeas corpus or equitable pro- 
ceedings as to the rights of the mother 
and the children concerning their custody, 
would be a deprivation of liberty with- 
out due process of law. Ex parte Till- 
man, 84 S. C. 552, 66 S. E. 1049 (1910). 



Scope of privileges and immunities clause. 
— In the riglit of freedom from unlawful 
restraint is embraced the right to the enjoy- 
ment of all those privileges and immunities 
which belong to the citizen of a free coun- 
try. These privileges and immunities are from 
their nature incapable of limitation by exact 
definition. Ex part Tillman, 84 S. C. 552, 
66 S. E. 1049 C1910). 



§ 6. Taxation. 

All propert}' subject to taxation .shall 
See Const. 1S6S. .\rt. I, § 36. 

Cross reference. — As to constitutional 
provision concerning due process of law, 
see S. C. Const. .Art. 1. § 55. 

This section does not apply to property 
exempt from taxation. Duke Power Co. v. 
Bell. 156 S. C. 299, 152 S. E. 865 (1930). 

Tax is distinguished from assessment. — 
Taxes, in the strict sense of the word, are 
imposed upon all property, both real and 
personal, for the maintenance of the gov- 
ernment or some division thereof, while as- 
sessments are laid only on the property 
to be benefited by the proposed improve- 
ments. Jackson v. Breeland, 103 S. C. 184, 
88 S. E. 128 (1916). 

Assessment is prerequisite to legal tax. — 
Ta.xes are not to be laid merely upon 
taxable property, nor upon its actual 
value, but are to be laid upon its actual 
value as ascertained by an assessment made 
for the purpose of laying such tax. It is 
thus clear that an oflicial valuation for taxa- 
tion is essential to contsitute a tax which 
must not only be certain in amount, but 
which must also be justly apportioned. 
State V. Cheraw & D. R. Co., 54 S. C. 564, 
32 S. E. 691 (1899). 

And must be based on property valua- 
tion. — A system of special assessment by 
a municipal corporation is unconstitutional 
which results in taxation of property abut- 



be taxed in proportion to its value. 



ting on the streets through which water 
mains are to be laid not in accordance to 
the valuation of such property, but because 
it will result in a benefit to the land own- 
ers whose land abuts on the streets. Steh- 
mever v. Citv Council, S3 S. C. 259, 31 
S. E. 322 (1898). 

Licensing coin-operated devices does not 
violate section. — Act No. 346. p. 650, 1939 
.A.cts (Vol. 2, 1942 Code, p. 1496, § 110), 
which provides for the licensing of coin-oper- 
ated devices, does not violate this section of 
the Constitution. Carolina JIusic Co. v. 
Query, 192 S. C. 308, 6 S. E. (2d) 473 
(1939). 

Business privilege tax as excise tax. — 
An annual license tax based on gross re- 
ceipts for the privilege of doing business in 
a county, which tax was levied as a school 
district tax, was held to be an excise tax 
and not a property tax under this section. 
Hay v. Leonard, 212 S. C. 81, 46 S. E. (2d) 
653 (1948). 

Cited in State v. Virginia-Carolina 
Chemical Co., 71 S. C. 544. "si S. E. 455 
(1905); Lillard v. Melton, 103 S. C. 10, 87 
S. E. 421 (1915); Briggs v. Greenville 
County, 137 S. C. 288. 135 S. E. 153 (1926); 
State V. Tucker, 56 S. C. 516, 35 S. E. 215 
(1900); Marion v. Baxley, 192 S. C. 112, 
5 S. E. (2d) 573 (1939). 



§ 7. No tax without consent. 

No tax, subsidy, charge, impost tax or duties shall be established, fixed, 
laid or levied, under any pretext whatsoever, without the consent of the 
people or their representatives lawfully assembled. 

See Const. 1868, Art. I, § i7. 



Meaning of "consent of the people". — In 

Dial v. Watts, 138 S. C. 468. 136 S. E. 891 
(1927), the court held that the "representa- 
tives lawfully assembled" are the legislature 
with its plenary power and that "consent 
of the people" means the vote of all the 
people using the ballot w-ith registration 
certificates and ta.x receipts. Cothran v. 



West Dunklin Public School Dist.. 189 
S. C. 85, 200 S. E. 95 (1938). 

Annexation statutes not violative of sec- 
tion.— Sections 47-11, 47-12, 47-14 to 47-19, 
and 47-24, relating to annexation of ter- 
ritory to a municipality, do not violate this 
section pertaining to constitutional protec- 
tion against ta.xation without representation. 



Art. 1, § 8 Constitution of the State of South Carolina Art. 1, § 8 



Harrell v. Columbia, 216 S. C. 346, 58 
S. E. (2d) 91 (1950). 

Dividing county into representation areas 
is valid. — Section 14-1162, dividing Charles- 
ton County into five areas of representation, 
does not contravene this section. Gaud v. 
Walker, 214 S. C. 451, 53 S. E. (2d) 316 
(1949). 

Establishing civil and criminal court for 
portion of Oconee County is not invalid 



under this section. Glymph v. Smith, 170 
S C. 486. 170 S. E. 913 (1933). 

Stated in Fripp v. Coburn, 101 S. C. 312, 
85 S. E. 774 (1915). 

Cited in Martin v. School Dist., 57 S. C. 
125, 35 S. E. 517 (1900); Evans v. Beattie, 
137 S. C. 496, 135 S. E. 538 (1926); Dial 
V. Watts, 138 S. C. 468, 136 S. E. 891 
(1927). 



§ 8. Attainder ; ex post facto law. 

No bill of attainder, ex post facto law, law impairin,s; the obligation of con- 
tracts, nor law granting any title of nobility or hereditary emolument, shall 
be passed, and no conviction shall work corruption of blood or forfeiture of 
estate. 

See Const. 1868. Art. I. §§ 4, 21. 

I. Impairment of Contracts. 

A. General Consideration. 

B. Application of Section. 
II. Ex Post Facto Laws. 

III. Forfeiture of Estates. 

Cross References. 

As to similar provisions in the Constitu- 
tion of the United States prohibiting the 
states from certain powers, see U. S. Const., 
Art. 1, §9. As to compensation rendered 
public officers for services on contracts, see 
S. C. Const., Art. 3. § 30. 

I. IMPAIRMENT OF CONTRACTS. 
A. General Consideration. 

Liberty to contract is not absolute. — The 
constitutional guaranty of liberty to con- 
tract cannot be regarded as absolute in the 
sense that there can be no state regulation 
of matters as to which persons might desire 
to contract. There remains the state's police 
power which permits the legislature to enact 
laws for the general good of the citizens of 
the state, even though the incidental effect 
of regulation thereunder would be to de- 
prive some individual of liberty or property. 
When this police power is properly exer- 
cised, the deprivation of life, liberty, or prop- 
erty is with due process of law. Similar 
principles apply to the constitutional pro- 
hibition against impairment of the obligation 
of a contract. Gasque v. Nates, 191 S. C. 
271. 2 S. E. (2d) 36 (1939). 

Any deviation from contract impairs its 
obligation. — Any deviation from the terms 
of a contract by imposing conditions not 
expressed therein or dispensing with per- 
formance of those expressed impairs its 
obligation, however minute or apparently 
immaterial in its effect such deviation may 



be. Martin v. Save, 147 S. C. 433, 145 S. E. 
186 (1928): Henrv v. Alexander, 186 S. C. 
17, 194 S. E. 649 (1937). 

But impairment is not based on extent 
of change. — Objection to a law, on the 
ground of its impairing the obligation of a 
contract, can never depend upon the extent 
of change in the contract which the law 
effects. Henry v. Alexander, 186 S. C. 
17, 194 S. E. 649 (1937). 

Contract is created by bond issue. — Where 
bonds are issued, a contract arises between 
the purchaser and the seller, the obligation 
of which cannot be impaired. Dove v. 
Kirkland, 92 S. C. 313, 75 S. E. 503 (1912); 
Welch v. Getzen, 85 S. C. 156, 67 S. E. 
294 (1910). 

Stated in Smith v. Greenville County, 1S9 
S. C. 424, 1 S. E. (2d) 502 (1939). 

Cited in State v. Coop, 52 S. C. 508, 30 
S. E. 609, (1898); State v. Hondros, 100 
S. C. 242, 84 S. E. 781 (1915); Paris Moun- 
tain Water Co. v. Greenville, 110 S. C. 36, 
96 S. E. 545 (1918); State v. Moorer, 152 S. 
C. 455. 150 S. E. 269 (1929); Lyon v. Patter- 
son, 102 S. C. 525. 87 S. E. 306 (1915); 
Rivers v. Mclntire, 160 S. C. 462. 158 S. E. 
816 (1931); Ex parte Sanders, 168 S. C. 323, 
167 S. E. 154 (1932); Wallace v. Sumter 
County, 189 S. C. 395, 1 S. E. (2d) 345 
(1939); Kirk v. Douglass, 190 S. C. 495, 3 
S. E. (2d) 536 (1939); Carolina Music Co. 
v. Querv, 192 S. C. 308, 6 S. E. (2d) 473 
(1939); State v. Osborne, 195 S. C. 295, 11 
S. E. (2d) 260 (1940); Welsh v. Western 
Union Tel. Co., 207 S. C. 102, 34 S. E. 
(2d) 398 (1935). 

B. Application of Section. 

Change of highway officers does not im- 
pair contract. — An act abolishing the Bo- 
gansville township highway commission and 



92 



Art. 1, § 8 Constitution of the State of South Carolina Art. 1, § 8 



devolving all of their duties on the ad- 
visory board and the county engineer 
does not conflict with this section forbid- 
ding the enactment of a law impairing the 
obligations of a contract, since every obHga- 
tion issued or incurred lawfully by the com- 
mission win have to be paid by the au- 
thorities on whom the commission's duties 
have devolved. Askew v. Smith, 126 S. C 
159, 119 S. E. 378 (1923). 

Nor does partial refund of gasoline tax. — 
Section 65-1101, providing for partial re- 
fund of the gasoline tax to purchasers of 
gasoline used in farm operations, does not 
impair the obligation of the contracts of the 
holders of State highway certificates of in- 
debtedness. State v. Query, 207 S. C. 500, 
37 S. E. (2d) 241 (1946). 

Or changing time for getting auto li- 
cense. — Statute changing time for procuring 
automobile license does not impair obliga- 
tion of contract, since "license" is not a con- 
tract but is merely a privilege to do what 
otherwise would be unlawful. Heslep v. 
State Highway Dept., 171 S. C. 186, 171 
S. E. 913 (1933). 

Or disposing of motor vehicle license 
fees. — Section 58-1443, providing for dispo- 
sition of license fees for operation of motor 
vehicles for hire, does not violate this section 
through impairment of the obligation of 
contracts. State v. Bates, 198 S. C. 430, 18 
S. E. (2d) 346 (1941). 

Or providing that deed of feoffment can- 
not bar contingent remainders. — The act of 
1883. providing that contingent remainders 
cannot be barred by deed of feoffment with 
livery of seizin, is neither unconstitutional 
nor retroactive when applied to a power 
vested before but not executed until after 
the enactment of the statute. Such act does 
not violate this section. People's Loan, 
etc.. Bank v. Garlington, 54 S. C. 413, 32 
S. E. 513 (1899). 

Or writing off past-due bonds as State 
obligations. — Joint resolution requiring the 
State Treasurer to write off the books as 
State obligations certain past-due bonds is 
not a law impairing the obligation of con- 
tracts, but is a mere matter of bookkeeping. 
Smith V. Jennings, 67 S. C. 324, 45 S. E. 
821 (1903). 

Or law relating to collection and payment 
by banks of checks. — In Witt v. Peoples 
State Bank. 166 S. C. 1, 164 S. E. 306 
(1932), § 8-181 et seq. of the Code, relating 
to collection and payment by banks of 
checks and other instruinents for the pay- 
ment of money, was held not to violate this 
section of the Constitution. 

Or S. C. Unemployment Compensation 
Law. — The South Carolina Unemployment 



Law (see § 68-1 et seq. of the Code) does 
not violate this section by impairing the 
obligation of contracts between employer 
and empIo3-ces. Pickelsimer v. Pratt, 198 
S. C. 225, 17 S. E. (2d) 524 (1941). 

Or tax on production and sale of electric 
power. — Sections 65-901 and 65-902, im- 
posing tax on production and sale of electric 
power in addition to franchise and income 
taxes, impaired the obligation of no con- 
tract existing between the State and com- 
plainant power companies. South Carolina 
Power Co. v. South Carolina Tax Comm., 
52 F. (2d) 515 (1931), affirmed in 286 
U. S. 525, 52 S. Ct. 494, 76 L. Ed. 1268 
(1932). 

But tax levy on exempted property does 
impair contract. — \\'here the Columbia Ca- 
nal with its lands and appurtenances were 
exempted from all ta.xes, except those for 
State purposes, under a contract made by 
the State with the purchaser of such canal 
under act dated December 24, 1890. a levy 
and collection of county taxes on said prop- 
erty by a State officer is in violation of this 
section as an impairment of the obligation 
of a contract. Columbia Water Power Co. 
V. Campbell, 75 S. C. 34, 54 S. E. 833 (1906). 

As may use of unexpended balances from 
bond issue. — An act authorizing road com- 
mission to use all unexpended balances 
realized from bond issue for hard-surface 
roads impairs obligation of contract with 
bondholders. Martin v. Saye, 147 S. C. 
433. 145 S. E. 186 (1928). 

Or relieving judgment debtors from de- 
ficiency judgments. — An act approved May 
2, 1933 (38 St. at Large, p. 350). entitled 
"An act to provide for the relief of real 
estate mortgagors and other judgment 
debtors from deficiency judgments in fore- 
closure to the e.xtent of the true value of the 
mortgaged property, and to prescribe the 
procedure thereon," is unconstitutional, null, 
and void as impairing the obligation of a 
mortgage contract which was executed prior 
to the enactment of the statute. Federal 
Land Bank v. Garrison, 185 S. C. 255, 193 
S. E. 308 (1937). 

Or depriving sheriff of fees. — .^ct No. 
131 of the acts of 1933, enacted prior to the 
amendment of S. C. Const., Art. 3, § 34, 
subdiv. 9, devolving all duties, powers, and 
privileges exercised by the sheriff with re- 
gard to collection of delinquent taxes, levy- 
ing upon property of delinquent taxpayers, 
and execution of deeds in case of sale upon 
the chief of rural police of said county, and 
providing also that the sheriff of Sumter 
County shall keep the books and records 
pertaining to tax collections, is unconstitu- 
tional insofar as it deprives the sheriff of 



93 



Art. 1, § 9 Constitution of the State of South Carolina Art. 1, § 10 



Sumter County of fees and commissions on 
delinquent taxes after its efifective date. 
Hurst V. Sumter County, 189 S. C. 376, 1 
S. E. _(2d) 238 (1939). 

Or invalidly regulating hours of workers. 
—Act Xo. 943 of the 1938 acts, which act 
regulates the hours of -norkers, is invalid 
as it violates this section in that it is not 
a proper exercise of the public power of the 
State, and the classifications therein are 
arbitrary and without reasonable basis. 
Gasque'v. Nates, 191 S. C. 271, 2 S. E. (2d) 
36 (1939). 

II. EX POST FACTO LAWS. 

An ex post facto law is one that has retro- 
active effect. — McCov ". State Highway 
Dcpt., 169 S. C. 436. 'l69 S. E. 174 (1933). 

Death penalty may be changed.^ An act 
changing the manner of inflicting the death 
penalty from hanging to electrocution is not 



disadvantageous to one committing a crime 
for which the penalty is death prior to the 
enactment of the law. Therefore, such law 
is not ex post facto as applied to him. State 
v. Vaughn, 95 S. C. 455. 79 S. E. 312 (1913), 
affirmed in 238 U. S. 612, 35 S Ct. 940, 59 
L. Ed. 1489 (1915). 

III. FORFEITURE OF EST.\TES. 

Execution of insured does not bar action 
on incontestable policy. — The legal execu- 
tion of an insured for a crime committed 
by him is no defense to an action which 
had been in force more than two years on a 
life policy, fixed by an incontestability 
clause providing that it shall be incontest- 
able after two years, in view of this section 
which provides that no conviction shall 
work a forfeiture. Weeks v. New York 
Life Ins. Co., 128 S. C. 223, 122 S. E. 586 
(1924). 



§ 9. Suffrage. 

The right of sufTfrage, as regulated in this Constitution, shall be protected 
by law regulating elections and prohibiting, under adequate penalties, all un- 
due influences from power, bribery, tumult or improper conduct. 

Cross reference. — As to qualifications for 
suffrage, see S. C. Const., .^rt. 2, § 4. 

School trustee election law held invalid 
under section. — .\ statute imposing a man- 
datory duty on the county board of educa- 
tion for Chesterfield County immediately 
to appoint and commission school trustees 
elected at an election conducted according 



to regulations applicable to primary elec- 
tions was held invalid as dispensing with 
the constitutional requirements for suf- 
frage and substituting therefor the regula- 
tions applicable to primarv elections. State 
V. Huntley, 167 S. C. 476, 166 S. E. 637 
(1932). 



§10. Elections free and open. 

All elections shall be free and open, and every inhabitant of this State pos- 
sessing the qualifications provided for in this Constitution shall have an equal 
right to elect officers and be elected to fill public office. 

See Const. 1868, Art. I, § 31. 



Cross references. — .\s to qualifications for 
sufifrage, see S. C. Const., .^rt. 2, § 4. As 
to protection of right of suffrage, see S. C. 
Const.. Art. 1, § 9. 

Qualifications for eligibility to office. — 
All officers, constitutional and statutory, 
whether elected or appointed, must be 
qualified electors. The legislature may not 
add other conditions for eligibility to those 
specified in the Constitution for election or 
appointment to constitutional o.ffices. that 
is. those offices created by the Constitu- 
tion. As to oflices established only by leg- 
islative acts, the General Assembly may 
prescribe other and additional qualifications 
which are reasonable in their requirements. 
McLure v. McElroy, 211 S. E. 106, 44 
S. E. (2d) 101 (1947). 



Question submitted by election petition 
is not election. — The question of annexation 
was submitted to the areas to be annexed 
by an election petition instead of a regular 
election by ballot. This did not violate this 
section as it was not an election within the 
contemplation of this section. Sanders v. 
Greater Greenville Sewer Dist., 211 S. C. 
141. 44 S. E. (2d) 185 (1947). 

School trustee election law held invalid 
under section. — See note to Art. I, § 9. 

Bond issue election provisions in conflict 
with section. — The provisions of Act No. 
102, 38 St. at Large, p. 114, which provide 
that one offering to vote at an election on 
the question of issuing bonds in a school 
district election in Greenville County must 
return for taxation real and personal prop- 



94 



Art. 1, § 11 Constitution of the State of South Carolina Art. 1,§11 



erty therein, in addition to showing a cer- 
tificate of registration and a tax receipt, 
are in direct conliict with this section. 
Cothran v. West Dunklin Public School 
Dist., 189 S. C. 85, 200 S. E. 95 (1938). 
For additional related case, see Ex parte 
Lumsden, 41 S. C. 553, 19 S. E. 749 (1894). 



Stated in Wiley v. Sinkler, 179 U. S. 58, 
21 S. Ct. 17, 45 L. Ed. 84 (1900). 

Cited in Martin v. School Dist., 57 S, C. 
125, 35 S. E. 517 (1900). Fooshe v. Mc- 
Donald, 82 S. C. 22. 63 S. E. 3 (1908): 
Rivers v. Mclntire, 160 S. C. 462, 158 S. E. 
816 (1931). 



§ 11. Property qualifications; term of office; dueling. 

No property qualification, unless prescribed in this Constitution, shall be 
necessary for an election to or the holding of any office. No person shall be 
elected or appointed to office in this State for life or during good behavior, but 
the terms of all officers shall be for some specified period, except Notaries 
Public and officers in the militia. After the adoption of this Constitution any 
person who shall fight a duel or send or accept a challenge for that purpose, 
or be an aider or abettor in fighting a duel, shall be deprived of holding any 
office of honor or trust in this State, and shall be otherwise punished as the law 
shall prescribe. 

See Const. 1868, Art. I, § 32. 

I. General Consideration. 
II. .Application of Section. 



tr 



I. GENER.A.L CONSIDERATION. 

Purpose of section. — There is no incon- 
sistency in this section and S. C. Const., 
Art. 5, § 20. Prior to the adoption of the 
S. C. Constitution of 1895, offices in this 
State might be held during good behavior. 
The purpose of this section was to change 
this rule and make the term a limited one 
in order to make ofiice holders more amen- 
able to the elective or appointive power. 
State V. Bowden, 92 S. C. 393, 75 S. E. 866 
(1912). 

Definition of "office". — The term "office" 
as used in this section means a public sta- 
tion permanent in character, and the term 
"officer" means a person holding such a 
station. Evans v. Beattie, 137 S. C. 496, 135 
S. E. 538 (1926). 

Holding office for "some specified period". 
— It would be most unreasonable to impute 
to the constitutional convention a purpose 
to give to "some specified period" a mean- 
ing so narrow as to prohibit any legislative 
provision against the inconvenience arising 
from vacancies in public office, which would 
occur if the incumbent could not hold office 
until appointment or election and qualifica- 
tion of his successor. The convention could 
not have meant to prohibit itself and the 
General Assembly from doing that which 
it actually did later in the Constitution in 
providing that the Governor and the jus- 
tices of the Supreme Court should hold '.lieir 
ofiices for the number of years mentioned 
until their successors should be elected and 
qualified, and that magistrates should hold 



their offices for two years and until their 
successors should be appointed, confirmed, 
and qualified. State v. Bowden, 92 S. C. 
393. 75 S. E. 866 (1912). 

Term of office may be inferred from na- 
ture of office. — This section does not require 
that the term of every ofiicer shall be fi.xed 
by direct legislative enactment. The spec- 
ified period may be inferred from the nature 
of the office and the duties of the officer. 
For example, when an inferior oTiice is 
created, the tenure may be implied to be 
the same as that of the superior office to 
which the inferior is an adjunct. Such an 
implication is especially strong when the 
inferior officer is charged with minor mat- 
ters, with the general supervision and re- 
sponsibility devolving on the superior of- 
ficer. Sanders v. Belue, 78 S. C. 171, 58 
S. E. 762 (1907). 

Quoted in State v. Wannamaker, 213 S. C. 
1, 48 S. E. (2d) 601 (1948). 

Cited in Ex parte .Alverson, 123 S. C. 
539, 117 S. E. 316 (1923) ; Duncan v. Record 
Pub. Co., 145 S. C. 196, 143 S. E. 31 (1927); 
McLure v. McElroy, 211 S. C. 106, 44 S. E. 
(2d) 101 (1947). 

II. APPLICATION OF SECTION. 

Section does not apply to certain public 
duties. — The appointment of certain in- 
dividuals to perform duties in connection 
with the construction of a single specified 
public improvement (the "Coastal Highway 
.A.ct", 1926 -Acts. p. 1492) is not within this 
section. Evans v. Beattie, 137 S. C. 496, 
135 S. E. 538 (1926). 

Officers may not perpetuate themselves 
in office. — Members of a board of trustees 



95 



Art. 1, § 12 Constitution of the State of South Carolina Art. 1, § 14 



of a hospital are not permitted under this 
section to perpetuate themselves in office 
through indefinite reappointment of such 
members upon tlie expiration of their re- 
spective terms. Bradley v, Greenville, 212 
S. C. 389, 46 S. E. (2d) 29 (1948). 

Holding over without qualification until 
qualification of successor. — A county treas- 
urer, who liad taken oath of office, had 
given bond, and had served for several 
terms, was nominated for another term but 
did not receive the commission from the 
Governor, nor take oath nor give bond. 
Nevertheless, while continuing to act until 
a successor was appointed and qualified, he 
was county treasurer during such time, even 
though he had not given the bond and taken 
tlie o"ath. State v. Mason, 118 S. C. 171, 110 
S. E. 128 (1921) 

Valid terms of office of highway commis- 
sioners. — .\n act of the General Assembly 
autliorizing a county bond issue and creat- 
ing a highway commission does not vio- 
late this section on the ground that the 
tenure of office holders shall be four years, 
or until their successors are appointed and 
qualify, or until the provisions of the act 
are completely carried out. Graham v. 
Ervin, 114 S. C. 419, 103 S. E. 750 (1920). 

The provision of 29 St. at Large, p. 
493, that the commission thereby created to 
have charge of the improvement of high- 
ways in Richland County shall serve for a 
term of three years or until the provisions 
of that act are completely carried out does 
not violate this section, since the term is 
for the specified period of three years and 
the further provision merely restricts the 
term to the completion of the work, if 
completed within that time, and does not 



extend the term beyond such period without 
reappointment. Lillard v. Melton, 103 S. C. 
10, 87 S. E. 421 (1915). 

Poorhouse act not complying with section 
is void. — ,A,n act providing for committee 
for poorhouse, which does not specify terms 
of oftice, is void. State v. Lemon, 148 S. C. 
98. 145 S. E. 704 (1928). 

Duration of term of subordinate officer 
of poorhouse. — The county board of com- 
missioners are by law made responsible for 
the general supervision of the poorhouse 
and farm of the county. It was never in- 
tended that the subordinate officer ap- 
pointed by them for superintendence of the 
institution should have a longer term than 
those by whom he was appointed. Sanders 
v. Belue, 78 S. C. 171, 58 S. E. 762 (1907). 

New charter not limiting police chief's 
term of office. — In view of this section pro- 
viding that tlie terms of all officers shall 
be for some definite period, the chief of 
police of a city which had adopted the com- 
mission form of government by a charter 
not limiting the term of such officer cannot 
enjoin the installation of a successor on 
the ground that the new charter re- 
pealed the former provision limiting the 
term of office to two years, since either 
that tnaximum was continued in force or 
the office was destroyed. In either event, 
the plaintiff is not concerned with what 
became of the office. Richardson v. Blalock, 
118 S. C. 438, 110 S. E. 678 (1922). 

Refusal of surety to bond officer succeed- 
ing himself. — .\s to surety company refus- 
ing to issue another bond on an officer suc- 
ceeding himself for another term, see State 
V. Mason, 126 S. C. 426, 120 S. E. 367 
(1923). 



§ 12. Residence. 

Temporary absence from the State shall not forfeit a residence once ob- 
tained. 

See Const. 1868, Art. I. § 35. 

§ 13. Suspension of laws. 

The power of suspending the laws or the execution of the laws shall only be 
exercised by the General Assembly or by its authority in particular cases ex- 
pressly provided for by it. 

See Const. 1868, Art. I, § 24. 

Cross reference. — .'\s to authority of the 
Governor to call out the militia, see § 44-114 
and 44-115. 



§ 14. Departments separate. 

In the government of this State the legislative, executive and judicial powers 
of the Government shall be forever separate and distinct from each other, and 

96 



Art. 1, § 14 Constitution of the State of South Carolina Art. 1, § 14 



no person or persons exercising the functions of one of said departments shall 
assume or discharge the duties of any other. 
See Const. 1868, Art. I, § 26. 



I. General Consideration. 
II. Legislative Powers. 
III. Executive Powers. 
IV. Judicial Powers. 

I. GENERAL CONSIDERATION. 
Section applies to State government. — 

This section of the Constitution refers to 
the government of the State and to State 
officers. Gaud v. Walker, 214 S. C. 451, S3 
S. E. f2d) 316 (1949). 

But not to government of municipal cor- 
porations.— Gaud V. Walker, 214 S. C. 451, 
53 S. E. (2d) 316 (1949). 

The three departments under this sec- 
tion are co-ordinate and independent. Each 
is supreme as to matters within its own 
sphere of action, subject alone to the lim- 
itations, checks, and balances provided in 
the Constitution. State v. Ansel, 76 S. C. 
395. 57 S. E. 185 (1907). 

Section vested existing judicial power in 
courts. — This section assumed the existence 
of an organized society, and when it vested 
the judicial power in the courts, it had ref- 
erence to the judicial power then existing 
and such as the people then understood to 
be vested in and exercised by the courts. 
Carolina Glass Co. v. State, 87 S. C. 270, 69 
S. E. 391 (1910). affirmed in 240 U. S. 305, 
36 S. Ct. 293, 60 L. Ed. 658 (1916). 

Cited in State v. Parler. 52 S. C. 207. 29 
S. E. 651 (1898) ; State v. Columbia Rv., etc., 
Co., 129 S. C. 455, 124 S. E. 758 (1924); 
State V. Moorer, 152 S. C. 455, 150 S. E. 
269 (1929): State v. Stauss, 114 S. C. 445, 
103 S. E. 769 (1920); State v. Pridmore, 163 
S. C. 97, 161 S. E. 340 (1931). 

II. LEGISLATIVE POWERS. 
Test of delegation of legislative power. 

— The prohibition of this constitutional sec- 
tion that power conferred upon the legisla- 
ture to make law cannot be delegated by 
that body to any other body or authority 
is tested by determining whether the act 
is complete in itself when it leaves the leg- 
islature. DeLoach v. Scheper, 188 S. C. 
21, 198 S. E. 409 (1938). 

Legislature may engage in nonlegislative 
functions. — The legislature may properly 
engage in the discharge of nonlegislative 
functions only so far as is reasonably inci- 
dental to full and efifective exercise of leg- 
islative powers. Spartanburg Countv v. 
Miller, 135 S. C. 348. 132 S. E. 673 (1924); 
Ruff V. Boulware, 133 S. C. 420, 131 S. E. 
29 (1925). 

[7 SC Code]— 7 97 



And investigate any subject by commit- 
tee. — The legislature has the power to in- 
vestigate any subject, which power may be 
exercised by a committee. Where there is 
a legitimate use that the legislature can 
make of the information sought, an ulterior 
purpose in the investigation cannot be 
imputed, nor can an improper use of the 
information, when secured, be presumed. 
Robertson v. Peeples, 120 S. C. 176, 115 S. E. 
300 (1919). 

But cannot confer power to pass final 
judgment. — An act conferring powers on the 
dispensary commission is invalid in so far 
as it confers on the commission power to 
pass final judgment on the claim of the 
State against a claimant for materials fur- 
nished a dispensary. Carolina Glass Co. v. 
State, 87 S. C. 270. 69 S. E. 391 (1910), 
affirmed in 240 U. S. 305, 36 S. Ct. 293, 60 
L. Ed. 658 (1916). 

Legislative delegation may not execute 
laws passed by legislature. — An act which 
authorized Greenville County to issue not 
exceeding $350,000.00 in bonds and to bor- 
row not exceeding $350,000.00, and which 
vested full discretion as to the amount of 
bonds to be issued, the amount of money 
to be borrowed, and the roads to be con- 
structed or improved with the funds in the 
county legislative delegation was declared 
to run counter to this section of the Con- 
stitution, since the county legislative del- 
egation, which belongs to the legislative de- 
partment of government, cannot be ap- 
pointed as an executive body to carry out 
and carry into effect laws passed by the 
legislature. Bramlette v. Stringer, 186 S. C. 
134, 195 S. E. 257 (1938). overruling Ruff 
v. Boulware, 133 S. C. 420, 131 S. E. 29 
(1925), insofar as it conflicts therewith. 

Statutes creating Public Service Au- 
thority are constitutional. — Sections 59-1 
to 59-84 creating the South Carolina Public 
Service Authority, which was authorized 
to construct hydroelectric and navigation 
project, to finance construction of project 
by issuance of bonds, and to regulate rates 
on electricity produced at such project is 
not an unconstitutional delegation of legis- 
lative power. Clarke v. South Carolina 
Public Service Authority, 177 S. C. 427, 
181 S. E. 481 (1937). 

As is county housing authority statute. — 
Section 36-181 of the Code, providing for 
the possible creation in each county of the 
State of a county housing authority, is for 
a public purpose and does not constitute an 



Art. 1, § 14 Constitution of the State of South Carolina Art. 1, § 14 



unlawful attempt to delegate legislative 
powers in violation of this section of the 
Constitution. Benjamin v. Housing Au- 
thority of Darlington County, 198 S. C. 
79, IS S. E. (2d) HI (1941). 

And State highway condemnation stat- 
utes. — The condemnation procedure set out 
in §§ Zl~\21, 33-125, Zi-Ul and Zl-\ZZ of 
the Code docs not violate this section of the 
Constitution by allegedly bestowing upon 
the State Highway Commission both ad- 
ministrative and judicial functions in the 
condemnation of private property for State 
purposes. Jennings v. Sawyer, 182 S. C. 
427, 189 S. E. 746 (1937). 

And act regulating size and weight of 
trucks.— In State v. Nutt Co., 180 S. C. 
19, 185 S. E. 25 (1935), an act regulating 
the size and weight of trucks was held not 
to violate this section of the Constitution. 

And act authorizing road improvements. 
—Act No. 1256, 1938 Acts [1938 (40) 2730], 
authorizing the board of county coinmis- 
sioners of Richland County to borrow not 
exceeding $360,000.00 for the purpose of 
improving certain roads in the county of 
Richland and to provide for the payment 
thereof, is not violative of this section be- 
cause it specifies particular roads to be sur- 
face-treated with money authorized to be 
borrowed. Reese v. Hinnant, 187 S. C. 
474, 198 S. E. 403 (1938). 

And statute permitting State agency to 
make regulations. — Former section of the 
Code (1942 Code §5899, repealed by 1949 
Acts [1949 (46) 342]), which gave to the 
State Highway Department the power to 
prescribe departmental rules and regula- 
tions, did not violate this section of the 
Constitution. Stoval v. Sawyer, 181 S. C. 
379, 187 S. E. 821 (1936). 

And statutes regulating hairdressers and 
cosmetologists. — Sections 56-451 to 56-482, 
relating to regulations of hairdressers and 
cosmetologists, do not violate this section 
of the Constitution prior to the 1948 amend- 
ment to such Code sections. State v. Ross, 
185 S. C. 472, 194 S. E. 439 (1937). 

And statute providing for bond issue for 
State institutions. — A statute providing for 
issuance of bonds for specified State insti- 
tutions, which included fixed plan of admin- 
istration and which was to become opera- 
tive upon ascertainment of particular facts, 
was held not invalid as a delegation of leg- 
islative authority because of a provision 
conferring authority upon Governor and 
State Treasurer to select one of two spec- 
ified sources of revenue for payment of 
bonds, since nothing was left to discre- 
tion of Governor and State Treasurer as 



to what should constitute form or sub- 
stance of statute. Crawford v. Johnston, 
177 S. C. 399. 181 S. E. 476 (1935). 

But act giving excessive power to legisla- 
tive delegation is void. — That part of an act 
(§ 5 of Act No. 502, 1944 Acts) which con- 
fers upon the legislative delegation the au- 
thority to fix the amount that may be bor- 
rowed by the county board of education for 
the purpose of repairing, enlarging, con- 
structing, and equipping school buildings 
is invalid under the authority of Bramlette 
v. Stringer, 186 S. C. 134, 195 S. E. 257 
(1938), in that it violates this section of 
the Constitution. Moseley v. Welch, 209 
S. C. 19, 39 S. E. (2d) 133 (1946). 

That portion of an act (§ 4, Act No. 502, 
1944 Acts) which provided that the salary 
of the clerk of the county board of educa- 
tion shall be approved by the legislative 
delegation was held to violate this section 
of the Constitution. Moselev v. Welch, 209 
S. C. 19, 39 S. E. (2d) 133 (1946). 

And legislators may not serve on audi- 
torium district board. — The members of the 
legislature from a county may not serve as 
trustees on a board for an auditorium dis- 
trict. They were elected for the purpose 
of making laws — not administering them. 
Ashmore v. Greater Greenville Sewer District, 
211 S. C. n, 44 S. E. (2d) 88 (1947). 

III. EXECUTIVE POWERS. 

Judicial department cannot control execu- 
tive officer. — An executive officer cannot be 
restrained, coerced, or controlled by the 
judicial department. State v. Ansel, 76 S. 
C. 395, 57 S. E. 185 (1907). 

Although official ministerial duty may be 
compelled. — As applied to members of the 
executive department other than the chief 
executive, jurisdiction is .generally asserted 
by the courts to compel the performance of 
an official duty imposed by law which is 
plainly ministerial and involves no discre- 
tion. State V. Ansel, 76 S. C. 395, 57 S. E. 
185 (1907). 

Mandamus may not compel Governor to 
perform executive duty. — The weight of 
authority and reason are in favor of the 
view that mandamus should not lie against 
the Governor to compel performance of an 
executive duty, whether ministerial or not, 
since there may be no good ground for a 
distinction between an executive duty which 
is ministerial and an executive duty which 
is not ministerial. State v. Ansel, 76 S. C. 
395, 57 S. E. 185 (1907). 

But certiorari lies if Governor invested 
with judicial function. — State v. Ansel, 76 
S. C. 395, 57 S. E. 185 (1907). 

98 [7SCCode] 



Art. 1, § 15 Constitution of the State of South Carolina Art. 1, § 15 



Appointing special judge is not essential 
executive function. — The appointment of a 
special judge to preside over the special 
or regular court is not essentially an execu- 
tive function within the classification of leg- 
islative, executive, and judicial powers under 
this section, but may be regulated bv stat- 
ute. State V. Davis, 88 S. C. 204, 70 S. E. 
417 (1911). 

Nor is supervision of public work. — The 
supervision of public work is not an inher- 
ent function of the executive department, 
and the legislature has the power to have 
the work done by and through such agencies 
as it sees fit. Little v. Willimon, 103 S. C. 
50, 87 S. E. 435 (1915). 

Governor may be deprived of power to 
veto bond issue. — Depriving the Governor 
of his power to veto a bond issue plan with- 
out his veto of the whole county supply act 
is not an invasion of the powers of the 
executive department by the legislative, 
since the constitutional authority of the 
executive to veto is in the nature of a leg- 
islative power. Doran v. Robertson, 203 
S. C. 434, 27 S. E. (2d) 714 (1943). 

Notification of dismissal of appeal from 
death sentence. — .A.n act requiring Supreme 
Court clerk, an executive officer, to notify 
Penitentiary superintendent of dismissal of 
appeal suspending execution of death sen- 
tence is not unconstitutional as imposing 
judicial duties upon an executive officer. 
Ex parte Howell, 168 S. C. 197, 107 S. E. 
230 (1932). 

IV. JUDICI.A,L POWERS. 

Legislative duty may not be compelled by 
mandamus. — The court will not attempt 
to compel the legislature by mandamus to 
perform a legislative duty or function. 
Foster v. Tavlor, 210 S. C. 324, 42 S. E. 
(2d) 531 (1947). 

Legislature decides question as to pur- 
pose of act. — Under the division of the 
powers provided in the State Constitution, 
the question of whether an act is for a 
public purpose is primarily one for the leg- 
islature, and the court will not interfere with 
the legislative finding unless the determina- 
tion of that body is clearly wrong. Mc- 



Nultv V. Owens, ISS S. C. ill, 199 S. E. 
425 (1938). 

But courts decide election results. — The 
hearing and deciding a question by tlie leg- 
islature as to the result of an election, to 
decide whether a new county should be 
established, is in exercise of judicial power. 
As such it is unconstitutional under this 
section. Segars v. Parrott, 54 S. C. 1, 31 
S. E. 677, 865 (1898). 

And determine custody of children. — The 
determination of the right to custody of 
minor children and their illegal restraint is 
a judicial question. Thus, a statute au- 
thorizing the father to convey the custody 
of the children during minority against the 
mother's wishes, without permitting any 
judicial investigation of the rights of the 
mother and children as to their custody, 
would violate this section. Ex parte Till- 
man, 84 S. C. 552, 66 S. E. 1049 (1910). 

Board of education may hear local con- 
troversy. — A statute granting authority to 
the county board of education to hear mat- 
ters of local controversy relating to the con- 
struction and administration of school laws 
and allowing appeal to the State Board of 
Education does not contravene this provi- 
sion. Willow Consol. High School Dist. 
V. Union School Dist. 216 S. C. 445, 58 S. E. 
(2d) 729 (1950). 

Enforcing judgment by mandamus does 
not usurp legislative right. — The enforce- 
ment of a judgment of the court by means 
of mandamus, resulting in payment from 
unappropriated surplus funds of a county 
which w'ere provided pro tanto by the serv- 
ices of a county officer, is not the usurpa- 
tion of a legislative right by the court, but 
is the e.xercise of the court's own function. 
Foster v. Tavlor, 210 S. C. 324, 42 S. E. 
(2d) 531 (1947). 

Pleading statute not violative of section. 
— Construing statute pertaining to "amend- 
ments of course" as not permitting amend- 
ment of pleading, previously amended as of 
course, does not violate constitutional pro- 
vision prohibiting judiciary from discharg- 
ing duties of legislature. First Carolinas 
Joint Stock Land Bank v. Stuckey, 170 S. C. 
86, 169 S. E. 843 (1933). 



§ 15. Courts; remedy. 

All Courts shall be public, and every person shall have speedy remedy there- 
in for wrong's sustained. 

See Const. 1868, Art. I, § 15. 

Section secures to residents access to 
State courts. — It is very manifest that the 
object of this section was not to so extend 
the jurisdiction of the courts of this State 
as to throw open their doors to any per- 

99 



son from any quarter of the globe to de- 
mand redress for injuries received any- 
where, but simply to secure to the inliabit- 
ants of the State for whom the Constitution 
was made access to the courts for redress 



Art. 1, § 16 Constitution of the State of South Carolina Art. 1, § 16 



of any wrongs which they may have re- 
ceived. Central R., etc., Co. v. Georgia 
Const., etc., Co., 32 S. C. 319, 11 S. E. f92 
(1890). 

Public courts include coroner's inquest. 
— A coroner's inquest is within the spirit 
of this section, requiring all courts to be 
public. State v. Griffin, 98 S. C. lOS, 82 
S. E. 254 (1914). 

Scope of term 'Vrongs". — The word 
"wrongs" is here used in its broadest legal 
sense, embracing every injury to or impair- 
ment of legal rights of person or property. 
Davis V. Whitlock, 90 S. C. 233, 11 S. E. 
171 (1911). 

Prevention of marriage may be legal 
wrong. — One sustains a legal wrong when 
his rights of person and property are 
impaired, and when he is restrained from 
marrying, living in doubt as to the most 
solemn and important legal obligations and 
duties affecting both his person and his 
property. Davis v. Whitlock, 90 S. C. 233. 
11 S. E. 171 (1911). 

Lax observance of appeal regulations 
denies speedy remedy. — A lax observance 
of the very reasonable regulations pre- 
scribed by statute and the rules of court for 
perfecting appeals can but lead to unneces- 
sary delay in the final disposition of causes 
in courts, thus working infringement of the 



constitutional guaranty under this section. 
Rylee v. Marett, 121 S. C. 366, 113 S. E. 483 
(1922). 

As does amending pleading previously 
amended as of course. — To permit amend- 
ment of a pleading which was previously 
amended as of course would violate the 
constitutional provision that every person 
shall have speedy remedy in court for 
wrongs sustained. First Carolinas Joint 
Stock Land Bank v. Stuckey, 170 S. C. 86, 
169 S. E. 843 (1933). 

But emergency law giving Governor con- 
trol of banks is valid. — .\n emergency stat- 
ute temporarily vesting in the Governor 
control of banks, and forbidding legal pro- 
ceedings against banks without the Gov- 
ernor's approval, was held not unconstitu- 
tional as depriving depositors of property 
without due process or as denying to them 
the right of speedy remedy in court for 
wrong sustained. State v. Gibbes, 171 S. C. 
209, 172 S. E. 130 (1933), affirmed in 290 
U. S. 326, 54 S. Ct. 140, 78 L. Ed 342 
(1933). 

Quoted in King v. Aetna Ins. Co., 168 
S. C. 84, 167 S. E. 12 (1932). 

Cited in Gilmer v. Hunnicutt, 57 S. C. 
166, 35 S. E. 521 (1900): Sirrine v. State, 
132 S. C. 241, 128 S. E. 172 (192S). 



§ 16. Searches and seizures. 

The right of the people to be secure in their persons, houses, papers and 
effects against unreasonable searches and seizures shall not be violated, and 
no warrants shall issue but upon probable cause, supported by oath or affirma- 
tion, and particularly describing the place to be searched and the person or 
thing to be seized. 

See Const. 1868, Art. I, § 22. 

I. General Consideration. 
II. Application of Section. 



I. GENERAL CONSIDERATION. 

"Search" implies invasion and quest, and 

that implies some sort of force, actual or 
constructive, much or little. State v. Quinn, 
111 S. C. 174, 97 S. E. 62 (1918). 

Section is intended to protect person and 
property. — This section was adopted to save 
a citizen's person and his house from inva- 
sion by some sort of force, except when the 
invasion is had in the most guarded way. 
State V. Quinn, 111 S. C. 174, 97 S. E. 62 
(1918). 

And search warrants must be carefully 
issued. — This section imposes on officers the 
duty of issuing search warrants with care- 
ful discretion and executing them with rea- 
sonable caution and promptness. Farmer v. 
Sellers, 89 S. C. 492, n S. E. 224 (1911). 



Necessity for search in order to secure 
warrant. — This section requires a warrant 
to seize only in those instances where the 
seizure is assisted bv a necessary search. 
State V. Quinn, 111 S. C. 174, 97 S. E. 
62 (1918). 

This section does not prohibit seizure 
without warrant where there is no need of 
a searcli and where the contraband subject 
matter is fully disclosed and open to tlie eye 
and hand. State v. Quinn, 111 S. C. 174, 97 
S. E. 62 (1918). 

Warrant not supported by oath or af- 
firmation is illegal. — A warrant under which 
a defendant was arrested, which was not 
supported either by oath or affirmation, was 
illegal, and the sheriff had no lawful au- 
thority to retain him in custody as such 
warrant was unconstitutional, null, and 
void. State v. Higgins, 51 S. C. 51, 28 
S. E. 15 (1897). 



100 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



Cited in State v. Harley, 107 S. C. 304, 
92 S. E. 1034 (1917); Robertson v. Peeples, 
120 S. C. 176, 115 S. E. 300 (1919); Mayes- 
ville V. Clamp, 149 S. C. 346, 147 S. E. 455 
(1929); Chick Springs Water Co. v. State 
Highway Dept., 159 S. C. 481, 157 S. E. 842 
(1931). 

11. APPLICATION OF SECTION. 

Books of cotton buyers may be open to 
public inspection. — An act providing that 
books of cotton buyers shall be open to 
public inspection, is not unconstitutional as 
permitting unreasonable searches and sei- 
zures. Parks V. Laurens Cotton Mills, 75 
S. C. 560. 56 S. E. 234 (1907). 

And books of a State officer may be 
validly examined. State v. Farnum, 73 S. C. 
165, 53 S. E. 83 (1905). 

Seizure of whiskey without warrant in 
automobile. — Where police oflicers discover 
unconcealed whiskey in an automobile with- 
out making a search therefor and the 
whiskey is being unlawfully transported, 
a seizure of the whiskey without a warrant 
to seize, is not violative of this section. 
State V. Quinn, 111 S. C. 174, 97 S. E. 62 
(1918). 



Evidence obtained upon seeing illegal 
liquor sold is admissible. — Where an officer 
saw defendant sell liquor, no search war- 
rant is necessary to make evidence obtained 
by a search of the premises admissible. 
State V. Maes, 127 S. C. 397, 120 S. E. 576 
(1923). 

As is liquor seized without warrant. — In 
a prosecution for unlawfully transporting 
intoxicating liquor, the fact that the ar- 
resting officer without a warrant seized cer- 
tain liquor in defendant's possession did not 
prevent such liquor from being introduced 
in evidence. State v. Kanellos, 122 S. C. 
351, 115 S. E. 636 (1923). 

Since evidence illegally obtained is ad- 
missible. — Though evidence may have been 
illegally taken from possession of the party 
against whom it is offered or otherwise un- 
lawfully obtained, such fact does not ren- 
der it inadmissible. State v. Prescott, 125 
S. C. 22, 117 S. E. 637 :1923). 

One in act of committing misdemeanor 
may be arrested without warrant by a mag- 
istrate. State V. Byrd, 72 S. C. 104, 51 
S. E. 542 (1905). 



§ 17. Presentment of grand jury ; not tried twice ; private property. 

No person shall be held to answer for any crime where the punishment 
exceeds a fine of one hundred dollars or imprisoninent for thirty days, with 
or without hard labor, unless on a presentment or indictment of a grand jury 
of the County where the crime shall have been committed, except in cases 
arising in the land or naval forces or in the militia when in actual service in 
time of war or public danger; nor shall any person be subject for the same 
ofifense to be twice put in jeopardy of life or liberty, nor shall be compelled 
in any criminal case to be a witness against himself. Private property shall 
not be taken for private use without the consent of the owner, nor for public 
use without just compensation being first made therefor. 

See Const. 1868, Art. I, §§ 18, 23. 



I. Private Property. 

A. Scope of Private Property Provi- 

sion. 

B. "Taking" of Private Property. 

C. Where Private Property Taken. 

D. Where Private Property Not 

Taken. 
II. Compelled To Be a Witness. 

III. Former Jeopardy. 

IV. Indictment. 

Cross Reference. 

As to privilege of defendant to testify, see 
§ 26-405. 



I. PRIVATE PROPERTY. 

A. Scope of Private Property Provision. 

This section permits property condemna- 
tion by State. — Within the provisions of 
this section of the Constitution, property 
may be condemned by the State or by any 
of its departments or agents. Jennings v. 
Sawyer, 182 S. C. 427, 189 S. E. 746 (1937). 

And was intended to maintain sanctity of 
private property. — Ex parte Bacot, 36 S. C. 
125, 15 S. E. 204 (1892); Leitzsey v. Colum- 
bia Water-Power Co., 47 S. C. 464, 25 S. E. 
744 (1896). 



101 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



It must be considered with S. C. Const., 
Art. 9, §§ 1, 2, and 20. Boyd v. Winnsboro 
Granite Co., 66 S. C. 433, 45 S. E. 10 (1903). 

The framers of the State Constitution 
certainly did not intend that this section 
should alone be considered in determining 
the right to take private property for pri- 
vate use. Otherwise, there would have been 
no necessity for inserting § 20, Art. 9. 
Bovd V. Winnsboro Granite Co., 66 S. C. 
433, 45 S. E. 10 (1903). 

Private property provision of section is 
self-executing. Chick Springs Water Co. v. 
State Highway Dept., 159 S. C. 481, 157 
S. E. 842 (1931) ; Sheriff v. Easley, 178 S. C. 
504, 183 S. E. 311 (1936); Gowan v. Green- 
ville County, 193 S. C. 327, 8 S. E. (2d) 
509 (1940). 

It is for benefit and protection of prop- 
erty owners whose property is taken for 
public purposes. Bradley v. Greenville, 212 
S. C. 389, 46 S. E. (2d) 291 (1948). 

And does not need legislation for enforce- 
ment. — This constitutional provision is self- 
acting, and does not need for enforcement 
the aid of legislation to give the party in- 
jured the right to sue the agency of the 
State involved. Chesterfield County v. 
State Highway Dept., 181 S. C. 323, 187 S. 
E. 548 (1936). 

Since law action lies hereunder for com- 
pensation absent statute. — An action at law 
would lie to recover just compensation for 
private property taken for public use in 
advance of legislation providing therefor. 
Bavnham v. State Highland Dept., 181 S. C. 
435, 187 S. E. 528 (1936). 

This constitutional provision relating to 
taking private property is self-e.xecuting, 
and, the legislature having enacted no stat- 
ute providing for the compensation guaran- 
teed by this section, an action at law will 
lie to recover such compensation. Milhous 
v. State Highway Dept., 194 S. C. i3, 8 S. 
E. (2d) 852 (1940). 

A city cannot be sued in tort unless a 
statute expressly gives a right of action or 
unless the city takes property without just 
compensation. Reeves v. Easley, 167 S. C. 
231, 166 S. E. 120 (1932). 

A municipal corporation cannot be sued 
in tort in the absence of a statute authoriz- 
ing such suit, but it must and can be sued 
under this section of the Constitution, which 
is self-executing, for compensation where 
real property of a landowner upon a natural 
stream is invaded so as effectually to de- 
stroy or impair its usefulness by reason of 
the use of land, lawfully acquired for public 
purposes by a municipality, in such a way 
as to affect neighboring real estate, although 
there has been no actual entry and no 



artificial structure upon such neighboring 
real estate. Dates v. Easley, 182 S. C. 91, 
188 S. E. 504 (1936). 

The true meaning of this section is that 
before the owner of the property to be con- 
demned is finally deprived of his property, 
proper provision shall have been made for 
his first being paid therefor. Spartanburg 
v. Belk's Dept. Store, 199 S. C. 458, 20 
S. E. (2d) 157 (1942). 

Extent of application of word "property". 
— The word "property" docs not extend so 
far as to include services performed under 
a contract. Harris v. Fulp, 178 S. C. 332, 
183 S. E. 158 (1935). 

Meaning of "public use". — In Boyd v. 
Winnsboro Granite Co., 66 S. C. 433, 45 
S. E. 10 (1903), the phrase "public use" was 
construed to be, in effect, synonymous with 
"public benefit," "public utility," and 
"public advantage." Gasque v. Conway, 
194 S. C. 15, 8 S. E. (2d) 871 (1940). 

Meaning of "compensation". — The word 
"compensation" seems to have been used 
advisedly. It means the balancing of things 
against each other; the balancing of benefits 
against loss and damage. Spartanburg v. 
Belk's Dept. Store, 199 S. C. 458, 20 S. E. 
(2d) 157 (1942). 

Compensation may be secured by deposit 
of money. — Condemnor need not actually 
pay compensation before entering on lands 
condemned for dam, provided compensation 
is secured by deposit of money. Lexington 
Water Power Co. v. Wingard, 150 S. C. 
418, 148 S. E. 366 (1929). 

And need not be paid before determina- 
tion of "just compensation." — This section 
does not require, either in express terms or 
by implication, that the compensation to be 
made for taking private property for public 
use shall be actually paid in advance of 
the determination by proper authority of 
what is just compensation in the circum- 
stances. Spartanburg v. Belk's Dept. Store, 
199 S. C. 458, 20 S. E. (2d) 157 (1942). 

Right to compensation may be waived. — 
The right to compensation for property 
taken for public use being personal to the 
owners of the property, they can waive this 
objection to the constitutionality of the act 
under which it was taken. Goodale v. 
Sowell, 62 S. C. 516, 40 S. E. 970 (1902). 
See also. Brown v. Tharpe, 74 S. C. 207, 54 
S. E. 363 (1906). 

"Just compensation" may be exclusive 
remedy. — The exclusive remedy provided 
by law for the taking by a governmental 
agency of one's property for public use, in 
the absence of a statute to the contrary, is 
the right to recover "just compensation" for 



102 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



the same. Rice Hope Plantation v. South 
Carohna Pub. Service Authority, 216 S. C. 
500. 59 S. E. (2d) 132 (1950). 

But it does not include punitive damages. 
— "Just compensation" does not include 
punitive or exemplary damages. Rice Hope 
Plantation v. South Carolina Pub. Service 
Authority, 216 S. C. 500, 59 S. E. (2d) 132 
(1950). 

DiiTerence between taking for public and 
quasi-public purpose. — The marked dif- 
ference between the provisions of this sec- 
tion, which is applicable to municipal corpo- 
rations, and those of Art. 9, § 20, which is 
applicable to private or quasi-public corpo- 
rations, is significant as it clearly warrants 
the inference of an intention that a different 
rule with regard to the consideration of ben- 
efits as compensation must be applied in 
the case of taking for a quasi-public pur- 
pose from that which may be applied 
when the taking is for a purely public pur- 
pose. Spartanburg v. Belk's Dept. Store, 
199 S. C. 458. 20 S. E. (2d) 157 (1942). 

Taking land for railroad station is for 
public purpose. — Land condemned for union 
passenger station by corporation formed by 
statute is taken for a public use. Riley v. 
Charleston Union Station Co., 71 S. C. 457, 
51 S. E. 4S5 (1905). 

All loss is assessed in one proceeding. — 
In an eminent domain proceeding, all loss 
occurring by the "taking" should be as- 
sessed in one proceeding. Rice Hope 
Plantation v. South Carolina Pub. Service 
Authority, 216 S. C. 500, 59 S. E. (2d) 132 
(1950). 

Legislature may enact condemnation pro- 
cedure. — Under the provisions of this sec- 
tion, it is left to the legislature to enact 
procedure by which private property may 
be condemned for public use, together with 
the means by which just compensation is 
to be made. Spartanburg v. Belk's Dept. 
Store. 199 S. C. 458, 20 S. E. (2d) 157 
(1942). 

And delegate condemnation right to city. 
—The right of the State to condemn a water 
works rests in eminent domain, and is 
vested in the State and limited in its exer- 
cise by this section. The legislature may 
delegate such right to a city. Paris Moun- 
tain Water Co. v. Greenville, 110 S. C. 
36. 96 S. E. 545 (1918). 

Or to corporation. — Property shall not 
be taken for private use without the consent 
of the owner, except in cases where this 
power is conferred upon corporations by 
the General Assembly, and only then in the 
manner prescribed by Art. 9, § 20. Wilson 
V. Alderman & Sons Co., 69 S. C. 176, 48 



S. E. 81 (1904); Eoyd v. Winnsboro Gran- 
ite Co., 66 S. C. 433, 45 S. E. 10 (1903). 

Such as a power company. — The char- 
ter of a power company providing that it 
shall sell or furnish power to any person 
or corporation makes it a public corpora- 
tion, and the legislature may empower it 
to condemn land of private persons for erec- 
tion of a dam. McMeekin v. Central, etc.. 
Power Co., 80 S. C. 512, 61 S. E. 1020 
(1908). 

But legislature cannot fix limit of com- 
pensation. — Since the State Constitution 
has provided for just compensation for 
private property taken for public use, it is 
not in the power of the legislature to fix 
the limit of such compensation. Chick 
Springs Water Co. v. State Highway Dept., 
159 S. C. 481, 157 S. E. 842 (1931). 

State may be sued for compensation with- 
out legislative act. — Xo act of the General 
Assembly is needed for suit against the 
State to recover just compensation for 
private property taken for public purpose. 
Chick Springs Water Co. v. State High- 
way Dept., 159 S. C. 481, 157 S. E. 842 
(1931). 

Since State is not immune to such suit. — 
Immunity from suit does not extend to 
either the commonwealth or its political 
subdivisions where the act complained of 
constitutes taking of private property with- 
out just compensation. Chick Springs Wa- 
ter Co. V. State Highway Dept., 159 S. C. 
481, 157 S. E. 842 (1931). 

State highway condemnation procedure 
is valid. — The condemnation procedure set 
out in §§33-122, 33-125, 33-127. and 33-132 
of the Code does not violate this section of 
the Constitution by attempting to bestow 
upon the State Highway Commission both 
administrative and judicial functions in the 
condemnation of private property for State 
purposes. Jennings v. Sawyer, 182 S. C. 
427. 189 S. E. 746 (1937). 

Unnecessary allegations in suit against 
municipal corporation. — In an action 
against a municipal corporation under this 
Vsection of the Constitution for taking 
private property for public use without com- 
pensation, it is not necessary to allege or 
offer proof that (1) such municipal cor- 
poration has negligently established, main- 
tained, or operated that which has caused 
damages amounting to a taking or that (2) 
if there has been a taking without compen- 
sation and a denial of the right of compen- 
sation, it is immaterial if the taking was 
due to the negligence of such municipal 
corporation. Sheriff v. Easlev, 178 S. C. 
504. 183 S. E. 311 (1936); Baynham v. 
State Highway Dept., 181 S. C. 435, 187 



103 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



S. E. 528 (1936); Werts v. Greenwood 
County, 205 S. C. 258, 31 S. E. (2d) 451 
(1944); Rice Hope Plantation v. South 
Carolina Pub. Service Authority, 216 S. C. 
500, 59 S. E. (2d) 132 (1950). 

This rule applies, not only in actions 
against municipal corporations, but in ac- 
tions against all political subdivisions of 
the State, including the State highway de- 
partment. Baj'nham v. State Highway 
Dept., 181 S. C. 435, 187 S. E. 528 (1936). 

Acquiring right of way. — As to acquire- 
ment of right of way by railway company, 
see Tompkins v. Augusta, etc., R. Co., Zl 
S. C. 382, 16 S. E. 149 (1892). 

Easement. — As to question of easement, 
see Brasinston v. Williams, 143 S. C. 223, 
141 S. E. 375 (1927). 

Restoration of train service. — As to re- 
quirement of railway company to restore 
certain trains, see Blease v. Charleston, etc., 
R. Co., 146 S. C. 496, 144 S. E. 233 (1928). 

As to police power pertaining to lots in 
city, see Citv Council v. Werner, 38 S. C. 
488. 17 S. E. Zl (1893). 

For additional related cases, see McCand- 
less v. Richmond & D, R. Co., 38 S. C. 103, 
16 S. E. 429 (1892); Mobile Ins. Co. v. 
Columbia & G. R. Co., 41 S. C. 408, 19 S. E. 
858 (1894). 

Applied in Faust v. Richland County, 117 
S. C. 251, 109 S. E. 151 (1921); Cook v. 
State Highwav Dept., 162 S. C. 242, 160 
S. E. 591 (1931); Howell v. State Highwav 
Dept., 167 S. C. 217, 166 S. E. 129 (1932). 

Quoted in Stehmeyer v. City Council, 
53 S. C. 259, 31 S. E. 322 (1898): State v. 
Gowan, 178 S. C. 78, 182 S. E. 159 (1935). 

Stated in Standard Oil Co. v. Spartan- 
burg, 66 S. C. 37, 44 S. E. 377 (1903); 
Matheny v. Aiken. 68 S. C. 163, 47 S. E. 56 
(1904); State v. Johnson, 70 S. C. 3C1, 50 
S. E. 8 (1905) ; Hopkins v. Clemson Agri- 
cultural College, 77 S. C. 12. ^7 S. E. 551 
(1907); State v. Hilton, 87 S. C. 434. 69 
S. E. 1077 (1910); Webber v. Jonesville, 
94 S. C. 189, n S. E. 857 (1913); May v. 
Thomas, 94 S. C. 158, 78 S. E. 85 (1913); 
South Carolina Western Ry. v. Ellen. 95 
S. C. 68, 78 S. E. 963 (1913); Spartanburg 
v. Cudd, 132 S. C. 264, 128 S. E. 360 (1925); 
State v. Brody, 152 S. C. 302, 149 S. E. 
926 (1929). 

Cited in Martin v. School Dist., 57 S. C. 
125, 35 S. E. 517 (1900); South Carolina & 
G. R. Co. V. .American Tel. & Tel. Co.. 65 
S. C. 459, 43 S. E. 970 (1903); Riley v. 
Charleston Union Station Co.. 67 S. C. 84, 
45 S. E. 149 (1903); Parks v. Laurens Cot- 
ton Mills, IS S. C. 560, 56 S. E. 234 (1907); 
Drennan v. Southern Ry.. 91 S. C. 507, 75 
S. E. 45 (1912); McDaniel v. Greenville- 



Carolina Power Co., 95 S. C. 268, 78 S. E. 
980 (1913); Powell v. Spartanburg County, 
136 S. C. 371, 134 S. E. 367 (1926) ; Carolina 
& N. & W. R. Co. V. Alexander, 155 S. C. 
91, 151 S. E. 893 (1929); State v Hughes, 
56 S. C. 540, 35 S. E. 214 ri900); State v. 
Harley, 107 S. C. 304, 92 S. E. 1034 (1917); 
State V. Maes, 127 S. C. 397, 120 S. E. 576 
(1923); Keenan v. Broad River Powder 
Co., 163 S. C. 133, 161 S. E. 330 (1931); 
Thomas v. Atlantic Coast Line Ry. Co., 
168 S. C. 185, 167 S. E. 239 (1933); South 
Carolina State Highwav Dep't. v. Bobotes, 
180 S. C. 183, 185 S. E. 165 (1936); Byrd 
V. Lawrimore, 212 S. C. 281, 47 S. E. (2d) 
728 (1948); Duke Power Co. v. Rutland, 
60 F. (2d) 194 (1932). _, 

B. "Taking" of Private Property. 

"Taking" involves actual interference 
with property rights. — \ "taking'' of prop- 
erty is a taking where the act involves 
actual interference with or disturbance of 
property riglits and results in injuries which 
are not merely consequential or incidental. 
Gasque v. Conway, 194 S. C. 15, 8 S. E. (2d) 
871 (1940). 

Either by direct physical injury to prop- 
erty. — The word "taken" in this section is 
not limited in its meaning and application to 
cases in which there is an actual physical 
seizure and holding of property. It is 
broad enough to include cases in which 
there is such physical injury to property as 
results in destruction or substantial im- 
pairment of its usefulness. White v. South- 
ern R. Co., 142 S. C. 284, 140 S. E. 560 
(1927). 

Or without disturbing title or possession 
thereto. — .\ man's property may be taken, 
within the meaning of this provision, al- 
though his title and possession remain un- 
disturbed. To deprive him of the or- 
dinary beneficial use and enjoyment of his 
property is, in law, equivalent to the taking 
of it, and is as much a "taking" as though 
the property itself were actually appro- 
priated. Gasque v. Conwav, 194 S. C. 15, 
8 S. E. (2d) 871 (1940). 

There may be a taking of property in the 
constitutional sense, although there has 
been no actual entrj' within its bounds and 
no artificial structure has been erected upon 
it. When a public agency acting under au- 
thority of statute uses land which it has 
lawfully acquired for public purposes in 
such a way that neighboring real estate, be- 
longing to a private owner, is actually in- 
vaded by superinduced additions of water, 
earth, sand, or other material so as to 
effectually destroy or impair its usefulness, 



104 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



there is a taking within the meaning of the 
Constitution. Bavnham v. State Highway 
Dept., 181 S. C. 435. 187 S. E. 528 (1936); 
Gates V. Easley, 182 S. C. 91, 188 S. E. 504 
(1936); Milhous v. State Highway Dept., 
194 S. C. 33, 8 S. E. (2d) S52 (1940). 

Permanent injury constitutes single cause 
of action. — In an action for taking of prop- 
erty for public use without just compensa- 
tion, an allegation that the action was 
brought for damages suffered by the plain- 
tiff up to the date of the summons and is 
not intended to include any future damages 
to plaintiff's land which might be done 
hereafter by the defendant should be 
stricken out as irrelevant, because if the 
injury complained of is of a permanent 
character, then it follows that the plaintiff 
has a single cause of action which cannot 
be split. Rice Hope Plantation v. South 
Carolina Pub. Service .Authority, 216 S. C. 
500. 59 S. E. (2d) 132 (1950). 

Statute may not be defense for nonpublic 
injury. — If a no.xious act results in an in- 
jury peculiar to plaintiff or some special 
inconvenience or discomfort not experi- 
enced by the public at large, defendant can- 
not invoke the protection of any statute pur- 
porting to authorize it in view of the con- 
stitutional provision forbidding taking 
private property for public use without 
just compensation. Bclton v. W'ateree 
Power Co., 123 S. C. 291, 115 S. E. 587 
(1923). 

Damages. — Owner of land taken by 
county for highway can recover as damages 
actual value of land taken only as reduced 
by special benefits, since "compensation" 
in this section means balancing benefits 
against loss and damage. Wilson v. Green- 
ville County, 110 S. C. 321, 96 S. E. 301 
(1918). 

A landowner is not entitled to recover 
damages because of the vacation of a street 
unless he has sustained an injury different 
in kind and not merely in degree from that 
suffered by the public at large. If it ap- 
pears that there is a special injury, the 
owner may recover damages, notwithstand- 
ing his property does not abut on the part 
of the street vacated, because this amounts 
to a "taking" within the meaning of this 
constitutional provision. Rock Hill v. 
Cothran, 209 S. C. 357, 40 S. E. (2d) 239 
(1946). 

Interest on award. — Where a consider- 
able time elapsed between an award in con- 
demnation proceedings and the taking of 
the property by the condemnor, the prop- 
erty owner was entitled to interest on the 
award under this section and S. C. Const., 



Art. 9, § 20. Haig v. Watteree Power Co., 
119 S. C. 319, 112 S. E. 55 (1922). 

Railroad property is private property. — 
Though a railroad corporation is a quasi 
public corporation, the property of the rail- 
road is private property and cannot be 
taken for private use. Mays v. Seaboard, 
etc., Ry., 75 S. C. 455, 56 S. E. 30 (1906)_. 

And section protects interests of remain- 
derman in right of way obtained by railroad. 
Cureton v. South-Bound R. Co., 59 S. C. 
371, 27 S. E. 914 (1901). 

C. Where Private Property Taken. 

Act authorizing location of private way. 
— \n act authorizing the location of a pri- 
vate way to the highway from the land of one 
surrounded on all sides by private land, 
without any such right of way, violates this 
section. Beaudrot v. Murphy, 53 S. C. 118, 
30 S. E. 825 (1808). 

Changing grade of highvyay. — Where 
change of grade in highway is made by or 
for benefit of railroad, abutting owners are 
entitled to compensation for resulting in- 
juries. The fact that the change is made 
with consent of the municipality or the 
State does not relieve railroad from liability 
for injuries arising therefrom. White v. 
Southern Ry. Co., 142 S. C. 284, 140 S. E. 
560 (1927). 

Closing portion of a city street consti- 
tuted a "taking" of abutting owners' prop- 
erty within the meaning of this section, and 
they are not barred from their remedy at 
common law. Cothran v. Rock Hill, 211 
S. C. 17, 43 S. E. (2d) 615 (1947). See also 
Rock Hill V. Cothran, 209 S. C. 357, 40 
S. E. (2d) 239 (1946). 

Construction of private telephone line. — 
Use of street for construction of a private 
telephone line by other than a city for its 
own purposes and that of its inhabitants 
is not a proper street use and hence enti- 
tles property owner to compensation for 
any injury to his property. Benton v. Yar- 
borough, 128 S. C. 481, 123 S. E. 204 (1924). 

Drainage laws. — The drainage laws do 
not permit taking of property for private 
use without consent of the owner, nor for 
public use without compensation. Jackson 
V. Breeland, 103 S. C. 184, 88 S. E. 128 
(1916). 

Erection of stock law fence. — .^n act 
providing that the residents of a section of 
a county exempted from the general stock 
law must build a fence is unconstitutional 
because (1) it is for a private purpose, and 
(2) it takes the property of those upon 
whose land the fence is required to be built 
without compensation and without their 



105 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



consent. Goodale v. Sowell, 62 S. C. 516, 
40 S. E. 970 (1902). 

Flooding and injuring property by negli- 
gent impounding of natural water course is 
"taking" within constitutional provision re- 
quiring just compensation. Chick Springs 
Water Co. v. State Highway Dept., 159 
S. C. 4S1, 157 S. E. 842 (1931); Chick 
Springs Water Co. v. State Highway Dept., 
178 S. C. 415, 183 S. E. 27 (1935); Bayn- 
ham V. State Highway Dept., 181 S. C. 435, 
187 S. E. 528 (1936). 

Impairment of hunting rights. — The im- 
pairment of the right of hunting, fowling, 
and fishing upon the plaintiff's land is an 
element which might affect the matter of 
just compensation for the alleged taking of 
property. Rice Hope Plantation v. South 
Carolina Pub. Service Authority, 216 S. C. 
500. 59 S, E. (2d) 132 (1950). 

Obstruction of water in drainage sys- 
tem. — A property owner is entitled under 
this constitutional provision to compensa- 
tion for the damaging or taking of his prop- 
erty resulting from the obstruction by the 
State of surface waters in a drainage sys- 
tem, altliough an individual defendant may 
not be liable for damages under the same 
circumstances. This because the Constitu- 
tion provides that private property shall 
not be taken for public use without com- 
pensation, without any qualification as to 
the method or means of such taking. Mil- 
hous V. State Highway Dept., 194 S. C. 33, 
8 S. E. (2d) 852 (1940). 

Removing fence not subject to ease- 
ment. — An ordinance compelling removal of 
a fence not subject to public easement was 
illegal as a taking of property without just 
compensation; Rilev v. Greenwood, 72 
S. C. 90, 51 S. E. 532 (1905). 

Requiring railroads to build industrial 
sidetracks. — An act providing that railroad 
companies shall build industrial sidetracks 
to connect industrial enterprises with their 
main lines is void as authorizing taking of 
private property for a private use. Mays v. 
Seaboard, etc., Ry., 75 S. C. 455, 56 S. E. 
30 (1906). 

Requiring telephone exchanges to be 
maintained. — A joint resolution requiring 
a named telephone company to construct 
and maintain telephone exchanges at two 
designated towns, which exchanges were 
not required to be maintained by any pro- 
vision of its charter or franchise or by any 
contract, takes property of the corporation 
witliout just compensation. Southern Bell 
Tel. & Tel. etc., Co. v. Calhoun, 287 F. 381 
(1923). 

Salt water infiltration of property. — 
Where complaint alleged that defendant. 



the South Carolina Public Service Author- 
ity, constructed a dam above plaintiff's 
property causing salt water to infiltrate into 
the streams and canals that ran through its 
property, thereby causing damage to the 
property and decreasing its value, the 
complaint stated a cause of action for tak- 
ing property without just compensation. 
Rice Hope Plantation v. South Carolina 
Pub. Service Authority, 216 S. C. 500, 59 
S. E. (2d) 132 (1950). 

D. Where Private Property Not Taken. 

Changing grade of a street after it has 
been once established is not "a taking" of 
property within the meaning of this section. 
Garraux v. City Council, 53 S. C. 575, 31 
S. E. 597 (1898). See also, Mauldin v. City 
Council, 42 S. C. 293, 20 S. E. 842 (1895); 
Columbia v. Melton, 81 S. C. 356, 62 S. E. 
245, 399 (1908); Kendall v. City Council, 
74 S. C. 539, 54 S. E. 777 (1906). 

A change in the grade of a street which 
diminishes the value of adjacent property 
is not a "taking" of property within the 
meaning of this provision. Bland v. Citv 
Council, 203 S. C. 392, 27 S. E. (2d) 498 
(1943). 

Diverting public watercourses. — The wa- 
ters of the ocean and its bays, and of pub- 
lic watercourses and lakes so far as they 
lie within the jurisdiction of a state, are 
part of the public domain, and the state 
may authorize the diversion of such waters 
for any purpose it deems advantageous to 
tlie public without providing compensation 
to riparian proprietors injuriously affected. 
Such diversion is not a taking of private 
property by eminent domain, but is a dis- 
position by the public of public property. 
Rice Hope Plantation v. South Carolina 
Pub. Service Autliority, 216 S. C. 500, 59 
S^E. (2d) 132 (1950). 

■ Eminent domain power of housing au- 
.thority. — The Columbia Housing Authority 
may exercise tlie power of eminent domain 
if that power be necessary in acquiring 
property for slum clearance or low-cost 
housing. Because of the public purpose of 
this project, such action does not constitute 
taking property for private purposes within 
the prohibition of this section of the Con- 
stitution. McNultv v. Owens, 188 S. C. 
377^ , 199 S. E. 425 (1938). 

Permitting minor to borrow. — Statute 
authorizing minor to borrow, without re- 
quiring his guardian to post a bond, is not 
a "taking" of private property. Lvncli v. 
Stanton, 168 S. C. 249, 167 S. E. 392 (1933). 

Presumption of fraudulent appropriation 
of public funds. — Section 16-364 of the 
Code, creating a presumption of fraudulent 



106 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



appropriation where oflicers and other per- 
sons charged with safekeeping of pubHc 
funds fail to account for them as required 
by law, does not violate this section of 
the Constitution. State v. Brown, 178 S. C. 
294. 182 S. E. 838 (1935'). 

Refusal to grant building permit. — This 
constitutional provision with reference to 
taking private property for public use with- 
out just compensation has no application 
to the mere refusal of a town council to 
grant a building permit. Gasque v. Conway, 
194 S. C. 15, 8 S. E. (2d) 871 (1940). 

Requiring railroads to build crossings. — 
Railroad companies may be required at 
their own expense not only to establish 
crossings, but also to abolish grade cross- 
ings, to build and maintain suitable bridges 
or viaducts to carry highways newly laid 
out over their tracks, or to carry their 
tracks over such highways. This does not 
unlawfully deprive railroads of property 
without compensation or due process. 
Prosser v. Seaboard, etc., R. Co., 216 S. C. 
33, 56 S. E. (2d) 591 (1950). 

State interference with right to operate 
automobile. — An action to enjoin the 
State Highway Department from interfer- 
ing with plaintiff's operation of automobile 
without license plates cannot be maintained 
under this constitutional provision pro- 
hibiting taking of private property for 
private use without owner's consent or for 
public use without just compensation. 
Baker v. State Highway Dept., 166 S. C. 
481, 165 S. E. 197 (1932). 

Statute changing time for procuring au- 
tomobile license which permits deduction 
where previous license was obtained for a 
full year but not where previous license was 
only for six montlis does not violate this 
section of the Constitution. Heslep v. 
State Highway Dept., 171 S. C. 186, 171 
S. E. 913 (1933). 

Taxes on land condemned by State. — 
Section 25-81 of the Code, providing for 
ta.xes due on land condemned by the State 
Authority, including pro rata taxes for the 
year in which the land is condemned, does 
not violate this section of the Constitution 
in the sense that it provides for payment 
to the owner of property taken an amount 
less than the sum fixed as just compensa- 
tion and therefore constitutes taking prop- 
erty without compensation. South Carolina 
Public Service Authority v. 11,754.8 
Acres of Land, More or Less, Co. 123 F. 
(2d) 738 (1941). 

Use of highways for electric transmission 
lines. — The use by the Authority of the 
highways for its transmission lines under 
the State Ruial Electrification Act is not 



an additional servitude on the land granted 
by a private owner to the State for highway 
purposes, and such use by the Authority 
does not constitute a taking of private 
property for public use without just com- 
pensation. Lay v. State Rural Electrifica- 
tion .Authority, 182 S. C. 12, 18S S. E. 368 
(1936). 

II. COMPELLED TO BE A WITNESS. 

Construction of section. — The provision 
relating to self incrimination should be con- 
strued in conformity with the following 
declaration of the Supreme Court of the 
United States relative to the like Federal 
constitutional provision: "The object was 
to insure that a person should not be com- 
pelled, when acting as a witness in any in- 
vestigation, to give testimony w'nich might 
tend to show that he himself had committed 
a crime." Ex parte Johnson, 187 S. C. 1, 
196 S. E. 164 (1938). 

Section applies to any tribunal empow- 
ered to subpoena witnesses. — The provision 
of this section relating to self incrimination 
is substantially declaratory of the common 
law, and it is obvious that if the privilege 
were limited to a criminal prosecution in 
which the witness was the defendant, it 
would fail entirely of its fundamental pur- 
pose. Hence, it is uniformly held that the 
privilege is one which may be invoked in 
any legal investigation, whether judicial or 
quasi-judicial; that is to say, it applies to 
examinations before any tribunal or other 
body that has power to subpoena and com- 
pel the attendance of witnesses. Ex parte 
Johnson, 187 S. C. 1, 196 S. E. 164 (1938). 
Witness exempt from prosecution is re- 
quired to testify. — If the immunity provi- 
sions provided by statute in any case are 
valid and sufficient to exempt the witness 
from any prosecution on account of any 
transaction to which he may testify, then 
the examining body or the trial judge, as 
the case may be, has the power to require 
him to answer or be subject to attachment 
for contempt. Ex parte Johnson, 187 S. C. 
1, 196 S. E. 164 (1938). 

But defendant can never be compelled to 
testify against himself. — Under this section 
defendant in a criminal case cannot be com- 
pelled to testify against himself under any 
circumstances. The line of cleavage is 
whether proposed evidence is defendant's 
testimony or evidence in itself which is 
unaided by any statement of defendant. 
State V. Griffin, 129 S. C. 200, 124 S. E. 81 
(1924). 

Although defendant raises no objections 
to testifying.^Town Council v. Owens, 61 
S. C. 22, 39 S. E. 184 (1901). 



107 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



Making defendant stand up does not vio- 
late section. — The provision of this section 
that no person shall be compelled to be a 
witness against himself is not violated by 
compelling the defendant in a criminal case 
to stand up for the purpose of identification. 
State V. O'Neal, 210 S. C. 305, 42 S. E. (2d) 
523 (1947). 

Nor does comparing defendant's shoes 
with tracks. — To compel an accused to give 
up his shoes for the purpose of comparison 
■with tracks made near the scene of the 
murder and to admit the result of the com- 
parison do not violate this section. State 
V. Mcintosh, 94 S. C. 439, 78 S. E. 327 
(1913). 

Even when forcibly accomplished. — Sher- 
iff's testimony that he compared defend- 
ant's shoe with certain tracks which it fitted 
is not violative of defendant's constitutional 
privilege of immunity from testimonial 
compulsion under this section, though 
sheriff forced defendant to remove her 
shoe and made adjustment himself. State 
V. Griffin, 129 S. C. 200, 124 S, E. 81 (1924) 
Nor cross-examination as to willingness 
to show feet. — In prosecution for violation 
of prohibition law, cross-examination of de- 
fendant with respect to willingness to ex- 
hibit his feet does not show that he was 
compelled to give testimony against him- 
self. State v. Harrell, 142 S. C. 24, 140 
S. E. 258 (1927). 

But testimony on defendant's refusal to 
compare feet is inadmissible. — Sheriff's tes- 
timony that he compelled defendant to put 
her foot in a certain track, and that she 
would not do it in the right wav, is inadmis- 
sible. State v. Griffin, 129 S. C. 200, 124 
S. E. 81 (1924). 

As is identification on hearing repetition 
of words by defendant. — Where testimony by 
the prosecuting witness in a rape action 
showed that she identified the defendant by 
his voice when he was compelled to say 
over and over again certain words used at 
the scene of the crime, such testimony as to 
identity was inadmissible and highly preju- 
dicial on the grounds of self incrimination. 
State V. Taylor, 213 S. C. 330, 49 S. E. (2d) 
289 (1948). 

Defendant may be asked about perjury 
indictment. — For the purpose of testing the 
credibility of defendant in a criminal case 
as witness for himself, he may be asked on 
cross-examination, without production of 
record, if he had not been indicted for per- 
jury. State V. Williamson, 65 S, C. 242, 43 
S. E. 671 (1903). 

And if he is maintaining statutory nui- 
sance. — Requiring one by rule on petition 
to answer under oath whether he is main- 



taining a statutory nuisance, which is made 
a crime by statute, does not require 
respondent to testify against himself. State 
V. Riddock, 78 S. C. 286, 58 S. E. 803 (1907). 

And as to testimony given before may- 
or's court. — In the trial of a police officer 
for homicide, wherein he claimed that de- 
cedent was shot by a man pursued by the 
officer, it was proper to ask accused on 
cross-examination if he did not give certain 
testimony before the mayor's court showing 
that the pursued man could not have hit 
decedent. Such evidence is not improper 
as in effect compelling accused to testify 
against himself in violation of this section. 
State V. Barwick, 89 S. C. 153, 71 S. E. 838 
(1911). 

Voluntary confession as evidence. — A 
voluntary confession allegedly made before 
accused was committed or a warrant issued 
for his arrest is not prohibited by this sec- 
tion from being introduced as evidence. 
State v. Aliller, 211 S. C. 306, 45 S. E. (2d) 
23 (1947). 

Testimony before legislative committee. — 
As to insufficient language of immunity 
from prosecution due testimony given be- 
fore an investigating committee set up by 
a joint resolution, see Ex parte Johnson, 
187 S. C. 1, 196 S. E. 164 (1938). 

As to privilege of defendant to testify, 
see State v. Howard, 35 S. C. 197, 14 S. E. 
481 (1892); State v. Williamson, 65 S. C. 
242, 43 S. E. 671 (1903); State v. Barwick, 
89 S. C. 153, 71 S. E. 838 (1911). 

III. FORAIER JEOPARDY. 

This section governs in trials subsequent 
to it for offenses previously committed. 
State V. Richardson, 47 S. C. 166, 25 S. E. 
220 (1896). 

And re-establishes common-law princi- 
ple. — The effect of this section was a re- 
establishment of the principle of the com- 
mon law recognized in our State up to the 
time of the adoption of the Constitution of 
1868. State v. Stephenson, 54 S. C. 234, 
32 S. E. 305 (1899); State v. Bilton, 156 
S. C. 324, 153 S. E. 269 (1930). 

With regard to second prosecution for 
same crime. — The common-law rule and 
the constitutional provisions declaratory 
thereof against the second jeopardy apply 
in this jurisdiction only to a second prosecu- 
tion for the same act and crime, both in law 
and fact, for which the first prosecution was 
instituted. State v. Steadman, 216 S. C. 
579, 59 S. E. (2d) 168 (1950). 

It must appear that the offense charged 
in tlie subsequent indictment is substantial- 
ly the same as that charged in the prior in- 

108 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 17 



dictment. State v. Svvitzer, 65 S. C. 187, 43 
S. E. 513 (1903). 

Punishment for single act combining two 
offenses. — When a single act combines the 
requisite ingredients of two distinct of- 
fenses, the defendant may be severally in- 
dicted and punished for each without being 
put in double jeopardy. State v. Steadman, 
216 S. C. 579, 59 S. E. (2d) 168 (1950). 

General test for double jeopardy. — The 
test generally appHed to determine double 
jeopardy is whether the evidence necessary 
to support the second indictment would 
have been sufficient to procure a legal con- 
viction upon the first indictment. State v. 
Steadman, 216 S. C. 579, 59 S. E. (2d) 168 
(1950). 

Distinction betvsreen "autrefois acquit" 
and "former jeopardy." — "Autrefois acquit" 
is a plea made by a defendant that he has 
been formerly tried and acquitted of the 
same offense. State v. Bilton, 156 S. C. 324, 
153 S. E. 269 (1930). 

Jeopardy begins when jury is im- 
paneled. — As a general rule one is in jeop- 
ardy when a legal jury is sworn and im- 
paneled to try him upon a valid indictment 
in a competent court, unless the jury before 
reaching a verdict be discharged with the 
prisoner's consent or upon some ground of 
legal necessity, or the verdict if rendered 
be set aside according to law. State v. 
Stephenson, 54 S. C. 234, 32 S. E. 305 
(1899); State v. Bilton, 156 S. C. 324, 153 
S. E. 269 (1930). 

Effect of sustaining plea of former jeop- 
pardy. — In sustaining a plea of former jeop- 
ardy, the defendant's innocence is not in- 
volved, but the court simply declares he can- 
not be again tried for same crime. State v. 
Bilton, 156 S. C. 324, 153 S. E. 269 (1930). 

Effect of jury dismissal for failure to 
agree. — A trial which results in the dismis- 
sal of the jury for failure to agree is not 
former jeopardy, where there was no abuse 
of discretion in dismissing the jury. State 
V. Stephenson, 54 S. C. 234, 32 S. E. 305 
(1899). 

Mistrial for inability of jury to agree 
operates to prevent plea of former jeop- 
ardy. State V. Bilton, 156 S. C. 324, 153 
S. E. 269 (1930). 

In State v. Fame, 190 S. C. 75, 1 S. E. 
(2d) 912 (1939) the court held that the trial 
judge did not fall into error in overruling 
the plea of former jeopardy when the de- 
fendant pleaded that on a prior trial for 
the same offense, the jury were unable to 
agree and were discharged without the 
presence of the defendant. 

Effect of mistrial generally. — A trial 
judge, under circumstances other than 



jury's failure to agree, many declare a mis- 
trial without giving the defendant right to 
legally assert former jeopardy. State v. 
Bilton, 156 S. C. 324, 153 S. E. 269 (1930). 

Effect of trial before jury of eleven men. 
— Unless the defendant expressly consents 
thereto, he is not put in jeopardy when 
tried before a jury of eleven men as the 
Constitution requires a jurv of twelve men. 
State V. Coleman, 54 S. C. 282, 32 S. E. 406 
(1899). 

Murder acquittal is not good as to an- 
other killing. — Where accused, having killed 
three persons in one affray, was separately 
indicted for murder for each killing and, on 
trial upon one indictment, was acquitted, 
such acquittal was not a bar to prosecution 
upon one of the other indictments, since 
the accused had committed a separate act 
against each one killed. Nor could ac- 
cused's claim tliat his act constituted but 
one offense be sustained even if the three 
homicides were a single act on his part, for 
more than one offense may follow from a 
single act, and in any event this section pro- 
hibits double jeopardy "for the same of- 
fense" and not for the same act. State v. 
Corbett, 117 S. C. 356, 109 S. E. 133 (1921). 

Murder conviction does not bar prosecu- 
tion for arson. — Where accused, after shoot- 
ing a person in his dwelling house and strik- 
ing him on the head with an axe, set fire 
to the dwelling house, his conviction for 
murder under an indictment charging a 
killing with a pistol and an axe did not bar 
a prosecution for arson under this section. 
State V. Rodgers, 100 S. C. 77, 84 S. E. 304 
(1915). 

Murder conviction set aside on appeal. — 
Where a conviction of murder is set aside 
on appeal, the accused may be again tried 
upon the same charge. State v. Wj'se, 33 
S. C. 582, 12 S. E. 556 (1891). 

Murder indictment resulting in man- 
slaughter conviction. — ^V'here defendant is 
indicted for murder and convicted of man- 
slaughter, he may again be tried for murder 
following the granting of his own motion 
for a new trial. State v. Gillis, 73 S. C. 
318, 53 S. E. 487 (1906). 

Reversal of conviction on one of several 
counts. — A defendant charged with two or 
more offenses under two or more counts, 
who by appeal seeks a review of his con- 
viction under one of the counts and obtains 
a reversal of the conviction, cannot plead 
former jeopardy upon a new trial granted 
on the count or counts as to which there 
was in the former trial an implied acquittal. 
State v. Steadman, 216 S. C. 579, 59 S. E. 
(2d) 168 (1950). 



109 



Art. 1, § 17 Constitution of the State of South Carolina Art. 1, § 1? 



Trial under new indictment for burglary 
and larceny. — Where one indicted for 
burglary and larceny, and convicted of 
larceny after the solicitor announced that 
he would not ask for conviction for burglary 
on the ground of insuflicient testimony and 
the court stated that it would direct a ver- 
dict of "not guilty" as to burglary, obtains 
a new trial upon appeal with judgment set 
aside, he may be tried under a new indict- 
ment for burglary and larceny. Such new 
trial is not in violation of this section. State 
V. Hamilton, 80 S. C. 435, 61 S. E. 965 
(1908). 

Arson attempt acquittal bars trying at- 
tempt to burn same building. — An acquittal 
on an indictment charging an attempt to 
commit arson in attempting to burn a store- 
house within the curtilage is a bar to an in- 
dictment under tlie same section for at- 
tempting to burn the same storehouse, as 
the- evidence, necessary to support the 
second indictment would have been suf- 
ficient to support a legal conviction on the 
first. State v. Switzer, 65 S. C. 187, 43 S. E. 
513 (1903). 

Breaking and entry acquittal bars trying 
other offense from same entry. — .'^iccused, 
having been acquitted of the offense of 
breaking and entering another's premises in 
the nighttime with intent to steal, cannot 
thereafter be put on trial and convicted on 
account of the same entry for the offense 
of entering without breaking with intent to 
steal. State v. Tvlitchell, 98 S. C. 474, 82 
S. E. 676 (1914). 

IV. INDICTMENT. 

Grand jury presentment is needed for 
trial. — This section requires the present- 
ment of a grand jury as a condition preced- 
ent to the trial of a crime, except for cer- 
tain minor offenses. The grand jury is a 
constituent part of the court, and without 
its presentment the court has no jurisdic- 
tion of the cause. State v. Hann, 196 S. C. 
211, 12 S. E. (2d) 720 (1940). 

The provisions of § 17-401 are meant to 
carry this section into effect. — State v. 
Brock, 61 S. C. 141, 39 S. E. 359 (1901). 

Right to trial where crime committed is 
jurisdictional. — The right of a party to be 
tried in a county where the crime was com- 
mitted is jurisdictional. Hence, the de- 
fendant cannot be lawfully convicted in L. 
county for selling a mortgaged mule in C. 



county. State v. McCoy, 98 S. C. 133, 82 
S. E. 280 (1914). 

Composition of grand jury. — When de- 
fendant insists at proper time, he is entitled, 
as matter of constitutional right, to have 
grand jury which indicts him composed 
only of persons which the Constitution has 
plainly declared may act thereon. State v. 
Rector, 1S8 S. C. 212, 155 S. E. 385 (1930). 

Legal grand jury must return indict- 
ment.— State v. Rector, 158 S. C. 212, 155 
S. E. 385 (1930). 

Or else it is set aside. — In State v. Bibbs, 
192 S. C. 231, 6 S. E. (2d) 276 (1939) a 
murder indictment was set aside upon the 
ground that the grand jury which found the 
indictment was not a legally qualified one, 
since five members of the jury were not 
legally registered electors due to the fact 
that their certificates of registration were 
not signed in accordance with § 23-71 of 
the Code. 

For conviction on indictment by void 
grand jury is invalid. — A conviction and 
sentence based upon an indictment by a 
void grand jury cannot stand, unless the 
defendant has waived his right by not in- 
terposing his objection in proper time. 
State V. Edwards, 68 S. C. 318, 47 S. E. 
395 (1904). 

As is conviction on amended indictment 
substituting different offense. — State v. 
Sowell, 85 S. C. 278, 67 S. E. 316 (1910). 

Accessory triable where principal might 
be indicted. — An accessory before the fact 
may be tried in the county where the princi- 
pal might be indicted and tried without 
violating this constitutional provision. State 
V. Fame, 190 S. C. 75, 1 S. E. (2d) 912 
(1939). 

Preliminary examination by magistrate 
in case beyond his jurisdiction. — .'Kn act re- 
quiring magistrates to hold preliminary ex- 
aminations in cases beyond their jurisdic- 
tions does not oust the grand jury of their 
ancient right under the Constitution to find 
bills of indictment where there has been no 
previous examination before a magistrate. 
State V. Bowman, 43 S. C. 108, 20 S. E. 
1010 (1895); State v. Bullock, 54 S. C. 300, 
32 S. E. 424 (1899). 

This rule has been applied to an act re- 
quiring magistrates to hold a preliminary 
investigation on the issue of a warrant 
charging a crime at the demand of the de- 
fendant. State v. Brown, 62 S. C. 374, 40 
S. E. 776 (1902). 



110 



Art. 1, § 18 Constitution of the State of South Carolina Art. 1, § 18 



§ 18. Trial by jury ; witnesses. 

In all criminal prosecutions the accused shall enjoy the right to a speedy 
and public trial by an impartial jury, and to be fully informed of the nature 
and cause of the accusation ; to be confronted with the witnesses against him ; 
to have compulsory process for obtaining witnesses in his favor, and to be 
fully heard in his defence by himself or by his counsel or by both. 

See Const. 1868, Art. I, § 13. 



I. Right To Be Fully Heard. 
II. Compulsory Process. 
III. Right To Be Confronted with Wit- 
nesses. 
IV. Nature and Cause of Accusation. 
V. Trial by Impartial Jury. 

Cross References. 
As to right to jury trial, see S. C. Const., 
Art. 1, § 25, and Art. 5, § 22. As to privi- 
leges and immunities, due process, and equal 
protection of the laws, see S. C. Const., Art. 
l.§5. 

I. RIGHT TO BE FULLY HEARD. 

Accused may be fully heard. — Where evi- 
dence offered by a defendant in a criminal 
case is excluded on the ground that it is 
merely cumulative, the trial court's exer- 
cise of discretion in that regard is to be 
tested by the fundamental principle of crim- 
inal jurisprudence that an accused is en- 
titled "to be full}' heard in his defense." 
State V. Lyle, 125 S. C. 406, 118 S. E. 803 
(1923). 

Statutes in conformity with section. — 
Sections 17-408, 17-506 and 17-507 of the 
Code are in conformity with this section. 
State V. Grant, 199 S. C. 412, 19 S. E. (2d) 
638 (1941). 

Assistant counsel may make opening and 
closing arguments for State. — Permitting 
the assisting counsel to make opening and 
closing arguments for the State and to 
assist in examination of witnesses did not 
deprive the accused of right to trial con- 
ducted by officer charged with conduct of 
criminal proseution. State v. Gregory, 172 
S. C. 329, 174 S. E. 10 (1934). 

Dictaphone evidence for prosecution is ad- 
miosible. — Where defendants in prosecution 
for murder were put together in cell of jail 
a few days prior to trial, testimony of their 
conversation, overheard by officers and de- 
tectives through dictaphone, was not inad- 
missible as taking away defendants' right to 
be fully heard within provisions of this sec- 
tion. State V. Hester, 148 S. C. 360, 146 
S. E. 116 (1929). 

Conditions for admitting evidence at 
former trial. — The evidence of a witness 
who has been examined on a former trial, 
where the point in issue is the same and 



the parties are the same, may be intro- 
duced on a second trial (1) where the wit- 
ness is dead, (2) insane, (3) beyond the 
seas, and (4) where the court is satisfied 
that the witness has been kept away by 
contrivance of the opposite party. State v. 
Steadman, 216 S. C. 579, 59 S. E. (2d) 
168 (1950); State v. Rogers, 101 S. C. 280, 
85 S. E. 636 (1915); McCall v. Alexander, 
84 S. C. 187, 65 S. E. 1021 (1909). 

Court may reprimand defendant's attor- 
ney. — A remark by the court to defendant's 
attorney after he had engaged in a colloquy 
with the solicitor, to the effect that tlie 
court would require him to take his seat 
and appoint other counsel to conduct the 
case for defendant if he could not conduct 
his argument in a more orderly manner, did 
not prejudicially affect the rights of de- 
fendant. State V. Bigham, 119 S. C. 368, 112 
S. E. 332 (1922). 

For additional related case, see State v. 
Atkinson, 40 S. C. 363, 18 S. E. 1021 (1894). 

Quoted in State v. Rector, 166 S. C. 335, 
164 S. E. 865 (1931). 

II. COMPULSORY PROCESS. 

Defendant's witness must be material 
and favorable. — Tliis section does not re- 
quire the court to issue compulsory process 
for anyone the accused may designate as a 
witness. There must be a showing that 
the person wanted is a witness in favor of 
accused, and that his testimony will be 
material. State v. Pope, 78 S. C. 264. 58 
S. E. 815 (1907). 

Bench warrant may be issued for arrest 
of witness. — This section is sufficiently 
complied with where accused was awarded 
compulsory process by which a witness was 
bound over under recognizance to appear 
and where a bench warrant was subsequent- 
ly issued for the arrest of the witness. State 
V. Pope, 78 S. C. 264, 58 S. E. 815 (1907). 

And refusal thereof after subpoena issued 
is error. — Where defendant's witnesses, 
who had been duly subpoenaed, left the 
court without defendant's knowledge or 
consent, the refusal of the court to issue 
a bench warrant to secure their presence 
and to postpone the trial until they could 
be present, on the sole ground that there 



111 



Art. 1, § 18 Constitution of the State of South Carolina Art. 1, § 18 



would not be time to procure their pres- 
ence before the adjournment of the term, 
was a denial of the right of accused under 
this section to have compulsory process for 
obtaining witnesses in his behalf. A new 
trial will be awarded for such refusal, 
where the testimony of the absent witnesses 
was material to the defense. State v. 
Dodgens, 120 S. C. 239, 113 S. E. 77 (1922). 

Process need not issue if witness resides 
outside State. — It is not error, in a prosecu- 
tion for a felon}', to refuse to issue a com- 
pulsory process for a witness who is shown 
to be a resident of another rtate and bej'ond 
the court's jurisdiction. State v. Murphy, 
48 S. C. 1, 25 S. E. 43 (1896). 

County is not liable for service of sub- 
poenas. — No liability is created on the part 
of the county for serving subpoenas for de- 
fendant's witnesses. Whittle v. Saluda 
County, 59 S, C. 554, 38 S. E. 168 (1901). 

Or for fees of defendant's witnesses. — 
The county is not liable for the fees of de- 
fendant's witnesses where the trial is for 
a misdemeanor. Ex parte Henderson, 51 
S. C. 331, 29S. E. 5 (1898). 

For additional related case, see State v. 
Sanders, 68 S. C. 192, 47 S. E. 55 (1904). 

Cited in State v. Crosby, 88 S. C. 98, 70 
S. E. 440 (1911). 

III. RIGHT TO BE CONFRONTED 

WITH WITNESSES. 

Personal presence of witness is required 

so that accused may cross-examine. State 
V. Eigham, 133 S. C. 491, 131 S. E. 603 
(1926). 

Testimony at prior trial is admissible if 
witness unavailable. — The constitutional 
right of an accused to be confronted with 
the witnesses against him is not infringed 
by admitting in evidence the stenograph- 
er's notes of the testimony on a former 
trial given by a witness whose presence 
cannot be secured or who has since died. 
State v. Steadman, 216 S. C. 579, 59 S. E. 
(2d) 168 (1950). 

But testimony by affidavit cannot be 
used. — Under this section, if the solicitor 
gives notice to the attorney for the defend- 
ant that he expects to take the evidence of 
a state's witness by deposition and invites 
defendant's counsel to appear and cross- 
examine the witness, the testimony so taken 
cannot be used against the defendant in his 
trial, unless the defendant freely consents 
to allow this to be done. State v. Hester, 
137 S. C. 145, 134 S. E. 885 (1926). 

Even if witness is beyond court's juris- 
diction. — Under tliis section, unless a de- 
fendant in a criminal cause consents there- 
to, the testimony of a witness against him 



taken by affidavit cannot be used in the 
trial, even if the witness is sick or dead or 
beyond the jurisdiction of the court. State 
V. Hester, 137 S. C. 145, 134 S. E. 885 
(1926). 

In criminal cases there is no statute in 
this State authorizing the issuance of a 
commission to take testimony of an out-of- 
State witness as there is in civil cases. 
State V. Murphy, 48 S. C. 1, 25 S. E. 43 
(1896). 

Thus default judgment in civil nuisance 
proceeding may be inadmissible. — The judg- 
ment in an equitable proceeding to enjoin a 
liquor nuisance, rendered on ex parte affida- 
vits and default, is not admissible on a crim- 
inal prosecution of the same person for main- 
taining the nuisance. To hold such judg- 
ment as the basis of res judicata or estoppel 
would annul the rule that in criminal prose- 
cutions the State must establish defendant's 
guilt beyond a reasonable doubt before a 
jury, and admitting the affidavits as part 
of the record would violate this section 
guaranteeing defendant the right to be con- 
fronted with the witnesses against him. 
State v. Weil, 83 S. C. 478. 65 S. E. 634 
(1909). 

As may record of alimony proceedings be- 
tween defendant and wife. — In a prosecu- 
tion for the murder of his mother-in-law, 
where defendant introduced some affidavits 
offered in an alimony proceeding brought 
by his wife, the entire record which con- 
tained the wife's verified complaint was not 
admissible, though where one party intro- 
duces part of a record the other party 
ordinarily has the right to introduce the 
whole, since the introduction of such record 
would deprive defendant of the right given 
by this section to confront witnesses. 
State v. Bramlett, 114 S. C. 389, 103 S. E. 
755 (1920). 

Circuit solicitor may testify for defense. 
— The office of the circuit solicitor does not 
exempt him from being called as a witness 
for the defense and from testifying as to 
any matters, not confidential, within his 
knowledge relating to the case. State v. 
Lee, 203 S. C. 536, 28 S. E. (2d) 402 
(1943). 

Judge may not talk to jury foreman in 
defendant's absence. — A telephone conver- 
sation between the trial judge and the jury 
foreman while the jury was out, and when 
neither defendant nor his counsel were 
present, was prejudicial error in view of 
this section guaranteeing a public trial. 
State v. Ashley, 121 S. C. 15, 113 S. E. 305 
(1922). 

Or receive information about defendant 
in chambers at such time. — It is a violation 



112 



Art. 1, § 18 Constitution of the State of South Carolina Art. 1, § 18 



of defendant's rights under this section for 
the court, in determining sentence, to con- 
sider information concerning defendant re- 
ceived in chambers and in absence of de- 
fendant or his counsel. State v. Simms, 
131 S. C. 422, 127 S. E. 840 (1925). 

Defendant may leave court during testi- 
mony of witness. — A conviction will not be 
set aside under the provisions of this sec- 
tion because defendant left the courtroom 
for a moment while the witness was testify- 
ing, his counsel being advised of the fact 
and it not being called to the attention of 
the court until after the verdict. State v. 
Bramlett, 114 S. C. 389, 103 S. E. 755 
(1920). 

Or when evidence already given is read 
to jury. — The fact that defendant in a mur- 
der trial was absent from the courtroom 
when evidence already given was read over 
to the jury at their request, after they had 
retired to make up their verdict, does not 
violate this section. State v. Haines, 36 
S. C. 504, 15 S. E. 555 (1892). 

And need not attend motion for change 
of venue. — Where a defendant indicted for 
murder is represented by counsel, it is not 
essential that he be personally present at 
the hearing of motions for change of venue 
and continuance, either at common law or 
under this section, as the trial does not com- 
mence until after the motions are disposed 
of by court ruling. State v. Faries, 125 
S. C. 281, 118 S. E. 620 (1923). 

Or require witnesses to answer. — Where 
no request was made by defendant's coun- 
sel to order witnesses to testify, and where 
an examination of the testimony showed 
that the questions which the witnesses 
failed to answer had already been answered, 
it was held that this section was not vio- 
lated when the court failed to require wit- 
nesses to answer. State v. AIcGee. 185 S. C. 
184, 193 S. E. 303 (1937). 

Jury may view place of crime. — Defend- 
ant is not by the jury's viewing the place of 
the crime deprived of the right to be con- 
fronted with or to cross-examine any wit- 
ness in the case. State v. Suber, 89 S. C. 
100, 71 S. E. 466 (1911). 

In absence of judge. — It cannot reason- 
ably be supposed that defendant's rights 
would in any respect be prejudiced by the 
absence of the judge when the jury merely 
viewed the place of the crime. State v. 
Suber, 89 S. C. 100, 71 S. E. 466 (1911). 

Evidence insufficient to support alleged 
deprivation of fair trial. — Evidence was held 
not to support the exception that defendant, 
convicted of murder, was deprived of fair 
and impartial trial by the arrest of eyewit- 
nesses, the refusal to allow them to talk to 



anyone connected with defense, or prom- 
ises of leniency if codefendants and other 
eyewitnesses testified against defendant. 
State v. Williams, 166 S. C. 63, 164 S. E. 
415 (1932). 

Valid presumption of fraudulent appro- 
priation of public funds. — Section 16-364, 
creating a presumption of fraudulent appro- 
priation where officers and other persons 
charged with safekeeping of public funds 
fail to account for them as required by law, 
does not violate this section of the Constitu- 
tion. State v. Brown, 178 S. C. 294, 182 
S. E. 838 (1935). 

Cited in Fairev v. Haynes, 111 S. C. 132, 
96 S. E. 694 (1918); State v. Hughes, 56 
S. C. 540, 35 S. E. 214 (1900). 

IV. NATURE AND CAUSE OF 
ACCUSATION. 

Section refers to trial and not arrest. — 
This section refers to the trial of the ac- 
cused and not to his arrest for the crime of 
which he mav be accused. Maycsville v. 
Clamp, 149 S. C. 346, 147 S. E. 455 (1929). 

Arrest warrant need not fully inform ac- 
cused of charge. — An accused may be ar- 
rested on a warrant that does not fully in- 
form him of the nature and cause of the 
accusation. Mavesville v. Clamp, 149 S. C. 
346. 147 S. E. 455 (1929). 

But full information may be demanded at 
trial. — When accused is brought to trial, 
he may demand the information to which 
he is entitled. Maj'esville v. Clamp, 149 
S. C. 346, 147 S. E. 455 (1929). 

Defendant may waive this constitutional 
provision. — State v. Faile, 43 S. C. 52, 20 
S, E. 798 (18951. 

Judge may secure information in open 
court. — The trial judge, in passing sentence, 
may secure information in open court in 
the presence of defendant wit'nout violating 
defendant's rights under this section. State 
V. Rickenbacker, 138 S. C. 24, 135 S. E. 651 
(1926); State v. BoHn, 149 S. C. 84, 146 
S. E. 695 (1929). 

Name of accused must appear in indict- 
ment. — An act authorizing a conviction un- 
der the charge in an indictment of a sale 
"to divers other persons" is unconstitutional, 
since such act canot override constitutional 
requirements that every accused must have 
his offense fully set forth in the indictment. 
State V. Couch, 54 S. C. 286, 32 S. E. 408 
(1899). 

Indictment sufficient for statutory rape. — 
An indictment charging the defendant with 
statutory rape under § 16-80 of the Code, 
and in addition thereto charging common 
law rape under § 16-71 of the Code, was 
held to be good after the additional charge 



[7 SO Code]— 8 



113 



Art. 1, § 19 Constitution of the State of South Carolina Art. 1, § 19 



was stricken off as mere surplusage, and 
the corrected indictment did not violate any 
of defendant's constitutional rights. State 
V. Horton, 209 S. C. 151, 39 S. E. C2d) 222 
(1945). 

For illegally selling liquor. — .An in- 
dictment for selling intoxicating liquors 
which charges a complete offense is not 
invalid because, in addition thereto, it 
charges sales to divers other persons un- 
known to the grand jury. Such averment 
is surplusage which may either be stricken 
or disregarded. State v. Jeffcoat, 54 S. C. 
196, Z2 S. E. 298 (1899). 

And for illegally soliciting emigrants to 
labor. — An indictment charging the defend- 
ant on a certain day with unlawfully solicit- 
ing emigrants to labor without the State, 
without having obtained a license therefor, 
states a crime with sufficient definiteness, 
even though it does not specify the specific 
acts of hiring or soliciting, as it charges 
sufficiently a continuation or succession of 
acts. Slate v. Napier, 63 S. C. 60, 41 S. E. 
13 (1902). 

Obtaining counsel and witnesses where 
suspended sentence vacated. — Where the 
judge vacates conditions of suspended sen- 
tence and orders it to become effective im- 
mediately, it is not error as a matter of law 
to refuse defendant sufficient time to obtain 
counsel and witnesses under this section by 
fi.xing time within which defendant is re- 
quired to make return, leaving him only one 
day to prepare his case. State v. Stauss, 
114 S. C. 445, 103 S. E. 769 (1920). 

Stated in State v. Johnston, 149 S. C. 
195, 146 S. E. 657 (1929). 

Cited in State v. King, 158 S. C. 251, 155 
S. E. 409 (1930); State v. Ashe, 89 S. C. 
160, 71 S. E. 827 (1911); Honea Path v. 
Wright, 194 S. C. 461, 9 S. E. (2d) 924 
(1940); State v. Fisher, 206 S. C. 220, 2i 
S. E. (2d) 495 (1945). 



V. TRIAL BY IMPARTIAL JURY. 

Hostile crowd may deprive accused of 
fair trial. — Where a large crowd of people 
intensely hostile to the defendants crowded 
the courthouse during their trial for murder 
and filled the space within the bar imme- 
diately around the judge, the jury, and the 
witnesses, so that counsel for accused did 
not see the jury until he addressed them 
because of the crowd, and where the 
crowd's intrusion into that part of the 
courtroom was calculated to overawe the 
jury which w'as not so safeguarded against 
extraneous influences as to allow the de- 
fendants the right of trial by an impartial 
jury guaranteed by this section, the de- 
fendants upon conviction were entitled to a 
new trial. State v. Weldon, 91 S. C. 29, 
74 S. E. 43 (1912). 

New trial where juror is constable. — 
.A.ccused convicted of homicide was held en- 
titled to a new trial where one of the jurors 
who convicted him was a bonded constable 
and where attorney of accused had e.xercised 
due diligence to determine juror's status. 
State v. Elliott, 169 S. C. 208, 168 S. E. 546 
(1933). 

Time in which accused may argue defense. 
— This constitutional provision, together 
with § 56-143 of the Code, gives to a party 
accused of crime two hours, as a matter of 
right, in which to argue his defense be- 
fore a jury. State v. Ballenger, 202 S. C. 
155, 24 S. E. (2d) 175 (1943). 

Cited in State v. Rowell, 75 S. C. 494, 
56 S. E. 23 (1906); State v. Langford, 74 
S. C. 460, 55 S. E. 120 (1906); State v. 
Hall, 137 S. C. 261. 101 S. E. 662 (1919); 
Xepapas v. Richardson,' 149 S. C. 52, 146 
S. E. 686 (1929); State v. Pridmore, 163 
S. C. 97, 161 S. E. 340 (1931); State v. 
Bramlett, 166 S. C. 323, 164 S. E. 873 
(1932); State v. Rasor, 168 S. C. 221, 167 
S. E. 396 (1933). 



§ 19. Excessive bail ; corporal punishment; contempt. 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted, nor shall witnesses be unreasonably de- 
tained. Corporal punishment shall not be inflicted. The power to punish for 
contempt shall not in any case extend to imprisonment in the State peniten- 
tiary. 



See Const. 1868, Art. I, § 38. 

I. General Consideration. 
II. Application of Section. 

Cross Reference. 

As to sentence to hard labor, see § 17-554 
of the Code. 



I. GENERAL CONSIDERATION. 

Scope of section. — This constitutional re- 
striction is an admonition not confined to 
the legislature alone. It is also intended 
to embrace the legislature and the judiciary. 

114 [7SCCode] 



Art. 1, § 19 Constitution of the State of South Carolina Art. 1, § 19 



Singletarv v. Wilson, 191 S. C. 153, 3 S. E. 
(2d) 802 (1939). 

Court may punish subject to inhibition of 
section. — It seems to be generally conceded 
that the levy of punishment when the ac- 
cused is found guilty by the jury can be 
left to the court, subject to the constitu- 
tional inhibition of this section. Singletary 
V. Wilson, 191 S. C. 153, 3 S. E. (2d) 802 
(1939). 

Power to impose fine is limited if maxi- 
mum penalty not fixed. — It is generally the 
case that in enacting penal statutes the 
legislature fixes and designates a maximum 
penalty. When this is not done, the power 
to impose a fine is limited by this consti- 
tutional provision. Singletary v. Wilson, 
191 S. C. 153, 3 S. E. (2d) 802 (1939). 

And such power is subject to review. — 
The discretion of the trial court in its de- 
termination of the amount of the penalty, 
where the ma.ximum amount of the fine is 
not fixed by statute, must if clearly abused 
be subject to be reviewed on appeal to the 
Supreme Court under tliis section of the 
Constitution. Singletarv v. Wilson. 191 
S. C. 153, 3 S. E. (2d)' 802 (1939); State 
V. Kimbrough, 212 S. C. 348, 46 S. E. 
(2d) 273 (1948). 

Unless sentence is within legal limits. — 
The Supreme Court has no jurisdiction on 
appeal to correct a sentence alleged to be 
excessive when it is within the limits pre- 
scribed by law for the exercise of discre- 
tion by the trial judge and is not the re- 
sult of partiality, prejudice, oppression, or 
corrupt motive. State v. Bell, 215 S. C. 
311. 54 S. E. (2d) 900 (1949). 

For additional related case, see Ex parte 
Keeler, 45 S. C. 537. 23 S. E. 865 (1896). 

Applied in State v. Phillips, 215 S. C. 314. 
54 S. E. (2d) 901 (1949); State v. White, 
215 S. C. 450, 55 S. E. (2d) 785 (1949). 

Cited in State v. Charleston Bridge Co., 
113 S. C. 116, 101 S, E. 657 (1919); State 
V. Hondros, 100 S. C. 242. 84 S. E. 781 
(1915); State v. Phillips, 193 S. C. 273, 
8 S. E. (2d) 626 (1940). 

II. APPLICATION OF SECTION. 

Women may be sentenced to hard labor. 
— Sentencing a woman to thirty months 
hard labor does not constitute cruel or un- 
reasonable punishment. State v. Hufifstet- 
ler. 213 S. C. 319, 49 S. E. (2d) 585 (1948). 

Sentence to both chain gang and peniten- 
tiary is valid. — Sentence to county chain 
gang for period of six months and for a 
like period at hard labor in the State Pen- 
itentiary on conviction for transporting in- 
toxicating liquor is not unjust, unreason- 



able, or excessive in violation of this sec- 
tion. State V. Harrell, 142 S. C. 24, 140 
S. E. 258 (1927). 

As is sentence to year's imprison- 
ment with six months suspended. — Sus- 
pending si.x months of sentence to twelve 
months' imprisonment for unlawful posses- 
sion of intoxicating liquor, where twelve 
months' imprisonment is within limitation 
prescribed by law, is not violative of this 
section as unjust, unreasonable, or excessive. 
State v. Harrell, 142 S. C. 24, 140 S. E. 
258 (1927). 

Or eighteen months imprisonment with 
half suspended. — Where appellant took 
liquor from his retail liquor store, required 
by law to be closed at sundown, and placed 
it in the office of his grocery store which 
he kept open until midnight, upon convic- 
tion therefor receiving eighteen months 
imprisonment with half suspended, it was 
held that such sentence did not violate this 
section. State v. Brandon, 210 S. C. 495, 
43 S. E. (2d) 449 (1947). 

Or year at hard labor where nine months 
suspended. — In prosecution for storing and 
possessing intoxicating liquor, a sentence 
to twelve months at hard labor on public 
works or for like period in State Peniten- 
tiary, nine months thereof being suspend- 
ed during good behavior, is not abuse of 
good discretion, as violating this section. 
State V. Quick. 141 S. C. 442, 140 S. E. 
97 (1927). 

Or concurrent sentences of eight and 
twelve months respectively. — Concurrent 
sentences of eight and twelve months, re- 
spectively, on each of two counts for pos- 
sessing and transporting liquor is not ex- 
cessive. State V. Martin, 155 S. C. 495, 
152 S. E. 738 (1930). 

Or fine of one hundred dollars. — In a 
prosecution for violation of a town ordi- 
nance by storing and selling intoxicants, 
fines of $100 for the selling and of a like 
amount for the storing, were not an abuse of 
the trial court's discretion. Belton v. Camp- 
bell, 103 S. C. 424. 88 S. E. 30 (1916). 

Or fine imposed by mayor within lim- 
its prescribed by ordinance. — Where a fine 
imposed by a mayor is within the limits 
prescribed by charter and ordinance, there 
is no error of law in imposing a fine within 
those limits, and the matter is exclusively 
within the discretion of the mayor. Green- 
ville V. Kemmis, 58 S. C. 427, 36 S. E. 1TJ 
(1900). 

Or sentence for grand larceny. — A sen- 
tence of nine years and six months for 
grand larceny, being within the limit of 
the punishment prescribed by § 17-552, is 
not so severe as to violate this section. 



115 



Art. 1, § 20 Constitution of the State of South Carolina Art. 1, § 24 



But thirty-year sentence for burglary 
may violate section.— A sentence of 30 
years for burglary under § 16-331 of the 
Code, on verdict of guilty with recom- 
mendation of mercy, was set aside as a 
violation of this section. State v. Kim- 
brough, 212 S. C. 348, 46 S. E. (2d) 271 
(1948). 



State v. Hurt, 212 S. C. 461, 48 S. E. (2d) 
313 (1948). 

Or ten-year sentence for possession of 
burglary tools. — h. sentence of ten years 
for unlawful possession of tools adequate 
for use in burglary or larceny does not 
violate that part of this section relating 
to cruel and unusual punishment. State v. 
Pulley, 216 S. C. SS2, 59 S. E. (2d) 155 
(1950). 

§ 20. Right of bail ; sureties. 

All persons shall, before conviction, be bailable by sufficient sureties, except 
for capital offenses when the proof is evident or the presumption great. 
See Const. 1868, Art. I, § 16. 

Cited in Gilmer v. Hunnicutt, 57 S. C. 
166, 35 S. E. 521 (1900). 



§21. Libel. 

In all indictments or prosecutions for 
be given in evidence, and the jury shall 
See Const. 186S, Art. I, § 8. 

This section does not apply to civil ac- 
tions. Duncan v. Record Pub. Co., 145 S. 
C. 196, 143 S. E. 31 (1927). 

Judge should declare to jury law appli- 
cable to libel. — It is not only the right but 
the duty of the presiding judge upon trial 
of indictments for libel to declare to the 
jury the law applicable thereto. If he has 



libel, the truth of the alleged libel may 
be the judges of the law and the facts. 

erred in so doing, such error may be re- 
viewed on appeal by the accused just as 
in any other case. State v. Syphrett, 27 
S. C. 29, 2 S. E. 624 (1887). 

Stated in State v. Brock, 61 S. C. 141. 
'i'i S. E. 359 (1901); Butler v. Ellerbe, 44 
S. C. 256, 22 S. E. 425 (1895). 



§ 22. Treason. 

Treason against the State shall consist alone in levying war or in giving 
aid and comfort to enemies against the State. No person shall be held guilty 
of treason, except upon testimony of at least two witnesses to the same overt 
act, or upon confession in open Court. 



§ 23. Habeas corpus. 

The privilege of the writ of habeas 
when, in case of insurrection, rebellion 
quire it. 

See Const. 1868, Art. I, § 17. 

Cross reference. — As to authority of the 
Governor to call out the militia, see 
§§44-114 and 44-115. 

Suspension of writ in absence of threat 
to public safety. — Where the Governor de- 
clared a state of insurrection in order to 
force State highway commissioners out of 



corpus shall not be suspended unless 
or invasion, the public safety may re- 



office and suspended the writ of habeas 
corpus to persons violating the proclama- 
tion of insurrection, he exceeded his au- 
thority because there was no threat to 
the peace of the State. Hearon v. Calus, 
178 S. C. 381, 183 S. E. 13 (1936). 



§ 24. Imprisonment for debt. 

No person shall be imprisoned for debt e.xcept in cases of fraud. 
See Const. 1868, Art. I, § 20. 

Cross Reference. — As to penary for Definition of "debt." — Debt is that which 

knowingly selling personal property under is due from one person to another, whether 
lien, see § 45-157. mony, goods, or services, and whether pay- 

116 



Art. 1, § 25 Constitution of the State of South Carolina Art. 1, § 25 



able at present or at a future time. Ex 
parte Hollman, 79 S. C. 9, 60 S. E. 19 
(1908). 

"Debt" does not include tort liability or 
criminal fine. — The term "debt" witliin the 
meaning of this section embraces obhga- 
tions arising out of contract and excludes 
liability for tort and for fines imposed for 
crime. Ex parte Hollman, 79 S. C. 9, 60 
S. E. 19 (1908). 

A judgment in an action of tort is not 
a "debt" within the meaning of this sec- 
tion. Ex parte Berry, 85 S. C. 243, 67 S. 
E. 225 (1910). 

Contractor may be imprisoned for fail- 
ure to pay laborers. — Sections 45-301 and 
45-302, providing that contractors pay la- 
borers employed out of money received for 
contract and giving laborers a lien on such 
money, and further providing fine or im- 
prisonment for violation of said sections 
of the Code, do not violate this section 
of the Constitution. State v. Hertzog, 92 
S. C. 14, 75 S. E. 374 (1912). 

And husband for failure to support 
wife. — An act making it a misdemeanor for 
a husband to abandon his wife and to fail 
to support her without just cause, punish- 
able by imprisonment, does not violate 
this section prohibiting imprisonment for 



debt, since the imprisonment is not for 
any "debt," but for failure to obey the stat- 
ute obligations incident to the marriage 
contract or relation. State v. English, 101 
S. C. 304, 85 S. E. 721 (1915): State v. 
Redmond, 150 S. C. 452, 148 S. E. 474 
(1929). 

Tax ordinance may be enforced by im- 
prisonment. — Where the adoption of an or- 
dinance imposing a tax or a debt is with- 
in the delegated powers of a town, a pro- 
vision in the ordinance for its enforcement 
by fine and imprisonment is entirely proper 
and does not violate this constitutional 
provision. Marion v. Ba.xley, 192 S. C. 112, 
5 S. E. (2d) 573 (1939). 

But imprisoning farm laborer for breach 
of contract violates section. — An act pro- 
viding for prosecution for breach of farm 
labor contracts, and upon conviction there- 
for either imprisonment or fine of the farm 
laborer efTecting the breach, is in violation 
of this section. Ex parte Hollman, 79 S. C. 
9, 60 S. E. 19 (1908), which in effect over- 
rules Ex parte Williams, 32 S. C. 583, 10 
S. E. 551 (1890); State v. Chapman, 56 
S. C. 420, 34 S. E. 961 (1900); State v. 
Easterlin, 61 S. C. 71, 39 S. E. 250 (1901). 

Stated in State v. Moore, 128 S. C. 192, 
122 S. E. 672 (1924). 



§25. Trial by jury. 

The right of trial by jtiry shall be preserved inviolate. 



This section applies to civil and crim- 
inal cases. Best v. Barnwell County, 114 
S. C. 123, 103 S. E. 479 (19201. 

Jury trials obtain only where allowed 
when Constitution adopted. — This section 
only preserves jury trials in those cases 
where they were allowed at time of adop- 
tion of the Constitution. Com'rs v. Sea- 
brook, 2 Strob. (33 S. C. L.) 560; State v. 
Gibbes, 109 S. C. 135, 95 S. E. 346 (1918). 

For example, at the time of the adoption 
of the first Constitution by the State of 
South Carolina, neither party to a pro- 
ceeding in quo warranto had a right un- 
der existing law or prevailing practice 
to demand a jury trial of issues of fact. 
State V. Gibbes, 109 S. C. 135, 95 S. E. 
346 (1918). 

And mode of forming and empanelling 
jury may be changed. State v. Boatright, 
10 Rich. (44 S. C. L.) 407; State v. Clay- 
ton, 11 Rich. (45 S. C. L.) 581. 

Trial may be had after demurrer to in- 
dictment overruled. — Where a defendant 
demurs to an indictment charging a mis- 
demeanor and it is overruled, he is entitled 
to plead thereto and to be tried by a jury. 



State V. Bardin, 64 S. C. 206, 41 S. E. 959 
(1902). 

Failure to pay jury costs does not waive 
right to jury trial. — The right to a trial by 
jury in a judicial magistrate's court in 
the city of Charleston is not waived by 
failure of defendant to pay the costs of 
summoning and paving jurors. Pinckney 
v. Green, 67 S. C. 309, 45 S. E. 202 (1903). 

Jury trying capital felony must consist of 
twelve men. — In view of this section one 
charged with a capital felony, who has de- 
manded a trial by jury, cannot be tried 
by any other than a jury of twelve men. 
His attorney cannot consent to a trial by 
eleven men, notwithstanding that accused 
remains silent and testifies before the eleven 
men. State v. Hall, 137 S. C. 261, 101 S. E. 
662 (1919). 

Court alone may adjudge existence of 
nuisance. — A statutory nuisance may be de- 
clared by the court to be maintained by 
one without a trial and conviction of such 
person by a jury. Such adjudication by tlie 
court does not deprive the individual of 
the right to trial bv jurv. State v. Riddock 
& Byrnes, 78 S. C. 286,'58 S. E. 803 (1907). 



117 



Art. 1, § 26 Constitution of the State of South Carolina Art. 1, § 27 



Highway condemnation procedure does 
not violate section. — The condemnation pro- 
ceedings provided for in tlie Code, permit- 
ting the State Highway Department to con- 
demn private lands, do not violate this 
section of the Constitution. Jennings v. 
Sawyer, 182 S. C. 427, 189 S. E. 746 (1937). 

Goods sold on Sunday may be confiscated. 
— An act authorizing confiscation and sale 
of goods offered or exposed for sale on Sun- 
day does not deny right to jury trial. Xepa- 
pas v. Ricliardson, 149 S. C. 52, 146 S. E. 
686 (1929). 

Copy of indictment may be required in 
malicious prosecution action. — A rule of 
court, requiring copy of indictment for 
felony to be obtained by order of the judge 
who tried it before an action for malicious 
prosecution shall be commenced, is no 
abridgement of right to jurv trial. Burton 
V. Watkins, 2 Hill (20 S. C. L.) 674. 

Valid presumption of fraudulent appro- 
priation of public funds. — Section 16-364, 
creating a presumption of fraudulent ap- 



propriation where officers and other per- 
sons charged with safekeeping of public 
funds fail to account for them as required by 
law, does not violate this section of the 
Constitution. State v. Brown, 178 S. C. 
294, 182 S. E. 838 (1935). 

Special verdict on special count for car- 
rying concealed weapons. — An indictment 
for an assault with intent to kill and for 
carrying concealed weapons must charge 
in a special count the carrying of the weap- 
on concealed about the person, and the 
jury must find a special verdict on this 
count before defendant can be sentenced 
therefor. State v. Johnson, 70 S. C. 384, 
50 S. E. (1905). 

Cited in State v. Hughes, 56 S. C. 540, 
35 S. E. 214 (1900); Greenwood v. Yoe, 
89 S. C. 24, 71 S. E. 238 (1911); State v. 
Heavener, 146 S. C. 138, 143 S. E. 674 
(1928); State v. Rector, 158 S. C. 212, 155 
S. E. 385 (1930); State v. Pridmore, 163 S. 
C. '^1, 161 S. E. 340 (1931). 



§ 26. Keep and bear arms; General Assembly may maintain armies; how sol- 
diers quartered. 

A well regulated militia being necessary to the security of a free State, the 
right of the people to keep and bear arms shall not be infringed. As in times 
of peace armies are dangerous to liberty, they shall not be maintained without 
the consent of the General Asseiubly. The military power of the State shall 
aways be held in subordination to the civil authority and be governed by it. 
No soldier shall in time of peace be quartered in any house without the consent 
of the owner, nor in time of war but in the manner to be prescribed by law. 

See Const. 1868, Art. I, §§28, 29. 

Governor may not exceed authority in 
suppressing insurrection. — The acts of the 
Governor, lawfully done in the suppression 
of an insurrection, are immune from inter- 
ference by the Supreme Court. But when 
his acts exceed the authority given him by 
the Constitution and statutes, and are in- 
jurious to the personal liberty and property 
rights of the citizens of the State, they are 
open to the inquiry and control of the judi- 



cial arm of the State. Hearon v. Calus, 
178 S. C. 381. 183 S. E. 13 (1936). 

But declaration of state of insurrection 
is not enjoinable. — The action of the Gov- 
ernor in declaring that a state of insur- 
rection exists may not be enjoined by the 
Supreme Court, nor reviewed by it. Hear- 
on V. Calus, 178 S. C. 381, 183 S. E. 13 
(1936). 



§27. Martial law. 

No person shall in any case be subject to martial law or to any pains or 
penalties by virtue of that law, except those employed in the army and navy 
of the United States, and except the militia in actual service, but by the 
authority of the General Assembly. 

See Const. 1868, Art. I, § 25. 

Governor lacks authority to declare mar- law, a power the General Assembly has not 

tial law. — When the Governor called out seen fit to confer upon him. Hearon v. 

the militia and suspended the writ of ha- Calus, 178 S. C. 381, 183 S. E. 13 (1936). 
beas corpus, he, in effect, declared marital 

U8 



Art. 1, §28 Constitution of the State of South Carolina Art. 1, § 29 



§ 28. Navigable waters free ; no tax for use of wharf. 

All navigable waters shall forever remain public highways free to the 
citizens of the State and the United States without tax, impost or toll im- 
posed; and no tax, toll, impost or wharfage shall be imposed, demanded or 
received from the owners of any merchandise or commodity for the use of the 
shores or any wharf erected on the shores or in or over the waters of any 
navigable stream tinless the same be authorized by the General Assembly. 

See Const. 1868, Art. I, § 40. 



Section is declaratory of common-law 
rights. — Except for the imposition of toll, 
this section hardly more than sanctioned 
the common-law rights of the puhlic in 
navigable water. Thus a street railway, 
light, and power company and the city 
of Columbia, acting under a contract with 
it, were bound by the common law, as well 
as by express contract, not to obstruct 
the Columbia Canal. State v. Columbia 
Water Power Co., 82 S. C. 181, 63 S. E. 
884 (1909). 

Public purposes in which State may en- 
gage under section. — Under this and re- 
lated sections, navigation, health better- 
ment, flood control, and reforestation of 
watersheds are public purposes in which 
the State is interested and may engage. 
Clarke v. South Carolina Public Service 
Authority, 177 S. C. 427, 181 S. E. 481 
(1935). 

Obstruction of highway is public nuisance. 
— An obstruction of any highway is a public 
nuisance which, ordinarily, can only be re- 
dressed by indictment. South Carolina 
Steamboat Co. v. Wilmington, G. & A. 
R. Co., 46 S. C. 327, 24 S. E. Zi7 (1896). 

Which is usually redressed by indictment. 
— South Carolina Steamboat Co. v. Wil- 
mington, G. & A. R. Co., 46 S. C. 227, 24 
S. E. 337 (1896). 

Unless special damages can be shown. — 
The remedy for a public nuisance is by in- 
dictment, unless the person instituting civil 
proceedings can show special damage dif- 
fering in kind from that to which all others 
in common with him are exposed. Mc- 
Meekin v. Central Carolina Power Co., 80 
S. C. 512, 61 S. E. 1020 (1908). 



Dam erection is not enjoinable as mere 
nuisance. — The erection of a dam across a 
navigable stream will not be enjoined mere- 
ly because it will be a public nuisance. Mc- 
Meekin v. Central Carolina Power Co., 
80 S. C. 512, 61 S. E. 1020 (1908). 

Canal construction land may not be sub- 
ject to navigation trust. — Land conveyed for 
purpose of canal construction was not sub- 
ject to the navigation trust imposed by the 
Constitution on all navigable waters. State 
V. Broad River Power Co., 177 S. C. 240, 
181 S. E. 41 (1935). 

A statute which relieved successor of 
grantee of State land from performance of 
covenant to construct canal on such land 
was held not unconstitutional as a violation 
of navigation trust, where such statute re- 
served a right in the State to extend canal 
on land in question and where all naviga- 
tion rights in canal as completed were ful- 
ly and expressly preserved for bene- 
fit of the public. State v. Board River 
Power Co., 177 S. C. 240, 181 S. E. 41 
(1935). 

Recovery for special injuries without 
proof of negligence. — One sustaining special 
injuries from the obstruction of a navi- 
gable stream may recover therefor without 
proof of negligence. Drews v. Burton & 
Co., 76 S. C. 362, 57 S. E. 176 (1907). 

For additional related case, see State v. 
Young. 30 S. C. 399, 9 S. E. 355 (1889). 

Cited in Carolina Power & Light Co. v. 
South Carolina Pub. Service Authority, 20 
F. Supp. 854 (1937). 



§ 29. Provisions of Constitution mandatory. 

The provisions of the Constitution shall be taken, deemed and construed to 
be mandatory and prohibitory, and not merely directory, except where ex- 
pressly made director}' or permissory by its own terms. 



Applicability of general or special law 
is judicial question. — Under this section, 
determination as to whether a general law 
can be applied so as to exclude special laws 
is a judicial question. Carolina Grocery 



Co. v. Burnet, 61 S. C. 205. 39 S. E. 381 
(1901). 

Applied in Thomas v. Macklen, 186 S. C. 
290, 195 S. E. 539 (1938); State v. Bibbs, 
192 S. C. 231, 6 S. E. (2d) 276 (1939). 



119 



Art. 2, § 1 Constitution of the State of South Carolina Art. 2, § 2 



Stated in Land Mortg., Invest., etc., Co. 
V. Faulkner, 45 S. C. 503, 23 S. E. 516, 24 
S. E. 28S (1896); Smith v. Jennings, 67 
S. C. 324, 45 S. E. 821 (1903); State v. 
Adams, 68 S. C. 421, 47 S. E. 676 (1904); 
Asbill V. Martin, 84 S. C. 271, 66 S. E. 297 
(1909) ; McAulay v. McAuIay, 96 S. C. 86, 
79 S. E. 785 (1913); Robinson v. McGown, 
104 S. C. 2SS, 88 S. E. 807 (1916); State 
V. Rector, 158 S. C. 212, 155 S. E. 385 
(1930). 



Cited in Segars v. Parrott, 54 S. C. 1, 31 
S. E. 677, 865 (1898); State v. Hammond, 
66 S. C. 219, 44 S. E. 797 (1903); Wright 
V. State Board, 76 S. C. 574, 57 S. E. 536 
(1907); Mills v. Atlantic Coast Line Ry. 
Co., 87 S. C. 158, 69 S. E. 91 (1910); Dun- 
can V. Record Pub. Co., 145 S. C. 196, 
143 S. E. 31 (1927); Wingfield v. South 
Carolina Tax Comm., 147 S. C. 116, 144 
S. E. 846 (1928); Byrd v. Lawrimore, 212 
S. C. 281, 47 S. E. (2d) 728 (1948). 



ARTICLE II. 

Right of Suffrage. 
§ 1. Elections by ballot. 

All elections by the people shall be by ballot, and elections shall never be 
held or the ballots counted in secret. 
See Const. 1868, Art VIII, § 1. 

Cross reference. — For specific section cov- 
ering counting of ballots in general, special, 
and primary elections, see § 23-356. 

"Ballot" implies secret voting. State v. 
State Board, 78 S. C. 461. 59 S. E. 145 (1907). 

And secrecy of the ballot is absolutely es- 
sential. Corn v. Blackwell, 191 S. C. 183, 
4S. E. (2d) 254 (1939). 

This section applies to municipal as well 
as State elections. Darling v. Brunson, 94 
S. C. 207, n S. E. 860 (1913). 

But not to taxation in special tax districts. 
—The requirements of this section need not 
apply to the ascertainment of the will of 
the people in territorial subdivisions or spe- 
cial tax districts as to laying a tax for them- 
selves instead of by the General Assembly. 
Martin v. School District, 57 S. C. 125, 35 
S. E. 517 (1900). 

"Election" defined. — .An election is the ex- 
pression of a choice by the voters of a body 
politic. State v. State Board, 78 S. C. 461, 
59 S. E. 145 (1907). 



"Election" includes every expression of 
choice by voters of a body politic and em- 
braces local option elections. State v. State 
Board, 78 S. C. 461. 59 S. E. 145 (1907). 

Placing names of candidates on ballot. — 
It is not necessary to place names of all 
candidates for same office on same ballot. 
Gardner v. Blackwell, 167 S. C. 313, 166 
S. E. 338 (1932). 

Election petition in lieu of regular elec- 
tion by ballot. — The question of annexa- 
tion was submitted to the areas to be an- 
nexed by an election petition instead of a 
regular election by ballot. This did not 
violate this section, since it was not an 
election within the contemplation of this 
section. Sanders v. Greater Greenville Sew- 
er district, 211 S. C. 141, 44 S. E. (2d) 185 
(1947). 

As to election set aside where ballots 
counted in secret, see McKnight v. Smith, 
182 S. C. 2,7^. 189 S. E. 361 (1937). 

For additional related case, see State v. 
Moore, 54 S. C. 556, Zl S. E. 700 (1899). 



§ 2. Qualification for office ; two offices. 

Ever)- qualified elector shall be eligible to any office to be voted for, unless 
disqualified by age, as prescribed in this Constitution. But no person shall 
hold two offices of honor or profit at the same time : Provided, That any per- 
son holding another office may at the same time be an officer in the Militia or 
a Notary Public: Provided, further, That the limitation above set forth "But 
no person shall hold two offices of honor or profit at the same time," shall not 
apply to the Circuit Judges of the State under the circumstances hereinafter 
stated, but that whenever it shall appear that any or all of the Justices of the 
Supreme Court shall be disqualified or be otherwise prevented from presiding 
in any cause, or causes, for the reasons set forth in Section 6 of Article V of 
the Constitution, the Chief Justice or in his stead the Senior Associate Justice 

120 



Art. 2, § 2 Constitution of the State of South Carolina Art. 2, § 2 



shall when available designate the requisite number of Circuit Judges for the 

hearing and determination thereof. 

1930 (36) 1251; 1931 (37) 107. 
See Const. 1868, Art. XIV, § 1. 

I. General Consideration. 
II. Application of Section. 

I. GENERAL CONSIDERATION. 

All officers must be qualified electors. — 

All officers, constitutional and statutory, 
and whetlier elected or appointed, must be 
qualified electors. The legislature may not 
add other conditions for eligibility to those 
specified in the Constitution for election or 
appointment to constitutional offices, that is, 
those offices created by the Constitution. 
As to offices established only by legis- 
lative acts, the General Assembly may pre- 
scribe other and additional qualifications 
which are reasonable in their requirements. 
McLure v. McElroy, 211 S. C. 106, 44 
S. E. (2d) 101 (1947). 

Registration is essential to constitute one 
a qualified elector. State v. Alittle, 120 S. 
C 526, 113 S. E. 335 (1922). 

Since "qualified elector" means "regis- 
tered elector." — The term "qualified elec- 
tor" means, "registered elector." One who 
has not been registered as an elector in 
the county when the court sits is not quali- 
fied to serve as a juror in said court. Mew 
V. Charleston & S. Ry. Co., 55 S. C. 90, 
52 S. E. 828 (1899). 

Officer has title to latest office to which 
appointed. — An officer has good title to the 
latest office to which he is appointed and 
for which he has duly qualified, which 
means that he is the incumbent de jure. 
McLure v. McElroy, 211 S. C. 106, 44 S. 
E. (2d) 101 (1947). 

And vacates first office upon qualification 
to second. — In State v. Buttz. 9 S. C. 156 
(1877), it was held that when a person hold- 
ing one office of trust or profit is elected 
or appointed to another such office and 
qualifies in the latter capacity, he thereby 
vacates the first office to which he was 
elected or appointed and lawfully holds 
the second office as an office de jure. 
Walker v. Harris, 170 S. C. 242, 170 S. E. 
270 (1933). 

Plaintiff must show personal interest to 
invoke section. — • A suit to invoke this con- 
stitutional provision may not be maintained 
by one wlio fails to show in his complaint 
that he has some personal interest in the 
situation other than that shared in common 
by other members of the public. Culbert- 
son V. Blatt, 194 S. C. 105, 9 S. E. (2d) 218 
(1940). 



Cited in Ex parte Lumsden, 41 S. C. 
553, 19 S. E. 749 (1894). 

II. APPLICATION OF SECTION. 

Section applies to both State and mu- 
nicipal offices. — The prohibition against 
holding two offices under this section is 
not limited to State offices, but applies also 
to municipal offices. Darling v. Brunson, 
94 S. C. 207, 77 S. E. 860 (1913). 

Office of town intendant is an "office of 
honor." State v. Coleman, 54 S. C. 282, 
32 S. E. 406 (1899). 

And office of circuit court clerk is an 
"office of profit." State v. Coleman, 54 S. 
C. 282, n S. E. 406 (1899). 

But position of grand juror is not office 
"of honor or profit." State v. Graham, 79 
S. C. 116, 60 S. E. 431 (1908). 

As is true of office of notary public.^ 
A person may hold the office of postmaster 
and notary public at the same time, since 
the office of notary public is not incom- 
patible with any other office. Ex parte 
Ware Furniture Co., 49 S. C. 20, 27 S. E. 
9 (1897). 

And of sinking fund commission mem- 
bership.— State V. Blease, 95 S. C. 403, 79 
S. E. 247 (1913). 

And also ex officio membership on com- 
mission. — This section does not limit or 
affect ex officio membership upon a board 
or commission of a unit of government 
which an officer serves in his official ca- 
pacity, where the functions of the board or 
commission are related to the duties of the 
office. Ashmore v. Greater Greenville Sew- 
er Dist., 211 S. C. 77, 44 S. E. (2d) 88 
(1947). 

A mayor in office may not sit upon a 
board of auditorium trustees. Ashmore v. 
Greater Greenville Sewer Dist., 211 S. C. 
77, 44 S. E. (2d) 88 (1947). 

And this is true of a chairman of a county 
board of commissioners. Ashmore v. Great- 
er Greenville Sewer Dist., 211 S. C. 77, 
44 S. E. (2d) 88 (1947). 

Nonresidents may not vote or hold town 
office. — In Thomas v. Macklen, 186 S. C. 
290, 195 S. E. 539 (1938), the court held 
unconstitutional, as obno.xious to this and 
other constitutional provisions, certain sec- 
tions of an act which conferred upon non- 
resident freeholders of a proposed incor- 
porated town the right to vote and to hold 
office therein. 



121 



Art. 2, § 3 Constitution of the State of South Carolina Art. 2, § 4 



Medical qualifications of hospital board. — 
The requirement that three members of 
a board of seven created to construct and 
operate a hospital shall be practicing medi- 
cal doctors in the district appears to be 
quite reasonable and wise — certainly not 
arbitrary or discriminatory. There is pat- 
ent relation between the added qualifica- 
tion and the duties of the office, and only 
a minoritj' of the board need be so quali- 
fied. McLure v. McElroy, 211 S. C. 106, 
44 S. E. (2d) 101 (1947). 

De facto clerk of court. — One elected, 
quahfied, and commissioned clerk of court, 



who is in possession of the office and dis- 
charging its duties without anyone claim- 
ing it, is a de facto clerk, even though he 
has accepted the office of intendant of a 
town. State v. Coleman, 54 S. C. 282, 
32 S. E. 406 (1899). 

De facto trustee of school district. — A 
member of a township board of assessors, 
who continues to act as such after his ap- 
pointment as a trustee of a school district, 
is a de facto trustee of the school district 
under the provisions of this section. Dove 
V. Kirkland, 92 S. C. 313, 75 S. E. 503 
(1912). 



§ 3. Electors. 

Every male citizen of this State and of the United States twenty one j^ears 
of age and upwards, not labouring under the disabilities named in this Consti- 
tion and possessing the qualifications required by it, shall be an elector. 

See Const. 1868, Art. VIII, § 2. 



Cross reference. — As to trial by Jury com- 
posed of qualified electors, see S. C. Const., 
Art. 5, § 22. 

Bond issue is invalid where electors lack 
qualifications. — A proposed county bond is- 
sue is invahd under tliis section where the 
voters fail to produce registration certifi- 
cates or tax receipts at election at which 
issue was approved. Dial v. Watts, 138 
S. C. 468, 136 S. E. 891 (1927). 

Grand juror need not be freeholder and 
taxpayer. — Since this section does not pro- 
vide that a voter must be a freeholder and 
taxpayer, a grand juror cannot be disquali- 
fied because he is not such. State v. Wil- 
hams, 35 S. C. 344, 14 S. E. 819 (1892). 

Property return is not needed in order 
to vote. — The provisions of .^ct No. 102, 38 
St. at Large, p. 114, requiring that one 
offering to vote at an election on the ques- 
tion of issuing bonds in a school district 
election in Greenville County must return 



for taxation real and personal property 
therein, in addition to showing a certificate 
of registration, are in direct conflict with 
this section. Cothran v. West Dunklin 
Public School District, 189 S. C. 85, 200 
S. E. 95 (1938). 

But one without proper registration cer- 
tificate may not hold office. — In Blalock v. 
Johnston, 180 S. C. 40, 185 S. E. 51 (1936), 
the court held that the petitioner, having no 
registration certificate issued to him in the 
county of Cherokee, was not eligible to hold 
the office of tax collector of that county. 

For additional related case, see Wright 
V. State Board, 76 S. C. 574, 57 S. E. 536 
(1907). 

Cited in Mew v. Charleston & S. Ry. Co., 
55 S. C. 90, 32 S. E. 828 (1899): Martin 
V. School District, 57 S. C. 125, 35 S. E. 517 
(1900); Wiley v. Sinkler. 179 U. S. 58, 21 
S. Ct. 17, 45 L. Ed. 84 (1900). 



§ 4. Qualifications for suffrage. 

The qualifications for sufifrage shall be as follows : 

(a) Residence. — Residlsace in the State for two years, in the County one 
year, in the polling precinctyin which the elector offers to vote four months ; 
Provided, That ministers in charge of an organized church and teachers of 
public schools shall be entitled to vsjj^e after six months' residence in the State, 
otherwise qualified. 

1929 (36) 695; 1931 (37) 105, 246. 

(b) Registration. — Registration, which shall provide for the enrollment of 
every elector once in ten years, and also an enrollment during each and every 
year of every elector not previously registered under the provisions of this 
Article. 

122 



Art. 2, § 4 Constitution of the State of South Carolina Art. 2, § 4 

(c) Qualification for registration up to January, 1S9S ; list of registered voters. — • 
Up to January 1st, 1898, all male persons of voting age applying for registra- 
tion who can read any section in this Constitution submitted to them by the 
registration ofificer, or understand and explain it when read to them by the 
registration ofificer, shall be entitled to register and become electors. A sep- 
arate record of all persons registered before January 1st, 1898, sworn to by the 
registration officer, shall be filed, one copy with the Clerk of Court and one in 
the office of the Secretary of State, on or before February 1st, 1S98, and such 
persons shall remain during life qualified electors unless disqualified by the 
other provisions of this Article. The certificate of the Clerk of Court or Sec- 
retary of State shall be sufficient evidence to establish the right of Said Citizens 
to any subsequent registration and the franchise under the limitations herein 
imposed. 

(d) Qualification for registration after January, 1898. — Any person who shall 
apply for registration after January 1st, 1898, if otherwise qualified, shall be 
registered : Provided, That he can both read and write any Section of this Con- 
stitution submitted to him by the registration officer, or can show that he owns, 
and has paid all taxes collectible during the previous year on, property in this 
State assessed at three hundred dollars ($300) or more. 

(e) Payment of taxes necessary for voting. — [Eliminated.'] 
1949 (46) 77i\ 1951 (47) 24. 

(f) Certificate of registration. — The General Assembly shall provide for issu- 
ing to each duly registered elector a certificate of registration, and shall pro- 
vide for the renewal of such certificate when lost, mutilated or destroyed, 
if the applicant is still a qualified elector under the provisions of this Constitu- 
tion, or if he has been registered as provided in subsection (c). 

See Const. 1868, .A.rt. VIII, § 2. 

I. General Consideration. suffrage provided by the Constitution may 

II. Residence. not be replaced by the requirements and 

III. Registration. regulations applicable to primary elections. 

IV. Registration up to 1898. State v. Huntley, 167 S. C. 476^ 166 S. E. 
V. Certificate of Registration. 637(1932). 

_ ^ , Stated in State v. Hann, 196 S. C. 211, 
Cross Reference. j2 S. E. (2d) 720 (1940); State v. Middle- 
As to registration of qualified elections, ton, 207 S. C. 478, 36 S. E. (2d) 742 (1946). 
see note to Art. 2, § 8 of the Constitution. Cited in Mew v. Charleston & S. Rv. Co., 

55 S. C. 90, 32 S. E. 828 (1899); Martin 

I. GENER.^L CONSIDERATION. v. School District. 57 S. C. 125, 35 S. E. 

This section prescribes the qualifications 517 (1900); Franklin v. South Carolina, 

for an elector as suffrage is the right to 218 U. S. 161, 30 S. Ct. 640, 54 L. Ed. 980 

vote and not the act of voting. Mew v. (1910); Butler v. EUerbe, 44 S. C. 256, 22 

Charleston & S. Ry. Co., 55 S. C. 90, S. E. 425 (1895). 
32 S. E. 828 (1899). 

Without distinction as to race or color. — II- RESIDENCE. 

This section prescribes the qualifications of "Residence" means "domicile." — The 

electors and provides for their registra- term "residence" as used in this section has 

tion, all without difTerence or distinction substantially the same meaning as "domi- 

because of race or color. State v. Grant, cile." Phillips v. South Carolina Tax 

199 S. C. 412, 19 S. E. (2d) 638 (1941). Comm. 195 S. C. 472, 12 S. E. (2d) 13 

Which may not be replaced by primary (1940). 

election regulations. — The requirements for Intention is controlling element. — Resi- 

123 



Art. 2, § 5 Constitution of the State of South Carolina Art. 2, § 5 



dence of a person being a mixed question 
of law and fact, his intention is the con- 
trolhng element. Clarke v. McCown, 107 
S. C. 209, 92 S. E. 479 (1917). 

And may be proved by acts. — The inten- 
tion of a voter may be proved by his acts, 
declarations, or other circumstances. Clarke 
V. McCown, 107 S. C. 209, 92 S. E. 479 
(1917). 

Such as voting in another county. — If 
a person votes at an election in another 
county, his act is inconsistent with an in- 
tention to retain his residence, and he is 
not entitled to vote in the county wherein 
he resides. Clarke v. McCown, 107 S. C. 
209,92 5. E. 479 (1917). 

Nonresidents may not vote or hold town 
office. — See note to S. C. Const., Art. 2, § 2. 

Registration outside residence district but 
in proper polling precinct. — Persons sign- 
ing a petition opposing the consolidation of 
a school district, who reside within '"le dis- 
trict but are registered at polling places 
outside of the district but within the same 
polling precinct are "qualified voters." 
Watson v. Spartanburg Countv Board, 141 
S. C. 347, 139 S. E. 775 (1927). 

For showing insufficient to question va- 
lidity of section, see Franklin v. South 
Carolina, 218 U. 5. 161, 30 S. Ct. 640, 54 
L. Ed. 980 (1910). 

III. REGISTR.A.TION. 

Electors may register at any time during 
tenth year. — The correct view is that the 
elector has the right to re-register at any 
time during the tenth year and is eligible 
for jury duty, provided that he is otherwise 
qualified. Veronee v. Charleston Consol. 
Rv., etc., Co., 152 S. C. 178, 149 S. E. 753 
(1929). 

Including those already drawn for jury 
duty. — This provision is not intended to 
disqualify persons as jurors who were reg- 
istered electors when drawn but had not 
registered immediately at the expiration of 
the ten-year period before the trying of 
the case. Veronee v. Charleston Consol. 
Ry., etc.. Co., 152 S. C. 178, 149 S. E. 753 
(1929). 



IV. REGISTRATION UP TO 1898. 

"Subsequent registration" defined. — Sub- 
sequent registration" as used in this section 
includes any registration after the first 
registration prior to January 1, 1898. State 
V. State Board, 78 S. C. 461, 59 S. E. 145 
(1907). 

Registration by proper officer is conclu- 
sive until set aside. — This section was cited 
in Rawl v. McCown, 97 S. C. 1, 81 S. E. 
958 (1914), in support of the proposition 
that registration by the proper officers is 
conclusive until reversed or set aside in the 
manner prescribed as to qualifications of the 
elector at the time of registration, although 
his vote might be challenged on other 
grounds. See also, Hunter v. West Green- 
ville, 146 S. C. 338, 144 S. E. 62 (1928). 

V. CERTIFICATE OF REGIS- 
TRATION. 

Elector may present registration certifi- 
cate. — Each elector must present to the 
managers of the election a registration cer- 
tificate. Wright V. State Board, 76 S. C. 
574, 57 S. E. 536 (1907). 

For which evidence of pre-1898 registra- 
tion is not substitute. — A clerk's certificate 
of the registration of a voter prior to Jan- 
uary 1, 1898, was not a substitute for a 
registration certificate required to entitle the 
voter to vote at a subsequent election, but 
only evidence of his right to register and 
obtain the necessary certificate. State v. 
State Board, 78 S. C. 461, 59 S. E. 145 
(1907). 

Property return is not needed in order to 
vote. — See note to S. C. Const.. Art. 2, § 3. 

But one without proper registration cer- 
tificate may not hold office. — See note to 
S. C. Const., Art. 2, § 3. 

Grand jurors must be qualified electors. 
—In State v. Bibbs. 192 S. C. 231, 6 S. E. 
(2d) 276 (1939), a murder indictment was 
set aside upon the ground that the grand 
jury which found the indictment was not 
a legally qualified one, since five members 
of the jury were not legally registered elec- 
tors because their certificates of registration 
were not signed in accordance with § 23-71 
of the Code. 



§ 5. Appeal; crimes against election laws. 

Any person denied registration shall have the right to appeal to the Court 
of Common Pleas, or any Judge thereof, and thence to the Supreme Court, to 
determine his right to vote tinder the limitations imposed in this Article, and 
on such appeal the hearing shall be de novo, and the General Assembly shall 



124 



Art. 2, § 6 Constitution of the State of South Carolina- Art. 2, § 8 



provide by law for such appeal, and for 
registration, voting, and all other crimes 

Cross reference. — As to specific Code 
section providing for appeals from denial 
of right to vote, see § 23-73. 

Courts have jurisdiction over question 
of elector's qualification. — The State is not 
a necessary party, and the question of qual- 
ification of an elector is always within the 
jurisdiction of the courts. Rawl v, AIc- 
Cown, 97 S. C. 1, 81 S. E. 958 (1914). 

Registration by proper officer is conclu- 



the correction of illegal and fraudulent 
against the election laws. 

sive until set aside. — This section has the 
effect of declaring that registration by the 
proper officers is conclusive until reversed 
or set aside in the manner prescribed as to 
qualifications of the elector at the time of 
registration. Rawl v. AlcCown, 97 S. C. 
1, 81 S. E. 958 (1914); Hunter v. West 
Greenville, 146 S. C. 338, 144 S. E. 62 (1928). 
Stated in State v. Middleton, 207 S. C. 
478, 36 S. E. (2d) 742 (1946). 



§ 6. Persons disqualified from voting. 

The following persons are disqualified from being registered or voting: 

First, Persons convicted of burglary, arson, obtaining goods or inoney under 
false pretenses, perjury, forgery, robbery, bribery, adultery, bigainy, wife- 
beating, house-breaking, receiving stolen-goods, breach of trust with fraudu- 
lent intent, fornication, sodomy, incest, assault with intent to ravish, mis- 
cegenation, larceny, or crimes against the election laws : Provided, That the 
pardon of the Governor shall remove such disqualification. 

Second. Persons who are idiots, insane, paupers supported at the public ex- 
pense, and persons confined in any public prison. 

See Const. 1868, Art. VIII, § 8. 



Cross reference. — As to qualifications of 
juror, see S. C. Const., Art. 5, § 22. 

This section applies to persons convicted 
before its passage. Garrett v. Weinberg, 54 
S. C. 127. 31 S. E. 341, 34 S. E. 70 (1899). 

Since right to serve as juror is not vest- 
ed.— Garrett V. Weinbertf. 54 S. C. 127, 31 
S. E. 341, 34 S. E. 70 (1899). 

Violating act to regulate commerce may 
not cause disqualification. — One who has 
been convicted on pica of guilty of violation 
of an act to regulate commerce, by making 
false reports of the weight of certain ar- 
ticles shipped, is not thereby disqualified to 
serve as a grand juror. Christopoulo v. 
United States, 230 F. 788 (1916). 



Larceny conviction of juror as grounds 
for new trial. — This section disqualifies a 
citizen from being a juror who has been 
convicted of larceny. Where none of the 
parties to an action or their respective 
counsel had knowledge of the conviction 
of the juror during the trial, a new trial 
must be granted. State v. Robertson, 54 
S. C. 147, 31 S. E. 868 (1899). 

For additional related cases, see Mc- 
Creight v. Camden, 49 S. C. 78, 26 S. E. 
984 (1897); Mew v. Charleston & S. Ry. 
Co.. 55 S. C. 90, 32 S. E. 828 (1899). 

Cited in Wiley v. Sinkler, 179 U. S. 58, 
21 S. Ct. 17, 45 L. Ed. 84 (1900). 



§ 7. Residence gained or lost. 

For the purpose of voting, no person shall be deetned to have gained or lost 
a residence by reason of his presence or absence while employed in the service 
of the United States, nor while engaged in the navigation of the waters of this 
State, or of the United States, or of the high seas, nor while a student of any 
institution of learning. 

See Const. 1868, Art. VIII, §§ 4 and 5. 

§ 8. Registration provided; elections; board of registration; books of registra- 
tion. 

The General Assembly shall provide by law for tlie registration of all 
qualified electors, and shall prescribe the manner of holding elections and of 

125 



Art. 2, § 9 Constitution of the State of South Carolina Art. 2, §11 



ascertaining the results of the same : Provided, At the first registration under 
this Constitution, and until the first of January, 1898, the registration shall be 
conducted by a Board of three discreet persons in each County, to be ap- 
pointed by the Governor, by and with the advice and consent of the Senate. 
For the first registration to be provided for under this Constitution, the reg- 
istration books shall be kept open for at least six consecutive weeks ; and there- 
after from time to time at least one week in each month, up to thirty days next 
preceeding the first election to be held under this Constitution. The registra- 
tion books shall be public records open to the inspection of any citizen at all 
times. 

See Const. 1868, Art. VIII, § 3. 

Cross reference. — As to appointment and 
removal of members of county boards of 
registration, see § 23-51. 

Section provides for registration of all 
qualified as electors. — Tliis section means 
that the General Assembly shall provide 
by law for the registration of all persons 
qualified for registration as electors. Mew 
V. Charleston & S. Ry. Co., 55 S. C. 90, 
32 S. E. 828 (1899). 

"Qualified elector" defined. — A "quali- 
fied elector" is an elector qualified to vote 
for members of the General Assembly. 



Mew V. Charleston & S. Ry. Co., 5S S. C. 
90, 32S. E. 828 (1899). 

For additional related case, see Wright 
V. State Board, 76 S. C. 574, 57 S. E. 536 
(1907). 

Cited in Wright v. State Board, 76 S. C. 
574. 57 S. E. 536 (1907; Smith v. Saye, 
130 S. C. 20, 125 S. E. 269 (1924); Rawl 
V. McCown, 97 S. C. 1, 81 S. E. 958 (1914); 
Hunter v. West Greenville, 146 S. C. 338, 
144 S. E. 62 (1928); Veronee v. Charleston 
Consol. Rv., etc., Co., 152 S. C. 178, 149 
S. E. 753 (1929) ; Wiley v. Sinkler, 179 U. S. 
58. 21 S. Ct. 17, 45 L. ed. 84 (1900). 



§ 9. Polling precincts. 

The General Assembly shall provide for the establishment of polling pre- 
cincts in the several Counties of the State, and those now existing shall so 
continue until abolished or changed. Each elector shall be required to vote 
at his own precinct, but provision shall be made for his transfer to another 
precinct upon his change of residence. 



Election is not enjoined where remedy 
at law exists. — The Supreme Court, on pe- 
tition to enjoin an election for a new county, 
will not consider whether a statute provid- 
ing for an election is unconstitutional in that 
it provides for election without making pro- 
vision for those electors living within pro- 
posed boundaries, whose voting precincts 
are without, to cast their ballots. Such 
situation may be damnum absque injuria, 
and such voters have an adequate remedy 
at law by writ of certiorari to the Board 
of State Canvassers after election. Parler 
V. Fogle, 78 S. C. 570, 59 S. E. 707 (1907). 



And may not be void for irregularity 
if result would be same. — An election in 
which irregularity in its conduct occurred, 
depriving certain voters of their rights be- 
cause no provision was made for their vot- 
ing in the district where they resided, is 
not an invalid election where the result 
would have been the same if they had voted. 
State V. Jennings, 79 S. C. 414, 60 S. E. 
967 (1908). 

For additional related case, see Wright v. 
State Board, 76 S. C. 574, 57 S. E. 536 
(1907). 



§ 10. Primary elections. [Eliminated.] 

1944 (43) 2344; 1945 (44) 10. 

§ 1 1. Closing books of registration. 

The registration books shall close at least thirty da)'-s before an election, 
during which tiine transfers and registration shall not be legal: Provided, 

126 



Art. 2, § 12 Constitution of the State of South Carolina Art. 2, § 12 



Persons who will become of age during that period shall be entitled to regis- 
tration before the books are closed. 



Section refers to county registration 
books. — The registration books mentioned 
in this section are the county registration 
books. This section does not require the 
registration books of a city or town to be 
closed thirty days before an election, and 
thus the legislature may fix any time witli- 
in its discretion. Fowler v. Town Council, 
90 S. C. 352, li S. E. 626 (1912); Davis 
V. Cayce, 166 S. C. 372, 164 S. E. 883 
(1932). 

But not to city registration books. — 
Fowler v. Town Council, 90 S. C. 352, 7i 
S. E. 626 (1912). 

County books must close 30 days before 
each election. — The county registration 
books must be closed 30 days before each 
election, but only as to that election. For 
any other election or for the general regis- 
tration of the electors of the State, they 
may be kept open during that period of 
time, and certificates and transfers may be 



issued. Gunter v. Gayden, 84 S. C. 48, 65 
S. E. 948 (1909). 

But four months' period is unreasonable 
for closing books. — A law providing for 
the closing of the registration books four 
months previous to a general election is 
unreasonable in that the period prescribed 
deprives that class of citizens of the right 
to vote who, being otherwise qualified, have 
completed their term of residence in the 
State or county. Butler v. Ellerbe, 44 S. C. 
256, 22 S. E. 425 (1895). 

Voter may not complain if allowed to 
register. — If the voter is given a reason- 
able opportunity to register, he is not in a 
position to complain tliat any of his consti- 
tutional or statutory riglits have been vio- 
lated. Whitmire v. Cass, 213 S. C. 230, 49 
S. E. (2d) 1 (1948). 

Cited in Dial v. Watts, 138 S. C. 468, 136 
S. E. 891 (1927); Hunter v. West Green- 
ville, 146 S. C. 338, 144 S. E. 62 (1928). 



§ 12. Municipal elections. 

Electors in municipal elections shall possess the qualifications and be sub- 
ject to the disqualifications herein prescribed. The production of a certificate 
of registration from the registration ofificers of the county as an elector at a 
precinct included in the incorporated city or town in which the voter desires 
to vote is declared a condition prerequisite to his voting in a municipal elec- 
tion, and in addition he must have been a resident within the corporate limits 
at least four months before the election. The General Assembly may provide 
for such additional registration for voters in municipal elections as it deems 
desirable. 

1939 (41) 217; 1941 (42) 201; 1942 (42) 1431; 1950 (46) 2670; 1951 (47) 18. 



Cross reference. — As to qualifications for 
voting in municipal elections, see §23-111. 

Section does not require registration 
books to be closed. — This section contains 
no requirement for the closing of the regis- 
tration books at any time before the elec- 
tion. Fowler v. Town Council, 90 S. C. 
352,73 S. E. 626 (1912). 

Registration concludes collateral inquiry 
into qualifications of elector at time it was 
granted. Davis v. Saluda, 147 S. C. 498, 
145 S. E. 412 (1928) 

Registration of municipal voters is needed 
only for regular elections. — Registration of 
qualified voters in municipalities must be 
had only for what may be called regular 
elections, as contra-distinguished from spe- 
cial elections, in order for them to be al- 
lowed to vote on any question submitted 



at a special election. Hunter v. Senn, 61 
S. C. 44, 39 5. E. 235 (1901). 

And is not required for special elections. 
— Where every voter at a special election 
had in his possession a certificate of regis- 
tration issued to him by the counts' board 
of registration and otherwise complied with 
constitutional requirements, an objection 
that the provisions of the statute under 
which the election was held were unconsti- 
tutional in not providing for registration 
at the special election did not affect the 
validity of the election. Hunter v. Senn, 
61 S. C. 44, 39S. E. 235 (1901) 

As registration for general municipal elec- 
tion includes registration for special. — Bray 
v. City Council. 62 S. C. 57, 39 S. E. 810 
(1901). 



127 



Art. 2, § 13 Constitution of the State of South Carolina Art. 2, § 13 



Vote is legal though voting place outside 
municipality but within precinct. — A vote 
cast in a municipal election by a qualified 
voter is not illegal under this section be- 
cause the county registration certificate 
designates his voting place outside of said 
municipality but within same voting pre- 
cinct. Hunter v. West Greenville, 146 S. 
C. 338. 144 S. E. 62 (1928). 

County registration certificate must be 
shown to town officer. — It is the intention 
of this section that the showing of the 
county registration certificate be made be- 
fore a town registration officer and not be- 
fore the managers of the election. Davis v. 
Saluda. 147 S. C. 498. 145 S. E. 412 (1928). 

A resident of a city cannot be alderman 
if not registered. State v. City Council, 95 
S. C. 131, 78 S. E. 738 (1913). Nor mayor. 
State v. Williams, 157 S. C. 290, 154 S. E. 
164 (1930). 



Nonresidents may not vote or hold town 
office. — See note to S. C. Const., .^rt. 2, § 2. 

Showing tax receipts at municipal elec- 
tion. — It is unnecessary under this section 
tliat voters at municipal election show tax 
receipts at time of voting where no tax pe- 
riod intervened after registration. Davis 
v. Saluda. 147 S. C. 498, 145 S. E. 412 (1928). 

For additional related case, see Gunter 
V. Gayden, 84 S. C. 48, 65 S. E. 948 (1909). 

Quoted in Davis v. Cayce, 166 S. C. 372, 
164 S. E. 883 (1932). 

Stated in Hunter v. Senn, 61 S. C. 44, 
39 S. E. 235 (1901). 

Cited in McCreight v. Camden, 49 S. C. 
78, 26 S. E. 984 (1897); Martin v. School 
District, 57 S. C. 125, 35 S. E. 517 (1900); 
Burriss v. Brock 95 S. C. 104, 79 S. E. 
193 (1913); Darling v. Brunson, 94 S. C. 
207, n S. E. 860 (1913); LiUard v. Melton, 
103 S. C. 10, 87 S. E. 421 (1915); .A.cker v. 
Cooley, 177 S. C. 144, 181 S. E. 10 (1934). 



§ 13. Special election for bonding municipality. 

In authorizing a special election in any incorporated city or town in this 
State for the purpose of bonding the same, tlie General Assembly shall pre- 
scribe as a condition precedent to the holding of said election a petition from a 
majority of the freeholders of said city or town as shown b}' its tax books, 
and at such elections all electors of such city or town who are duly qualified 
for voting under Section 12 of this Article, and who have paid all taxes. State, 
County and municipal, for the previous year, shall be allowed to vote : and 
the vote of a majority of those voting in said election shall be necessary to 
authorize the issue of said bonds. 

Provided, That the General Assembly need not prescribe any such petition 
as a condition precedent to the holding of any such election in the City of 
Columbia, where the proceeds of the bonds are authorized to be used solely for 
the purpose of enlarging, extending and repairing a sewerage system and plant 
or a waterworks system and plant, or for the purchase, building and main- 
tenance of fire stations, fire alarm systems and fire equipment, or for any one 
or more of said purposes. 

1930 (36) 1209; 1931 (Z1) 109. 

Provided, further, That the limitations imposed by this section [Art. 8, § 7] 
and b}' Section 5 of Article X of the Constitution shall not apply to any bonded 
indebtedness incurred bj' the City of Columbia, where the bonded indebtedness 
is authorized to be incurred for the purpose of enlarging and maintaining its 
fire department or for purchase, building and maintenance of fire stations, 
fire alarm systems or fire equipment, or for any one or more of said purposes, 
and when the question of incurring such bonded indebtedness is submitted 
to the qualified electors of said Cit}- at an election or elections to be called by 
the City counsel of said City, and a majority of those voting thereon shall vote 
in favor thereof ; and the General Assembly need not prescribe as a condition 

128 



Art. 2, § 14 CoxsTiTUTiox of the State of South Carolina Art. 2, § 14 



precedent to the holding' of any such election a petition from the freeholders 
as provided in Section 13 of Article II of the Constitution. 
1930 (36) 1207, 1931 (37) 110. 

This section controls the elections pro- 
vided for in S. C. Const., Art. 8, §§ S and 
7. Paris Mountain Water Co. v. Greenville, 
110 S. C. 36, 96 S. E. S45 (1918). 

It applies to special elections in "incor- 
porated city or town." — An act enlarging 
a school district, and authorizing the trus- 
tees of the new enlarged district to hold 
an election on the question of issuing bonds 
without requiring as a condition prece- 
dent thereto a petition of a majority of the 
freeholders of the district, does not violate 
this section, since it applies to a special elec- 
tion in any "incorporated citv or town." 
Burriss v. Brock, 95 S. C. 104, 79 S. E. 
193 (1913): Brownlee v. Brock, 107 S. C. 
230. 92 S. E. 477 (1917). 

But not to county elections. — Lillard v. 
Melton, 103 S. C. 10, 87 S. E. 421 (1915). 

Majority of freeholders must make pe- 
tition. — This section does not repeal the 
sp. act of Dec. 24, 1890, 20 Stat. 976, but 
merely nullifies so much of said act as is 
inconsistent with the Constitution, or 
rather the special act must be read as if 
amended, so as to prescribe for electors 
thereunder the qualifications required un- 
der the Constitution and to require a pe- 
tition by a majority of the freeholders in- 
stead of one third. Cleveland v. City Coun- 
cil. 54 S. C. 83, 31 S. E. 871 (1899). 

Petition signed by majority of freehold 
"voters" is unconstitutional. — .\n act au- 
thorizing all cities and towns to build, equip, 
and operate a system of waterworks and 
electric lights; to issue bonds to meet the 
costs of same; and providing that "before 
any election shall be held under the provi- 
sions of this act, a majority of the free- 
hold voters of said city or town shall peti- 
tion the city council that the said election 
be ordered" is unconstitutional under this 
section in that it requires the petition be 
signed by a majority of the freehold "vot- 
ers." State V. Evans, 47 S. C. 418, 25 S. 
E. 216 (1896). 



But law dispensing with petition may be 

constitutional. — A law relating to issuance 
of school bonds is not unconstitutional be- 
cause it dispenses with freeholder's peti- 
tion. Riser v. Blume, 159 S. C. 438, 157 
S. E. 615 (1931). 

Issuing certificates of past-due indebted- 
ness does not require election. — An act 
authorizing city to issue certificates of in- 
debtedness, evidencing amounts of past due 
and unpaid taxes, does not create new in- 
debtedness without petition and election in 
violation of this section. Sullivan v. Citv 
Council, 133 S. C. 156, 130 S. E. 872 (1925)'; 
Sullivan V. Citv Council, 133 S. C. 189, 130 
S. E. 876, 133 S. E. 340 (1925). See also, 
McCreight v. Camden, 49 S. C. 78, 26 S. E. 
984 (1897). 

Registration is not required before each 
special election in municipalities. — It is evi- 
dent from the provisions of this section 
that it is not the intention to require regis- 
tration of the voters before each special 
election in municipalities. Brav v. City 
Council, 62 S. C. 57, 39 S. E. 810 (1901). 

V/aterv/orks construction without incur- 
ring debt in constitutional sense. — A town 
can construct a waterworks system, where 
no bonded indebtedness in the constitution- 
al sense is involved, without subinitting 
such project at an election called and held 
on a petition of a majority of the freeholders 
of the town. Acker v. Coolej', 177 S. C. 
144. 181 S. E. 10 (1934). 

For additional related cases, see Dick v. 
Scarborough, 7i S. C. 150, 53 S. E. 86 
(1905); McCreight v. Camden, 49 S. C. 
78. 26 S. E. 984 (1897); Hunter v. Scnn, 
61 S. C. 44, 39 S. E. 235 (1901). 

Cited in Stehmcver v. City Council, 53 S. 
C. 259, 31 S. E. 322 (1898); Ross v. Lips- 
comb, 83 S. C. 136, 65 S. E. 451 (1909); 
Wood v. Ross, 85 S. C. 309, 67 S. E. 449 
(1910); Enterprise Real Estate Co. v. City 
Council, 107 S. C. 492, 93 S. E. 184 (1917); 
Kalber v. Stokes, 194 S. C. 339, 9 S. E. (2d) 
785 (1940). 



§14. Arrest of electors. 

Electors shall in all cases except treason, felony, or a breach of the peace, 
be privileged from arrest on the days of election during their attendaiice at 
the polls, and going to and returning therefrom. 

See Const. 1868, Art. VIII, § 6. 

Cited in State v. Quinn, 111 S. C. 174. 
97 S. E. 62 (1918). 



[7 SO Code]— 9 



129 



Art. 2, § 15 Constitution of the State of South Carolina Art. 3, § 1 



§ IS. Right of suffrage free. 

No power, civil or military, shall at any time interfere to prevent the free 

exercise of the right of suffrage in this State. 

Names of all candidates need not be the same office on the same tallot. Gard- 
placed on same ballot. — It is not necessary ner v. Blackwell, 167 S. C. 313, 166 S. E. 
to place the names of all candidates for 338 (1932). 

ARTICLE III. 
Legislative Department. 

§ 1. Legislative power vested in two branches. 

The legislative power of this State shall be vested in two distinct branches, 
the one to be styled the "Senate" and the other the "House of Representatives," 
and both together the "General Assembly of the State of South Carolina." 

See Const. 1868, Art. II, § 1. 



I. General Consideration. 
II. Laws not in Violation of Section. 

I. GENERAL CONSIDER.\TION. 

Provisions of this Article are mandatory. 

— All the provisions of this Article which 
prescribe the procedure for enacting laws 
are mandatory. Bramlette v. Stringer, 186 
S. C. 134. 19S S. E. 257 (1938). 

Section confers legislative power upon 
General Assembly. — Under tlie provisions 
of this section, the General Assembly is 
vested with the entire legislative power of 
the State, subject only to such restrictions 
upon and regulations of such power as are 
contained in the Constitution. Clarke v. 
South Carolina Public Service Authority, 
177 S. C. 427, 181 S. E. 481 (1935). 

This section confers the whole legislative 
power of the State in the making of laws 
and providing for their enforcement, not 
plenary, however, but subject to constitu- 
tional limitations. Massey v. Glenn, 106 
S. C. 53, 90 S. E. 321 (1916). 

The people in convention assembled 
clothed the General Assembly with the 
whole legislative power capable of being 
exercised within our borders, subject only 
to such restrictions upon and regulation of 
such power as are embraced in the State 
Constitution itself or that of the United 
States. State v. Aiken, 42 S. C. 222, 20 
S. E. 221 (1894); Mauldin v. City Council, 
42 S. C. 293, 20 S. E. 842 (1895). 

Which body possesses all powers not re- 
served by State Constitution. — The people 
of the State vested the General Assembly 
with the entire legislative power of the 
State, subject only to such restrictions upon 
and regulations of such power as were con- 
tained in the Constitution itself. It is the 
theory and intent of the Constitution of 



South Carolina that the powers vested in 
the General Assembly include all powers 
not speciiically reserved by the Constitu- 
tion. Bj'rd v. Lawrimore, 212 S. C. 281, 
47 S. E. (2d) 728 (1948). 

State Constitution does not grant legis- 
lative power. — The Constitution of South 
Carolina is a limitation upon, rather than 
a grant of, legislative power. Smith v. Rob- 
ertson, 210 S. C. 99, 41 S. E. (2d) 631 
(1947). 

For additional related cases, as to legis- 
lative power distinguished from judicial 
power, see Segars v. Parrott, 54 S. C. 1, 
31 S. C. 677, 865 (1898); as to power un- 
der former constitutions, see State v. Wil- 
liams, 2 .AIcC. (13 S. C. L.) 301. 

Applied in Clarendon County v. Sumter 
County, 116 S. C. 258, 108 S. E. 103 (1921); 
Utsev V. Charleston. S. & N. R. Co., 38 
S. C. 399, 17 S. E. 141 (1893). 

Cited in State v. Moorer, 152 S. C. 455, 
150 S. E. 269 (1929) ; McCollough v. Brown, 
41 S. C. 220, 19 S. E. 458 (1894); Sloan v. 
Fair, 172 S. C. 485, 174 S. E. 436 (1934). 

II. LAWS NOT IN VIOLATION 
OF SECTION. 

Adoption of Federal regulations in State 
income tax law. — Tlie income tax law of 
1922 [1922 (32) 896] is not a delegation of 
legislative power by possible attempt to 
adopt future Federal tax regulations. San- 
tee Mills V. Query, 122 S. C. 158, 115 S. E. 
202 (1922). 

Authorizing county boards of education 
to alter school district lines. — The provision 
of this section is not infringed by Act 
of 1896, sec. 31, as amended in 1900, au- 
thorizing county boards of education to alter 
lines of school districts. Such legislation 
is not an attempt to delegate legislative 



130 



[7 SO Code] 



Art. 3, § 2 Constitution of the State of South Carolina Art. 3, § 3 



powers to the county boards of education 
but is an attempt merely to define their 
powers and duties, as authorized by S H 
providing that the General Assembly shall 
define tlie powers, duties, etc., of school 
officers, since there is a marked distinction 
between the imposition of a duty and the 
delegation of a legislative power. Waterloo 
School District v. Cross Hill School Dis- 
trict, 106 S. C. 292, 91 S. E. 257 (1917). 

Authorizing tax commission to regulate 
liquor distribution. — Section 4-7 of the 
Code, which authorizes the Tax Commis- 
sion to adopt such regulations as it may 
deem necessary and proper to effect an 
equitable distribution of alcoholic liquors 
in the State, does not confer legislative 
power upon the commission and does not 
violate this section of the Constitution. 
Davis V. Query, 209 S. C. 41, 39 S. E. (2d) 
117 (1946). 

Creation of new highway commission. — 
Where it was contended that Act No. 831, 
39 St. at Large, p. 1557, creating a new 
highway commission, violated this section 
in delegating to the members of the legis- 
lative delegations from the judicial circuits 
of the State the right to elect district high- 
way commissioners, it was held that such 
contention was groundless. State v. Lewis, 
181 S. C. 10, 186 S. E. 625 (1936). 

Establishing chain gang in Fairfield 
County.— .-^n act providing for establishing 
of chain gang in Fairfield County on unan- 
imous written consent of legislative dele- 
gation from that county is not void as un- 
constitutional delegation of legislative pow- 
er. Ruff V. Boulware, 133 S. C. 420, 131 
S. E. 29 (1925). 

Giving sinking fund commission power to 
approve bonds. — Power conferred upon a 
sinking fund commission, by an act author- 
izing city to construct a stadium, to ap- 
prove bonds issued by the city was held not 
an unconstitutional delegation of legisla- 



tive power. Cathcart v. Columbia, 170 S. 
C 362, 170 S. E. 4J5 (1933). 

Hairdresser and cosmetologist statutes. 
— Section 56-451 to 56-482, relating to reg- 
ulations of hairdressers and cosmetologists, 
do not violate this section. State v. Ross, 
185 S. C. 472, 194 S. E. 439 (1937). 

(Editor's note — The above case was de- 
cided prior to the 1948 amendment to the 
cited Code sections.) 

Housing authority powers given county 
legislative delegation.— Sections 36-181 and 
36-182 of the Code do not violate this sec- 
tion by attempting to delegate legislative 
powers to the legislative delegation of the 
county. Benjamin v. Housing Authority, 
198 S. C. 79, IS S. E. (2d) in (1941). 

Income tax law. — The State income tax 
law of 1922 [1922 (Zl) 896] is not an un- 
constitutional delegation of power to the 
State Tax Commission. Santee Mills v. 
Query, 122 S. C. 158, 115 S. E. 202 (1922). 

Power of State Highway Commission to 
determine sufficiency of revenues. — Act No. 
831 [1936 (39) 1557] contains no delegation 
of legislative authority repugnant to this 
section in its conferring upon the State 
Highway Commission the determination of 
the sufficiency of revenues. State v. Lewis, 
181 S. C. 10, 186 S. E. 625 (1936). 

Statutes providing for government of 
Charleston County. — Sections 14-1169 and 
14-1191, authorizing the Charleston Coun- 
ty council to make appropriations, levy 
taxes, incur indebtedness, issue bonds, ex- 
ercise the power of eminent domain, super- 
vise and regulate the various departments 
of the county, establish policies affecting 
the administrative employees of the coun- 
ty, and otherwise provide for the internal 
management of Charleston County, are not 
an unconstitutional delegation of legisla- 
tive authority. Gaud v. Walker, 214 S. C. 
451, 53 S. E. (2d) 316 (1949). 



§ 2. House of Representatives. 

The House of Representatives shall be composed of members chosen by 
ballot every second year by citizens of this State, qualified as in this Constitu- 
tion is provided. 

See Const. 1868, Art. II, § 2. 



§ 3. Number of members ; enumeration of inhabitants. 

The House of Representatives shall consist of one hundred and twenty-four 
members, to be apportioned among the several Counties according to the 
number of inhabitants contained in each. Each County shall constitute one 
election district. An enumeration of the inhabitants for this purpose shall 
be made in the year Nineteen hundred and One, and shall be made in the 

131 



Art. 3, § 4 Constitution of the State of South Carolina Art. 3, § 7 

course of every tenth year thereafter, in such manner as shall be by law di- 
rected : Provided, That the General Assembly may at any time, in its discre- 
tion, adopt the immediately preceding United States Census as a true and 
correct enumeration of the inhabitants of the several Counties, and make the 
apportionment of Representatives among the several Counties according to 
said enumeration: Provided, further, That until the apportionment which 
shall be made upon the next enumeration shall take efifect, the representation 
of the several Counties as they now exist (including the County of Saluda 
established by ordinance) shall be as follows: Abbeville, 5; Aiken, 3; Ander- 
son, 5; Barnwell, 5; Beaufort, 4; Berkeley, 4; Charleston, 9; Chester, 3; 
Chesterfield, 2 ; Clarendon, 3 ; Colleton, 4 : Darlington, 3 ; Edgefield, 3 ; Fairfield, 
3 ; Florence, 3 ; Georgetown, 2 ; Greenville, 5 ; Hampton, 2 ; Horry, 2 ; Kershaw, 
2 ; Lancaster, 2 ; Laurens, 3 ; Lexington, 2 ; Marion, 3 ; Marlboro, 3 ; Newberry, 
3; Oconee, 2; Orangeburg, 5; Pickens, 2; Richland, 4; Saluda, 2; Spartanburg, 
6; Sumter, 5; Union, 3; Williamsburg, 3; York, 4; Provided further, That in 
the event other Counties are hereafter established, then the General Assembly 
shall reapportion the Representatives between the Counties. 
See Const. 1S68, Art. II, §§ 3 and 4. 

Stated in Williams v. Benet, 35 S. C. ISO, Cited in IMcLure v. McElrov, 211 S. C. 

14 S. E. 311 (1892); Smith v. Jennings, 67 106, 44 S. E. (2d) 101 (1947); Parker v. 
S. C. 324, 45 S. E. 821 (1903). Bates, 216 S. C. 52, 56 S. E. (2d) 723 (1949). 

§ 4. Assignment of representatives. 

In assigning Representatives to the several Counties, the General Assembly 
shall allow one Representative to every one hundred and twenty-fourth part 
of the whole number of inhabitants in the State: Provided, That if in the ap- 
portionment of Representatives any County shall appear not to be entitled, 
from its population, to a Representative, such Coimty shall, nevertheless, 
send one Representative ; and if there be still a deficiency in the number of 
Representatives required by Section third of this Article, such deficiency shall 
be supplied by assigning Representatives to those Counties having the largest 
surplus fractions. ^ii» 

See Const, 1868, Art. II, § 6. 

§ 5. When apportionment takes effect. 

No apportionment of Representatives shall take efTect until the general 
election which shall succeed such apportionment. 

See Const. 1868, Art. II, § 7. 

§ 6. Senate. 

The Senate shall be composed of one member from each County, to be 
elected for the term of four years by the qualified electors in each County, 
in the same manner in which members of the House of Representatives are 
chosen. ^ 

See Const. 1868, Art. II, § 8. 

§ 7. Qualification of Senators and members of House. 

No person shall be eligible to a seat in the Senate or House of Representa- 
tives who, at the time of his election, is not a duly qualified elector under this 

132 




Art. 3, § 8 Constitution of the State of South Carolina 

Constitution in the County in which he may be chosen. Senators shall be at 
least t\vent}'-five and Representatives at least twenty-one years of age. 
See Const. 1868. Art. II, § 10. 

§ 8. Election of Senators and representatives ; classification of Senators. 

The first election for members of the House of Representatives under this 
Constitution shall be held on Tuesday after the first Monday in November 
Eighteen hundred and Ninety-six, and in every second year thereafter, in 
such manner and at such places as the General Assembly may prescribe ; and 
the first election for Senators shall be held on Tuesday after the first Monday 
in November Eighteen hundred and Ninety-six, and every fourth year there- 
after, except in Counties in which there was an election for Senator in Eighteen 
hundred and Ninet3'-four for a full term, in which Counties no election for 
Senator shall be held until the general election to be held in Eighteen hundred 
and Ninety-eight, and every fourth year thereafter, except to fill va canc ies. 
Senators shall be so classified that one-half of their number, as nearly as 
practicable, shall be chosen every two years. Whenever the General Assembly 
shall establish more than one County at any session, it shall so prescribe the 
first term of the Senators from such Counties as to observe such classification. 

See Const. 1868, .Art. II, §§ 9 and 11. 

§ 9. Sessions of General Assembly. 

The annual session of the General Assembl}'- heretofore elected, fixed by 
the Constitution of the year Eighteen hundred and Sixty-eight to convene on 
the fourth Tuesday of November, in the year Eighteen hundred and ninety-five, 
is hereby postponed, and the same shall be convened and held in the city of 
Columbia on the second Tuesday of January, in the year Eighteen hundred 
and Ninety-six. The first session of the General Assembly elected under this 
Constitution shall convene in Columbia on the second Tuesday in January, 
in the year Eighteen hundred and Ninety-seven, and thereafter annually at 
the same time and place. Should the casualties of war or contagious disease 
render it unsafe to meet at the seat of government, then the Governor may, 
by proclamation, appoint a more secure and convenient place of meeting. 
]\lembers of the General Assembh' shall not receive any compensation for 
more than fort)' days of any one session : Provided, That this limitation shall 
not aflfect the first four sessions of the General Assembly under this Constitu- 
tion. 

See Const. 1868, Art. 11, § 12. 

Legislators do not receive an annual sal- forming duties imposed upon them by stat- 

ary. — The four hundred dollars received ute. Scroggie v. Bates, 213 S. C. 141, 48 

by legislators for each session is a per S. E. (2d) 634 (1948). 

diem of ten dollars and not an annual Though not increased illegally. — An ap- 

salary. Therefore, the sum of ten dol- propriations act which called for each mem- 

lars a day should be paid to the legis- ber of the General Assembly to be paid seven 

lators for a special session, plus mileage hundred dollars as official expenses in con- 

and postage, and not a flat sum of four bun- nection with the 1947 session and work 

drcd dollars. Godfrey v. Hunter, 176 S. C. between sessions in addition to any other 

442, 180 S. E. 468 (1935). expense payments provided, and which also 

But their expenses may be paid. — The stated it to be unnecessarj' to itemize ex- 
General Assembly may provide for the penses, was held to be intended to increase 
payment of expenses of its members in per- the compensation or per diem of the mem- 

133 



Art. 3, § 10 Constitution of the State of South Carolina Art. 3, § 12 



bers of tlie General Assembly in violation 
of the Constitution. Scroggie v. Bates, 213 
S. C. 141, 48 S. E. (2d) 634 (1948). 



Applied in Middleton v. Taber, 46 S. C. 
2i7, 24 S. E. 282 (1896). 



§ 10. Terms of office. 

The terms of office of the Senators and Representatives chosen at a general 
election shall begin on the Monday following such election. 
See Const. 1868, Art. II, § 13. 

§ 1 1. Election returns ; quorum ; absent members. 

Each house shall judge of the election returns and qualifications of its own 
members, and a majority of each house shall constitute a quorum to do busi- 
ness; but a smaller number may adjourn from day to day, and may compel 
the attendance of absent members, in such manner and under such penalties 
as may be provided by law or rule. 

See Const. 1868, Art. II, § 14. 

Courts cannot adjudicate contested Sen- 
ate election. — Tlie merits of a contested 
election case in the Senate cannot be taken 
from the constitutional tribunal and 
brought on for adjudication in a court of 
either law or equity. Anderson v. Black- 
well, 168 S. C. 137, 167 S. E. 30 (1933). 

Thus State Board of Canvassers is lim- 
ited by section. — The power vested in the 
State Board of Canvassers to decide, as ju- 
dicial officers, who in a given case has 
received the largest number of votes for 
the office of State Senator is subject to 
the power vested in the Senate by the Con- 
stitution to judge the election returns and 
qualifications of its own members. And- 
erson v. Blackwell, 168 S. C. 137, 167 S. E. 
30 (1933). 

Since Senate alone determines vacation 
of Senate office. — In a case brought to de- 
termine whether defendants had vacated 
tlieir offices in the State Senate, as provided 
in S. C. Const., Art. 3, § 24, since they had 



accepted other public offices, the court held 
that this was a matter wholly within the 
jurisdiction of the Senate as it concerned 
qualifications of members. Culbertson v. 
Blatt, 194 S. C. 105, 9 S. E. (2d) 218 (1940). 

General Assembly lacks judicial powers. 
— The General .Assembly did not by § 3 
of the act of 9th March, 1896, intend to in- 
vest itself with judicial power. If it did, 
then that section of the act is clearly un- 
constitutional, null, and void. That the 
framers of the Constitution never intended 
the General .\ssembly to exercise judicial 
powers is shown bv this section. Segars v. 
Parrott, 54 S. C. 1, 31 S. E. 677, 865 (1898). 

Applied in Williams v. Benet, 35 S. C. 
150, 14 S. E. 311 (1892); Ex parte Scar- 
borough, 34 S. C. 13, 12 S. E. 666 (1891). 

Quoted in Grimball v. Beattie, 174 S. C. 
422, 177 S. E. 668 (1934). 

Cited in Kalber v. Redfearn, 215 S. C. 
224, 54 S. E. (2d) 791 (1949). 



§ 12. Officers ; rules ; punishment and expulsion of members. 

Each house shall choose its own officers, determine its rules of procedure, 
punish its members for disorderly behavior, and, with the concurrence of two- 
thirds, expel a member, but not a second time for the same cause. 

See Const. 1868, Art. II, § 15. 

State v. Lewis, 181 S. C. 10, 186 S. E. 625 
(1936). 

Neither house may by its rules ignore 
constitutional restraints or violate funda- 
mental rights, and there should be a reason- 
able relation between the mode or method 
of procedure established by the rule and 
the result w-hich is sought to be obtained. 
Witliin these limitations, all matters of 
method are open to the determination of 
the house, and it is no inipeacliment of tlie 
rule to say that some other way would be 



Section is construed with S. C. Const., 
Art. 4, § 23.— S. C. Constitution, Art. 4. § 23 
must be considered in conjunction with the 
provisions of this section. State v. Lewis, 
181 S. C. 10, 186 S. E. 625 (1936). 

Power to make rules is continuous. — The 
power to make rules is not one that is ex- 
hausted when once exercised. It is a con- 
tinuous power, always subject tc be exer- 
cised by the house, and, within the limita- 
tions suggested, is absolute and beyond the 
cliallenge of any other body or tribunal. 



134 



Art. 3, § 13 Constitution of the State of South Carolina Art. 3, § 15 



better, more accurate, and even more just. 
State V. Lewis, 181 S. C. 10, 186 S. E. 625 
(1936). 



Applied in Thompson v. Livingston, 116 
S. C. 412, 107 S. E. 581 (1921). 



§ 13. Punishment of persons not members. 

Each house may punish by imprisonment during its sitting any person not 
a member who sliall be guilty of disrespect to the house by any disorderly or 
contemptuous behavior in its presence, or who, during the time of its sitting, 
shall threaten harm to the body or estate of any member for anything said or 
done in either house, or who shall assault any of them therefor, or who shall 
assault or arrest any witness or other person ordered to attend the house in 
his going thereto or returning therefrom, or who shall rescue any person 
arrested by order of the house: Provided, That such time of imprisonment shall 
not in any case extend beyond the session of the General Assembly. 

See Const. 1868, Art. II, § 16. 



Legislative committee may imprison wit- 
ness for contempt. — An act authorizing a 
legislative committe to summon and exam- 
ine witnesses, and empowering such com- 
mittee to punish by imprisonment for re- 
fusal to appear or testify, cannot be said 
to be a violation of this section in that it 
provides for greater punishment by the 
committee than it is within the power of 



the legislature itself to impose under that 
section, since it cannot be assumed that 
a committee of a co-ordinate department 
will perform an unconstitutional act. Rob- 
bertson v. Peeples, 120 S. C. 176, 115 S. E. 
300 (1919). 

Cited in State v. Quinn, HI S. C. 174, 
97 S. E. 62 (1918). 



§ 14. Members in attendance protected. 

The members of both houses shall be protected in their persons and estates 
during their atten dance on,^ oingU) and retur nino- f mm the General Assembly 
and ten days previous t o the sitting and ten days after the adjournment there 
of. But these privileges shall not protect any member who shall be charged 
with treason, felony or breach of the peace. 

See Const. 1868, Art. II, § 17. 



r/ 



Court may not order legislator to pay 
note during session. — A court order entered 
during a session of the General Assembly, 
requiring a legislator to pay a certain 
amount on his note, was held in contraven- 



tion of this section. Eomar v. Gantt, 167 
S. C. 139, 166 S. E. 90 (1932). 

Stated in Worth v. Norton, 56 S. C. 56, 
33 S. E. 792 (1899). -"^ 



§ 15. Bills for revenue ; other bills. 

Bills for raising revenue shall originate in the House of Representatives, but 
may be altered, amended or rejected by the Senate; all other Bills may orig- 
inate in either house, and may be amended, altered or rejected by the other. 

See Const. 1868, Art. II, § 18. 

house. — When an act has been signed by 
the president of the Senate and the speaker 
of the house of representatives, approved 
by the Governor, and filed in the office of 
the Secretary of State with the great seal 
of the State affixed, it cannot be impeached 
by the journals of eithCT hOB se w Iry other 
extrinsic evidence as respects matters per- 
taining to its history. WmgfiHd v. South 
Carolina Tax Comm., 147 S. C. 116, 144 S. 



Penalty provisions do not make act rev- 
enue measure. — .'\n act regulating trapping, 
shipping, and transportation of furs, and 
providing fines for violation tliereof. is not 
a revenue measure and thus is not invalid 
under this section because it did not orig- 
inate in the house of representatives. State 
V. Stanley, 131 S. C. 513, 127 S. E. 574 
(1925) ; State v. Moorer, 152 S. C. 455, 150 
S. E. 269 (1929). 



Impeachment of act by journals of either E. 846 (1928). 

"135] 



(3> 



Art. 3, § 16 Constitution of the St^te of South Carolina Art. 3, § 17 



Valid motor vehicle license fee. — .'Xs to 
former motor vehicle license fee not in vio- 
lation of this section of the Constitution, 
see § 3 of Act No. 831, 1936 Acts [1936 
(39) 1557]. State v. Lewis, 181 S. C. 10, 
186 S. E. 625 (1936). 

§ 16. Style of laws. 

The style of all laws shall be: "Be 
the State of South Carolina." 
See Const. 1868, Art. II, § 19. 
This section is mandatory. Smith v. this section. Smith v. Jennings, 67 S. C. 



Applied in State v. Moorer, 152 S. C. 
455, 150 S. E. 269 (1929); Crouch v. Benet, 
198 S. C. 185, 17 S. E. (2d) 320 (1941). 

Cited in Jackson v. Breeland, 103 S. C. 
184, 88 S. E. 128 (1916); Pineland Club 
V. Berg, 110 S. C. 505, 96 S. E. 915 (1918); 
Cantini v. Tillman, 54 F. 969 (1893). 



it enacted by the General Assembly of 



Jennings, 67 S. C. 324, 45 S. E. 821 (1903). 
Joint resolution in compliance with sec- 
tion. — A joint resolution enacted by the 
words, "Be it resolved." etc., is a sufficient 
compliance with the mandatory provision of 



324, 45 S. E. 821 (1903). 

Cited in Southern Rv. Co. v. Kay, 62 S. 
C. 28, 39 S. E. 785 (190'l); Jackson v. Bree- 
land, 103 S. C. 184, 88 S. E. 128 (1916). 



§ 17. One subject. 

Every Act or resolution having the force of law shall relate to but one 
subject, and that shall be expressed in the title. 

See Const. 1868, Art. II, § 20. 



I. General Consideration. 
II. Title of Act. 
III. Application of Section. 

A. Acts Held Constitutional. 

B. Acts Held Unconstitutional. 

I. GENERAL CONSIDERATION. 
This section does not apply to municipal 

ordinances. — State v. Gibbes, 60 S. C. 500, 
39 S. E. 1 (1901). 

Or to joint resolutions proposing con- 
stitutional amendments. — Joint resolutions, 
proposing amendments to the Constitution 
of this State and agreed to by two thirds 
of the members elected to each house, do 
not fall within the purview of this section. 
Kalber v. Redfearn, 215 S. C. 224, 54 S. E. 
(2d) 791 (1949). 

Section secures insertion of matters ger- 
mane to subject. — The purpose of this sec- 
tion is to prevent insertion of matters not 
germane to the general subject. Furman 
V. Willimon, 106 S. C. 159, 90 S. E. 700 
(1916). 

The object of this constitutional provision 
is to prevent deception of the public. If 
the general subject of the legislation is ex- 
pressed in the title of an act, the details, 
the means, the methods, or the instrumen- 
talities by which the object is to be at- 
tained need not be indicated, provided they 
are germane to the general subject of the 
legislation. Miles Laboratories v. Seig- 
nious, 30 F. Supp. 549 (1939). 

And prevents surreptitious legislation. — 
Furman v. Willimon, 106 S. C. 159, 90 S. 
E. 700 (1916). 



Or legislation by surprise or fraud. — The 
purpose of this provision is to prevent 
hodgepodge or log-rolling legislation; to 
prevent surprise or fraud upon the legis- 
lature by means of provisions in bills of 
which the title gave no intimation and 
which might, therefore, be overlooked and 
carelessly and unintentionally adopted; 
and fairly to appraise the people, through 
such publication of legislative proceedings 
as is usually made, of the subjects of leg- 
islation that are being considered in order 
that they may have opportunity of being 
heard thereon by petition or otherwise if 
they shall so desire. Charleston v. Oliver, 
16 S. C. 47 (1881); State v. Fields, 68 S. C. 
148, 46 S. E. 771 (1904); Southern Power 
Co. V. Walker, 89 S. C. 84, 71 S. E. 356 
(1911); Stewart v. Woodmen of the World 
Life Ins. Soc, 195 S. C. 365, 11 S. E. (2d) 
449 (1940); O'Shields v. Caldwell, 207 S. 
C. 194, 35 S. E. (2d) 184 (1945); McCol- 
him V. Snipes, 213 S. C. 254, 49 S. E. (2d) 
12 (1948). 

It does not affect permanency of State 
laws. — The limitation of this section in no 
way impinges upon the permanency of 
the laws of the State. Crouch v. Benet, 
198 S. C. 185, 17 S. E. (2d) 320 (1941). 

And is a wise provision. — This section no 
doubt contains a wise provision which, if 
properly observed, would tend greatly to 
prevent confusion and doubt as to the ex- 
act meaning and intent of legislative enact- 
ments. To this end it should be enforced 
by the courts in all proper cases, due care 
being exercised lest too strict a construc- 



136 



Art. 3, § 17 Constitution of the State of South Carolina Art. 3, § 17 



tion defeat its very object and purpose by 
clogging legislation and loading down our 
statute books with numberless separate 
acts wholly unnecessary to the end desired. 
Flovd V. Perrin, 30 S. C. 1, 8 S. E. 14 
(1888). 

Which should be liberally construed. — 
There has been a general disposition to 
construe this section liberally rather than 
to embarrass legislation by a construction 
the strictness of \vhich is unnecessary to 
the accomplishment of the beneficial pur- 
pose for which it has been adopted. South- 
ern Power Co. v. Walker, 89 S. C. 84, 71 
S. E. 356 (1911); Floyd v. Perrin, 30 S. 
C. 1, 8 S. E. 14 (1888); Hill v. Citv Coun- 
cil, 59 S. C. 396, 38 S. E. 11 (1901); Mc- 
Kiever v. Sumter, 137 S. C. 266, 135 S. E. 
60 (1926). 

This section of the Constitution has been 
generally construed with great liberality. 
Casque v. Nates, 191 S. C. 271, 2 S. E. 
(2d) 36 (1939). 

The law is well established in this State 
that this section of the Constitution, which 
provides that no law shall embrace more 
than one subject which shall be expressed 
in title, should be liberally construed so as 
to uphold the act if practicable. AlcCoIlum 
V. Snipes, 213 S. C. 254. 49 S. E. (2d) 
12 (1948). 

In Lillard v. Melton, 103 S. C. 10, 87 S. 
E. 421 (1915), the court held that in view 
of the purpose of this provision of the Con- 
stitution, it should have a liberal construc- 
tion so as not to defeat or embarrass leg- 
islation by compelling separate enactments 
on every phase of a general subject of leg- 
islation or with regard to every matter in- 
cident thereto or promotive thereof. Ches- 
terfield County V. State Highway Dept., 191 
S. C. 19. 3 S. E. (2d) 686 "(1939). 

This section of the Constitution must, of 
course, be liberally construed in the light 
of its purpose, which is really to prevent 
fraud on the legislature by hodgepodge 
or log-rolling methods. It certainly should 
not be so construed as to defeat the legis- 
lative will merely because the language of 
the act might have more clearly shown the 
connection between its various articles and 
sections. .'Vrthur v. Johnston, 185 S. C. 
324, 194 S. E. 151 (1937); Crouch v. Benet, 
198 S. C. 185. 17 S. E. (2d) 320 (1941). 

Considering substance rather than form. 
— The restriction requiring the subject of 
an act to be expressed in its title should 
be reasonably construed, considering sub- 
stance rather than form, to require the ex- 
pression in the title of the general object 
but not the details, incidents, or means of 
effecting theoBject. It should include the 



subject and not the purpose of the act and 
the reasons which brought about the enact- 
ment of it by the legislature. Alley v. 
Daniel, 153 S. C. 217, 150 S. E. 691 (1929); 
Plowden v. Beattie, 185 S. C. 229, 193 S. E. 
651 (1937). 

And should not be narrowly or techni- 
cally enforced. — This constitutional require- 
ment should not be enforced in any narrow 
or technical spirit. It was introduced to 
prevent certain abuses, and it should be 
reasonably and liberally construed on the 
one hand so as to guard against these 
abuses, and on the other hand so as not 
to embarrass or obstruct needed legisla- 
tion. Alley v. Daniel, 153 S. C. 217, 150 
S. E. 691 (1929); Freeman v. Holliday, 165 
S. C, 408, 164 S. E. 20 (1932). 

Unless title of act specifically limits its 
object. — While this section is very liberal- 
ly construed, yet when the title of an act 
definitely and specifically limits its object, 
the court must limit the operation of the act 
to the subject so expressed in tlie title. 
State V. Blease, 95 S. C. 403. 79 S. E. 247 
(1913). 

A statute should be upheld if possible, 
doubtful cases being resolved in its favor. 
Alley V. Daniel, 153 S. C. 217, 150 S. E. 
691 (1929). 

Unless it plainly conflicts with the Con- 
stitution. — To justify a court in declaring 
a statute in violation of the constitutional 
inhibition, the objection must be serious 
and the conflict between the statute and 
the Constitution plain and unmistakable. 
Alley V. Daniel, 153 S. C. 217, 150 S. E. 
691 (1929). 

The objection should be grave and the 
conflict between the statute and the Con- 
stitution palpable before the judiciary 
should disregard a legislative enactment 
upon the ground that it embraces more 
than one subject or object, or, if it em- 
braces but one subject or object, that it is 
not sufficiently expressed by the title. 
Where, after having applied the general 
principles governing the construction of 
constitutional provisions, a court is still 
in doubt as to the constitutionality of an 
act, it should sustain the same. .'Mlev v. 
Daniel, 153 S. C. 217, 150 S. E. 691 (1929). 

Apphed in State v. Bradley, 109 S. C. 
411, 96 S. E. 142 (1918); State v. Glover, 
91 S. C. S62, 75 S. E. 218 (1912); Mc- 
Kerall v. Road, etc., Comm., 91 S. C. 450, 
74 S. E. 981 (1912); Verner v. Muller. 89 
S. C. 117, 71 S. E. 654 (1911); State v. 
Fant, 88 S. C. 493, 70 S. E. 1027 (1911); 
State v. Burlev. 80 S. C. 127, 61 S. E. 255 
(1908); State v. Hunter, 79 S. C. 91, 60 
S. E. 226 (1908); Parks v. Laurens Cotton 



137 



Art. 3, § 17 Constitution of the State of South Carolina Art. 3, § 17 



Mills, 75 S. C. 560, 56 S. E. 234 (1907); 
Riley v. Charleston Union Station Co., 71 
S. C. 457, 51 S. E. 485 (1905); Wingfield 
V. South Carolina Tax Comm., 147 S. C. 
116, 144 S. E. 846 (1928); Blair v. Morgan, 
59 S. C. 52, 37 S. E. 45 (1900); State v. 
Port Royal & A. Ry. Co., 45 S. C. 413, 
23 S. E. 363 (1895); Malcomson v. Wap- 
poo Mills, 86 F. 192 (1898); State v. Cros- 



(1900); Fleming v. Royall, 145 S. C. 438, 
143 S. E. 162 (1928). 

Or where it provides means for accom- 
plishing its general purpose. — This section 
is complied with if tlie title expresses a gen- 
eral subject and if the body of an act provides 
means, methods, or instrumentalities in- 
tended to facilitate accomplishment of the 
general purpose. McKiever v. Sumter, 



by, 51 S. C. 247, 28 S. E. 529 (1898); Smith _i37 S. C. 266, 135 S. E. 60 (1926). 



V. Ashmore, 184 S. C. 316, 192 S. E. 565 
(1937); Gaud v. Walker, 214 S. C. 451. 
33 S. E. (2d) 316 (1949). 

Cited in Hall v. Richards, 159 S. C. 34, 
156 S. E. 12 (1930); Chapman v. Green- 
ville Chamber of Commerce, 127 S. C. 173, 
120 S. E. 584 (1923); Sandel v. State, 126 
S. C. 1, 119 S. E. 776 (1923); Walker v. 
Glenn, 124 S. C. 501, 117 S. E. 723 (1923); 
State v. Charleston Bridge Co., 113 S. C. 
116, 101 S. E. 657 (1919); State v. Glover. 
91 S. C. 562. 75 S. E. 218 (1912); State 
V. Hertzog. 92 S. C. 14, 75 S. E. 374 (1912) ; 
Union v. Board of Com'rs., 91 S. C. 248, 
74 S. E. 496 (1912); Lvon v. Patterson, 102 
S. C. 525. 87 S. E. 306 (1915); Epperson v. 
Jackson, 83 S. C. 157, 65 S. E. 217 (1909); 
Ross V. Lipscomb, 83 S. C. 136, 65 S. E. 
451 (1909): Park v. Southern Rv. Co., 78 
S. C. 302, 58 S. E. 931 (1907); Hopkins v. 
Clemson Agricultural College, 77 S. C. 12, 
57 S. E. 551 (1907); State v. Jennings, 68 
S. C. 411, 47 S. E. 683 (1904); Riley v. 
Charleston Union Station Co., 67 S. C. 
84, 45 S. E. 149 (1903); Congaree Const. 
Co. V. Columbia, 49 S. C. 535, 27 S. E. 570 
(1897); Coleman v. Broad River, 50 S. C. 
321, 27 S. E. 774 (1897); Paris Mountain 
Water Co. v. Greenville, 105 S. C. 180, 89 
S. E. 669 (1916); Rivers v. Mclntire, 160 
S. C. 462. 158 S. E. 816 (1931); Ex parte 
Sanders, 168 S. C. 323. 167 S. E. 154 (1932) ; 
Webster v. Williams, 183 S. C. 368. 191 S. 
E. 51 (1937); Boggs v. O'Dell, 190 S. C. 
442, 3 S. E. (2d) 486 (1939); Kalber v. 
Redfcarn, 215 S. C. 224, 54 S. E. (2d) 
791 (1949). 

II. TITLE OF ACT. 

"Subject" means the thing legislated 
about or the matter or matters upon which 
the legislature operates to accomplish a 
definite object or objects reasonably related 
one to the other. Poulnot v. Cantwell. 129 
S. C. 171, 123 S. E. 651 (1924); Arthur 
V. Johnston, 185 S. C. 324. 194 S. E. 151 
(1937); Crouch v. Benct, 198 S. C. 185. 17 
S. E. (2d) 320 (1941). 

An act is within this section when its 
provisions are germane to the title. Barts- 
dale V. Laurens, 58 S. C. 413, 36 S. E. 661 



This constitutional mandate is complied 
with where the title of an act states the 
general subject of legislation and the pro- 
visions in the body of the act are ger- 
mane thereto as a means to accomplish 
the object expressed in the title. The title 
need not be an index of tlie contents of the 
statute. Verner v. Muller, 89 S. C. 117, 
71 S. E. 654 (1911); Clarke v. South Caro- 
lina Public Service Authority, 177 S. C. 427, 
181 S. E. 481 (1935); State v. Lewis, 181 
S. C. 10. 186 S. E. 625 (1936); Plowden 
V. Eeattie, 185 S. C. 229, 193 S. E. 651 
(1937); Arthur v. Johnston, 185 S. C. 324, 
194 S. E. 151 (1937); Gasque v. Nates, 191 
S. C. 271, 2 S. E. (2d) 36 (1939). 

This section is complied with if the title 
expresses a general subject and if the body 
of the act provides the means, methods, or 
instrumentalities intended to facilitate ac- 
complisliment of the general purpose. The 
title of the act need not specifically refer to 
previous statutes which are to be amended 
to satisfy constitutional requirements that 
subject of statute shall be expressed in the 
title. McCollum v. Snipes, 213 S. C. 254, 
49 S. E. (2d) 12 (1948). 

Since topics in act should relate to its 
title. — The topics in the body of an act 
should be kindred in nature to, and have 
a legitimate and natural association with, 
the subject of its title. If the provisions 
of the act itself cannot be fairly construed 
as embraced within its title, then the act 
is in conflict with the Constitution. Doug- 
lass v. Watson, 186 S. C. 34, 195 S. E. 116 
(1938). 

Title need not be index to act's contents. 
— It is not necessary that the title to an act 
should be an index of the contents of the 
statute under this section. State v. Moorer, 
152 S. C. 455. 150 S. E. 269 (1929); Craw- 
ford V. Johnston, 177 S. C. 399, 181 S. E. 
476 (1935); Clarke v. South Carolina Pub- 
lic Service Authoritv, 177 S. C. 427, 181 
S- E. 481 (1935): State v. Lewis, 181 S. C. 
10. 186 S. E. 625 (1936); Gasque v. Nates, 
191 S. C. 271, 2 S. E. (2d) 36 (1939). ~- ' 

And it may be general. — The generality'^ 
of a title is no objection to it, as long as it 
is not made a cover to legislation, incon- 
gruous in Itself, which by no fair intend- 



13S 



Art. 3, § 17 Constitution of the State of South Carolina Art. 3, § 17 



ment can be considered as having a neces- 
sary or proper connection. Southern Pow- 
er Co. V. Walker, 89 S. C. 84, 71 S. E. 356 
(1911); Arthur v. Johnston, 185 S. C. 324, 
194 S. E. 151 (1937). 
' But must indicate subject of proposed 
/legislation. — The title should not contain 
fall the provisions of the act, but, under this 
'' section, it must indicate the subject of the 
proposed legislation. Robinson v. Colum- 
bia, 116 S. C. 193, 107 S. E. 476 (1921). 

Title expressing object also embraces 
means of achieving object. — When an act 
of the legislature expresses in its title the 
object of the act, the title embraces and 
expresses any lawful means to achieve the 
object, thus fulfilling the constitutional in- 
junction that every law shall embrace but 
one subject which shall be expressed in its 
title. Southern Power Co. v. Walker, 89 
S. C. 84, 71 S. E. 356 (1911); Means v. 
State Highway Dept., 146 S. C. 19, 143 
S. E. 360 (1928); Floyd v. Perrin, 30 S. 
C. 1, 8 S. E. 14 (1888). 

Surplusage in a title does not render act 
void. Dovie v. King, 211 S. C. 247, 44 
S. E. (2d) 608 (1947). 

As does omission of words by clerical 
error. — Word omitted from title by clerical 
error cannot be supplied to make the title 
conform to the body of the act as required 
by this section. Robinson v. Columbia, 116 
S. C. 193, 107 S. E. 476 (19211. 

Act may treat several branches of one 
subject. — Several branches of one general 
subject may be dealt with in a single act. 
DeLoach v. Scheper. 188 S. C. 21, 198 
S. E. 409 (1938); McCollum v. Snipes, 213 
S. C. 254, 49 S. E. (2d) 12 (1948). 

Section 58-594, providing penalty for fail- 
ure of carrier to adjust loss or damage 
to freight in limited time, relates to two 
phases of same general subject, and hence 
does not violate this section. Aycock- 
Little Co. v. Southern Ry., 76 S. C. 331, 
57 S. E. 27 (1907). 

Details of accomplishing purpose of act 
may appear in its body. — W'hen the general 
subject of an act is stated in its title, any 
details of legislation which provides the 
means, methods, or instrumentalities in- 
tended to facilitate accomplishment of its 
general purpose, and which are germane to 
the act, may be embraced in the body 
thereof without violating this section. 
State V. Moorer, 152 S. C. 455, 150 S. E. 
269 (1929); Crawford v. Johnston, 177 S. 
C. 399, 181 S. E. 476 (1935); Chesterfield 
County V. State Highway Dept., 191 S. C. 
19, 3 S. E. (2d) 686 (1939); Crouch v. 
Benet, 198 S. C. 185, 17 S. E. (2d) 320 



(1941); Ward v. Cobb, 204 S. C. 275, 28 
S. E. (2d) 850 (1944). 

Operation of act with title broader than 
its body. — Where the title of an act is 
broader than its body, the operation of 
the act is limited to matters embraced 
both in the title and in the body of the act, 
provided always that the title is not so 
deceptive or misleading as to render the 
entire statute void. DovIe v. King, 211 S. 
C. 247. 44 S. E. (2d) 608 (1947). 

Joint resolution with one subject may 
amend two different sections. — The fact 
that a joint resolution relating to but one 
subject, viz., issuance of township bonds, 
amended two different sections of the Con- 
stitution is not material in view of the 
fact that the two sections amended related 
to the same subject. Fleming v. Royall, 
145 S. C. 438, 143 S. E. 162 (1928). 

III. APPLICATION OF SECTION. 
A. Acts Held Constitutional. 

Act authorizing bond issue for school 
construction. — An act authorizing the sale 
of additional coupon bonds for erection of 
a high school building in .Anderson County 
does not violate tliis section. Brownlee v. 
Brock, 107 S. C. 230, 92 S. E. 477 (1917). 

Act authorizing bond issue to cover in- 
debtedness of school districts does not vio- 
late this section. Shelor v. Pace, 151 S. C. 
99, 148 S. E. 726 (1929). 

Act authorizing bond issue to pay bonded 
debt. — .\n act authorizing the city of 
Charleston to issue bonds to pay maturing 
bonded debt does not violate this section. 
Buist v. City Council, 11 S. C. 260, 57 
S. E. 862 (1907). 

Act authorizing bonds for highway im- 
provements. — An act to authorize the 
county of Marion to issue bonds for per- 
manent road and highway improvements 
does not violate this section. Johnson v. 
Road, etc., Comm., 97 S. C. 205, 81 S. E. 
502 (1913). 

Act authorizing cities to sell light and 
ice plants does not violate this section. Mc- 
Kiever v. Sumter, 137 S. C. 266, 135 S. E. 
60 (1926). 

Act authorizing Insurance Commissioner 
to review rates. — .\n act authorizing the 
Insurance Commissioner to review rates 
is not unconstitutional under this section. 
Henderson v. AIcMaster, 104 S. C. 268, 88 
S. E. 645 (1916). 

Act authorizing stock and bond issue by 
sinking fund commission. — .An act author- 
izing a new issue of bonds and stocks by 
State sinking fund commission does not 
violate this section. State v. Blease, 95 S. 
C. 403, 79 S. E. 247 (1913), 



139 



-^^1^^ 



Art. 3, § 17 Constitution of the State of South Carolina Art. 3, § 17 



Act authorizing suit against State for neg- 
ligent vaccination. — An act authorizing a 
suit against the State for inoculation of chil- 
dren with alleged impure vaccine does not 
violate this section. Sandel v. State, 115 
S. C. 168, 104 S. E. 567 (1920). 

Act consolidating five existing school dis- 
tricts does not violate this section. Walker 
V. Bennett, 125 S. C. 389, 118 S. E. 779 
(1923). 

Act creating highway commission. — Act 
authorizing county bond issue and creation 
of highway commission is not invalid. Gra- 
ham V. Ervin, 144 S. C. 419, 103 S. E. 750 
(1920). 

Act establishing Spartanburg metropoli- 
tan district does not violate this section. 
Alley V. Daniel, 153 S. C. 217, 150 S. E. 
691 (1929). 

Act giving right of action for wrongful 
death of illegitimate child to the mother 
does not violate this section. Croft v. 
Southern Cotton Oil Co., 83 S. C. 232, 65 
S. E. 216 (1909). 

Act locating sections of State highway. — 
A statute entitled "An act to establish the 
location of sections of State Highway No. 
2 in Greenville and Pickens Counties" does 
not violate this section. Means v. State 
Highway Dept., 146 S. C. 19, 143 S. E. 
360 (1928). 

Act prohibiting combinations of insurers. 
■ — An act prohibiting combinations of insur- 
ers and providing a penalty does not violate 
this section. Henderson v. McMaster, 104 
S. C. 268, 88 S. E. 645 (1916). 

Act prohibiting manufacture of liquor in 
State. — An act to prohibit the manufacture 
and sale of intoxicating liquors as a bever- 
age within this State does not violate this 
section. Cantini v. Tillman, 54 F. 969 
(1893). 

Act providing for audit of county offices 
does not violate this section. Spartanburg 
County V. Aliller, 135 S. C. 348, 132 S. E. 
673 (1924). 

Act providing for financing highway con- 
struction. — An act establishing alternative 
State or district unit plan for financing 
highway construction does not \'iolate this 
section. State v. Moorer, 152 S. C. 455, 
150 S. E. 269 (1929). 

Act providing for forgery and offenses 
against the currency does not violate this 
section. State v. Murray, 72 S. C. 508, 52 
S. E. 189 (1905). 

Act providing for permit to import liquor. 
— An act providing for permit from judge of 
probate to import liquor and penalty for 
violations does not violate this section. 
Bradford v. Richardson, 111 S. C. 205, 97 
S. E. 58 (1918). 



Act punishing rape. — An act to prescribe 
the punishment for rape and assault with 
intent to ravish does not violate this sec- 
tion. State v. Butler, 85 S. C. 45, 66 S. E. 
1041 (1910). 

Act punishing safe-crackers. — An act to 
provide punishment for safe-crackers does 
not violate this section. State v. O'Day, 
74 S. C. 448, 54 S. E. 607 (1906). 

Act ratifying proceedings of school trus- 
tees. — An act to validate, ratify, and confirm 
all proceedings of the trustees of a school 
district relating to a bond issue does not 
violate this section. Dove v. Kirkland, 92 
S. C. 313, 75 S. E. 503 (1912). 

Act regulating billiard and pocket bil- 
liard rooms does not violate this section. 
Fowler v. Anderson, 131 S. C. 473, 128 S. E. 
410 (1925). 

Act regulating claims for freight damages. 
— .A.n act to regulate the manner in which 
common carriers doing buisness in the State 
shall adjust freight rates and claims for 
loss or damage to freight does not violate 
tliis section. McTeer v. Southern Express 
Co. (S. C.) 58 S. E. 930 (1907). 

Act regulating size and weight of trucks. 
—In State v. Nutt Co., 180 S. C. 19, 185 S. E. 
25 (1935), an act regulating the size and 
weight of trucks was held not to violate 
this section of the Constitution. 

Act regulating trapping does not violate 
this section. State v. Stanley, 131 S. C. 
513, 127 S. E. 574 (1925). 

Act relating to damages from defective 
highways does not violate this section. 
Scott V. Brook-land, 139 S. C. 321, 138 S. E. 
32 (1927); Drafts v. State Hiohwav Dept., 
142 S. C. 202, 140 S. E. 468 (1927). 

Act relating to distribution of intestate 
estates. — An act entitled an act to amend 
a provision of the Code "relating to the 
distribution of intestate estates, so as to 
further provide for the distribution of such 
estates", which provided that if the intes- 
tate should leave no widow, lineal descend- 
ent, brother, sister, or parent, then his 
estate would descend equally to his uncles 
and aunts, the children of a deceased uncle 
or aunt to take their share, was held not 
a violation of this provision. McCollum v. 
Snipes, 213 S. C. 254, 49 S. E. (2d) 12 
(1948). 

Act relating to medical practice which 
includes chiropractors. — Title of act relat- 
ing to practice of medicine is sufficient to 
include chiropractors. State v. Barnes, 119 
S. C. 213, 112 S. E. 62 (1922). 

Act relating to notification of terminated 
suspension of death sentence. — An act re- 
quiring the Supreme Court clerk to notify the 
penitentiary superintendent of the dismissal 



140 



Art. 3, § 17 CoxsTiTUTiON of the State of South Carolina Art. 3, § 17 



of an appeal suspending the execution of a 
death sentence was held not unconstitutional 
as embracing a subject not expressed in its 
title. Ex parte Howell, 168 S. C. 197. 167 
S. E. 230 (1932). 

Act relating to selection, drawing, and 
summoning of juries in circuit courts does 
not violate this section of the Constitution. 
State V. Franklin, SO S. C. 332, 60 S. E. 
953 (1908). aflirmed in 218 U. S. 161, 30 S. 
Ct. 640, 54 L. Ed. 980 (1910). 

Act respecting school elections in Spar- 
tanburg County does not violate this sec- 
tion. Bcckncll V. Waters, 156 S. C. 11, 152 
S. E. 816 (1930). 

Act to amend an act to establish Ander- 
son school district does not violate this 
section. Burriss v. Brock, 95 S. C. 104, 
79 S. E. 193 (1913). 

Act to regulate motor vehicles. — .\n act 
to regulate further the running of motor 
veliicles in this State does not violate 
this section. Jilerchants', etc., Bank v. 
Brigman, 106 S. C. 362, 91 S. E. 332 (1917). 

Appropriation act of 1941. — h-n objection 
to the general appropriation act of 1941 
that three subjects were expressed in its 
title could not be sustained for the reason 
that the matters expressed were closely 
allied and related, having one subject, the 
fiscal affairs of the State, and thus satisfied 
the requirements of this section. Crouch v. 
Benet, 198 S. C. 185, 17 S. E. (2d) 320 
(1941). 

Appropriations act providing bonds for 
county purposes. — Kw annual appropria- 
tions act of a count}^ may contain provi- 
sions for the issuance of bonds for county 
or subdivisional purposes, a related object 
which comes within the subject of the act 
when properly included in the title. Doran 
V. Robertson, 203 S. C. 434, 27 S. E. (2d) 
714 (1943). 

Fair Trade Statute.— Sections 66-91 to 
66-95 of the Code, constituting the Fair 
Trade Act, do not violate this section of 
the Constitution. !Miles Laboratories v. 
Seignious, 30 F. Supp. 549 (1939). 

Joint resolution as to validation of con- 
sols by State. — .\ joint resolution, approved 
Alarch 22, 1878, is sufficient to embrace 
subsequent validation of consols issued by 
former officers of the State after their terms 
of ofiice had expired. State v. Blease, 95 
S. C. 403, 79 S. E. 247 (1913). 

Joint resolution for construction and op- 
eration of ferry and vehicular communica- 
tion does not violate this section. Poulnot 
V. Cantwell, 129 S. C. 171. 123 S. E. 651 
(1924). 

Joint resolution to amend S. C. Const., 
Art. 10, §§ 5 and 5, does not violate this 
section. Fleming v. Royall, 145 S. C. 438, 
143 S, E. 162 (1928). 



Pay-As-You-Go Act. — Provisions of the 
Pay-as-You-Go Act [1924 (33) 1193], re- 
lating to levying a gasoline tax and an 
automobile tax by including such powers 
in the words "and to provide funds", do 
not violate this section. Briggs v. Green- 
ville County, 137 S. C. 288, 135 S. E. 153 
(1926). 

Statutes creating county board of health. 
— Sections 32-451 to 32-469, creating a board 
of health for York County, do not violate 
this section of the Constitution. Ward v. 
Cobb, 204 S. C. 275, 28 S. E. (2d) 850 
(1944). 

Statute providing for equitable distri- 
bution of liquors. — The title of the .Alco- 
holic Beverage Control Act of 1945, now 
§§ 4-1 et seq. of the Code, is sufficiently 
broad to allow regulations of the commis- 
sion providing for the equitable distribu- 
tion of liquors in the State. Davis v. 
Query, 209 S. C. 41, 39 S. E. (2d) 117 
(1946). 

Statute relating to collection and payment 
of checks by banks. — In Witt v. Peoples 
State Bank, 166 S. C. 1, 164 S. E. 306 (1932), 
§ 8-181 of the code, relating to the collec- 
tion and payment by banks of checks and 
other instruments for the payment of 
money, was held not to violate this section 
of the Constitution. 

Statute relative to bond issues for State 
institutions.— .\ statute [1934 (38) 2269] 
entitled "An act to authorize the Gover- 
nor and State Treasurer to issue bonds 
of the State for various State institutions, 
and to pledge certain revenues for the pay- 
ment of such bonds," which related to the 
issuance of bonds for the benefit of speci- 
fied State institutions was held not invalid 
as containing subject matter not expressed 
in its title. Crawford v. Johnston, 177 S. C. 
399. 181 S. E. 476 (1935). 

Statutes transferring officers from fee to 
salary compensation. — Tliere is no multi- 
plicity of subjects, and therefore no vio- 
lation of this section of the Constitution, in 
§§ 14-3481 to 14-3484, since the transfer of 
the county officers from the former fee basis 
of compensation, the vesting of the fees in 
the county, and the provision for annual sal- 
aries to be appropriated in lieu thereof in 
the subsequent county supply acts are all 
related so as to make a proper single sub- 
ject. O'Shields V. Caldwell, 207 S. C. 194. 
35 S. E. (2d) 184 (1945). 

Statutes authorizing hydroelectric and 
navigation project. — Sections 59-1 to 59-35. 
59-51 to 59-73, and 59-81 to 59-84, creating 
the South Carolina Public Service Author- 
ity and authorizing the construction of a 
hydroelectric and navigation project by 
such Authority, were held not to violate 
this constitutional requirement. Clarke v. 



141 



Art. 3, §13 Constitution of the State of South Carolina Art. 3, § 18 



South Carolina Public Service Authority, 
177 S. C. 427, 181 S. E. 481 (1935). 

Supply bill for Beaufort County. — The 
Beaufort County supply bill for 1938-1939 
related to only one subject and was not in 
violation of this constitutional provision. 
Deloach v. Scheper, 188 S. C. 21, 198 S. E. 
409 (1938). 

B. Acts Held Unconstitutional. 

Act authorizing domestic banks to for- 
ward drafts to draw^ee banks in other cities 
was held unconstitutional as being broader 
than its title. Ex parte Wachovia Bank and 
Trust Co., 160 S. C. 104, 158 S. E. 214 
(1931). 

Act providing for collection of delinquent 
taxes. — In Douglass v. Watson. 186 S. C. 
34, 195 S. E. 116 (1938), the court held that 
an act, part of the title of which was "An 
act to provide for the collection of delin- 
quent ta.xes in Chesterfield County in five 



annual installments", was obnoxious to this 
section of the Constitution. 

Act relating to cities having commission 
form of government is unconstitutional for 
failure to express subject in title. Floyd 
V. Bennett, 124 S. C. 483, 117 S. E. 722 
(1923). 

Act relating to redemption of consols. — 
An act, as far as it authorizes the redemp- 
tion of Brown Consols in addition to Re- 
demption Brown Consols, violates this sec- 
tion. State V. Blease, 95 S. C. 403, 79 S. E. 
247 (1913). 

Act to punish abortion was held unconsti- 
tutional in part for violation of this sec- 
tion. State V. Fields, 68 S. C. 148, 46 S. E. 
771 (1904). 

Amendatory act making special act gen- 
eral is unconstitutional for failure of title to 
conform to body of act. Robinson v. 
Columbia, 116 S. C. 193, 107 S. E. 476 
(1921). 



§ 18. Formalities of act. 

No Bill or Joint Resolution shall have the force of law until it shall have 
been read three times and on three several days in each house, has had the 
Great Seal of the State affixed to it, and has been signed by the President of 
the Senate and the Speaker of the House of Representatives : Provided, That 
either branch of the General Assembly may provide by rule for a first and third 
reading of any Bill or Joint Resolution by its title only. 

See Const. 1868, Art. II, §21. 



"Reading" contemplated is reading of bill 
as drafted. — Santce Mills v. Query, 122 S. C. 
158, 115 S. E. 202 (1922). 

Yea and nay vote need not be taken on 
each reading. — Under this section it is un- 
necessary for a yea and nay vote to be taken 
and entered on the journal upon the first 
readings of a joint resolution proposing a 
constitutional amendment and a bill ratify- 
ing the amendment, notwithstanding S. C. 
Const., Art. 16, § 1, there being no require- 
ment under such constitutional provision 
that the yea and nay vote be taken on each 
reading, and it being sufficient if the two- 
thirds vote required be taken after the 
second reading. Thompson v. Livingston, 
116 S. C. 412. 107 S. E. 581 (1921). 

Failure of journal to shovy that no nay 
votes were cast on second reading of joint 
resolution is not fatal. Thompson v. Liv- 
ingston. 116 S. C. 412, 107 S. E. 581 (1921). 

Act is conclusively presumed to be prop- 
erly enacted. — When an act has been en- 
rolled and signed by the President of the 
Senate and the Speaker of the House, its 
terms can be ascertained only by an in- 
spection of the enrolled act, and evidence 
from the journal of the House and of the 
Senate is not competent for this purpose. 



The court conclusively presumes that the 
act has been properlv passed. State v. 
Lewis. 181 S. C. 10, 186 S. E. 625 (1936). 

Extrinsic evidence is incompetent to im- 
peach act. — Where act was duly signed by 
presiding officers of the General .Assembly, 
approved by Governor of State, and duly 
enrolled in the office of the Secretary of 
State, evidence outside the act itself to show 
that the act had not received three readings 
in each of the houses on three several daj's 
as required by this section and that the act, 
though a revenue measure, had not origi- 
nated in the House of Representatives as 
required by S. C. Const., Art. 3, § 15, 
and that it was improperly amended dur- 
ing its passage, was incompetent to im- 
peach such act. State v. Moorer, 152 S. C. 
455, 150 S. E. 269 (1929). 

Income tax law is not unconstitutional 
because passed without required readings. — 
Santee Mills v. Querv, 122 S. C. 158, 115 S. 
E. 202 (1922). 

Act regulating size and weight of trucks. 
—See note to S. C. Const., Art. 3, § 17. 

Applied in Wingfield v. South Carolina 
Tax Comm., 147 S. C. 116, 144 S. E. 846 
(1928). 

Cited in Jackson v. Breeland, 103 S. C. 



142 



Art. 3, § 19 Constitution of the State of South Carolina Art. 3, § 19 



184, 88 S. E. 128 (1916); Paris Mountain 
Water Co. v. Greenville, 105 S. C. 180. 89 
S. E. 669 (1916); Cantini v. Tillman, 54 F. 



969 (1893): Parrott v. Gourdin, 205 S. C. 
364, 32 S. E. (2d) 14 (1944). 



§ 19. Mileage ; increase of per diem ; compensation during extra session. 

Each member of the General Assembly shall receive five cents for every mile 
for the ordinary route of travel in going to and returning from the place 
where its sessions are held ; no General Assembly shall have the power to in- 
crease the per diem of its own members ; and members of the General Assembly 
when convened in extra session shall receive the same compensation as is 
fixed by law for the regular session. 
See Const. 1868, Art. II, § 23. 



Purpose of section. — The evident purpose 
of tlie provision in the State Constitution 
tliat the General Assembly shall not increase 
the per diem of its own members during 
their term of office was to prevent the Gen- 
eral Assembly from fixing a compensation 
for themselves different from that provided 
by law when they offered themselves as 
candidates for the General Assembly. 
Scroggie v. Bates, 213 S. C. 141, 48 S. E. 
(2d) 634 (1948). 

Compensation may be fixed for incoming 
Assembly. — There is no prohibition in the 
Constitution against legislators providing 
adequate compensation for the members of 
each house of an incoming General Assem- 
bly. The only prohibition is against voting 
themselves additional compensation during 
their terms as members of that body. 
Scroggie v. Bates, 213 S. C. 141, 48 S. E. 
(2d) 634 (1948). 

"Per diem" means pay for day's services. 
— Generally, the term "per diem," as used 
in connection with compensation, wages, or 
salary, means pay for a day's services, and 
it clearly refers to the compensation pro- 
vided for in S. C. Const.. Art. 3. § 9. 
Scroggie v. Scarborough, 162 S. C. 218, 160 
S. E. 596 (1931). 

And "compensation" does not include ex- 
pense allowance. — The word "compensa- 
tion", as used in S. C. Const., .'^rt. 3, § 9, 
has reference only to payment for services 
rendered, and does not inchide an allow- 
ance for expenses. Scroggie v. Scarbor- 
ough, 162 S. C. 218. 160 S.'^E. 596 (1931). 

Legislators do not receive an annual sal- 
ary.— See note to S. C. Const., .^rt. 3. § 9. 

But their expenses may be appropriated 
by act. — An act providing for appropriation 
of money for official expenses of members 
of the legislature is constitutional. Scrog- 
gie V. Scarborough, 162 S. C. 218, 160 S. E. 
596 (193n. 

For duties imposed by statute. — The Gen- 
eral Assembly may provide for the payment 
of expenses of its members in performing 
duties imposed upon them by statute 



Scroggie v. Bates, 213 S. C. 141, 48 S. E. 
(2d) 634 (1948). 

Where no increase in compensation is ef- 
fected. — If it should be found that the effect 
of an appropriation was to increase the 
compensation of members of the General 
Assembly, such appropriation would be un- 
constitutional. Scroggie v. Scarborough, 
162 S. C. 218. 160 S. E. 596 (1931). 

An appropriations act, which called for 
each member of the General Assembly to 
be paid $700 for official expenses in con- 
nection with the 1947 session and work be- 
tvi'een sessions in addition to any other ex- 
pense payments provided, and which also 
stated it to be unnecessary to itemize the 
expenses, was held to be designed to in- 
crease the compensation or per diem of the 
members of the General .'\ssembly in vio- 
lation of this provision of the Constitution. 
Scroggie v. Bates, 213 S. C. 141, 48 S. E. 
(2d) 634 (1948). 

Since such increase is prohibited during 
term of office. — S. C. Const., Art. 3, § 9, 
considered with this section, clearly pro- 
hibits increasing the compensation of mem- 
bers of the legislature during their term of 
office, but the payment of "expenses", eo 
nomine, however, is not prohibited by these 
provisions. Scrosgie v. Scarborough, 162 
S. C. 218. 160 S. E. 596 (1931). 

S. C. Const., Art. 3, § 30 does not apply 
to legislature. — S. C. Const., Art. 3, § 30, 
which is a general provision relating to 
compensation of public officers, is not ap- 
plicable to members of the legislature, since 
the compensation and expenses of legisla- 
tors are treated specifically in this section 
and S. C. Const., Art. 3, § 9. Scroggie v. 
Scarborough, 162 S. C. 218, 160 S. E. 596 
(1931). 

Meaning of terms in S. C. Const., Art 3, 
§ 30.— In S. C. Const., Art. 3, § 30. the 
words "compensation," "fee," and "allow- 
ance" are used co-ordinately, and apparent- 
ly it was intended that each of them should 
have a particular meaning. "Allowance" 
evidently refers to payments of whatever 



143 



Art. 3, § 20 Constitution of the State of South Carolina Art. 3, § 24 

nature other than those covered by "com- "compensation" should be given one mean- 

pensation" and "fee." "Compensation," ing in § 30 and another in § 9 of this Ar- 

therefore, as used in § 30. must have its tide. From all of which it is concluded 

usual meaning, for if it includes other pay- that this word as used in § 9 refers only 

ments covered by the term "allowance," to payment for services rendered, and does 

then the use of the latter term is entirely not include the allowance for expenses, 

superfluous — a result foreign to the genius Scroggie v. Scarborough, 162 S. C. 218, 160 

of statutory and constitutional construction. S. E. 596 (1931). 
No good reason appears why the word 

§ 20. Elections "viva voce." 

In all elections by the General Assembly or either House thereof, the mem- 
bers shall vote "viva voce", except by unanimous consent, and their votes 
thus given shall be entered upon the Journal of the House to which they re- 
spectively belong. 

1918 (30) 1123; 1919 (31) 40. 
See Const. 1868, Art. II, § 24. 

§ 21. Adjournments. 

Neither house, during the session of the General Assembly, shall, without 
the consent of the other, adjourn for more than three days, nor to any other 
place than that in which it shall be at the time sitting. 

See Const. 1868, Art. II. § 25. 

§ 22. Journal ; yeas and nays. 

Each house shall keep a journal of its own proceedings, and cause the same 
to be published immediately after its adjournment, excepting such parts as, 
in its judgment, may require secrecy; and the yeas and nays of the members 
of either house, on any question, shall, at the desire of ten members of the 
House or five members of the Senate, respectively, be entered on the journal. 
Any member of either house shall have liberty to dissent from and protest 
against any Act or resolution which he may think injurious to the public or to 
an individual, and have the reasons of his dissent entered on the journal. 

See Const. 1868, Art. II, § 26. 

Journal must be considered as a whole. — The Senate has the right and power, while 

In determining from its journal what was in session, to correct its own journal. 

or was not done by the Senate, the journal State v. Tollison, 100 S. C. 165, 84 S. E. 

must be considered as a whole, as any other 819 (1915). 
record would be. State v. Tollison, 100 S. 
C. 165, 84 S. E. 819 (1915). 

§ 23. Doors open. 

The doors of each house shall be open, except on such occasions as in the 
opinion of the House may require secrecy. 

See Const. 1868, Art. II, § 27. 

§ 24. Holding two offices. 

No person shall be eligible to a seat in the General Assembly while he 
holds any office or position of profit or trust under this State, the United States 
of America, or an}- of them, or under any other power, except officers in the 
militia and Notaries Public ; and if any member shall accept or exercise any 
of the said disqualifying offices or positions he shall vacate his seat. 

See Const. 1868, Art. II, § 28. 

144 



Art. 3, § 25 Constitution of the State of South Carolina Art. 3, § 26 



S?nate and House alone judge qualifica- 
tions of members. — In a case brought to 
determine whether defendants had vacated 
their offices in the General Assembly in view 
of the fact that the)- had accepted positions 
as trustees of the University of South 
Carolina, the court held that since S. C. 
Const., Art. 3, § 2 prescribes that the Senate 
and House shall be the judges of the qualifi- 
cations of their own members, this is not a 
field in which the courts may exercise pow- 
ers to correct either nonaction or wrongful 
action on the part of these legislative bodies. 
Culbertson v. Blatt, 194 S. C. 105, 9 S. E. 
(2d) 218 (1940). 

Plaintiff must show personal interest to 
invoke section. — A suit to invoke the pre- 
scriptions of this constitutional provision 



and S. C. Const., Art. 2, § 2, which provides 
that no person shall hold two offices of 
honor or profit at the same time, may not 
be maintained by one who fails to show 
in his complaint that he has some personal 
interest in the situation other than that 
shared in common by other members of the 
public. Culbertson v. Blatt, 194 S. C. 105, 
9 S. E. (2d) 218 (1940). 

Membership in legislature and on audi- 
torium board is prohibited. — A member of 
the legislature cannot sit upon the board of 
auditorium trustees and, at the same time, 
retain his membership in the General As- 
sembly. Ashmore v. Greater Greenville 
Sewer District, 211 S. C. 11, 44 S. E. (2d) 
88 (1947J. 



§ 25. Vacancies. 

If any election district shall neglect to choose a member or members on the 
day of election, or if any person chosen a member of either house shall refuse 
to qualify and take his seat, or shall resign, die, depart the State, accept any 
disqualifying office or position, or become otherwise disqualified to hold his 
seat, a writ of election shall be issued by the President of the Senate or Speak- 
er of the House of Representatives, as the case may be, for the purpose of 
filling the vacancy thereby occasioned for the remainder of the term for 
which the person so refusing to qualify, resigning, dying, departing the State, 
or becoming disqualified, Vv-as elected to serve, or the defaulting election 
district ought to have chosen a member or members. 

See Const. 1868, Art. II, § 29. 




i 



§ 26. Oath of office. 

Members of the General Assembh-, and all officers, before they enter upon 
the duties of their respective offices, and all members of the bar, before they 
enter upon the practice of their profession, shall take and subscribe the fol- 
lowing oath : "I do solemnly swear (or affirm) that I am dul)' qualified, ac- 
cording to the Constitution of this State, to exercise the duties of the office 
to which I have been elected, (or appointed,) and that I will, to the best of 
my ability, discharge the duties thereof, and preserve, protect and defend the 
Constitution of this State and of the United States. I do further solemnly 
swear (or affirm) that I have not since the first day of January, in the year 
Eighteen hundred and Eighty-one, engaged in a duel as principal or second 
or otherwise ; and that I will not, during the term of office to which I have 
been elected (or appointed) engage in a duel as principal or second or other- 
wise. So help me God." 

See Const. 1868, Art. II, § 30. 

Stated in Verner v. Seibels, 60 S. C. 572, Cited in Denmark v. Corlev, 100 S. C. 

l<i S. E. 274 (1901). 433. 84 S. E. 884 (1915) ; State v. Messervy, 

86 S. C. 503, 68 S. E. 766 (1910). 



[7 SC Code] — 10 



145 



Art. 3, § 27 Constitution of the State of South Carolina Art. 3, § 28 



§ 27. Removal of officer. 

Officers shall be removed for incapacity, misconduct or neglect of duty, in 
such manner as may be provided by law, when no mode of trial or removal 
is provided in this Constitution. 

See Const. 1868, Art. II, § 31. 



Scope of section. — This section requires 
tliat officers shall be removed in the manner 
provided by law for incapacity, misconduct, 
or neglect of duty, legally shown to the 
removing power, and leaves to the legisla- 
ture the discretion to provide the manner 
of removal, the designation of the person or 
tribunal which shall have the power of re- 
moval, and the procedure to ascertain the 
fact of incapacity', misconduct, or neglect of 
duty, unless a mode of trial or removal is 
provided in the S. C. Constitution. Mc- 
Dowell V. Burnett, 92 S. C. 469, 75 S. E. 
873 (1912). 

Officer is not deprived of office without 
hearing. — It appears to be the law under 
this section that a duly elected officer can- 
not be deprived of his office or salary with- 
out a hearing. Smith v. City Council, 198 
S. C. 313, 17 S. E. (2d) 860 (1941). 

The Governor has no implied power to 
remove an officer holding under the Con- 
stitution creating the ofiice and fixing the 
tenure, unless the power is conferred by 
the Constitution or statute. McDowell v. 
Burnett. 92 S. C. 469, 75 S. E. 873 (1912). 

Nor is such power incident to Governor's 
office. — The power of removal from ofiice 
by the Governor is not an incident to his 
office, but exists only when conferred by the 
Constitution or statutes, or when it is im- 
plied from the conferring of the power of 
appointment. State v. Rhame, 92 S. C. 455, 
75 S. E. 881 (1912). 



Legislature may remove public ofBcers. — 

Public officers have no contract or property 
rights in their offices. Except as provided 
by the S. C. Constitution, they are subject 
to legislative control, and the legislature 
may, subject to the Constitution, fix the 
term of office, provide for removal, abolish 
the office, or reduce the term. State v. 
Rhame, 92 S. C. 455, 75 S. E. 881 (1912). 

Appointive officer may be removed by ap- 
pointing officer. — This section does not ab- 
rogate the general rule that an appointive 
officer may be removed at the pleasure of 
the appointing power, his term of office not 
having been fixed bv law. Sanders v. 
Belue, 78 S. C. 171, 58 S. E. 762 (1907). 

Power of Governor to remove sheriff. — 
The only power of the Governor to remove 
a sheriff is after trial and conviction in the 
manner prescribed by the statutes enacted 
under this section. State v. Hough, 103 
S. C. 87. 87 S. E. 436 (1915). 

Power of legislature to remove sheriff. — 
The General Assembly, in presence of con- 
stitutional provisions, has power to provide 
method of removal of sheriff from office. 
State V. Ballentine, 152 S. C. 365, ISO S. E. 
46 (1929). 

Applied in State v. Ansel, 76 S. C. 395, 
57 S. E. 185 (1907). 

Stated in State v. Sanders, 118 S. C. 498, 
110 S. E. 808 (1920). 

Cited in McDowell v. Burnett, 90 S. C. 
400, 7i S. E. 782 (1912). 



§28. Homestead; married woman's exemption; taxes; purchase money; 
waiver ; husband and wife ; exemption for unmarried person. 
The General Assembly shall enact such laws as will exempt from attach- 
ment, levy and sale under any mesne or final process issued from any Court, 
to the head of any family residing in this State, a homestead in lands, whether 
held in fee or any lesser estate, to the value of one thousand dollars, or so 
much thereof as the property is worth if its value is less than one thousand 
dollars, with the yearly products thereof, and to every head of a family resid- 
ing in this State, whether entitled to a homestead exemption in lands or not, 
personal property to the value of five hundred dollars, or so much thereof as 
the property is worth if its value is less than five hundred dollars. The title to 
the homestead to be set off and assigned shall be absolute and be forever dis- 
charged from all debts of the said debtor then existing or thereafter contracted 
except as hereinafter provided: Provided, That in case any woman having a 
separate estate shall be married to the head of a family who has not of his own 

146 [7SCCode] 



Art. 3, § 28 Constitution of the State of South Carolina Art. 3, § 28 



sufficient property to constitute a homestead as hereinbefore provided, said 
married woman shall be entitled to a like exemption as provided for the head 
of the family : Provided, furtlicr. That there shall not be an allowance of more 
than one thousand dollars' worth of real estate and more than five hundred 
dollars' worth of personal property to the husband and wife jointly : Provided 
further, That no property shall be exempt from attachment, levy or sale for 
taxes, or for payment of obligations contracted for the purchase of said home- 
stead or personal property exemption or the erection or making of improve- 
ments or repairs thereon: Provided, jurther, That the 3early products of said 
homestead shall not be exempt from attachment, levy or sale for the payment 
of obligations contracted in the production of the same: Provided, further, 
That no waiver shall defeat the right of homestead before assignment except 
it be by deed of conveyance, or by mortgage, and only as against the mortgage 
debt; and no judgment creditor or other creditor whose lien does not bind the 
homestead shall have any right or equity to require that a lien which embraces 
the homestead and other property shall first exhaust the homestead : Provided, 
iurther, That after a homestead in lands has been set off and recorded the same 
shall not be waived by deed of convej'ance, mortgage or otherwise, unless 
the same be execvited by both husband and wife, if both be living: Provided, 
further. That any person not the head of a family shall be entitled to a like 
exemption as provided for the head of a famil}' in all necessary wearing ap- 
parel and tools and implements of trade, not to exceed in value the sum of 
three hundred dollars. 

See Const. 1868, Art. II, § 32. 

I. General Consideration. 
II. Homestead Right. 

A. Parties Entitled to Homestead 

Riglit. 

B. Where Homestead Right Not De- 

feated. 

C. Waiver of Homestead Right. 

D. Property to Which Homestead 

Right Applies. 



Cross Reference. 

For statutes enacted pursuant to this sec- 
tion, see §§ 34-1 to 34-65. 

I. GENERAL CONSIDERATION. 

Section is liberally but carefully inter- 
preted. — Constitutional and statutory provi- 
sions for homestead exemptions, while re- 
quiring a liberal interpretation and con- 
struction in order that ends sought to be 
accomplished should not be defeated, should 
not receive such broad and liberal inter- 
pretation and construction as will make of 
them instruments of fraud and oppression. 
Baker v. DeWitt. 140 S. C. 114, 138 S. E. 
626 (1927); Bonebrake v. Morrow, 183 S. C. 
170, 190 S. E. 506 (1937). 

And it is not retroactive. Bank v. Kohn, 
52 S. C. 120. 29 S. E. 625 (1898). 



It applies only to homesteads set off since 
adoption of Constitution. — Ex parte Jeter, 
64 S. C. 405, 42 S. E. 196 (1902). 

Homestead is exempt from execution for 
costs incurred in a suit upon a bond exe- 
cuted before the Constitution went into 
effect. National Bank v. Goodman, 33 S. C. 
601, 11 S. E. 785 (1891). 

Homestead right continues no longer than 
death. — Widow of testator, if having right to 
claim homestead in property as "head of 
family," could not devise property so that 
devisee would take it free from lien of judg- 
ments against testator, since will does not 
take effect until death and homestead ri^ht 
continues to head of family no longer than 
death. Dorn v. Stidham, 139 S. C. 66. 137 
S. E. 331 (1927). 

As section does not create new estate. — 
This section docs not create any new estate, 
but the title in the husband is burdened 
with the homestead for the enjoyment of 
himself and wife. Davis v. Milady, 92 S. C. 
135, 75 S. E. 363 (1912). 

Homestead need not be actually set off. — 
It is not necessary for a homestead to be 
actually set off in order to be exempt from 
levy and sale, and the judgment debtor may 
make a valid conveyance of such land to a 
third party, whether it has been admeasured 



147 



Art. 3, § 28 Constitution of the State of South Carolina Art. 3, § 28 



and set off as a homestead or not. Eaddy v. 
Wall, 183 S. C. 229, 190 S. E. 497 (1937). 

Applied in State v. McCary, 120 S. C. 
361, 113 S. E. 275 (1922); Ex parte Gold- 
smith, 68 S. C. 528, 47 S. E. 984 (1904); 
McNair v. Moore, 64 S. C. 82, 41 S. E. 829 
(1902); Geiger v. Geiger, 57 S. C. 521, 35 
S. E. 1031 (1900); McCIenaghan v. Mc- 
Eachern, 56 S. C. 350, 34 S. E. 627 (1899); 
Willingham v. Willingham, 55 S. C. 441, 23 
S. E. 500 (1899) : Wilson v. Counts, 52 S. C. 
218, 29 S. E. 649 (1898); McCIenaghan v. 
McEachern. 47 S. C. 446, 25 S. E. 296 
(1896); AlcCrae v. Felder, 12 F. (2d) 554 
(1926); Norwood v. Watson, 242 F. 885 
(1917); Christensen v. Griffin, 107 S. C. 
456, 93 S. E. 143 (1917); White v. Barbery, 
103 S. C. 223, 88 S. E. 132 (1916); In re 
Anderson, 103 F. 854 (1900); Berry v. 
Berry, 55 S. C. 303. 33 S. E. 363 (1899); 
Pearson v. Pearson, 59 S. C. 367, 37 S. E. 
917 (1901). 

Cited in Adair v. First Nat. Bank, 139 S. 
C. 1, 137 S. E. 192 (1927); Betts & Co. v. 
Richardson, 112 S. C. 279, 99 S. E. 815 
(1919); Gibbes v. Hunter, 99 S. C. 410, 83 
S. E. 606 (1914); Ex parte Miley, 73 S. C. 
325, 53 S. E. 535 (1905) : Hallman v. George, 
70 S. C. 403, 50 S. E. 24 (1905); Sloan v. 
Hunter, 65 S. C. 235, 43 S. E. 788 (1903); 
Ex parte Worley, 49 S. C. 41, 26 S. E. 949 
(1897); Utsey v. Charleston, S. & N. R. Co., 
38 S. C. 399. 17 S. E. 141 (1893); Wilson v. 
Mut. Benefit Life Ins. Co., 182 S. C. 131, 
188 S. E. 803 (1936). 

II. HOMESTEAD RIGHT. 
A. Parties Entitled to Homestead Right. 
Homestead is right given to head of 

family. — The right to claim homestead is 
a personal right given by the Constitution 
to the head of a family residing in this State, 
and on his death the right dies with him, 
unless he leaves a widow or children, in 
which case it continues to them and to no 
others. Dorn v. Stidham, 139 S. C. 66, 137 
S. E. 331 (1927). 

Niece of testatrix is not entitled to home- 
stead exemption in lands devised to her as 
against debts of testatrix, in view ofhistory 
of legislation and of this section. Dorn v. 
Stidliam. 139 S. C. 66. 137 S. E. 331 (1927). 

Residing in this State. — A resident of 
this State only may claim homestead ex- 
emption in his or her property as against 
debts, and when such exemption is claimed, 
the claimant must bring himself or her- 
self within the definition of "head of family" 
in sense that term is used in homestead 
laws. Dorn v. Stidham. 139 S. C. 66, 137 
S. E. 331 (1927); Eonebrake v. Morrow, 
13 S. C. 170, 190 S. E. 506 (1937). 



Two things are essential to entitle one to 
the exemption of the homestead provided 
by this section of the Constitution and § 34-1 
et seq. of the Code: (1) the claimant must 
be the head of a family, and (2) a resident 
of this State. Unless these two conditions 
e.xist in co-ordination, the claim of home- 
stead is defeated. Bonebrake v. Morrow. 
183 S. C. 170, 190 S. E. 506 (1937). 

And not to one who returns merely to 
claim hom.estead. — When this section of the 
Constitution, together with § 34-1 et seq. of 
the Code, beneficiently guaranteed a home- 
stead to the head of a family residing in 
this State, it meant one who was an actual 
and legal resident of the State, and not one 
who has abandoned residence in this State 
and, when sued, returns for the purpose of 
claiming a homestead. Bonebrake v. Mor- 
row, 183 S. C. 170, 190 S. E. 506 (1937). 

Only one homestead may be set aside. — 
Only one homestead, of the value of $1,- 
000.00, can be set aside in testator's real 
estate to those who might be entitled there- 
to. ^Mutual Benefit Life Ins. Co. v. Yar- 
borough, 169 S. C. 486, 169 S. E. 289 (1933). 

Head of family must manage house and 
support dependent. — The head of a family 
is one who controls, supervises, and manages 
a house, and has living with him and is 
supporting some person whom it is either 
his moral or legal duty to support. A bank- 
rupt who was a single man living alone, 
whose parents were living, is not the head 
of a family and entitled to the exemption 
because he was at the time of his bank- 
ruptcy paying the board and expenses of a 
sister at a school. In re AIcGowan, 170 F. 
493 (1909). 

At time of attempted levy. — The debtor 
need not have been the head of a family at 
the time the debt was contracted. It is 
sufficient that he was such at the time of 
the attempted lew. Gray v. Putnam, 51 
S. C. 97. 28 S. E. i49 (1897). 

And need not be husband, father, or of 
masculine gender. — Dorn v. Stidham, 139 
S. C. 66, 137 S. E. 331 (1927). 

But may be feme sole. — A feme sole who 
has neither parent nor brother living in the 
State, and who has living with her, and en- 
tirely dependent on her for support, an in- 
valid sister, is "the head of a family" under 
this section, though it does not appear that 
she lives on the land in which the home- 
stead is claimed. Chamberlain v. Brown, 
33 S. C. 597. 11 S. E. 439 (1890). 

Death of head of family transfers home- 
stead right to widow and children. — Upon 
death of a head of family-, who owed debts 
and to whom no homestead had been as- 
signed in his lifetime, the right to inter- 



148 



Art. 3, § 28 CoNSTiTUTiox of the State of South Carolina Art. 3, § 28 



pose claim of homestead exemption as 
against debts of deceased is transferred by 
homestead laws to widow or children or 
both. Dorn v. Stidham, 139 S. C. 66, 137 
S. E. 331 (1927). 

Under this section and statutes enacted 
thereunder, the widow and children of the 
head of a family are entitled to enforce 
their right of homestead in property left 
to them under a will directing payment 
of testator's debts. Ex parte Cothran, 128 
S. C. 122, 121 S. E. S56 (1924). 

Even though they have separate estates 
in their own right. — The widow of a person 
in whom a right of homestead existed is 
entitled to exemption of homestead in lands 
of deceased, though she and her children 
have separate estates in their own right. 
Ex parte Brown, 37 S. C. 181, 15 S. E. 926 
(1892). 

Exemption in widow's dower lands where 
homestead granted husband. — A widow can- 
not claim a homestead exemption in her 
dower lands in addition to a homestead ex- 
emption previously claimed and allowed in 
her deceased husband's estate. Lanham v. 
Glover, 46 S. C. 65, 24 S. E. 49 (1896). 

Exemption is limited by constitutional 
amount. — .-\ married woman having a sepa- 
rate estate, who becomes bankrupt and 
whose husband owns personal property- of 
the value of S150, is entitled to claim only 
$350 as the personal property exemption 
to be set apart to her in the bankrupcty pro- 
ceedings. In re McCutchen, 100 F. 779 
(19001. 

And a statute exempting more than such 
amount violates section. — Section 7985 of 
the 1942 Code, exempting proceeds of life 
insurance policy for benefit of married 
woman from claims of husband's creditors, 
is in violation of this section as making an 
exemption allowance of husband and wife 
of more than $500 and as conflicting with the 
Constitution, in that the Constitution has 
occupied full domain of exemptions, so that 
trustee in bankruptcy would have right to 
surrender value of life policy. In re Cun- 
ningham, 15 F. (2d) 700 (1926). 

B. Where Homestead Right 

Not Defeated. 

Homestead is not defeated by gift or 

devise. — Under this section, no gift or de- 
vise of property by will can defeat the right 
of homestead. Ex parte Cothran, 128 S. C. 
122, 121 S. E. 556 (1924). 

Unless wife joins husband in disposition. 
— This section includes a devise and pre- 
vents the alienation of the homestead, either 
by deed or devise, or in any other manner. 



unless the wife joins the husband in the 
disposition. Davis v. Milady, 92 S. C. 135, 
75 S. E. 363 (1912). 

Or unless wife is dead. — A husband who 
purchased land subsequent to this section 
and laid it ofi as a homestead could not, 
without the assent of the wife, devise it 
during her life so as to deprive her of the 
benefits of the homestead, but, after her 
death, a devise would be valid. Davis v. 
Milady, 92 S. C. 135, 75 S. E. 363 (1912). 

Homestead is not defeated by failure to 
notify sheriff of claim. — Mere failure to give 
the sheriff notice of the claim of a home- 
stead cannot impair the debtor's right to 
same. Gray v. Putnam, 51 S. C. 97, 28 S. E. 
149 (1897). 

A woman is not entitled to exemption 
because she is a widow. — Dorn v. Stidham, 
139 S. C. 66, 137 S. E. 331 (1927). 

Nor a man because he is married. — The 
homestead provided for by this section, and 
statutes enacted pursuant thereto, is not for 
the use of a man simply because he is a 
married man with children, but is for the 
benefit of the family, and one claiming a 
homestead must show that he is the head 
of a family. Ex parte Sams, 126 S. C. 245, 
119 S. E. 798 (1923). 

C. Waiver of Homestead Right. 

Section protects homestead claimant as 
to waiver. — The provisions of this section 
look to the protection of the claimant of 
homestead by forbidding the waiver there- 
of before assignment, except by deed of 
conveyance or by mortgage, and only as 
against the mortgage debt. No judgment 
creditors or other creditor shall have the 
right to invoke the two-fund rule as against 
the right of homestead. People's Bank v. 
O'Shields, 167 S. C. 296, 166 S. E. 351 
(1932). 

Scope of "waiver." — The word "waived" 
in this section, providing that a homestead 
set ofif and recorded shall not be waived by 
deed of conveyance, mortgage, or otherwise 
unless executed by both husband and wife, 
does not exclude a grant, mortgage, or any 
other disposition which may be included in 
the word "otherwise." A waiver is an in- 
tentional relinquishment of a known right. 
Davis v. Milady, 92 S. C. 135, 75 S. E. 363 
(1912). 

Joint execution by husband and wife is 
unnecessary to waive homestead, where 
bankrupt failed to record proceedings in 
bankruptcy setting aside homestead. Baker 
v. De Witt, 140 S. C. 114, 138 S. E. 626 
(1927). 



149 



Art. 3, § 29 Constitution of the State of South Carolina Art. 3, § 30 



The mortgage of a homestead assigned 
before this Constitution, but executed after, 
does not require the signature of both hus- 
band and wife, as required by such Constitu- 
tion, to make it valid. Ex parte Jeter, 64 
S. C. 405, 42 S. E. 196 (1902). 

D. Property to Which Homestead 
Right Applies. 

A life estate in real property is a 
subject of homestead exemption. The value 
of such estate, and not the value of the fee 
simple in the same lands, must be taken 
as the basis of appraising the exemption. 
Bank V. Gibbes, 54 S. C. 579, 32 S. E. 690 
(1899). 

Homestead allowance may be limited to 
personalty. — Where the terms of a will 
amount to an equitable conversion of the 
testator's real property into personalty, the 
homestead allowance therein is limited to 
personaltv. Dixon v. Davis, 31 F. Supp. 
912 (1940). 

And may not be allowed to nonresident. 
— For case holding that the lien acquired 
by an attachment on lands under § 10-924 



is not divested by a subsequent occupation 
of the lands by a nonresident for homestead 
purposes, see Bonebrake v. Morrow, 183 
S. C. 170, 190 S. E. 506 (1937). 

Or in mortgaged lot conveyed by mort- 
gagor. — Mortgagor on conveying one of 
several mortgaged lots could not, as 
against grantee's mortgagee, claim home- 
stead out of proceeds of lot conveyed. Peo- 
ple's Bank v. O'Shields, 167 S. C. 296, 166 
S. E. 351 (1932). 

Application of "two-fund" doctrine to 
mortgaged lot conveyed by mortgagor. — 
Where mortgagor conveyed one of several 
mortgaged lots, grantee's mortgagee could 
not under "two-fund doctrine" require prior 
mortgagees to exhaust mortgagor's home- 
stead before taking proceeds from grantee's 
lot. People's Bank v. O'Shields, 167 S. C. 
296. 166 S. E. 351 (1932). 

Purchase money for land. — Money bor- 
rowed to pay purchase price of land bought 
from a third party is not purchase money 
in the sense of the Constitution. McNair 
V. Moore, 64 S. C. 82, 41 S. E. 829 (1902). 



§ 29. Taxes laid upon actual value. 

All taxes upon property, real and personal, shall be laid upon the actual 
value of the property taxed, as the same shall be ascertained by an assessment 
made for the purpose of laying such tax. 

See Const. 1868, Art. II, § 33. 



An assessment is essential to constitute 
a liability for an ad valorem tax. State v. 
Cheraw & D. R. Co., 54 S. C. 564, 32 S. E. 
691 (1899). 

Applied in State v. Tucker, 56 S. C. 516, 
35 S. E. 215 (1900); Martin v. School Dis- 
trict, 57 S. C. 125. 35 S. E. 517 (1900): 
Stehmeyer v. City Council, 53 S. C. 259, 31 
S. E. 322 (1898); Thomas v. Moultrieville, 
52 S. C. 181, 29 S. E. 647 (1898); Germania 
Sav. Bank v. Darlington, 50 S. C. 337, 27 



S. E. 846 (1897); In re Jager, 29 S. C. 438, 
7 S. E. 605 (188S); Charlotte, C. & A. R. 
Co. V. Gibbes. 27 S. C. 385, 4 S. E. 49 (1S87). 
affirmed in 142 U. S. 386, 12 S. Ct. 255, 35 
L. Ed. 1051 (1892). 

Cited in Mauldin v. Citv Council, 42 S. C. 
293, 20 S. E. 842 (1895);' Jackson v. Bree- 
land, 103 S. C. 184, 88 S. E. 128 (1916); 
Webster v. Williams, 183 S. C. 368. 191 
S. E. 51 (1937). 



§ 30. Extra compensation not permitted; appropriations for repelling invasion. 
The General Assemblj^ shall never grant extra compensation, fee or allow- 
ance to an)- public officer, agent, servant or contractor after service rendered, 
or contract made, nor authorize payment or part payment of any claim under 
any contract not authorized by law ; but appropriations may be made for 
expenditures in repelling invasion, preventing or suppressing insurrection. 



Section is inapplicable to members of 
General Assembly. — This section, providing 
that General Assembly should not grant 
extra compensation, fee, or allowance to any 
public officer, does not apply to members of 
General Assembly, since the compensation 
and expenses of legislators are treated 



specifically in S. C. Const., Art 3, §§ 9 and 
19, and the term "public oflicers," for pur- 
poses of this section, does not include mem- 
bers of the legislature. Scroggie v. Scar- 
borough, 162 S. C. 218, 160 S. E. 596 
(1931). 
Legislature cannot retroactively increase 



150 



Art. 3, § 31 Constitution of the State of South Carolina Art. 3, § 31 



pay of county ofEeer. — The legislature, hav- 
ing changed the officers of a county from a 
fee basis of compensation to a salaried basis, 
cannot retroactively increase the compensa- 
tion of any officer for any reason without 
violating this section. O'Shields v. Cald- 
well. 207 S. C. 194, 35 S. E. (2d) 184 
(1945). 



Constitutionality of act appropriating ex- 
pense money for each legislator. — See notes 
to S. C. Const.. Art. 3, § 19. 

Applied in Lyon v. Patterson, 102 S. C. 
525. 87 S. E. 306 (1915). 

Stated in Scrosgie v. Bates, 213 S. C. 
141. 48 S. E. (2d) 634 (1948). 

Cited in Hall v. Richards, 159 S. C. 34, 
156 S. E. 12 (1930). 



§31. Public lands. 

Lands belonging to or under the control of the State shall never be donated, 
directly or indirectly, to private corporations or individuals, or to railroad 
companies. Nor-shall such land be sold to corporations, or associations, for 
a less price than that for which it can be sold to individuals. This, however, 
shall not prevent the General Assembly from granting a right of way, not ex- 
ceeding one hundred and fifty feet in width, as a mere easement to railroads 
across State land, nor to interfere with the discretion of the General Assembly 
in confirming the title to lands claimed to belong to the State, but used or 
possessed by other parties under an adverse claim. 



Expected benefits may prevent grant 
from being donation. — Indirect benefits ex- 
pected to result from improvement of land 
granted by the State by way of promotion 
of public convenience, increase in value of 
adjacent property, and taxes to be paid on 
improvements are sufficient to keep such 
grant from amounting to donation within 
constitutional inhibition. State v. Broad 
River Power Co., 177 S. C. 240, 181 S. E. 
41 (1935). 

And land grant is not prohibited vyhere 
State receives benefits. — A grant of land 
for construction of canal, and contract in- 
corporated in statute which relieved suc- 
cessor of grantee from performance of cove- 
nants of grant, was held not to be a prohib- 
ited "donation" of land, where under terms 
of grant and contract the State had re- 
ceived electric power of the value of $180,- 
000.00, the benefit of moneys expended by 
grantee in construction and maintenance of 
distribution lines, and generating and prop- 
erty taxes, and would continue to receive 
such benefits in perpetuity. State v. Broad 
River Power Co., 177 S. C. 240, 181 S. E. 
41 (1935). 

Or where grant is for public uses. — .^ct 
General Assembly March 5, 1924 (33 St. at 
Large, p. 1518), leasing land theretofore 
used as public square for erection of build- 
ing to contain off.ces of county and home 
demonstration agents and other county offi- 
cers or auditorium for public assemblage, 
free of rent, is not violative of this section 
as attempt to devote public property to 
private corporation, the grant being for pub- 



lic uses. Antonakas v. Anderson Chamber 
of Commerce, 130 S. C. 215, 126 S. E. 35 
(1924). 

Conveyance by city council of municipal 
property to private person for erection of 
hotel is not invalid as violative of this sec- 
tion, but is one for a public purpose au- 
thorized in the city's charter, and sup- 
ported by a contractual consideration in the 
form of substantial returns on tax revenues 
and benefits to the city and its inhabitants. 
Haesloop v. Citv Council, 123 S. C. 272, 
115 S. E. 596 (1923). 

Other land grants to which section does 
not apply. — Real estate, title in fee to which 
had been conveyed away by the State in 
1892, was not at the time of adoption of the 
Constitution of 1895 "lands belonging to or 
under the control of the State" within this 
constitutional provision prohibiting dona- 
tion of such land to private corporations or 
individuals. State v. Broad River Power 
Co., 177 S. C. 240. 181 S. E. 41 (1935). 

Conferring on chamber of commerce site 
for erection of building is not "donation of 
public property." Chapman v. Greenville 
Chamber of Commerce, 127 S. C. 173, 120 
S. E. 584 (1923). 

Land granted by the State under .^ct Aug. 
13, 1873 (7 St. at Large, p. 97), to the city 
of Charleston in fee simple and in propri- 
etary right does not come under the provi- 
sions of this section, the land not having 
been granted for governmental purposes. 
Haesloop v. City Council, 123 S. C. 272, 
115 S. E. 596 (1923). 



151 



Art. 3, § 32 Constitution of the State of South Carolina Art. 3, § 34 

§32. Salary of deceased officer; pensions. [Eliminated.] 

1944 (43) 1569; 1945 (44) 36. 



§ 33. Marriages of whites and negroes ; sexual intercourse. 

The marriage of a white person with a negro or mulatto, or person who 
shall have one-eighth or more of negro blood, shall be unlawful and void. 
No unmarried woman shall legally consent to sexual intercourse who shall not 
have attained the age of fourteen years. 



I. Marriages of Whites and Negroes. 
II. Sexual Intercourse. 

I. MARRIAGES OF WHITES AXD 
NEGROES. 

Rights of child of white person and one 
having lass than one-eighth negro blood. — 

The child of a union of a white person and 
one having less than one-eighth negro 
blood is entitled to exercise all the legal 
rights of a white man, except those arising 
from a proper classification, when equal 
accommodations are afforded. Tucker v. 
Blease, 97 S. C. 303, 81 S. E. 668 (1914). 

While the child of a white person and 
one having less than one-eighth negro blood 
is entitled to exercise the rights of a white 
man, in view of this section, school trus- 
tees may under statutory authority, upon 
providing a school for children of this class 
distinct from both the white and negro 
schools, suspend such cliild from the white 
schools when for the best interest of the 
other white pupils who would be withdrawn 
if it was allowed to remain. Tucker v. 
Elease, 97 S. C. 303, 81 S. E. 668 (1914): 

Evidence insufficient to prove possession 
of one-eighth of negro blood. — In Bennett 
V. Bennett, 195 S. C. 1, 10 S. E. (2d) 23 
(1940), the evidence submitted by the plain- 
tiff failed to prove that the defendant had 
one-eighth or more of negro blood in her 
veins. 

Quoted in Grant v. Butt, 198 S. C. 298, 
17 S. E. (2d) 689 (1941). 



II. SEXUAL INTERCOURSE. 

This section does not apply to marriage. — 

The language of tliis section can have no 
reference to the age at which a woman can 
censent to matrimonv. State v. Ward, 204 
S. C. 210. 28 S. E. (2d^ 785 (1944). 

Statute raising age of consent does not 
violate section. — Section 16-80 of the Code 
raising the age of consent to 13 years, is not 
in violation of this section of the Constitu- 
tion. State V. Smith, 181 S. C. 485, 188 S. E. 
132 (19361. 

Carnal knowledge of female under age is 
rape. — Unlawful carnal knowledge of fe- 
male child under age of 14 (now 16) years, 
either with or without her consent, is 
"rape". State v. Wilson, 162 S. C. 413, 161 
S. E. 104 (1931). 

Act constituting assault with intent to 
ravish. — Overt act amounting to assault 
with intent to have unlawful sexual inter- 
course with female under age of 14 (now 
16) years, even if she consents, is "assault 
with intent to ravish". State v. Wilson, 
162 S. C. 413, 161 S. E. 104 (1931). 

Voidable marriage of eleven-year old is 
not abrogated by separation by mutual 
agreement four weeks later, before girl 
attained the age of consent, in view of this 
section. State v. Sellers, 140 S. C. 66, 134 
S. E. 873 (1926). 

Applied in State v. Haddon, 49 S. C. 308, 
27 S. E. 194 (1897). 



^ 
^ 



§ 34. Special laws prohibited. 

The General Assembly of this State shall not enact local or special laws 
concerning any of the following subjects or for any of the following purposes, 
to wit : 

I. To change the names of persons or places. 
II. To incorporate cities, towns or villages, or change, amend or extend 

charter thereof. 
III. To incorporate educational, religious, charitable, social, manufacturing 
or banking institutions not under the control of the State, or amend 
or extend the charters thereof. 

152 



Art. 3, § 34 Constitution of the State of South Carolina Art. 3, § 34 



/iV. To incorporate school districts. I 



V. To authorize the adoption or legitimation of children. ■ J A t'jLc^ 

VI. To provide for the protection of game. ^^ I \^ I ' 

VII. To summon and empanel grand or petit jurors. "^ ' ' /^ 

VIII. Eliminated. ^ .„, ■ *■ 

1920 (31) 1700; 1921 (32) 191; 1934 (38) 1623; 1935 (39') 27. 

IX. In all other cases, where a general law can be made applicable, no 
special law shall be enacted: Provided, That the General Assembly 
may enact local or special laws fixing the amount and manner of com- 
pensation to be paid to the County Officers of the several counties of 
the State, and may provide that the fees collected by any such officer, 
or officers, shall be paid into the treasury of the respective counties. 
X. The General Assembly shall forthwith enact general laws concern- 
ing said subjects for said purposes, which shall be uniform in their 
operations : Provided, That nothing contained in this Section shall 
prohibit the General Assembly from enacting special provisions in 
general laws. 

XI. The provisions of this Section shall not apply to charitable and edu- 
cational corporations where, under the terms of a gift, devise or 
will, special incorporation may be required. 

Provided, That the General Assembly is empowered to divide the State into 
as many zones as may appear practicable, and to enact legislation as may 
appear proper for the protection of game in the several zones. 

1904 (24) 676; 1905 (24) 959; 1934 (38) 1625; 1935 (39) 24; 1934 (38) 1626; 1935 (39) 153. 

Editor's note. — The subdivision numbers of this section are identical with those in the 
Codes of 1912, 1922, 1932 and 1942. They do not coincide, however, with the subdivision 
numbers assigned to this section in the original Constitution as reproduced in the Code 
of 1902, since this section originally contained thirteen subdivisions. The following changes 
liave been made: 

(1) Subdivision II in the original section in the 1902 Code was repealed by a joint reso- 
lution and an act: 1904 (24) 676; 1905 (24) 959. 

(2) Subdivision IX in the original section in the 1902 Code was repealed by a joint 
resolution and an act: 1904 (24) 676; 1905 (24) 959. 

(3) Sul>division X in the original section as reproduced in the 1902 Code (subdivision 

VIII in the Codes of 1912, 1922, and 1932) was repealed by joint resolutions and acts 
1920 (31) 1700; 1921 (32) 191 and 1934 (38) 1623; 1935 (39) 27. 

(4) Sudivision XI in the original section as reproduced in the 1902 Code (subdivision 

IX in the Codes of 1912, 1922, 1932, 1942, and in this Code) was amended by a joint reso- 
lution and an act: 1934 (38) 1625; 1935 (39) 24. 

(5) The proviso to this section was proposed and ratified by a joint resolution and an 
act: 1934 (38) 1626; 1935 (39) 153. Such proviso immediately follows subdivision XI 
of this section in the Code of 1942 as well as in this Code. 

A table of the subdivision numbers which have been assigned to the subdivisions 
of this section, commencing with the Code of 1902 and continuing down to and including 
the present Code, is as follows: Although subdivision VIII (original X) was repealed, 
it appears in the 1922 and 1932 Codes. 



153 



Art. 3, § 34 


Constitution 


OF THE 


State of South 


Carolina 


Art. 3, § . 


Original Sub- 












division No. in 


1912 Code 


1922 Code 


1932 Code 


1942 Code 


1952 Code 


1902 Code 












I 


I 


I 


I 


I 


I 


II 


Repealed 










III 


II 


II 


II 


II 


II 


IV 


III 


III 


III 


III 


III 


V 


IV 


IV 


IV 


IV 


IV 


VI 


V 


V 


V 


V 


V 


VII 


VI 


VI 


VI 


VI 


VI 


VIII 


VII 


VII 


VII 


VII 


VII 


IX 


Repealed 










X 


VIII 


VIII 


VIII 


Repealed 




XI 


IX 


IX 


IX 


IX 


IX 


XII 


X 


X 


X 


X 


X 


XIII 


XI 


XI 


XI 


XI 


XI 



I. General Consideration. 
II. Incorporating or Amending City 
Charters. 

III. Charters of Institutions Not Under 

State Control. 

IV. Incorporation of School Districts. 
V. Summoning and Empaneling Jurors. 

VI. Compensation of County Oflicers. 
VII. Where General Law Can Be Made 
Applicable. 

A. General Consideration. 

B. Acts Violative of Section. 

C. Acts Not Violative of Section. 
VIII. Special Provisions in General Laws. 

A. General Consideration. 

B. Acts Violative of Section. 

C. Acts Not Violative of Section. 

I. GENERAL CONSIDERATION 

Section limits power of legislature. — The 
object of this section was to place a limi- 
tation upon the power of the legislature. 
The evil sought to be remedied was the 
great and growing evil of special and local 
legislation. To remedy this evil, such legis- 
lation was absolutely prohibited as to cer- 
tain enumerated subjects, and conditionally 
prohibited as to all other subjects. In con- 
sidering the effect of a constitutional limita- 
tion, it must be borne in mind that the legis- 
lative will is unlimited, unless there is in 
the Constitution some e-xpress or necessar- 
ily implied restriction. If the intention is 
not to limit the power of the legjslature, all 
that is necessary is for the Constitution to 
be silent. It must be assumed that the 
framers of the Constitution knew this. 
What, then, was the purpose of the clause 
under consideration? Was it to limit or re- 
strict legislative power, or was it intended 
as a mere rule of caution, or as a mere mat- 
ter of moral persuasion? The fact that it 
was placed at all in the Constitution, and in 
such prohibitive terms, shows that it was 
intended as a restriction upon legislative 



power, and the express declaration in S. C. 
Const., Art. 1, § 29, "that the provisions of 
the Constitution shall be construed to be 
mandatory and prohibitory and not merely 
directory, except where expressly made di- 
rectory or permissory by its own terms," 
forbids a construction which would reduce 
the provision to a mere matter of legisla- 
tive discretion. State v. Hammond, 66 S. 
C. 219, 44 S. E. 1<)1 (1903); Thomas v. 
Macklen, 186 S. C. 290, 195 S. E. 539 (1938). 

Through medium of judiciary. — The pro- 
visions of this section of the Constitution 
are a limitation upon the legislative power, 
and the power to enforce this limitation is 
in the judicial department. Thomas v. 
Macklen, 186 S. C. 290, 195 S. E. 539 (1938). 

By uniform law on like subjects. — One of 
the purposes sought to be accomplished by 
this section is to make uniform the statute 
of law on like subjects. Carroll v. York, 
109 S, C. 1, 95 S. E. 121 (1918); Owens v. 
Smith, 216 S. C. 382, 58 S. E. (2d) 332 
(1950). 

Statute need not be general in form for 
section to apply. — Whether a statute be a 
law of a general nature or not depends upon 
its subject matter and not upon its form. 
Hence, to come within this constitutional 
inhibition, it is not necessary that the stat- 
ute be general in form. Thomas v. Mack- 
len, 186 S. C. 290, 195 S. E. 539 (1938). 

Legislative classification is proper if jus- 
tified. — The legislature may classify for the 
purpose of legislation if some intrinsic rea- 
son exists why the law should operate upon 
some and not upon all, or should affect 
some differently from others. But this 
classification must be based upon differen- 
ces which are either defined by the Con- 
stitution or else are natural or intrinsic, and 
which suggest a reason that may rationally 
be held to justify the diversity in the legis- 
lation. Sansing v. Cherokee County Tour- 



154 



Art. 3, § 34 Constitution of the State of South Carolina Art. 3, § 34 



ist Camp Board, 195 S. C. 7, 10 S. E. (2d) 
157 (1940). 

For local and special legislation to be 
valid there must be a substantial distinc- 
tion, having reference to the subject matter 
of the proposed legislation, between the 
objects or places embraced in such legisla- 
tion and the objects and places excluded. 
The marks of distinction upon which the 
classification is founded must be such, in 
the nature of things, as will in some reason- 
able degree at least account for or justify 
the restriction of the legislation. Shillito 
V. Spartanburg, 214 S. C. 11, 51 S. E. (2d"l 
95 (194S). 

And special act may best meet needs of 
particular case. — The language of this con- 
stitutional provision plainly implies that 
there are or may be cases where a special 
act will best meet the exigencies of a par- 
ticular case and in no wise be promotive of 
those evils which result from a general and 
indiscriminate resort to local and special 
legislation. Townsend v. Richland County, 
190 S. C. 270, 2 S. E. (2d) m (1939). 

Where special law does not violate sec- 
tion. — !k law which is special in the sense 
that it imposes a tax or grants an exemp- 
tion, limited in application and incidence to 
persons or property within a certain county, 
does not contravene the provisions of this 
section. This is so, not only from the ver> 
nature of the matter to be dealt with, but 
by virtue of the provisions of S. C. Const., 
Art. 7, § 11, expressly empowering the Gen- 
eral Assembly to make special provision for 
municipal government. Doran v. Robert- 
son, 203 S. C. 434, 27 S. E. (2d) 714 (1943). 

Burden of proof is on party attacking 
constitutionality of act. — Where respond- 
ents did not assert nor attempt to prove 
that the General Assembly, when it passed 
an act incorporating an orphanage, did not 
comply with the requirements of S. C. 
Const., Art. 9, § 2, in that it should have a 
concurrent resolution adopted by a two- 
thirds vote of each house authorizing the 
introduction of a bill to incorporate the 
orphanage, it was held that one who at- 
tacks the constitutionality of an act of the 
General Assembly must show it conclusive- 
ly, and where the attack includes a matter 
of fact, the charge must be proved by him 
who makes it. Epworth Orphanage v. \\'il- 
son, 185 S. C. 243, 193 S. E. 644 (1937), 
holding the act constitutional on these 
grounds. 

Amendment of special act passed before 
Constitution. — The legislature cannot by a 
local act passed after the Constitution of 
1895 amend a local and special act passed 



before the Constitution, when both relate to 
a subject prohibited bv this section. De 
Hay v. ComVs, 66 S. C. 229, 44 S. E. 790 
(1903). 

Applied in Dean v. Spartanburg County, 
59 S. C. 110. 37 S. E. 226 (1900); Hill v. 
City Council, 59 S. C. 396, 38 S. E. 11 
(1901); Nance v. Anderson County, 60 S. 
C. 501, 39 S. E. 5 (1901); Carolina Gro. Co. 
V. Burnet. 61 S. C. 205, 39 S. E. 381 (1900); 
State V. Franklin, 62 S. C. 251, 40 S. E. 
1038 (1902); De Hay v. Com'rs, 66 S. C. 
229, 44 S. E. 790 (1903); Severance v. Mur- 
phy, 67 S. C. 409, 46 S. E. 35 (1903); Riley 
V. Charleston Union Station Co., 71 S. C. 
457, 51 S. E. 485 (1905); Murph v. Lan- 
drum, 76 S. C. 21, 56 S. E. 850 (1907); 
Hodge V. Trustees of School District, 80 
S. C. 518, 61 S. E. 1009 (1908); Maiiigault 
V. Springs, 199 U. S. 473, 26 S. Ct. 127, 50 
L. Ed. 274 (1905); Board of Township 
Com'rs v. Buckley, 82 S. C. 352, 64 S. E. 
163 (1909); Carroll v. York, 109 S. C. 1, 
95 S. E. 121 (1918); Pincland Club v. Berg, 
110 S. C. 505, 96 S. E. 915 (1918); State v. 
Moorer, 152 S. C. 455, 150 S. E. 269 (1929); 
Duke Power Co. v. Bell, 156 S. C. 299, 152 
S. E. 865 (1930); Smith v. Ashmore, 184 
S. C. 316, 192 S. E. 565 (1937). 

Stated in Rutledge v. Greenville, 155 S. 
C. 520. 152 S. E. 700 (1930). 

Cited in State v. Higgins, 51 S. C. 51, 28 
S. E. 15 (1897); State v. Tucker, 56 S. C. 
516, 35 S. E. 215 (1900); Lowrimore v. 
Palmer Mfg. Co., 60 S. C. 153, 38 S. E. 430 
(1901); Riley v. Charleston Union Station 
Co., 67 S. C. 84, 45 S. E. 149 (1903); Buist 
v. City Council, 11 S. C. 260, 57 S. E. 862 
(1907); McCullough v. Graham, 70 S. C. 
63, 49 S. E. 1 (•1904); McAIeekin v. Central 
Carolina Power Co., 80 S. C. 512, 61 S. E. 
1020 (1908); Fooshe v. McDonald, 82 S. C. 
22, 63 S. E. 3 (1908) ; Paris Mountain Water 
Co. V. Greenville, 105 S. C. ISO, 89 S. E. 
669 (1916); State v. Ferri, 111 S. C. 219. 97 
S. E. 512 (1918); Thomas v. Foster, 108 
S. C. 98, 93 S. E. 397 (1917); People's Bank 
of Rock Hill V. People's Bank of Anderson. 
122 S. C. 476, 115 S. E. 736 (1923); Sandel 
V. State, 126 S. C. 1, 119 S. E. 776 (1923); 
State V. Columbia Rv. Gas, etc., Co., 129 
S. C. 455, 124 S. E. 758 (1924); Sallev v. 
McCoy, 186 S. C. 1, 195 S. E. 132 (1937); 
Valentine v. Robinson, 188 S. C. 194, 198 
S. E. 197 (1938); Smith v. Greenville Coun- 
ty. 188 S. C. 349, 199 S. E. 416 (1938); Rid- 
giU v. Clarendon County. 188 S. C. 460, 
199 S. E. 683 (1938); Kirk v. Watson, 191 
S. C. 162, 4 S. E. (2d) 16 (1939); Senn v. 
Spartanburg County, 192 S. C. 489. 7 S. E. 
(2d) 454 (1940); Scott v. Anderson County. 
195 S. C. 92, 10 S. E. (2d) 359 (1940); 



155 



Art. 3, § 34 Constitution of the State of South Carolina Art. 3, § 34 



Greenville County Fair Ass'n v. Christen- 
berry, 198 S. C. 338, 17 S. E. (2d) 857 
(1941); Spartanburg County v. Pace, 204 
S. C. 322, 29 S. E. (2d) 333 (1944); Rush- 
ton V. State Highway Dept., 207 S. C. 112, 
34 S. E. (2d) 484 (1945) ; Anderson v. Page, 
208 S. C. 146, 37 S. E. (2d) 289 (1946); 
Pursley v. Inman, 215 S. C. 243, 54 S. E. 
(2d) 800 (1949); Textile Hall Corp. v. Hill, 
215 S. C. 262, 54 S. E. (2d) 809 (1949). 

II. INCORPORATING OR AMEND- 

ING CITY CHARTERS. 

Act authorizing city to issue notes is not 
local law extending charter. Sullivan v. 
City Council, 133 S. C. 156, 130 S. E. 872 
(1925). 

Nor is act authorizing city to issue cou- 
pon bonds. — Act authorizing the city of 
Charleston to issue coupon bonds to pay 
the present bonded debt does not change 
or alter the charter of the city, and is not 
obnoxious to subdiv. 2. Buist v. City Coun- 
cil, 77 S. C. 260, 57 S. E. 862 (1907). 

But extension of town limits by annexa- 
tion changes charter. — Extension of incor- 
porated town's limits by annexation of ter- 
ritory changes and extends town charter 
within this constitutional prohibition of spe- 
cial legislation to "change, amend, or extend 
the charter thereof." Lancaster v. Town 
Council, 160 S. C. 150, 158 S. E. 233 (1931). 

General statute is void where at variance 
with general law. — A statute which purport- 
ed to be general by applying to the incor- 
poration of all "resort communities" of a 
designated class, but which in effect pro- 
vided for the machinery of government for 
Myrtle Beach, was repugnant to the provi- 
sions of this section of the Constitution as 
it was not only essentially different from 
the general law on this subject, but was 
also directly at variance with it. Thomas 
V. Macklen, 186 S. C. 290. 195 S. E. 539 
(1938). 

Act authorizing election on abandonment 
of commission charter in one city is invalid. 
Floyd v. Calvert, 114 S. C. 116, 103 S. E. 
82 (1920). 

Statute not void as special legislation. — 
Statute providing for erection of county 
tuberculosis hospital on site determined by 
hospital trustees is not void as special legis- 
lation or legislation discriminating against 
city. Law v. Spartanburg, 148 S. C. 229, 
146 S. E. 12 (1928). 

III. CHARTERS OF INSTITUTIONS 
NOT UNDER STATE CONTROL. 

Section does not prohibit auditorium as- 
sessment district. — There is no prohibition 



of auditorium or similar special assessment 
districts, or special legislation thereon, in 
this section. Ashmore v. Greater Green- 
ville Sewer District, 211 S. C. 77, 44 S. E. 
(2d) 88 (1947). 

And extending boundaries of school dis- 
trict is constitutional. — A statute creating 
the school district of Yorkville by extending 
its boundaries is not in violation of this sec- 
tion of the Constitution, since subdiv. 3 of 
this section applies to institutions of learn- 
ing and not to school districts. State v. Mc- 
Caw, 77 S. C. 351. 58 S. E. 145 (1907). 

Issuance of hospital bonds by township. — - 
Act authorizing township to issue bonds for 
hospital is not an attempt to create hospital 
by special law. Battle v. Willcox, 128 S. 
C. 500, 122 S. E. 516 (1924). 

IV. INCORPORATION OF SCHOOL 
DISTRICTS. \ 

Previous incorporation statute may qe 
amended. — An act amending an act creatint 
the Anderson school district by extending; 
its boundaries does not violate subd. 4, 
since such law does not incorporate a disj- 
trict but only amends a previous statute oiE 
incorporation. Burris v. Brock, 95 S. 0. 
104, 79 S. E. 193 (1913). , 

County may be divided into high school 
districts. — An act providing for division oi 
Dillon County into high school districts is 
not special legislation in violation of this 
section. Powell v. Hargrove, 136 S. C. 345, 
134 S. E. 380 (1926). 

And centralized high school may be set 
up for five districts. — A statute providing 
for establishment of centralized high school 
for five districts is not unconstitutional. 
Arnette v. Ford, 129 S. C. 526, 125 S. E. 138 
(1924). 

And five districts may be consolidated in- 
to one. — .'Vn act which attempts to incorpo- 
rate a new school district, the necessary 
result of which is the consolidation of five 
existing districts into one, does not violate 
subdiv. 4 as consolidation is not incorpora- 
tion. Walker v. Bennett, 125 S. C. 389, 
118 S. E. 779 (1923). 

But election to re-establish former dis- 
trict may violate section. — A statute direct- 
ing the board of education of a particular 
county to order an election, restricted to 
electors within the school district proposed 
to be re-established as it existed before 
consolidation, contemplated the incorpora- 
tion of a new school district within the con- 
stitutional prohibition against local or spe- 
cial laws. Kearse v. Lanc?_ster County 
Supt. of Ed.,' 172 S. C. 59, 172' S. E. 767 
(1934). 



156 



Art. 3, § 34 CoNSTiTUTiox of the State of South Carolina Art. 3, § 34 



V. SUMMONING AND EMPANELING 
JURORS. 

This section embraces the listing and 
drawing of jurors. The object was to make 
tlie jur}- law uniform throughout the en- 
tire State, which can only be accomplished 
by interpreting the term. Columbia v, 
Smith. 105 S. C. 348, 89 S. E. 1028 (1916) 

Acts in violation of section. — The acts 
under which the grand and petit jurors for 
the February term of 1901 of the sessions 
court for Laurens County were drawn were 
unconstitutional for violation of this section. 
State V. Garrett, 64 S. C. 249, 42 S. E. 108 
(1902). 

.^n act relating to the drawing and term 
of service of juries in the circuit courts, 
containing local and special provisions in 
relation to the drawing and term of service 
of jurors in certain counties of the State, is 
unconstitutional as violative of this section. 
State V. Queen, 62 S. C. 247, 40 S. E. 553 
(1902). -> 

Independent general act not violative of 
section. — .'\n act providing for the drawing 
of jurors in counties containing 40,000 in- 
habitants or more is an independent and 
general act, and is not a violation of this 
section. State v. Berkeley, 64 S. C. 194, 41 
S. E. 961 (1902). ^ J 

VI. COMPENSATION OF COUNTY 
OFFICERS. 

Special act is unconstitutional where gen- 
eral law can apply. — In Boggs v. O'Dell, 
190 S. C. 442, 3 S. E. (2d) 486 (1939), an 
act providing for the compensation of coun- 
ty officers and employees of certain coun- 
ties was held to be a special act where a 
general law could be made applicable, and 
was held unconstitutional for that reason. 

Valid special act creating masters' offices. 
— The statute under which the masters' of- 
fices were created is a valid special act, as 
the need for the office of master in the 
various counties in which it should be cre- 
ated varies according to the peculiar cir- 
cumstances existing in the respective coun- 
ties. For the same reason, a later act which 
provides for the payment of salaries in lieu 
of fees to masters in a given county is a 
valid special act. Townsend v. Richland 
County, 190 S. C. 270, 2 S. E. (2d) 111 
(1939). 

Invalid act fixing salary of clerk. — .^n act 
fi.xing the salary of the clerk of court of A. 
count3' on a different basis from that by 
which salaries of such clerks are fixed by 
general law contravenes this section. State 
v. King, 108 S. C. 339, 94 S. E. 866 (1918). 



Invalid acts fixing salaries for school com- 
missioners. — Statutes providing a salary for 
county school commissioners for Berkeley 
County, are void, being special acts relating 
to subjects prohibited bv this section. De 
Hav V. Com'rs, 66 S. C. 229, 44 S. E. 790 
(1903). 

Act fixing compensation of judge held un- 
constitutional. — .A.n act [1922 (il) 910] 
which fixed the compensation of the probate 
judge of Pickens County, thereby amending 
the general law providing for the same 
(§§ 20-22 et seq. of the Code), was held to 
be unconstitutional in Hudson v. Pickens, 
190 S. C. 490. 3 S. E. (2d) 603 (1939). 

Act fixing salary of sheriff held uncon- 
stitutional. — In Gamble v. Clarendon Coun- 
ty, 188 S. C. 250, 198 S. E. 857 (1938) a 
county salary act fixing the salary of the 
sherifif of Clarendon County was held to be 
unconstitutional as special legislation. 

Acts imconstitutional prior to amendment 
of subdivs. 8 and 9. — An act wliich provid- 
ed that the fees allowed the treasurer of 
McCormick County should when collected 
be paid into the county treasury and be 
used for ordinary county purposes was 
held unconstitutional under the provisions 
of subdiv. S of this section, such act having 
been enacted prior to the elimination in 
1935 of such subdivision from the Consti- 
tution and the amendment of subdiv. 9 
thereof. Duncan v. McCormick County, 
192 S. C. 216, 6 S. E. (2d) 265 (1939). 

See Holt v. Calhoun, 175 S. C. 481, 179 
S. E. 501 (1935), for case holding a statute 
unconstitutional as local and special legis- 
lation prior to the amendment of subdiv. 9 
of this section and the elimination of subdiv. 
8 therefrom, which statute had a provision 
providing that all fees and licenses col- 
lected by the clerk of court of Horry Coun- 
ty should go into a general county fund, and 
a salary should be paid the clerk in lieu of 
such fees and licenses. 

In Williamsburg Countv v. Graham, 190 
S. C. 233, 196 S. E. 547 (1938), a special 
act of the legislature which deprived the 
sheriff of Williamsburg County of the fees 
coming into his hands as such officer and 
to which he was entitled under the general 
law was held to be unconstitutional as it 
violated the provisions of this section. (Ed- 
itor's note. — The above act was passed 
prior to the elimination of subdiv. 8 from 
the Constitution and the amendment of 
subdiv. 9 thereof.) See Salley v. McCoy, 
182 S. C. 249, 189 S. E. 196 (1936). 

An act providing that the salary of the 
clerk of the court of Oconee County shall 
be $1,350 per year, payable monthly, and 



157 



Art. 3, § 34 Constitution of the State of South Carolina Art. 3, § 34 



that he shall collect all fees and costs and 
pay the same over to the county treasurer 
was held unconstitutional as violating sub- 
div. 8 of this section of the Constitution 
(eliminated in 1935). State v. Burns, 11 
S. C. 194, 52 S. E. 960 (1906). 

Act No. 131 of the Acts of 1933, enacted 
prior to the amendment of S. C. Const., 
Art. 3, § 34, subdiv. 9, and devolving all 
duties, powers, and privileges exercised by 
the sheriff with regard to the collection of 
delinquent taxes, the levying upon the prop- 
erty of delinquent taxpayers, the execution 
of deeds in case of sale upon the chief of 
rural police of the county, and further pro- 
viding that the sheriff of Sumter County 
shall keep the books and records pertaining 
to tax collections, is unconstitutional inso- 
far as it deprives the sheriff of Sumter 
County of fees and commissions on delin- 
quent ta.xes after its effective date. Hurst 
V. Sumter County, 189 S. C. 376, 1 S. E. 
(2d) 238 (1939). 

VII. WHERE GENERAL LAW CAN 
BE MADE APPLIC.\BLE. 

A. General Consideration. 

This section is not retroactive, and hence 
does not make void statutes requiring land- 
owners in certain counties to clean out 
running streams on their lands during cer- 
tain periods of the year. State v. Tucker, 
54 S. C. 251, 32 S. E. 361 (1899). 

And it does not apply to special legisla- 
tion authorized by Constitution. — This sec- 
tion does not apply to legislation upon those 
subjects as to which the General Assembly, 
under the authority of the Constitution, 
may legislate particularly, even though the 
same is special in character. Columbia v. 
Smith, 105 S. C. 348, 89 S. E. 1028 (1916). 

S. C. Const., Art. 7, § 11 was framed in 
view of this section. — The authority to 
make special provision for municipal gov- 
ernment contained in S. C. Const., Art. 7, 
§ 11, was evidently framed in view of the 
provisions of this section, and was intended 
to give the legislature a wider latitude in 
the making of special provisions for coun- 
ty and township government. Gaud v. 
Walker, 214 S. C. 451, 53 S. E. (2d) 316 
(1949). 

And is limited thereby in its application. 
— S. C. Const., Art. 7, § 11 may not be 
soundly applied to uphold every special leg- 
islative provision with respect to municipal 
government in disregard of the inhibition 
of this section. Owens v. Smith, 216 S. C. 
382, 58 S. E. (2d) 332 (1950). 

Subdivision 9 of this section must be con- 



strued with subdiv. 10. Gillespie v. Black- 
well, 164 S. C. 115, 161 S. E. 869 (1931). 

And subdiv. 10 permits special provisions 
in general laws. — An amendment providing 
for appointment of school trustees to per- 
mit their election in certain counties is 
not void as a special law. since subdiv. 10 
permits enactment of special provisions in 
general laws. State v. Meares, 148 S. C. 
lis, 145 S. E. 695 (1928). 

Conditions under which subdiv. 10 does 
not apply. — Where there is an express pro- 
hibition in the Constitution concerning 
which special laws shall not be enacted, 
such as there shall be no special law affect- 
ing game, the proviso in subdiv. 10 is not 
applicable. Sloan v. Fair, 172 S. C. 485, 
174 S. E. 436 (1934). 

Subdivision 9 must also be construed with 
S. C. Const., Art. 11, § 5.— S. C. Const., Art. 
11, § 5 must be construed in connection with 
subdiv. 9 of this section, and so construed. 
a separate act extending boundaries of 
school district already created may be re- 
garded as a special provision in the general 
law. State v. McCaw. 11 S. C. 351. 58 S. 
E. 145 (1907). 

Discretion of legislature to determine ap- 
plicability of general law. — The legislature 
has a sound discretion to decide when a 
general law can be made applicable, and the 
courts should not interfere to set aside a 
statute unless the legislative discretion has 
been clearly and palpably abused. Town- 
send V. Richland County, 190 S. C. 270, 2 
S. E. (2d) 777 (1939). 

Such applicability is judicial question ulti- 
mately. — It is primarily a legislative ques- 
tion as to whether a general law can be 
made applicable, but ultimately it is a judi- 
cial question for although due consideration 
must be given to the legislative judgment, 
the final responsibility rests upon the court. 
Gillespie v. Pickens County, 197 S. C. 217, 
14 S. E. (2d) 900 (1941). 

In Jellico v. Com'rs. of State, 83 S. C. 
481, 65 S. E. 725 (1909), it was held that 
this question must be determined by the 
legislature and not by the court. 

Whether, within this section, a general 
law can be made applicable is not a ques- 
tion for the legislature, but one which the 
courts must decide. Tisdale v. Scarbor- 
ough, 99 S. C. 377, 83 S. E. 594 (1914). 

Whether an act is prohibited by this sec- 
tion is a judicial question. Columbia v. 
Smith, 105 S. C. 348, 89 S. E. 1028 (1916). 

B. Acts Violative of Section. 

Act confirming town annexation election 
on petition not signed by majority of free- 
holders in territory annexed was held un 



158 



Art. 3, § 34 Constitution of the State of South Carolina Art. 3, § 34 



constitutional as special legislation. Lan- 
caster V. Town Council, 160 S. C. 150, 158 
S. E. 233 (1931). 

Act fixing limitation period for actions 
against counties.— Acts 1938 [193S (40) 
1893], which fixed a period of limitation for 
actions against counties for salaries, fees, 
etc., but which excluded from its operation 
claims against four counties of the State, 
violated subdiv. 9 of this section. Gillespie 
V. Pickens Countv, 197 S. C. 217. 14 S. E. 
(2d) 900 (1941). 

Act giving only one individual right to 
recover for tort. — In the case of Sirrine v. 
State. 132 S. C. 241, 128 S. E. 172 (1925), 
the court held that an act which conferred 
upon the plaintiff a right denied to all oth- 
ers, that is, a right to recover for the tor- 
tious acts of the agents and servants of the 
State, did not come under the provisions 
of S. C. Const., Art. 17, § 2, and, therefore, 
was violative of this section. Ouzts v. State 
Highwav Dept., 161 S. C. 21, 159 S. E. 457 
(1931). 

Act providing for collection of delinquent 
taxes. — In Douglass v. Watson, 186 S. C. 
34, 195 S. E. 116 (1938), an act which pro- 
vided for the collection of delinquent taxes 
in Chesterfield County was held to run 
counter to the inhibition of this section of 
the Constitution against the enactment of 
a local or special law where a general law 
can be made applicable. 

Act providing for property tax levy. — .\n 
act providing for an annual tax levy in the 
city of Spartanburg for tlie benefit of the 
Spartanburg city firemen's pension fund 
was held violative of this section of the 
Constitution. Shillito v. Spartanburg, 214 
S. C. 11, 51 S. E. (2d) 95 (1948). 

In Shillito v. Spartanburg, 214 S. C. 11, 
51 S. E. (2d) 95 (1948), a special act was 
held invalid for conflict with this section 
because it undertook to levy and apply the 
proceeds of a property tax to a firemen's 
pension fund in a single city, in the face of 
a general law upon the subject which was 
applicable to all cities of the class of that 
concerned. Owens v. Smith, 216 S. C. 382, 
58 S. E. (2d) 332 (1950). 

Act requiring that cotton in Bethune 
should be weighed by public weigher is void 
as special legislation under this section, 
since a general law could have been made 
applicable. Barfield v. Stevens Mercantile 
Co., 85 S. C. 186, 67 S. E. 158 (1910). 

Acts relative to zoning regulations. — .Acts 
which undertook to authorize the commis- 
sioners of certain named "public service 
district" of Charleston County to promul- 
gate and enforce zoning regulations were 



held invalid because of conflict with this 
section of the Constitution which prohiljits 
the enactment by the legislature of a spe- 
cial law in cases where a general law can 
be made applicable. Owens v. Smith, 216 
S. C. 382. 58 S. E. (2d) 332 (1950). 

County supply act. — The York County 
supply act of 1940, authorizing the sale of 
particular contraband seized under the law 
relating to alcoholic liquors, was held to 
violate this section of the Constitution. 
South Carolina Ta.x Comm. v. Moss, 195 
S. C. 321, 11 S. E. (2d) 442 (1940). 

County tourist camp act. — The act creat- 
ing the Cherokee County tourist camp 
board runs counter to tlie constitutional 
provision prohibiting special legislation, for 
it is a special law where a general law could 
be made applicable. Sansing v. Cherokee 
Countv Tourist Camp Board, 195 S. C. 7, 
10 S. E. (2d) 157 (1940). 

Statute authorizing exercise of county 
police powers. — .A statute authorizing the 
corporate authorities of one countj' to ex- 
ercise certain police powers was held un- 
constitutional because it contravened this 
section. Gaud v. Walker, 214 S. C. 451, 53 
S. E. (2d) 316 (1949). 

Statute prohibiting felling trees across 
running streams of certain counties, and 
making it a misdemeanor to fail to remove a 
dam out of a running stream in certain 
counties, is unconstitutional as special legis- 
lation in violation of this section. State v. 
Hammond, 66 S. C. 219, 44 S. E. 797 (1903). 

Statute providing for Greenville County 
game and fish commission was held uncon- 
stitutional as a special law enacted where 
general law can be made applicable. Sloan 
v. Fair. 172 S. C. 485, 174 S. E. 436 (1934). 

Statute providing that equity cases be 
tried in open court. — Statute providing that 
in the counties of the sixth circuit, on de- 
mand of either party, equity cases shall be 
tried in open court on testimony there of- 
fered, covers the same subject matter as is 
covered by the general provision of the 
statute, providing that a cause may be re- 
ferred on application of either party or on 
the court's own motion where a long ac- 
count is to be taken, and is therefore viola- 
tive of this section. Southern Nat. Bank 
v. Farmington Corp., 99 S. C. 475, 83 S. E. 
637 (1914). 

Statute requiring execution of bonds of 
county officials. — Statute requiring bonds 
of certain officials of Pickens County to be 
executed by surety company was held un- 
constitutional as special law, where general 
law can be made applicable; but part of 
same statute which fixed amount of ofiicial 
bonds for certain ofiicers of Pickens County 



159 



Art. 3, § 34 Constitution of the State of South Carolina Art. 3, § 34 



and provides for payment of premium was 
held constitutional. Gillespie v. Black- 
well, 164 S. C. lis, 161 S. E. 869 (1931). 

Statute requiring removal of trees from 
creek. — Statute making it a misdemeanor 
not to remove at a certain time all trees 
and rafts from a certain creek, and confin- 
ing its operation to named counties, is void 
as a special act at variance with this sec- 
tion. State V. Hammond. 66 S. C. 300, 44 
S. E. 933 (1903). 

For act violating section as being a spe- 
cial act where general law was applicable, 
see Webster v. Williams, 183 S. C. 3o8, 191 
S. E. SI (1937). 

For acts violating section prior to 1935 
amendment, see Wallace v. Sumter County, 
189 S. C. 395, 1 S. E. (2d) 345 (1939). 

C. Acts Not Violative of Section. 

Act authorizing action against State for 
use of impure vaccines is not violative of 
prohibition against speci.il laws. Sandel v. 
State, US S. C. 168, 104 S. E. 567 (1920). 

Thus an act authorizing an administrator 
of children, alleged to have been killed by 
impure vaccines furnished by the State, to 
sue the State on account of their death is 
not in violation of this section. Sandel v. 
State, 115 S. C. 168. 104 S. E. 567 (1920). 

Act authorizing city to issue certificates 
of indebtedness is not special law where 
general law could have been made applic- 
able. Sullivan v. City Council, 133 S. C. 
189, 130 S. E. 876, 133 S. E. 340 (1925); 
Sullivan v. Citv Council, 133 S. C. 156, 130 
S. E. 872 (1925). 

Act authorizing county to issue bonds. — 
Act autliorizing county or other political 
subdivision to issue bonds is not within pro- 
hibition of subdiv. 9 of this section as to 
enactment of special laws, where general 
law can be made applicable. Briggs v. 
Greenville County, 137 S. C. 288. 135 S. E. 
153 (1926). 

Acts authorizing school bond issue. — 
This section does not render invalid an act 
authorizing a school district to issue bonds 
to erect a school building. State v. Brock, 
66 S. C. 3S7, 44 S. E. 931 (1903). 

Act as to Anderson County school bonds, 
providing for issuance of bonds to bear a 
rate of interest not exceeding five per cent 
payable semiannually, does not violate 
subdiv. 9 of this section. Brovvnlee v. 
Brock. 107 S. C. 230, 92 S. E. 477 (1917). 

Act creating new highway commission. — 
Act No. 831 [1936 (39) 1557], creating a 
new highway commission, does not violate 
this section as being a special act. State 
V. Lewis, 181 S. C. 10, 186 S. E. 625 (1936). 



Act enlarging school districts. — Subdivi- 
sion 9 of this section does not render in- 
valid an act enlarging a school district and 
authorizing the trustees to hold an election 
on the question of issuing bonds. Burriss 
V. Brock, 95 S. C. 104, 79 S. E. 193 (1913). 

Act imposing tax on places of amusement 
is not invalid as being special law where 
general law would suffice. Curdts v. South 
Carolina Tax Comm., 131 S. C. 362, 127 S. 
E. 438 (1925), affirmed in 273 U. S. 669, 
47 S. Ct. 471, 71 L. Ed. 831 (1927). 

Act providing for legislative investigation 
of a canal project under grant from the 
State is not a violation of subdiv. 9 of this 
section, since there is no apparent scope 
for a general law and since there is no 
showing of any other grant of the State that 
may come under investigation. Robertson 
V. Peeples, 120 S. C. 176, 115 S. E. 300 
(1919). 

Act regulating size and weight of trucks. 
—In State v. Nutt Co., ISO S. C. 19, 185 
S. E. 25 (1935), an act regulating the size 
and weight of trucks was held not to violate 
this section of the Constitution. 

Act undertaking to provide for free 
bridges across certain rivers in the State 
is not a special law in contravention of this 
section, since the object to be accomplished 
related to a corporate purpose of the town- 
ship in which the bridges were to be pro- 
vided, and the situation was one which 
could not have been dealt w-ith by a gen- 
eral law. Verner v. Muller, 89 S. C. 545, 
72 S. E. 393 (1911). 

County bond issue for benefit of State 
Highway Commission. — General bond act 
authorizing issuance of bonds by county to 
advance funds to State Highway Commis- 
sion under reimbursement agreement is not 
in conflict with subdiv. 9 of this section pro- 
hibiting enactment of special law where 
general law can be made applicable. Briggs 
v. Greenville County, 137 S. C. 288, 13S S. 
E. 153 (1926). 

County tax statutes. — Sections 65-2191 to 
65-2194, 65-2198, 65-2199 and 65-2201 to 
65-2203 of the Code, creating the office of 
delinquent tax collector in Pickens County 
and transferring certain powers formerly 
vested in the sheriff to the collector, con- 
stitute a matter of local government within 
the provisions of S. C. Const., Art. 7, § 11, 
and are not a matter of State legislation in 
the sense contemplated by the requirement 
of uniformity contained in this section of 
the Constitution. Craig v. Pickens County, 
189 S. C. 164, 200 S. E. 825 (1939). 

Drainage statutes are general in their op- 
eration, and are not special laws in viola- 



160 



Art. 3, § 34 Constitution of the State of South Carolina Art. 3, § 34 



tion of subdiv. 9 of this section. Jackson v. 
Breeland, 103 S. C. 184. 88 S. E. 128 (1916). 

Sections 14-3481 to 14-3485 do not violate 
this section because they do not contain 
an unalterable schedule of salaries. 
O'ShicIds V. Caldwell, 207 S. C. 194, 35 S. 
E. (2d) 184 (1945). 

Statute authorizing bonds for State insti- 
tutions. — Statute authorizing issuance of 
bonds for purposes of specified State insti- 
tutions was held not invalid as violative of 
constitutional prohibition of enactment of 
special law where general law could be 
made applicable, in face of the contention 
that such statute did not affect all state- 
supported charitable institutions equally 
and hence was invalid. Crawford v. Johns- 
ton. 177 S. C. 399, 181 S. E. 476 (1935). 

Statute providing for audit of particular 
counties, offices, and institutions is not in- 
valid as local or special law. Spartanburg 
County V. Aliller, 135 S. C. 348, 132 S. E. 
673 (1924). 

Statute providing for management of 
county. — A statute authorizing the Charles- 
ton County council to make appropriations, 
levy ta.xes, incur indebtedness, issue bonds, 
exercise the power of eminent domain, sup- 
ervise and regulate the various departments 
of the county, establish policies affecting 
the administrative employees of tlie county, 
and otherwise provide for the internal man- 
agement of Charleston County does not 
contravene this provision. Gaud v Walker, 
214 S. C. 451, 53 S. E. (2d) 316 (1949). 

Statute providing for vehicle license tax 
in one county is not invalid as special law 
where general law can be made applicable. 
State V. Touchberry, 121 S. C. 5, 113 S. E. 
345 (1922). 

Statute requiring cars to be equipped with 
fenders. — Statute requiring cars operating 
north of a line ten miles north of and par- 
allel to the thirty-first meridian to be equip- 
ped with fenders, is not based upon arbi- 
trary classification within this section when 
construed with reference to climatic con- 
ditions and the nature of the countrj'. 
Thomas v. Spartanburg Rv., Gas, etc., Co., 
100 S. C. 478, 85 S. E. SO (1915). 

Statute taxing property in county for 
corporate purposes. — Each county in this 
State is a separate taxing district, and a 
statute providing for the levy of taxes on 
the property within a county for corporate 
purposes, wliile special in the sense that it 
imposes a tax limited in appHcation to the 
property within such county, does not con- 
travene this section of the Constitution pro- 
hibiting the enactment of a speciaf law 
where a general law can be made appUca- 

[7 SC Code] — II 161 



ble. l^Ioselev v. Welch, 209 S. C. 19, 39 
S. E. (2d) 133 (1946). 

Tax law applicable only to one school dis- 
trict. — Like counties, the individual school 
districts are each separate taxing districts 
under S. C. Const., Art. 10, § 5, and a law 
that is special only in the sense that it im- 
poses a lawful ta.x limited in application and 
incidence to persons or property within a 
certain school district does not contravene 
the provisions of this section. Hay v. 
Leonard, 212 S. C. 81, 46 S. E. (2d) 653 
(1948). 



Vin. SPECIAL PROVISIONS IN 
GENERAL LAWS. 

A. General Consideration. 

Special provisions in general laws. — It is 
often a matter of difficulty to determine 
what is a special provision in a general 
law; but this cannot be construed so as to 
nullify the constitutional purpose to secure 
general laws having uniform operation 
througliout the State, except in those cases 
where there is some logical basis and sound 
reason for special legislation. State v. 
Burns, 11 S. C. 194, 52 S. E. 960 (1906); 
Gamble v. Clarendon County, 188 S. C. 250, 
198 S. E. 857 (1938); Gillespie v. Pickens 
County, 197 S. C. 217, 14 S. E. (2d) 900 
(1941). 

Amending prior general law by special 
provisions in statute. — In order to give fair 
effect to the proviso in subdiv. 10, it is held 
that although a statute containing "special 
provisions" may not in express terms pur- 
port to amend a prior general law on the 
same subject, yet such statute will be re- 
garded as an amendment of the general law 
where, by necessary implication, such is its 
purpose and effect. Gillespie v. Blackwell, 
164 S. C. 115, 161 S. E. 869 (1931). 

Subdivision 9 does not apply to special 
provisions in general laws. — Subdivision 9 
of this section, which prohibits the enact- 
ment of special laws in a case where a gen- 
eral law can be made applicable, does not 
apply to special provisions relating to par- 
ticular counties contained in general laws. 
Walker v. Harris, 170 S. C. 242, 170 S. E.. 
270 (1933). 

B. Acts Violative of Section. 

Statutes prescribing how cotton seed shall. 
be sold, but excepting from its application 
all but three of the counties of the State, 
are not general laws with "special provi- 
sions" therein authorized by this section 
and thus violate the Constitution. Tisdale 
v. Scarborough, 99 S. C. Zll , 83 S. E. 594 
(1914). 



/ 



Art. 3, § 35 Constitution of the State of South Carolina Art. 4, § 2 



C. Acts Not Violative of Section. 

Statute classifying cities with commis- 
sion form of government. — In Forde v. 
Owens, 160 S. C. 168, 158 S. E. 147 (1931), 
a statute classifying cities adopting com- 
mission form of government was held con- 
stitutional, notwithstanding it contained 
some special provisions. 

Statute creating high school district is 
special provision in general high school law 
and not invalid as local or special law. Wal- 
pole V. Wall, 153 S. C. 106, 149 S. E. 760 
(1929). 



Statute regarding election of school trus- 
tees. — Provisions of statute regarding elec- 
tion of school trustees are special provisions 
in the general law, and such special provi- 
sions may be enacted separately from the 
general law on the subject. State v. Hunt- 
ley, 167 S. C. 476, 166 S. E. 637 (1932). 

Statutes relating to public schools in 
Williamsburg County. — Sections 21-4201 to 
21-4204 of the Code, relating to the opera- 
tion of the public schools of Williamsburg 
County, are valid as special provisions in a 
general law and do not violate the provi- 
sions of this section. Moseley v. Welch, 
209 S. C. 19, 39 S. E. (2d) 133 (1946). 



§ 35. Lands owned by aliens. 

It shall be the duty of the General Assembly to enact laws limiting the 
number of acres of land which any alien or any corporation controlled by 
aliens may own within this State. 

Quoted in Tucker v. Atlantic Coast Lum- 
ber Co., 78 S. C. 134, 59 S. E. 859 (1907). 



ARTICLE IV. 
Executive Department. 

§ 1. Chief Magistrate. 

The supreme executive authority of this State shall be vested in a Chief 
Magistrate, who shall be styled "The Governor of the State of South Carolina." 

See Const. 1868, Art. Ill, § 1. 



Governor's declaration of state of insur- 
rection is not enjoinable. — The action of the 
Governor in declaring that a state of in- 
surrection exists may not be enjoined by 
the Supreme Court nor reviewed by it. 
Hearon v. Calus, 178 S. C. 381, 183 S. E. 
13 (1936). 

But his unlawful acts to suppress it are 
subject to judicial control. — The acts of the 
Governor, lawfully done in the suppression 
of an insurrection, are immune from inter- 
ference by the Supreme Court. But when 
his acts exceed the authority given him by 
the Constitution and statutes, and are in- 
jurious to the personal liberty and prop- 



erty rights of the citizens of the State, they 
are open to the inquiry and control of the 
judicial arm of the State. Hearon v. Calus, 
178 S. C. 381, 183 S. E. 13 (1936). 

Legislature need not confer on Governor 
power to sign bonds. — The fact that this 
section has designated the Governor as 
the chief executive officer of the State does 
not require that the legislature confer upon 
him the power and duty to sign bonds which 
are authorized bv the legislature. State v. 
Lewis, 181 S. C. 10. 186 S. E. 625 (1936). 

Jurisdiction of Supreme Court to direct 
writ of certiorari to Governor. — Rawlinson 
v. Ansel, 76 S. C. 395, 57 S. E. 185 (1907). 



§ 2. Election of Governor; State officers. 

The Governor shall be elected by the electors duly qualified to vote for mem- 
bers of the House of Representatives, and shall hold his office for four years, 
and until his successor shall be chosen and qualified and shall be re-eligible. 
He shall be elected at the first general election held under this Constitution 
for members of the General Assembly, and at each general election thereafter, 
and shall be installed during the first session of the said General Assembly 
after his election, on such day as shall be provided by law. The other State 

162 [7SCCode] 



Art. 4, § 3 Constitution of the State of South Carolina Art. 4, § 4 

officers-elect shall at the same time enter upon the performance of their 

duties. Provided, That he shall not be eligible for re-election. 

1924 (33) 1492: 1926 (34) 960. 
See Const. 1868, Art. II, § 2. 

§ 3. Qualifications of Governor. 

No person shall be eligible to the office of Governor who denies the existence 
of the Supreme Being ; or who at the time of such election has not attained the 
age of thirty years ; and who shall not have been a citizen of the United States 
and a citizen and resident of this State for five years next preceding the day 
of election. No person while governor shall hold any office or other commis- 
sion (except in the militia) under the authority of this State, or of any other 
power, at one and the same time. 

See Const. 1868, .\rt. Ill, § 3. 

Governor as ex officio member of State trol. This act was held not to violate this 

board. — Before the enactment of the pres- section. State v. Potterfield, 47 S. C. 75, 

ent State intoxicating liquor laws, the dis- 25 S. E. 39 (1896). 

pensary act of 1895 made the Governor a Cited in State v. Town Council, 39 S. C. 

member ex officio of the State board of con- 307, 17 S. E. 752 (1893). 

§4. Boards of canvassers transmit returns of election for Governor; returns 
delivered to Speaker of House of Representatives ; contested elections. 

The returns of every election for Governor shall be sealed up by the Board 
of Canvassers in the respective Counties, and transmitted, by mail, to the seat 
of Government, directed to the Secretary of State, who shall deliver them to 
the Speaker of the House of Representatives at the next ensuing session of the 
General Assembly; and duplicates of said returns shall be filed with the 
Clerks of the Court of said Counties. It shall be the duty of any Clerk of 
Court to forward to the Secretary of State a certified copy of said returns 
upon being notified that the returns previously forwarded by mail have not 
been received at his office. It shall be the duty of the Secretary of State, after 
the expiration of seven days from the day upon which the votes have been 
canvassed by the County Board, if the returns thereof from any County have 
not been received, to notify the Clerk of the Court of said County, and order 
a copy of the returns filed in his office to be forwarded forthwith. The Secre- 
tary of State shall deliver the returns to the Speaker of the House of Repre- 
sentatives, at the next ensuing session of the General Assembly; and during 
the first week of the session, or as soon as the General Assembly shall have 
organized by the election of the presiding officers of the two Houses, the 
Speaker shall open and publish them in the presence of both Houses. The 
person having the highest number of votes shall be Governor ; but if two or 
more shall be equal, and highest in votes, the General Assembly shall during 
the same session, in the House of Representatives, choose one of them Gov- 
ernor I'iz'a voce. 

Contested elections for Governor shall be determined by the General As- 
sembly in such manner as shall be prescribed by law. 

See Const. 1868, Art. Ill, § 4. 

Legislature's power to determine election § 11, and this section, the General Assembly 
results is limited. — In S. C. Const., Art. 3, is given the right in two cases to pass on 

16^ 



Art. 4, § 5 Constitution of the State of South Carolina Art. 4, § 10 

elections. In these two cases, and these determine the result of any other election, 

only, is the General Assembly invested with but it is forbidden to assume or exercise 

the power to determine the result of any such a power in any other case by the terms 

popular election. The General Assembly is of S. C. Const., Art. 1, § 14. Segars v. Par- 

not only not invested with any power to rott, 54 S. C. 1, 31 S. E. 677, 865 (1898). 

§ 5. Lieutenant Governor. 

A Lieutenant Governor shall be chosen at the same time, in the same manner, 
continue in office for the same period and be possessed of the same qualifica- 
tions as the Governor, and shall e.v officio, be President of the Senate. 

See Const. 1868, Art. Ill, § 5. 

Cited in Seegers v. Gibbes, 72 S. C. 532, Citv Council, 62 S. C. 57, 39 S. E. 810 
52 S. E. 586 (1905); State Co. v. Jones, 99 (1901). 
S. C. 218, 82 S. E. 1048 (1914); Bray v. 

§ 6. Vote of Lieutenant Governor. 

The Lieutenant Governor while presiding in the Senate, shall have no vote, 
unless the Senate be equallj' divided. 

See Const. 1868, Art. Ill, § 6. 

§ 7. President pro tempore of Senate. 

The Senate shall, as soon as practicable after the convening of the General 
Assembly, choose a President pro tempore to act in the absence of the Lieu- 
tenant Governor, or when he shall fill the office of Governor. 

See Const. 1868, Art. Ill, § 7. 

§ 8. Member of Senate acting as Governor. 

A member of the Senate acting as Governor or Lieutenant Governor shall 
thereupon vacate his seat and another person shall be elected in his stead. 
See Const. 1868, Art. Ill, § 8. "^^ 

§ 9. Vacancy in office of Governor; how filled. 

In case of the removal of the Governor from office by impeachment, death, 
resignation, disqualification, disability, or removal from the State, the Lieu- 
tenant Governor shall then be Governor; and in case of the removal of the 
last named officer from his office by impeachment, death, resignation, dis- 
qualification, disabilit}-, or removal from the State, the President pro tempore 
of the Senate shall be Governor ; and the last named officer shall then forth- 
with, by proclamation, convene the Senate in order that a President pro tempore 
may be chosen. In case the Governor be impeached, the Lieutenant Governor 
shall act in his stead and have his powers until judgment in the case shall have 
been pronounced. In case of the temporary disability of the Governor the 
Lieutenant Governor shall perform the duties of the Governor. 

See Const. 1868, Art. Ill, § 9. 

§ 10. Commander-in-Chief. 

The Governor shall be Commander-in-Chief of the militia of the State, ex- 
cept when the}' shall be called into the active service of the United States. 

See Const. 1868, Art. Ill, § 10. 

164 



Art. 4, §11 Constitution of the State of South Carolina Art. 4, § 15 

§ 11. Pardons ; Probation, Parole and Pardon Board. 

The Governor shall have power to grant reprieves and to commute a sen- 
tence of death to that of life imprisonment. The granting of all other clemency 
to convicted persons shall be vested absolutely in a Probation, Parole and 
Pardon Board, composed of one member from each Congressional District to 
be appointed by the Governor by and with the advice and consent of the 
Senate for terms of twelve (12) years each. The members of the present Pro- 
bation, Parole and Pardon Board shall constitute the first Probation, Parole 
and Pardon Board and the Governor shall designate one of said members 
to serve two (2) years, one four (4) years, one six (6) years, one eight (8) 
\-ears, one ten (10) years and one twelve (12) years. The terms of office shall 
always remain staggered so that the term of office of one member shall expire 
every two (2) years, with appointments to fill vacancies caused by death, 
resignation or disability to be for the unexpired term. The Probation, Parole 
and Pardon Board shall grant pardons, issue paroles and admit to probation 
under such terms and conditions as it may determine, and a two-thirds (2/3) 
vote of all of its members shall be sufficient for action in any case. The Board 
shall submit to the Governor and the General Assembly annual reports giving 
in detail all action taken by it. The General Assembly shall enact appropriate 
legislation providing for a staii for the Board, defining the duties and powers 
of the Board not in conflict herewith and appropriating funds for its proper 
operation. 

1948 (45) 2231; 1949 (46) 49. 
See Const. 1868, Art. Ill, § 11. 

For case construing power of Governor see State v. Harrison, 122 S. C. 523, 115 S. 
to grant reprieve prior to 1949 amendment, E. 746 (1923). 

§ 12. Laws executed. 

He shall take care that the laws be faithfully executed in mercy. 
See Const. 1868, Art. Ill, § 12. 

Stated in State v. Lewis, 181 S. C. 10, 186 Cited in State v. Floyd, 174 S. C. 288, 

S. E. 625 (1936). 177 S. E. 375 (1934). 

§ 13. Compensation of Governor and Lieutenant Governor. 

The Governor and Lieutenant Governor shall, at stated times, receive for 
their services coinpensation, which shall be neither increased nor diminished 
during the period for which they shall have been elected. 

See Const. 1868. Art. Ill, § 13. 

§ 14. Officers and boards report to Governor. 

All officers in the Executive Department, and all Boards of public institu- 
tions, shall, when required by the Governor, give him information in writing 
upon any subject relating to the duties of their respective offices or the con- 
cerns of their respective instittttions, including itemized accounts of receipts 
and disbursements. 

See Const. 1868, Art. Ill, § 14. 

§ 15. Information to legislature. 

The Governor shall, from time to time, give to the General Assembly in- 

165 



Art. 4, § 16 Constitution of the State of South Carolina Art. 4, § 21 

formation of the condition of the State, and recommend for its consideration 
such measures as he shall deem necessary or expedient. 
See Const. 1868, Art. Ill, § 15. 

§ 16. Extra sessions ; Governor may adjourn General Assembly. 

He may on extraordinary occasions convene the General Assembly in extra 
Session. Should either House remain without a qtiorum for five days, or in 
case of disagreement between the two Houses during any session with respect 
to the time of adjournment, he may adjourn them to such time as he shall 
think proper, not beyond the time of the annual Session then next ensuing. 

See Const. 1868, .\rt. Ill, § 16. 

§ 17. Commissions. 

He shall commission all ofificers of the State. 
See Const. 1868, Art. Ill, § 17. 

Failure to commission elected officer is of his office without first obtaining a corn- 
immaterial. — While it is true that this sec- mission. State v. Lewis, 181 S. C. 10, 186 
tion provides that the Governor shall com- S. E. 625 (1936). 

mission all officers of the State, this is a Since issue of commission is mere minis- 
mandate to him which, in the event of his terial act. — The Governor in issuing a com- 
neglect or failure or refusal to issue such mission acts merely ministerially. The 
commission, does not affect the right of a commission does not confer the office, nor 
person duly elected to public office to dis- does the term or time for which it exists 
charge the duties of such office. There is depend upon the commission, which is 
no provision in the Constitution which ex- only evidence of the appointment or elec- 
pressly or impliedly forbids a person duly tion. State v. Lewis, 181 S. C. 10, 186 S. 
elected to office from performing the duties E. 625 (1936). 

§ 18. Seal of State. 

The seal of the State now in use shall be used by the Governor ofScially, 
and shall be called "The Great Seal of the State of South Carolina." 

See Const. 1868, Art. Ill, § 18. 

§ 19. Grants and commissions. 

All grants and commissions shall be issued in the name and by the authority 
of the State of South Carolina, Sealed with the Great Seal, Signed by the 
Governor, and countersigned by the Secretary of State. 

See Const. 1868, Art. Ill, § 19. 

Cross reference. — As to commissioning of Stated in State v. Lewis, 181 S. C. 10, 186 

all ofiicers of the State by the Governor, S. E. 625 (1936). 
see S. C. Const., Art. 4, § 17. 

§ 20. Oath of Governor and Lieutenant Governor. 

The Governor and Lieutenant Governor, before entering upon the duties of 
their respective offices, shall take and subscribe the oath of office as prescribed 
in Article HI, Section 26 of the Constitution. 

See Const. 1868, Art. Ill, § 20. 

§ 21. Residence of Governor. 

The Governor shall reside at the Capital of the State, except in cases of 
contagion or the emergencies of war; but during the sittings of the General 
Assembl}' he shall reside where its sessions are held. 

See Const. 1868, Art. Ill, § 21. 

166 



Art. 4, § 22 Constitution of the State of South Carolina Art. 4, § 22 



§ 22. Suspension of officers. 

Whenever it shall be brought to the notice of the Governor by affidavit that 
any officer who has tlie custody of public or trust funds, is probably guilty of 
embezzlement or the appropriation of public or trust funds to private use, 
then the Governor shall direct his immediate prosecution by the proper 
officer, and upon true bill found the Governor shall suspend such officer and 
appoint one in his stead, until he shall have been acquitted by the verdict of a 
jury. In case of conviction the office shall be declared vacant and the va- 
cancy filled as may be provided by law. 



Cross references. — As to provisions for 
removal of officer for incapacity, miscon- 
duct, or neglect of duty, see note to S. C. 
Const., Art. 3, § 21 . As to Governor's pow- 
er of removal wlien grounds are insufficient 
for impeachment, see note to S. C. Const., 
Art. 15, § 4. As to powers of Governor to 
suspend magistrates for incapacity, miscon- 
duct, or neglect of duty, see § 43-3 of the 
Code. As to provisions for indictment and 
conviction of certain oflicers guilty of mis- 
conduct of an active nature, see § 50-8. As 
to provisions relating to Governor's power 
of appointing and removing county officers, 
see § 1-122. As to provisions for punish- 
ment for neglect of duty by clerk, see § 50-6. 

Section empowers Governor to suspend 
officers. — This is the only general provi- 
sion in the Constitution which confers upon 
the Governor the power of suspending ofli- 
cers. State v. Hough, 103 S. C. 87, 87 S. E. 
436 (1915). 

And it applies to removal of all officers 
except Governor. — This section applies to 
the removal of all officers, including magis- 
trates, e.xcept the Governor, but is limited 
to the misconduct of embezzlement, and 
does not apply to other forms of miscon- 
duct, such as incapacitv or neglect of duty. 
McDowell v. Burnett, 92 S. C. 469, 75 S. E. 
873 (1912). 

But Governor may not indefinitely sus- 
pend officers. — In Dacus v. Johnston, 180 
S. C. 329. 185 S. E. 491 (1936), the court 
held that if §§ 1-702 and 14-315 of the Code 
were open to the construction that they 
granted to the Governor the power of in- 
definite suspension of officers, without a 
hearing, such statutes would be against pub- 
lic policy and in the teeth of the manifest 
principles of this section of the Constitu- 
tion. 

Difference between suspension and re- 
moval of officers. — Dacus v. Johnston, 180 
S. C. 329, 185 S. E. 491 (1936). 

Suspension power is more restricted than 
removal power. — This section is hedged 
about with much greater restrictions than 
the power of removal, both as to the num- 



ber and nature of offenses and as to the 
circumstances and conditions under which 
the power may be exercised. State v. 
Hough, 103 S. C. 87. 87 S. E. 436 (1915). 

And legislature cannot enlarge Governor's 
power to suspend. — .''^n act making subject 
to suspension from office by the Governor 
sheriffs who refuse or neglect to perform 
the duties required as to intoxicants was 
held to be unconstitutional, as this section 
negatives that it was intended that the Gov- 
ernor should exercise such power otherwise 
than provided. State v. Hough, 103 S. C. 
87, 87 S. E. 436 (1915). 

There are three prerequisites to officer's 
suspension. — This section prescribes three 
prerequisites to the Governor's power to 
suspend an officer: (1) the officer to be re- 
moved must have the custody of trust or 
public funds; (2) he must be probably guil- 
ty of embezzlement; and (3) there must 
be a true bill on the charge of embezzlement 
against the oflicer. McMillan v. Bullock, 
53 S. C. 161, 31 S. E. 860 (1898); Dacus v. 
Johnston, 180 S. C. 329, 185 S. E. 491 (1936). 

General charge of misconduct is insuffi- 
cient. — In a dissenting opinion to State v. 
Ballentine, 152 S. C. 365, 150 S. E. 46 (1929), 
Cothran, J., argues, that this section makes 
no provision for the removal of a sheriff 
upon a general charge of "incapacity, mis- 
conduct, or neglect of duty", as it provides 
only for a special proceeding upon a particu- 
lar charge of miscondut, the embezzlement 
of public or trust funds. 

Funds within meaning of "public or trust 
funds". — The "funds appropriated by the 
legislature", spoken of in §§ 1-702 and 14- 
315 of the Code, are within the definition of 
"public or trust funds' spoken of in this 
section of the Constitution. Dacus v. John- 
ston, 180 S. C. 329, 185 S. E. 491 (1936). 

True bill and conviction are needed on 
charge less grave than embezzlement. — The 
conferring on the Governor by this section 
of the power to suspend officers for the 
grave offense of embezzlement, and that 
only on a true bill found, and providing 
that there shall be removal only after con- 



167 



Art. 4, § 23 Constitution of the State of South Carolina Art. 4, § 23 

viction, negatives the intention to bestow books, papers, etc., belonging to the office, 

the larger power of removal without a true He is not bound to await a judgment in his 

bill and without conviction on a charge favor in an action to recover the oflice. 

less grave than embezzlement. State v. ^McMillan v. Bullock, S3 S. C. 161, 31 S. E. 

Rhame, 92 S. C. 4S5, 75 S. E. 881 (1912). 860 (1898). 

Suspension of magistrate for incapacity Jurisdiction in suit to acquire books and 

or misconduct. — The Governor may sus- papers. — To confer jurisdiction in summary 

pend a magistrate for incapacity, miscon- proceedings lo recover possession of books, 

duct, or neglect of duty, but he must submit papers, etc., belonging to an office by an 

the suspension to the Senate for approval appointee of the Governor under this sec- 

or disapproval. AIcDowell v. Burnett, 92 tion, the application must disclose the exist- 

S. C. 469, 75 S. E. 873 (1912). ence of all the constitutional facts giving 

Appointee is entitled to immediate pos- the Governor jurisdiction to suspend the 

session of books, papers, etc. — The person officer. McMillan v. Bullock, 53 S. C. 161, 

appointed as successor under this section is 31 S. E. 860 (1898). 
entitled to immediate possession of the 

§ 23. Bill or joint resolution must be signed or vetoed by the Governor. 

Every Bill or Joint Resolution which shall have passed the General As- 
sembly, except on a question of adjournment, shall, before it becomes a law, 
be presented to the Governor, and if he approve he shall sign it ; if not, he shall 
return it, with his objections, to the House in which it originated, which shall 
enter the objections at large on its Journal and proceed to reconsider it. If 
after such reconsideration two-thirds of that House shall agree to pass it, 
it shall be sent, together with the objections, to the other House, by which it 
shall be reconsidered, and if approved by two-thirds of that House it shall have 
the same effect as if it had been signed by the Governor ; but in all such cases 
the vote of both Houses shall be taken by yeas and nays, and the names of the 
persons voting for and against the Bill or Joint Resolution shall be entered 
on the Journals of both Houses respectively. 

Bills appropriating money out of the Treasury shall specify the objects and 
purposes for which the same are made, and appropriate to them respectively 
their several amounts in distinct items and Sections. If the Governor shall 
not approve any one or more of the items or Sections contained in any Bill, 
but shall approve of the residue thereof, it shall become a law as to the residue 
in like manner as if he had signed it. The Governor shall then return the 
Bill with his objections to the items or Sections of the same not approved 
by him to the House in which the Bill originated, which House shall enter 
the objections at large upon its Journal and proceed to reconsider so much of 
said Bill as is not approved by the Governor. The same proceedings shall be 
had in both Houses in reconsidering the same as is provided in case of an entire 
Bill returned by the Governor with his objections; and if any item or Section 
of Said Bill not approved by the Governor shall be passed by two thirds of 
each House of the General Assembly, it shall become a part of said law not- 
withstanding the objections of the Governor. If a Bill or Joint Resolution 
shall not be returned by the Governor within three days after it shall have 
been presented to him, Sundays excepted, it shall have the same force and 
effect as if he had signed it, unless the General Assembly, by adjournment, 
prevents return, in which case it shall have such force and effect unless re- 
turned within two days after the next meeting. 

See Const. 1868, Art. Ill, § 22. 

168 



Art. 4, § 24 Constitution of the State of South Carolina Art. 4, § 24 



Section is considered with S. C. Const., 
Art. 3, § 12. — This section must be consid- 
ered in conjunction with the provisions of 
S. C. Const., .\rt. 3, § 12. St.^te v. Lewis, 
181 S. C. 10, 186 S. E. 625 (1936). - 

Nature of executive's veto authority. — 
The constitutional authority of the execu- 
tive to veto is in the nature of a legislative 
power. Doran v. Robertson, 203 S. C. 434, 
27 S. E. (■2d') 714 ("1943); Parker v. Bates, 
216 S. C, 52, 56 S. E. ('2d-) 723 (1949). 
Two thirds of quorum of House may act. 
f — Under this section, two thirds of a major- 
J ity of each house, present in a lawfully 
I constituted session, constitute a quorum to 
1 do business and are sufficient to pass a 
I joint resolution over the Governor's veto. 
I . Smith V. Jennings, 67 S. C. 324, 45 S. E. 

L__82! (1903). 

And House may reconsider veto vote. — 
This section not expressly or by implication 
deny to the House the right to reconsider a 
veto vote. State v. Lewis, 181 S. C. 10, 
186 S. E. 625 (1936). 

Act not returned by Governor within 
three days becomes law. — The legislature 
passed an act and presented it to the Gov- 
ernor on that da}'. After he had not re- 
turned it within three days, although the 
legislature continued in session past the 
three-day time limit, the act became law as 
though signed on the third day after its 
presentation to the Governor under this sec- 
tion. Goree v. Greenwood County Super- 
visor, 93 S. C. 312, 76 S. E. 705 (1912); 
Carolina Grocery Co. v. Burnet, 61 S. C. 
205, 39 S. E. 38i (1901). 



Joint resolutions are not within scope of 

section. — Joint resolutions proposing 
amendments to the Constitution of this 
State, agreed to by two thirds of the mem- 
bers elected to each House, do not fall with- 
in the purview of this section. Kalber v. 
Redfearn, 215 S. C. 224, 54 S. E. (2d) 791 
(1949). 

Appropriation item is void where veto 
sustained by House. — Where a bill appro- 
priated money and divided the appropria- 
tion into several items, one of which was for 
salaries, which item the Governor vetoed 
with his veto being sustained by the House, 
it was held that there was no appropriation 
for such salaries. State Co. v. Jones, 99 
S. C. 89, 82 S. E. 882 (1914). 

Appropriation item is void where foreign 
to purpose of act. — \ provision in an act 
authorizing the allocation of funds to the 
counties of the State for construction of 
health centers and hospitals, which provi- 
sion stated money could also be used for 
other public uses, was held invalid because 
it was foreign to the manifest purpose of 
the act. Parker v. Bates. 216 S. C. 52, 56 
S. E. (2d) in (1949). 

Act creating State Highway Commission 
does not violate section. — .^ct No. 831, 1936 
Acts [1936 (39) 1557], creating a new 
State Highway Commission does not vio- 
late this section due to the House's recon- 
sidering its vote and passing the act over 
the veto of the Governor. State v. Lewis, 
181 S. C. 10, 186 S. E. 625 (1936). 



§ 24. Other State officers. 

There shall be elected by the qualified voters of the State a Secretary of 
State, a Comptroller-General, an Attorney General, a Treasurer, an Adjtitant 
and Inspector-General, and a Superintendent of Education, who shall hold 
their respective offices for the term of four years, and until their several suc- 
cessors have been chosen and qualified ; and whose duties and compensation 
shall be prescribed by law. The compensation of such officers shall be neither 
increased nor diminished during the period for which they shall have been 
elected. 



1924 a^^ 1487: 1926 (34) 959. 
See Const. 1868, Art. IH, § 23. 

Duties of these officers are to be fixed by 
General Assembly. — The duties of the 
State officers directed to be elected in this 
section are required to be specified by law. 
that is, by action of tlie General .Assembly. 
They of course may be added to as the 
General .-Kssembly may from time to time 
prescribe. Evans v. Ecattie, 137 S. C. 496, 



135 S. E. 538 (1926): Cathcart v. Columbia, 
170 S. C. 362, 170 S. E. 433 (1933). 

Which may prescribe duties of county 
auditors. — Lender this section, S. C. Const., 
Art. 10, § 13 and S. C. Const., Art. 11, § 4, 
the General Assembly has power to pre- 
scribe duties and powers of county auditors, 
county treasurers, and the State tax com- 



169 



Art. 5, § 1 Constitution of the State of South Carolina Art. 5, § 1 



mission. Bank of Johnston v. Prince, 136 
S. C. 439, 134 S. E. 387 (1926); Cathcart v. 
Columbia, 170 S. C. 362, 170 S. E. 435 
(1933). 

And of Comptroller General. — While the 
oftice of Comptroller General is a creation 
of the Constitution, the duties of that official 
are prescribed by the General Assembly. 
Bank of Johnston v. Prince, 136 S. C. 439, 
134 S. E. 387 (1926). 

Valid act authorizing city stadium con- 
struction. — Act authorizing city to construct 
stadium was held not to contravene this 
section requiring duties of Attorney Gen- 
eral to be prescribed by law because such 
act makes the Attorney General ex officio 



bond commissioner of State and requires 
him to perform certain duties in connection 
with issuance of bonds by city. Cathcart 
V. Columbia, 170 S. C. 362, 170 S. E. 435 
(1933). 

Valid coastal highway act. — Coastal high- 
way act was held not in violation of this 
section in requiring state officers to per- 
form duties in connection with district. 
Evans V. Beattie, 137 S. C. 496, 135 S. E. 
538 (1926). 

Cited in Parker v. Brown, 195 S. C. 35, 
10 S. E. (2d) 625 (1940); Cooley v. South 
Carolina Tax Comni., 204 S. C. 10, 28 S. E. 
(2d) 445 (1943). 



ARTICLE V. 
Judicial Department. 

§ 1. Judicial power vested in certain courts. 

The Judicial power of this State shall be vested in a Supreme Court, in 
two Circuit Courts, to wit: A Court of Common Pleas having civil jurisdic- 
tion and a Court of General Sessions with criminal jurisdiction only. The 
General Assembly may also establish County Courts, Municipal Courts and 
such Courts in any or all of the Counties of this State inferior to Circuit 
Courts as may be deemed necessary, but none of such Courts shall ever be 
invested with jurisdiction to try cases of murder, manslaughter, rape or 
attempt to rape, arson, common law burglary, bribery or perjury: Provided, 
Before a County Court shall be established in any County it must be submitted 
to the qualified electors and a majority of those voting must vote for its es- 
tablishment. 

See Const. 1868, Art. IV, § 1. 

I. General Consideration. 
II. Powers of General Assembly. 
III. Municipal and Other Inferior Courts. 

Cross Reference. 
As to specific section providing for estab- 
lishment of municipal courts in cities with 
population not less than l.SOO nor more 
than 20,000 persons, see § 15-1002. 



I. GENERAL CONSIDERATION. 

"Judicial povyer" referred to is that exist- 
ing at time of Constitution. — This section 
assumed the existence of an organized so- 
ciety, and when it vested the judicial power 
in the courts, it had reference to the judicial 
power then existing and such as the people 
then understood to be vested in and exer- 
cised bv the courts. Carolina Glass Co. v. 
State, 87 S. C. 270. 69 S. E. 391 (1910), af- 
firmed in 240 U. S. 305, 36 S. Ct. 293, 60 L. 
Ed. 658 (1916). 

Such power is now divided among named 
State courts. — Under this section the Con- 



stitution has divided the judicial power of 
the State among certain tribunals by name. 
Salinas v. Aultman & Co., 49 S. C. 325, 27 
S. E. 385 (1897). 

Section provides only one court of com- 
mon pleas for State. — In view of this sec- 
tion, there is but one court of common pleas 
for the entire State. Ex parte Ware Furni- 
ture Co.. 49 S. C. 20, 27 S. E. 9 (1897). 

Which court is one of general jurisdic- 
tion. — Ex parte Ware Furniture Co., 49 S. 
C. 20, 27 S. E. 9 (1897). 

There is no provision in this section for 
a "court en banc." Citizens' Bank v. Hey- 
ward, 144 S. C. 365, 142 S. E. 651 (1926). 

Cited in State v. Brewer. 38 S. C. 263, 
16 S. E. 1001 (1893); Anderson v. Selig- 
man, 85 S. C. 16, 67 S. E. 13 (1910); Brad- 
ford V. Richardson, 111 S. C. 205, 97 S. E. 
58 (1918); State v. Stanley, 131 S. C. 513, 
127 S. E. 574 (1925); Best v. Barnwell 
County, 114 S. C. 123, 103 S. E. 479 (1920). 



170 



Art. 5, § 1 CoNSTiTUTinx of the State of South Carolina Art. 5, § 1 



II. POWERS OF GENERAL 
ASSEMBLY. 

Legislature cannot take away jurisdiction 
conferred by S. C. Constitution. — When the 
Constitution confers jurisdiction upon a 
court, the legislature cannot take it away. 
Strickland v. Seaboard, etc., Ry. Co., 112 
S. C. 67, 98 S. E. 853 (1919). 

Upon court of common pleas. — The legis- 
lature cannot deprive the court of common 
pleas of jurisdiction in any civil case, nor of 
appellate jurisdiction in cases within the 
jurisdiction of magistrates' courts, except 
by providing for a direct appeal from these 
courts to the Supreme Court. Strickland v. 
Seaboard, etc., Ry. Co., 112 S. C. 67, 98 
S. E. 853 (1919). 

And it cannot create lien on debtor's 
property. — The judicial power vested in 
courts by this section includes the right to 
enforce and protect rights, prevent and re- 
dress wrongs, punish offenses against the 
public, and determine the rights, obliga- 
tions, and liabilities of persons arising out 
of their relation to and dealings with each 
other. The legislature may not, even on the 
fullest, fairest, and most deliberate investi- 
gation, after due notice, pass an act declar- 
ing that an individual is indebted to the 
State in a given amount and by legislative 
fiat create a lien on his propertv. Carolina 
Glass Co. V. State. 87 S. C. 270, 69 S. E. 
391 (1910), affirmed in 240 U. S. 305, 36 
S. Ct. 293, 60 L. Ed. 658 (1916). 

But it may provide for county and "in- 
ferior courts." — The General .Assembly has 
full power to provide not only for county 
courts but also for such courts inferior to 
circuit courts as it may deem necessary. 
While it is required that the question be 
submitted to the electors before a county 
court may be established in any county, 
such a vote is not necessary in the case 
of an "inferior court." Holloway v. Hollo- 
way, 203 S. C. 339, 27 S. E. (2d) 457 (1943). 

A statute establishing civil and criminal 
court for portion of Oconee County was 
held not invalid under this section. Glymph 
v. Smith, 170 S. C. 4S6, 170 S. E. 913 (1933). 

And fix territorial jurisdiction thereof. — 
There are no constitutional provisions that 
limit the power of the legislature to fix the 
territorial jurisdiction of such inferior courts 
as, in the circumstances, it may think prop- 
er, or that impose upon the lawmaking body 
the duty to make the territorial boundaries 
of such courts coincide with any political 
subdivision of the county. Hollowav v. 
Holloway, 203 S. C. 339, 27 S. E. (2d)' 457 
(1943). 



III. 



MUNICIPAL AND OTHER 
INFERIOR COURTS. 



Creation of municipal courts is not sub- 
ject of general law. — It is not the intention 
of the State Constitution to make the crea- 
tion, jurisdiction, and incidents of a munic- 
ipal court the subject of a "general law" 
which must be a law in force in every 
county in the State and which, while it may 
contain special provisions making its effect 
different in certain counties, cannot exempt 
them from its entire operation. Thus, a 
provision in an act providing a method of 
preparing and drawing jurors for the city 
of Columbia is valid. Columbia v. Smith, 
105 S. C. 348, 89 S. E. 1028 (1916). 

And city council may establish municipal 
court. — Under this section, and S. C. Const., 
.•\rt. 8, § 1, a statute declaring that it shall 
be lawful for the city council of a city to 
establish a municipal court is not void as an 
illegal delegation of powers. Greenville v. 
Foster, 101 S. C. 318, 85 S. C. 769 (1915). 

But all municipal courts so established are 
inferior courts standing on practically the 
same footing as a justice court. City Coun- 
cil V. Fowler, 48 S. C. 8, 25 S. E. 900 (1896). 

Definition of "inferior courts." — The term 
"inferior courts," as used in this section, is 
to be accepted as referring to the technical 
language usually emploj'ed to designate it. 
It is not to be understood as importing that 
it is inferior only because its judgments 
may be corrected by an appellate tribunal. 
Grimball v. Parham Co., 96 S. C. 443, 81 
S. E. 186 (1914). 

Domestic relations court is an inferior 
court within the meaning of this section. 
A vote of the electors is not a prerequisite 
to its establishment in the county of Charles- 
ton. Holloway v. Holloway, 203 S. C. 339, 
27 S. E. (2d) 457 (1943). 

County court and inferior court distin- 
guished. — The true test as to whether a 
court is a county court or an inferior court 
is not one of territory or the use of county 
officers, but whether it has, as is true of 
inferior courts, a special and limited juris- 
diction. Hollowav v. Holloway, 203 S. C. 
339, 27 S. E. (2d) 457 (1943-). 

County court's jurisdiction covers entire 
county. — .\ county court must have jurisdic- 
tion covering the entire area of the count}', 
but it does not at all follow that every 
court having county-wide jurisdiction is a 
county court. Holloway v. Holloway, 203 
S. C. 339, 27 S. E. (2d) 457 (1943). 

But cannot be exclusive over magistrates' 
appeals. — In view of this section and S. C. 
Const., .\rt. 5, §§ 15 and 23. an act creating 
a county court for a county, and purporting 



171 



Art. 5, § 1-A Constitution of the State of South Carolina Art. 5, § 2 



to confer upon that court exclusive juris- 
diction over appeals from magistrates' 
courts, is constitutional so far as it gives 
such court jurisdiction of such appeals and 
unconstitutional and void only so far as it 
attempts to make that jurisdiction exclusive. 
Strickland v. Seaboard, etc., Ry. Co., 112 
S. C. 67. 98 S. E. 853 (1919). 

Abolition of county court must be sub- 
mitted to county electors. — Since this sec- 
tion of the Constitution requires submission 
to the county electors of the question of 
abolition of a county court to give the legis- 
lature power to abolish such court, refer- 
ence to voters at democratic primary elec- 
tion did not confer such power. Ansel v. 
Alcans. 171 S. C. 432. 172 S. E. 434 (1934). 

Clerk's jury in eminent domain proceed- 
ings may be court. — In view of the power 



granted by this section, a clerk's jury or- 
ganized as special statutory tribunal for 
initial ascertainment of amount of compen- 
sation in eminent domain proceedings may 
be established as a court. Lexington Water 
Power Co. V. Wingard, 150 S. C. 418, 148 
S. E. 366 (1929). 

Magistrates lack jurisdiction where title 
to land involved. — Magistrates, under this 
section, have no jurisdiction in cases where 
the title to land is in question or in cases 
in chancery. Lewis v. Cooley, 81 S. C. 461, 
62 S. E. 868 (1908). 

Section authorized city court of Charles- 
ton. — The creation of the city court of 
Charleston was authorized by the provisions 
of this section. Citv Council v. Brown, 42 
S. C. 184, 20 S. E. 56 (1894). 



§ 1-A. County court for Marlboro County. 

A County Court is hereby established for the County of ^larlboro with such 
civil jurisdiction as the General Assembly may provide. The judge shall be 
appointed by the Governor upon the recommendation of a majoritj' of the 
Marlboro County Ear for a period of four years and until his successor is 
appointed and qualified. The jury shall consist of six as provided by Section 
22 of Article 5, Constitution of 1895 for courts inferior to Circuit Courts. The 
General Assembly may also provide for a special judge to act in the place 
of the regular judge in case of his absence, inability to act or disqualification, 
such appointment to be made as provided for the appointment of a regular 
judge. 

1950 (46) 3334: 1951 (47) 12. 

§ 2. Supreme Court. 

The Supreme Court shall consist of a Chief Justice and four Associate 
Justices, any three of whom shall constitute a quorum for the transaction of 
business. The Chief Justice shall preside, and in his absence the senior As- 
sociate Justice. They shall be elected by a joint viz'a voce vote of the General 
Assembly for the term of ten years, and shall continue in office until their 
successors shall be elected and qualified, and shall be so classified, that one 
of them shall .sjo out of office every two years. 

See Const. 1868, Art. IV, § 2. 



Section is mandatory. — The provisions of 
this section must be construed as being 
mandatory. Mills v. Atlantic Coast Line R. 
R. Co., 87 S. C. 158. 69 S. E. 91 (1910). 

And not retroactive. — The provision of 
the S. C. Constitution requiring the con- 
currence of three justices to reverse a cir- 
cuit judge does not apply to a case decided 
below before the adoption of the S. C. 
Constitution of 1895 and argued in the Su- 
preme Court before it was completed by 
election of a third associate justice contem- 
plated bv the Constitution. Hunt v. Nolen, 
46 S. C. 551, 24 S. E. 543 (1896). 



It did not create new tribunal. — .\lthough 
the Supreme Court consisted of a chief 
justice and two associate justices, two of 
whom constituted a quorum when this Con- 
stitution went into effect, this section did 
not create a new tribunal and the Supreme 
Court continued as before, until the Gen- 
eral .'\ssembly elected the additional asso- 
ciate justice. Middleton v. Taber, 46 S. C. 
337. 24 S. E. 282 (18961. 

Quorum provisions are not restricted to 
temporary absences. — There is nothing in 
this section indicating an intention that the 
provision for a quorum should only apply 



172 



Art. 5, § 3 CoNSTiTUTiox of the State of South Carolina Art. 5, § 4 



in case of a temporary absence of one of 
the members of the Court. The language 
used is equally applicable where the failure 
of such member to attend is occasioned by 
death as where it results from some tem- 
porary cause. Mc.\ulav v. Mc.^ulaj', 96 
S. C.'86, 79 S. E. 785 (1913). 

Notes as to quorum under former con- 
stitution. — Under this section, when the 
Chief Justice is dead, the two associate jus- 
tices constitute a quorum of the Court and 
are competent to exercise its powers. Ault- 
man v. Utsey, 35 S. C. 596, 14 S. E. 289, 
351 (1892): Sullivan v. Speights, 14 S. C. 
358 (1880). 

When the Chief Justice is dead, and when 
the disqualification of an associate justice 
by reason of his relationship to a party 



causes the Governor to appoint another as 
justice to try and determine the cause, such 
acting justice and the other associate jus- 
tice constitute a quorum of the Court and 
are competent to e.xercise its powers. Wil- 
liams V. Benet. 35 S. C. 150. 14 S. E. 311 
(1892'). 

Note as to filling vacancy under former 
Constitution. — A judge elected to fill a 
vacancv holds onlv for the unexpired term. 
Simpson V. Willard, 14 S. C. 191 (1880). 

Stated in Thomas v. Register, 110 S. C. 173. 
96 S. E. 517 (1918). 

Cited in Hutchinson v. Turner, 88 S. C. 
318, 70 S. E. 410. 806 (1911); Duncan v. 
Record Pub. Co., 145 S. C. 196, 143 S. E. 31 
(1927). 



§ 3. Present Chief Justice and associate justices. 

The present Chief Justice and Associate Justices of the Supreme Court 
are declared to be the Chief Justice and two of the Associate Justices of said 
Court as herein established tuitil the terms for which they were elected shall 
expire, and the General Assembly at its next session shall elect the third Asso- 
ciate Justice and make suitable provision for accomplishing the classification 
above directed. 

See Const. 1868, Art. IV, § 3. 

Quoted in Middleton v. Taber, 46 S. C. 
337, 24 S. E. 282 (1896). 

§ 4. Jurisdiction of Supreme Court. 

The Supreme Court shall have power to issue writs or orders of injunc- 
tion, mandamus, quo warranto, prohibition, certiorari, habeas corpus and 
other original and remedial writs. And said Court shall have appellate juris- 
diction only in cases of chancery, and in such appeals they shall review the 
findings of fact as well as the law, except in chancery cases where the facts 
are settled by a jury and the verdict not set aside, and shall constitute a Court 
for the correction of errors at law under such regulations as the General 
Assembly may by law prescribe. 



See Const. 1868, Art. IV, § 4. 

I. General Consideration. 

II. Original Jurisdiction. 

III. Jurisdiction in Chancery Cases. 

IV. Jurisdiction in Law Cases. 

Cross References. 

As to original jurisdiction of Supreme 
Court, see § 15-121. As to appellate juris- 
diction of Supreme Court in chancery, see 
§ 15-122. As to appellate jurisdiction in 
law cases, see § 15-123. For other sections 
of the Code treating jurisdiction of Su- 
preme Court, see §§ 15-124. 15-125, and 15- 
133 to I -135. As to conclusive effect of 
findings of fact by the jury, see § 10-1457. 
As to commencing civil actions in courts of 



record by service of summons, see § 10-401. 
As to authority of Governor to call out the 
militia, see §§44-114 and 44-115. 

I. GENERAL CONSIDERATION. 

Fundamental law is only limitation on 
power of courts. — In this State there is no 
limitation on tlie power of the courts to set- 
tle and decree the rights of litigants, save as 
prohibited bv the fundamental law. Mathe- 
son V. McCormac. 186 S. C. 93. 195 S. E. 
122 (1938). 

Supreme Court may grant relief for which 
writ is remedy. — In view of tliis section, the 
Supreme Court may grant any relief for 
which writs are an appropriate remedy. 



17: 



Art. 5, § 4 Constitution of the State of South Carolina Art. 5, § 4 



Hence, it may issue a writ of habeas corpus 
for the purpose of determining whether a 
person in custody may be admitted to bail. 
State V. Farris, 51 S. C. 176, 28 S. E. 308, 
370 (1897). 

And it may entertain original petition for 
mandamus and injunction. Gilmer v. Hun- 
nicutt, 57 S. C. 166. 35 S. E. 521 (1900); 
Carolina Grocery Co. v. Burnet, 61 S. C. 
205, 39 S. E. 381 (1901). 

It may determine whether conditions for 
injunction exist. — The Supreme Court may, 
under this section, determine whether the 
conditions exist which authorize the grant- 
ing of an injunction, and grant the injunc- 
tion if such conditions exist. Trustees of 
University v. Trustees of Academy, 85 S. C. 
546, 67 S. E. 951 (1910). 

But may issue injunction only to courts. 
— The Supreme Court is witliout jurisdiction 
to issue a writ of prohibition to a town 
council commanding it not to issue bonds 
as the writ is issuable, under this section, 
to courts only. Hunter v. Moore, 39 S. C. 
394, 17 S. E.'797 (1893). 

This section does not restrict the Su- 
preme Court's power to issue writs of in- 
junction to cases pending in such Court, 
either in its original or appellate jurisdiction. 
Salinas v. Aultman & Co., 49 S. C. 325, 27 
S. E. 385 (1897). 

It disregards technical rules on appeal 
in capital case. State v. Floyd, 174 S. C. 288, 
177 S. E. 375 (1934). 

And may restrain collection of illegal tax. 
■ — The Supreme Court has power to restrain 
the collection of an illegal tax, notwithstand- 
ing § 65-2651, providing that the collection 
of taxes shall not be stayed or prevented 
by injunction, etc., where the legislature 
has not provided another adequate remedy 
for protection of the tax paver. Ware 
Shoals Mfg. Co. v. Jones, 78 S. C. 211, 58 
S. E. 811 (1907); Bank of Johnston v. 
Prince. 136 S. C. 439. 134 S. E. 387 (1926). 

But it lacks jurisdiction to determine 
naturalization petition. — Ex parte McKen- 
zie. 51 S. C. 244, 28 S. E. 468 (1897). 

And will not consider mandamus petition 
to collect unliquidated debt. — The Supreme 
Court in its original jurisdiction will not 
entertain a petition for mandamus for the 
collection of an unliquidated demand. 
Wolfe y. Jessen, 164 S. C. 1, 161 S. E. 927 
(1931). 

Court must enforce mandatory require- 
ments as to appeal. — While a liberal con- 
struction should be given the S. C. Con- 
stitution and statutes in favor of the right 
of appeal, it is the Supreme Court's duty to 
enforce mandatory statutory requirements 
on which the privilege of appeal may be ex- 



ercised, for under this section the Supreme 
Court is a court for the correction of errors 
of law under such regulations as the legis- 
lature may prescribe. Rvlee v. Marett, 121 
S. C. 366, 113 S. E. 483 (1922). 

Single justice may issue writ. — A single 
justice of the Supreme Court has the power 
to issue a writ or order in the Court's orig- 
inal jurisdiction and make it returnable to 
the Court as a whole. King y. .\etna Ins. 
Co.. 168 S. C. 84, 167 S. E. 12 (1932). 

Section does not create "court en banc." 
— This section does not confer any jurisdic- 
tion upon a separate tribunal known as a 
"court en banc." Citizens' Bank v. Hey- 
ward, 144 S. C. 365, 142 S. E. 651 (1926), 
dis. op. of Cothran. 

For additional related cases, as to cer- 
tiorari to Governor, see Rawlinson v. Ansel. 
76 S. C. 395, 57 S. E. 185 (1907). 

Applied in Dinkins y. Robbins, 207 S. C. 
77. 34 S. E. (2d) 478 (1945); .\iken Petro- 
leum Co. V. National Petroleum Under- 
writers, 207 S. C. 236, 36 S. E. (2d) 380 
(1945); Little v. Little, 215 S. C. 52, S3 
S. E. (2d) 884 (1949). 

Quoted in Daniel v. Conestee Mills, 183 
S. C. 337. 191 S. E. 76 (1937). 

Cited in Redfearn v. Douglass, 35 S. C. 
569, 15 S. E. 244 (1892); Scs:ars v. Parrott, 
54 S. C. 1, 31 S. E. 677, 865 (1898) : State v. 
Charleston Light, etc., Co., 68 S. C. 540, 47 
S. E. 979 (1904); Tindal v. Sublett, 82 S. C. 
199, 63 S. E. 960 (1909); Dauehtv v. North- 
western R. Co., 92 S. C. 361, 75 S. E. 553 
(1912); Duncan v. Record Pub. Co., 145 
S. C. 196, 143 S. E. 31 (1927); Walpole y. 
Wall, 153 S. C. 106. 149 S. E. 760 (1929); 
Bates V. Bates, 213 S. C. 26, 48 S. E. (2d) 
612 (1948). 

IL ORIGINAL JURISDICTION. 

Supreme Court may set aside suspension 
order of Governor. — Within the provisions 
of this section, the Supreme Court has 
original jurisdiction to set aside an order 
of the Governor which improperly sus- 
pended a member of the State Highway 
Commission. Dacus v. Johnston, 180 S. C. 
329. 185 S. E. 491 (1936). 

And enjoin town treasurer from com- 
mingling certain funds. — The Supreme 
Court has jurisdiction to enjoin the clerk 
and treasurer of a town from mingling with 
general funds more than one half of sums 
paid town by State Highway Department 
under reimbursement act and from dis- 
bursing the remaining half to other than 
abutting property owners assessed for pav- 
ing. Little y. Conway, 171 S. C. 27, 171 
S. E. 447 (1933). 



174 



Art. 5, § 4 Constitution of the State of South Carolina Art. 5, § 4 



Governor's declaration of insurrection 
may not be enjoined. — The action of the 
Governor in declaring that a state of in- 
surrection exists may not be enjoined or 
reviewed by the Supreme Court. Hearon 
V. Calus, 178 S. C. 381, 183 S. E. 13 (1936). 

But his acts relative to insurrection may 
be controlled. — -Acts of the Governor, law- 
fully done in the suppression of an insur- 
rection, are immune from interference by 
the Supreme Court. But when his acts ex- 
ceed the autliority given him by the S. C. 
Constitution and statutes and are injurious 
to the personal liberty and property rights 
of the citizens of the state, they are open 
to the inquiry and control of the judicial arm 
of the State. Hearon v. Calus, 178 S. C. 
381, 183 S. E. 13 (1936). 

III. JURISDICTION IN CHANCERY 

C.-\SES. 

This section gives Supreme Court ap- 
pellate jurisdiction in chancery cases. 

Montgomery & Crawford v. Arcadia Mills, 
173 S. C. 464. 176 S. E. 589 (1934). 

Where issues passed upon by circuit 
court. — Under this section, it is no part of 
appellate jurisdiction, under which there is 
a review of findings of fact as well as the 
law, to undertake to pass upon questions 
which were never passed upon by the cir- 
cuit court. Green v. Green. SO S. C. 514, 27 
S. E. 952 (1897). 

Both as to law and fact. — "Appellate ju- 
risdiction" means full review of all phases 
of a case, both law and fact. The Supreme 
Court can aflirm in whole, reverse in whole, 
or modify, the decree of a circuit judge sit- 
ting as chancellor in an equity case. Mont- 
gomery & Crawford v. Arcadia Mills, 173 
S. C. 464, 176 S. E. 589 (1934). 

In equity causes the S. C. Constitution 
has laid no restrictions upon the power of 
the Supreme Court to hear appeals, both 
as to the law and the facts. Ex parte 
Carolina Nat. Bank. 56 S. C. 12, 33 S. E. 781 
(1899), dis. op. of Pope, J. 

The word "appellate", as used in this sec- 
tion, is intended to express the idea of full 
review of all phases of a case, both as to 
law and as to fact. Sandel v. State, 128 
S. C. 178. 122 S. E. 571 (1922). 

As a mandatory duty. — In chancery ap- 
peals the Supreme Court "shall review the 
findings of fact," which provision of this 
section very plainly confers the jurisdiction 
so to do and creates the corresponding duty. 
Young v. Levy, 206 S. C. 1, 32 S. E. (2d) 
889 (1945). 

In reviewing finding of facts, the Court 
must examine all testimony to ascertain if 
findings of fact in a chancery case are war- 



ranted by the evidence. Brown v. Newell, 
64 S. C. 27, 41 S. E. 835 (1902), 

Facts in chancery case must be decided by 
preponderance of evidence. — This section re- 
quires the facts of a chancery case on appeal 
to be decided by a preponderance of the 
evidence, thereby abrogating the former 
rule that a decree will not be reversed un- 
less it is without any testimony to support 
it or is manifestly against the overwhelming 
weight of the evidence. Wagener v. Kirven, 
47 S. C. 347, 25 S. E. 130 (1896); Svlvester- 
Bleckley Co. v. Goodwin, 51 S. C. 362, 29 
S. E. 3 (1898); Pollock v. Carolina Inter- 
state Bldg. & Loan Ass'n, 51 S. C. 420, 29 
S. E. 77 (1898); Finlev v. Cartwright, 55 
S. C. 198, 33 S. E. 359 (1899). 

Circuit judge's findings should not in- 
fluence Supreme Court. — There is no law 
or precedent which justifies the Supreme 
Court in abdicating its prerogative and in 
avoiding its mandator}- duty "to review the 
findings of fact as well as the law" in a 
chancery case by being influenced in the 
slightest degree by the findings of the cir- 
cuit judge. Cogswell v. Cannadv, 135 S. C. 
365. 133 S. E. 834 (1926). 

Evidence establishing cause of action may 
be ascertained. — In an equity case in re- 
viewing finding of fact, the Court may as- 
certain whether there was any evidence to 
establish the essential elements of a cause 
of action. Brown v. Volunteer State Life 
Ins. Co., 212 S. C. 537, 48 S. E. (2d) 507 
(1948). 

Demurrer may not be first raised in Su- 
preme Court. — There is no authority vested 
in the Supreme Court to dispose of a de- 
murrer interposed for the first time in the 
Supreme Court. Green v. Green, 50 S. C. 
514, 27 S. E. 952 (1897). 

IV. JURISDICTION IN LAW CASES. 

Supreme Court is for correction of errors 

at law. Hicrs v. South Carolina Power Co., 
198 S. C. 280, 17 S. E. (2d) 698 (1941). 

Where such issues are raised below. — 
The Supreme Court cannot review or cor- 
rect something that has not been decided or 
raised. Hiers v. South Carolina Power Co., 
198 S. C. 280, 17 S. E. (2d) 698 (1941). 

Judge's fact findings are not reversed if 
supported by any evidence. — Under the pro- 
visions of this section of the Constitution, 
the Supreme Court cannot reverse findings 
of fact of circuit judge in law case if any 
evidence whatever supports findings. West- 
on v. Morgan, 162 S. C. 177, 160 S. E. 
436 (1931). 

This section does not require the Su- 
preme Court to review the trial judge's find- 
ings of fact on conflicting evidence. Land 



175 



Art. 5, § 5 Constitution of the State of South Carolina Art. 5, § 6 



Mortgage, etc., Co. v. Faulkner, 45 S. C. 
503, 23 S. E. 516, 24 S. E. 288 (1896). 

There is no error of law if there is any 
evidence tending to support a finding by a 
circuit judge as to a juror's competency. 
State V. Paries, 125 S. C. 281, 118 S. E. 620 
(1923). 

And Court may not review correct fact 
findings by jury. — It is well settled that the 
Supreme Court has no power to review the 
correct findings of fact in a trial by jury. 
Stuckey v. Atlantic Coast Line R. Co., 57 
S. C. 395, 35 S. E. 550 (1900). 

Since jury finding is conclusive unless 
set aside. — Knobelock v. Germania Sav. 
Bank, 50 S. C. 259, 27 S. E. 962 (1897). 

Preponderance of evidence is question for 
jury, subject to judge's approval, and can- 



not be decided by the Supreme Court. 
Applebv V. Reserve Loan Life Ins. Co., 
172 S. C. 42. 172 S. E. 776 (1934). 

Trial court's failure to rule may not con- 
stitute error. — Where the record discloses 
that no ruling in any form was sought from 
or made by the trial court as to the alleged 
failure of evidence, no adequate basis is 
afforded for imputing to the trial court the 
commission of such error of law in that re- 
gard as the Supreme Court is bound to re- 
view or correct. State v. Criddle, 125 S. C. 
264, 118 S. E. 424 (1923). 

Rape prosecution is "law case" within this 
section governing the Supreme Court's re- 
viewing power. State v. Floyd, 174 S. C. 
288, 177 S. E. 375 (1934). 



§ 5. Held twice a year at capital. 

The Supreme Court shall be held at least twice in each year at the seat 
of government and at such other place or places in the State as the General 
Assembly may direct. 

See Const. 1868, Art. IV, § 5. 

Cited in National City Bank v. Huev & 
Martin Drug Co., 113 S. C. 333, 102 S. E. 
516 (1920). 

§6. Disqualification of judges in certain cases; how vacancies filled; tempo- 
rary appointments for holding circuit courts. 

No Judge shall preside at the trial of any cause in the event of which he may 
be interested, or when either of the parties shall be connected with him by 
affinity, or consanguinity, within such degrees as may be prescribed by law, or 
in which he may have been counsel or have presided in any inferior Court. In 
case all or any of the Justices of the Supreme Court shall be thus disqualified, 
or be otherwise prevented from presiding in any cause or causes, the Court 
or the Justices thereof shall certify the same to the Governor of the State, and 
he shall immediately commission, specially, the requisite number of men 
learned in the law for the trial and determination thereof. The same course 
shall be pursued in the Circuit and inferior Courts as is prescribed in this Sec- 
tion for cases of the Supreme Court. The General Assembly shall provide 
by law for the temporary appointment of men learned in the law to hold 
either special or regular terms of the Circuit Courts whenever there may be 
necessity for such appointment. 

See Const. 1868, Art. IV, § 6. 

Purpose of section. — This section was not 

intended to provide anything with regard 
to elements necessary to constitute the Su- 
preme Court, for that had already been done 
in S. C. Const, Art. 5, § 2. McAulay v. 
McAulay, 96 S. C. 86, 79 S. E. 785 (1913). 
"Judge" in this section includes "magis- 
trates." — Marchbanks v. Marchbanks, 58 
S. C. 92, 36 S. E. 438 (1900). 



Decree is voidable where rendered by 
judge within prohibited degree. — Decree 
rendered by judge related to defendant with- 
in the degree prohibited by this section is 
not void but merely voidable. Sandel v. 
Crum, 130 S. C. 317, 125 S. E. 919 (1924): 
Jeffers v. Jeffers, 89 S. C. 244, 71 S. E. 810 
(1911). 

But it is validated by consent of party or 



176 



Art. 5, § 7 Constitution of the State of South Carolina Art. 5, § 8 



attorney. — Where judge in mortgage fore- 
closure action was father of a defendant 
other than the mortgagor, and therefore re- 
lated to defendant within this section, and 
such defendant, the plaintiff, and their at- 
torneys consented to rendition of decree by 
such judge, and the mortgagor, the only oth- 
er party to the suit, though personally 
served, made default, the decree was valid. 
Sandel v. Crum, 130 S. C. 317. 125 S. E, 
919 (-1924). 

Right to object as to disqualification is 
waived after judgment. — Where a party to 
a proliate proceeding knows that the judge 
is related to him and the other parties there- 
to, and makes no objection because of such 
relationship until after the judgment has 
been orally pronounced, he waives his right 
to object because of such disqualification. 
Ex parte Hilton, 64 S. C. 201, 41 S. E. 978 
(1902). 

Waiver of disqualification of probate 
judge. — Where a judge of probate, who 
was the present guardian of the plaintiff, 
entered a judgment against the prior guard- 
ian of this infant upon the prior guardian's 
accounting, the court held that the judgment 
against the prior guardian was binding upon 
her solely for the reason that she waived 



the disqualification of the judge of probate 
to act in the accounting had before him 
when he was disqualified by reason of in- 
terest in the result of the cause. The court 
further held that the judge of probate was 
utterl}' without jurisdiction to make any 
ruling or finding which could in the re- 
motest way affect the interest of any party 
or parties who had not joined in the waiver. 
Lide v. Fidelity & Deposit Co., 179 S. C. 
161, 183 S. E. 771 (1936). 

Section sustains power to call special 
term of court of general sessions. — State v. 
Gossett, 117 S. C. 76. 108 S. E. 290 (1921). 

For additional related case, see In re 
Mcars, 75 S. C. 482, 56 S. E. 7 (1906). 

Applied in Haughton v. Order of United 
Commercial Travelers, 108 S. C. TZ, 93 
S. E. 393 (1917); Scroggie v. Bates, 213 
S. C. 141, 48 S. E. (2d) 634 (1948). 

Cited in Citizens' Bank v. Heyward, 144 
S. C. 365, 142 S. E. 651 (1926): E.x parte 
Kreps, 61 S. C. 29, 39 S. E. 181 (1901); 
Williams V. Benet, 35 S. C. 150, 14 S. E. 311 
(1892); Middleton v. Taber, 46 S. C. ill, 
24 S. E. 282 (1896); State v. Davis, 88 S. C. 
204, 70 S. E. 417 (1911); Winn v. Harby, 
166 S. C. 99, 164 S. E. 434 (1932). 



§ 7. Reporter ; clerk. 

There shall be appointed by the Justices of the Supreme Court a Reporter 
and a Clerk of said Court, who shall hold their offices for four years, and whose 
duties and compensation shall be prescribed by law. 

See Const. 1868, Art. IV, § 7. 



§ 8. Judgment of Supreme Court. 

When a judgment or decree is reversed or affirmed by the Supreme Court, 
every point made and distinctly stated in the cause and fairly arising upon 
the record of the case shall be considered and decided, and the reason there- 
of shall be concisely and briefly stated in writing and preserved with the record 
of the case. 

See Const. 1868, Art. IV, § 8. 



Section requires specific exceptions. — Un- 
der this section an assignment of error quot- 
ing a part of the charge at length, and stat- 
ing that the court charged on the facts, will 
not be considered on appeal as the same is 
too general. State v. Meares. 60 S. C. 527, 
39 S. E. 245 (1901). 

Appellant may abandon or group excep- 
tions. — This section does not prevent the 
appellant from abandoning an exception or 
from grouping similar exceptions. Wilcox 
V. Southern Ry. Co., 91 S. C. 71, 74 S. E. 
122 (1912). 



Supreme Court is not bound to formulate 
complicated points. — Under this section, 
where the points involved in an appeal were 
not formulated and classified so as to bring 
out the objections urged, but were stated 
in complicated divisions and subdivisions, 
consisting of general objections and repe- 
tition of objections, the Supreme Court was 
not bound to formulate them so that it 
could state its reason for overruling them. 
Garrett v. Weinberg, 59 S. C. 162, 37 S. E. 
51, 225 (1900). 

Applied in Jones v. Charleston & N. C. R. 
Co., 65 S. C. 410, 43 S. E. 884 (1903). 



17 SC Code] — 12 



177 



Art. 5, § 9 Constitution of the State of South Carolina Art. S, § 11 




§ 9. Compensation of judges and justices. 

The Justices of the Supreme Court and Judges of the Circuit Court shall 
each receive compensation for their services to be fixed by law, which shall not 
be increased or diminished during their continuance in office. They shall 
not be allowed any fees or perquisites of office, nor shall they hold any other 
office of trust or profit under this State, the United States, or any other power. 

See Const. 1868, Art. IV, § 9. 



Cross reference. — As to drawing money 
fror.i the treasury only in pursuance of 
appropriations made by law, see S. C. 
Const.. Art. 10. §9. 

Act cannot reduce previously fixed salary 
of judge. — Annual appropriation bill cannot 
reduce circuit judge's salary theretofore 



fixed by continuing statute in efTect at time 
of his election. Grimball v. Beattie, 174 
S. C. 422, 177 S. E. 668 (1934). 

Applied in Stack v. Haigler, 90 S. C. 319, 
11 S. E. 354 (1912). 

Cited in Gafifney v. Mallory, 186 S. C. 
337, 195 S. E. 840 (1938). 



§ 10. Qualifications. 

No person shall be eligible to the office of Chief Justice, Associate Justice 
or Judge of the Circuit Court who is not at the time of his election a citizen 
of the United States and of this State, and has not attained the age of twenty 
six years, has not been a licensed attorney at law for at least five years, and 
been a resident of this State for five years next preceding his election. 

See Const. 1868, Art. IV, § 10. 

§ 11. Vacancies; conservators of the peace; unexpired term. 

All vacancies in the Supreme Court or inferior tribunals shall be filled by 
elections as herein prescribed : Provided, That if the unexpired term does not 
exceed one year such vacancy may be filled by Executive appointment. All 
Judges, by virtue of their office, shall be conservators of the peace throughout 
the State ; and when a vacancy is filled by either appointment or election, 
the incumbent shall hold only for the unexpired term of his predecessor. 

See Const. 1868. Art. IV, § 11. 

But for this proviso, no vacancy in the 
office of judge of probate could be tilled by 
executive appointment, but must be filled 
by election. The real object of the proviso, 
therefore, was simply to provide for an ex- 
ceptional case, and it was not intended to 
affect the general provisions in reference 
to all other cases made in the body of the 
section. In addition to this, the very fact 
that the framers of the Constitution saw 
fit to make special provision for an excep- 
tional case shows that in all other cases 
not falling within such exception the gen- 
eral provision of the Constitution that all 
vacancies shall be filled by election "as here- 
in prescribed," which election carried with 
it the right to hold the office for the full con- 
stitutional term of four years, applies. 
Smith V. McConnell, 44 S. C. 491, 22 S. E. 
721 (1895). 

Applied in Thomas v. Register, 110 S. C. 
173, 96 S. E. 517 (1918). 

Cited in Williams v. Benet, 35 S. C. 150, 
14 S. E. 311 (1892). 



The true intent of the proviso to this 
section was simplj' to provide an exceptional 
mode of filling a vacancy in an exceptional 
case. Smith v. McConnell, 44 S. C. 491, 22 
S. E. 721 (1895). 

Section applies to elective judicial officers. 
— This section, providing that vacancies in 
the Supreme Court or inferior tribunals 
shall be filled by elections, relates to elective 
judicial officers onlv. State v. Bowden, 92 
S. C. 393. 75 S. E. 866 (1912). 

And not to appointive officers. — This sec- 
tion has no application to magistrates, who 
are appointive officers. McDowell v. Bur- 
nett, 92 S. C. 469, li S. E. 873 ("1912). 

Vacancy in office of probate judge. — The 
proviso to this section, "that if the unex- 
pired term does not exceed one year such 
vacancy may be filled by executive appoint- 
ment," does not indicate that a vacancy in 
the office of the probate judge means the 
unexpired term of the officer by whose res- 
ignation the vacancv has been occasioned. 
Smith v. McConnell, 44 S. C. 491, 22 S. E. 
721 (1895). 



178 



[7SCCode] 



Art. 5, § 12 CoxsTiTUTiON of the State of South Carolina Art. 5, § 12 



§ 12. Three necessary for reversal; constitutional questions; trial julge shall 
not sit. ^^ ^ 

In all cases decided by the Supreme Court, the concurrence of three of 
the Justices shall be necessary for a reversal of the judgment below subject 
to the provisions hereinafter prescribed. Whenever, upon the hearing of any 
cause or question before the Supreme Court, in the ejiercise of its ori^jjia^ ^, 
or appellate jurisdiction, it shall appear to the Justices thereof, or any/thre^ ^ 
of them, that there is involved a question of constitutional law, or of con- 
flict between the Constitution and Laws of this State and of the United States, 
or between the duties and obligations of her citizens under the same, upon " 
the determination of which the entire Court is not agreed ; or whenever the 
Justices of said court, or any two of them, desire it on any cause or ques- 
tion so before said court, the Chief Justice, or in his absence the presiding 
Associate Justice, shall call to the assistance of the Supreme Court all of the 
Judges of the Circuit Court: Provided liotvcvcr, That when the matter to be 
submitted is involved in an appeal from the Circuit Court, the Circuit Judge 
who tried the cause shall not sit. A riiajority of the Justices of the Supreme 
Court and Circuit Judges shall constitute a quorum. The decision of the Court 
so constituted, or a majority of the Justices and Judges sitting, shall be final 
and conclusive. In such case the Chief Justice, or in his absence, the presiding 
Associate Justice, shall preside. Whenever the Justices of the Supreme Court 
and the Circuit Judges meet together for the purposes aforesaid, if the number 
thereof qualified to sit constitute an even number, then one of the Circuit 
Judges must retire; and the Circuit Judges present shall determine by lot 
which of their number shall retire. 

See Const. 1868, Art. IV, § 12. ^ 

I. General Consideration. 
II. Court En Banc. 
III. Affirmance and Reversal. 



f 



I. GENERAL CONSIDERATION. 

Construction of section. — In construing 
amendment to this section, to determine 
whether the language of the resolution de- 
claring amendment or the language stat- 
ing how the section should read as amended 
should control, the court will endeavor to 
ascertain the intention of the legislators 
submitting the amendment and the will of 
people voting favorably on it b}' consider- 
ing the situation and conditions prior to 
amendment. Duncan v. Record Pub. Co., 
145 S. C. 196. 143 S. E. 31 (1927). 

Applied in Sandel v. State, 128 S. C. 178, 
122 S. E. 571 (1922): Newton v. Woodley, 
55 S. C. 132, 32 S. E. 531, 33 S. E. 1 (1899): 
Segars v. Parrott, 54 S. C. 1, 31 S. E. 677, 
865 (1898): Middleton v. Taber, 46 S. C. 
337, 24 S. E. 282 (1896). 

II. COURT EN BANC. 

Supreme Court justices and all circuit 
judges constitute court en banc. — Duncan 



V. Record Pub. Co., 145 S. C. 196, 143 S. E. 
31 (1927). 

Court en banc is called only to decide 
constitutional issue. — Under this section 
as amended, it must appear to three justices 
of the Supreme Court that a question of 
constitutional law is involved in a pending 
cause to authorize calling the Court en 
banc, notwithstanding that a clause of a 
resolution for amendment, stating how sec- 
tion should read when amended, omitted the 
word "three." Duncan v. Record Pub. Co., 
145 S. C. 196, 143 S. E. 31 (1927). 

Or grave question of public concern. — 
Duncan v. Record Pub. Co., 145 S. C. 196, 
143 S. E. 31 (1927). 

And not because Supreme Court is divid- 
ed. — Where neither contingency occurs, the 
circuit judges will not be called in mere- 
ly because the Supreme Court is divided 
and the parties desire an authoritative de- 
termination of the question involved. Flor- 
ence V, Brown. 49 S. C. 332, 26 S. E. 880, 
27 S. E. 273 (1897). 

The Supreme Court being divided upon a 
question of public policy and not upon a 
constitutional question, there is no ground 
upon which the circuit judges should be 



179 



Art. 5, § 13 Constitution of the State of South Carolina Art. 5, § 13 



called to the assistance of the Supreme 
Court upon a re-hearing. Johnson v. Char- 
leston & S. Ry. Co., 55 S. C. 152, Z2 S. E. 
2, 2i S. E. 174 (1899). 

Privilege to call Court en banc is not giv- 
en litigant. — Privilege of calling circuit 
judges to aid of Supreme Court, under this 
section, is entirely for Court and its justices, 
and is not a right given litigant. Thus 
Court and justices will call Court en banc 
when it is deemed advisable without petition 
or suggestion from party to pending cause, 
right of appeal not being vested one but 
matter of grace. Duncan v. Record Pub. 
Co., 145 S. C. 196, 143 S. E. ?,\ (1927). 

Court en banc is consultative court acting 
as Supreme Court. — Call for Court en banc, 
under tills section, should be made while Su- 
preme Court has pending before it and be- 
fore it has determined a cause in which as- 
sistance of circuit judges is desired, since 
Court en banc is not independent court, but 
is called as consultative court and becomes 
for time being Supreme Court. Duncan v. 
Record Pub. Co., 145 S. C. 196, 143 S. E. 
31 (1927). 

And its decision is conclusive. — Former 
decision of Supreme Court, sitting with cir- 
cuit court judges as Court en banc regard- 
ing constitutionality of statute, is conclusive 
upon Supreme Court. Williamson v. Rich- 
ards, 158 S. C. 534, 155 S. E. 890 (1930). 

Thus, validity of bonds issued and sold in 
compliance with State highway bond act, 
declared constitutional by Supreme Court 
en banc, may not be considered, the former 
decision being binding. Williamson v. 
Richards, 158 S. C. 534, 155 S. E. 890 (1930). 



Where Supreme Court sitting en banc 
with judges of circuit court has filed its 
opinion, petition for rehearing cannot be 
entertained and determined, since opinion 
is final and conclusive under this section 
as between the parties to the proceedings, 
notwithstanding Court rule providing that 
a case shall not be remanded until the ex- 
piration of ten days after the filing of the 
opinion. Citizens' Bank v. Heyward, 144 
S. C. 365, 142 S. E. 651 (1926). 

Supreme Court sitting en banc loses ju- 
risdiction when it has answered questions 
submitted by filing written decision signed 
by majority of justices and judges. Citi- 
zens' Bank v. Heyward, 144 S. C. 365, 142 
S. E. 651 (1926). 

III. AFFIRM.'\NCE AND REVERSAL. 

Concurrence of three judges is necessary 
for reversal. — It is necessary to have con- 
currence of three justices to reverse judg- 
ment below. Hutchinson v. Turner, 88 S. 
C. 318, 70 S. E. 410, 806 (1911). 

But not for affirmance. — The Supreme 
Court is not without power to decide a 
case when there is a vacancy, though its de- 
cision can only be an affirmance, there be- 
ing but two judges for reversal. Mc.'\ulay 
v. McAulay, 96 S. C. 86, 79 S. E. 785 (1913). 

Affirmance of judgment on other than 
constitutional question. — Under this section 
it is not necessary to call the Court en banc 
when the judges concur in affirming the 
judgment of the lower court on grounds 
other than a constitutional question. Stur- 
giss v. Atlantic Coast Line R. R. Co., 80 
S. C. 167, 60 S. E. 939, 61 S. E. 261 (1908). 



§ 13. Judicial circuits; election of judges ; present judges. 

The State shall be divided into as many Judicial Circuits as the General 
Assembly may prescribe, and for each Circuit a Judge shall be elected by 
joint viva voce vote of the General Assembly, who shall hold his office for a 
term of four years; and at the time of his election he shall be an elector of 
a County of, and during his continuance in office he shall reside in, the Circuit 
of which he is Judge. The present Judges of the Circuit Courts shall continue 
in office until the expiration of the term for which they were elected, and 
should a new division of the judicial Circuits be made, shall be the Judges 
of the respective Circuits in which they shall reside after said division. 

See Const 1868, Art. IV, § 13. 



County judges may be elected by people. 

— General Assembly has authority, under 
this section, to provide that county judges 
shall be elected by the people. Thomas v. 
Register, 110 S. C. 173, 96 S. E. 517 (1918). 
The word "circuit" means a division of 
the county for judicial business. State v. 
Mappus, 107 S. C. 345, 92 S. E. 1053 (1917) ; 
State V. Cooler, 112 S. C. 95, 98 S. E. 845 
(1919). 



Applied in Truesdell v. Johnson, 144 S. C. 
188, 142 S. E. 343 (1928): Thomas v. Reg- 
ister, 110 S. C. 173, 96 S. E. 517 (1918): 
Lamotte v. Smith, 50 S. C. 558. 27 S. E. 933 
(1897) : State v. Black, 34 S. C. 194, 13 S. E. 
361 (1891). 

Cited in State v. State Board of Canvas- 
sers, 78 S. C. 461, 59 S. E. 145 (1907) ; Grim- 
ball V. Beattie, 174 S. C. 422, 177 S. E. 668 
(1934). 



180 



Art. 5, § 14 Constitution of the State of South Carolina Art. 5, § 15 



§ 14. Interchange of circuits. 

Judges of the Circuit Courts shall interchange Circuits with each other, and 
the General Assembly shall provide therefor. 

See Const. 1868, Art. IV, § 14. 

Applied in State v. Thompson, 122 S. C. Quoted in Truesdell v. Jolinson, 144 S. C. 

407, 115 S. E. 326 (1922). 188, 142 S. E. 343 (1928); Lamotte v. Smith, 

50 S. C. 558, 27 S. E. 933 (1897). 

§ 15. Jurisdiction of courts of common pleas. 

The Courts of Common Pleas shall have original jurisdiction, subject to 
appeals to the Supreme Court, to issue writs or orders of injunction, manda- 
mus, habeas corpus, and such other writs as may be necessary to carry their 
powers into full effect. They shall have jurisdiction in all civil cases. They 
shall have appellate jurisdiction in all cases within the jurisdiction of inferior 
Courts, except from such inferior Courts from which the General Assembly 
shall provide an appeal directly to the Supreme Court. 

See Const. 1868, .A.rt. IV, § IS. 



I. General Consideration. 
II. AppHcation of Section. 

I. GENERAL CONSIDERATION. ' 

In general. — In this State there is no lim- 
itation on the power of the courts to settle 
and decree rights of htigants, save as pro- 
hibited by tlie fundamental law. ^Nlatheson 
V. McCormac, 186 S. C. 93, 195 S. E. 122 
(1938), 

Jurisdiction under this section. — Where 
the Constitution confers jurisdiction upon 
a court, the legislature cannot take it away. 
Therefore the legislature catinot deprive the 
court of common pleas of jurisdiction in 
any civil case, nor of appellate jurisdiction 
in cases within the jurisdiction of magis- 
trates' courts, except by providing for a 
direct appeal from these courts to the Su- 
preme Court. Strickland v. Seaboard, etc., 
Ry. Co.. 112 S. C. 67, 98 S. E. 853 (1919). 

Coordinate jurisdiction with other courts. 
— A court of common pleas has equal and 
coordinate jurisdiction in all respects with 
any other like court of any other county, 
except as to territorial jurisdiction. Fideli- 
ty Fire Ins. Co. v. Windham. 134 S. C. 373, 
133 S. E. 35 (1926). 

Concurrent jurisdiction with county 
courts. — Since the legislature cannot de- 
prive the court of common pleas of juris- 
diction in civil cases or of appellate juris- 
diction in cases within the jurisdiction of 
magistrates' courts, given to this section, 
the legislative power given by S. C. Const., 
Art, 5, § 1, to establish county courts may 
be exerted by conferring upon a county 
court established by the legislature concur- 
rent jurisdiction with that invested in the 
court of common pleas, including, in view 
of S. C. Const., Art. 5, § 23, concurrent 



jurisdiction over appeals from magistrates' 
courts. Strickland v. Seaboard, etc., Ry. 
Co., 112 S. C. 67, 98 S. E, 853 (1919). 

Concurrent jurisdiction with court of pro- 
bate. — Jurisdiction of court of probate in all 
matters testamentary, of administration, and 
in business appertaining to minors, allot- 
ment of dower, and insanity does not neces- 
sarily exclude jurisdiction of courts of com- 
mon pleas under this section, which gives 
common pleas courts jurisdiction in all 
civil cases, and S. C. Const., Art. 5. § 19. 
Muldrow V. Jeffords, 144 S. C. 509, 142 S. E. 
602 (1928). 

Appellate jurisdiction of all cases with- 
in jurisdiction of probate court. — In the ab- 
sence of legislative authority therefor, the 
court of common pleas has appellate juris- 
diction of all cases within the jurisdiction 
of the probate court. Ex parte Gregory, 
58 S. C. 114, 36 S. E. 433 (1900). 

Applied in Beatty v. National Sur. Co., 
132 S. C. 45, 128 S. E. 40 (1925); Bush v. 
Aldrich, 110 S. C, 491, 96 S. E. 922 (1918); 
Hand v. Kelly, 102 S. C. 151, 86 S. E. 382 
(1915); Greenville College v. Board of Ed., 
75 S. C. 93, 55 S. E. 132 (1906); Hughes v. 
School District, 66 S. C. 259, 44 S. E. 784 
(1903); Ex parte Evans, 72 S. C. 547, 52 
S. E. 419 (1907); Wideman v. Patton, 64 
S. C. 408, 42 S. E. 190 (1902); South Caro- 
lina & G. R. Co. V. American Tel. & Tel. 
Co., 63 S. C. 199, 41 S. E. 307 (1902); Ex 
parte White. 33 S. C. 442, 12 S. E, 5 (1890); 
City Coimcil v, .'\shlev Phosphate Co., 33 
S. C. 25, 11 S, E. 386 (1890). 

Quoted in King v. Minn Ins. Co., 168 
S. C, 84. 167 S. E. 12 (1932). 

Stated in Cobb v. South Carolina Nat. 
Bank, 210 S. C. 533, 43 S. E. (2d) 465 
(1947). 



181 



Art. 5, § 16 Constitution of the State of South Carolina Art. 5, § 16 



Cited in State v. Ballentine, 152 S. C. 365, 
150 S. E. 46 (1929); Spartanburg v. Cudd, 
132 S. C. 264. 128 S. E. 360 (1925); Jones 
V. Enorce Power Co., 92 S. C. 263, 75 S. E. 
452 (1912); Trustees of University v. Trus- 
tees of Academy, 85 S. C. 546, 67 S. E. 
951 (1910); State v. Bowman, 66 S. C. 140, 
44 S. E. 569 (1903); Segars v. Parrot, 54 S. 
C. 1, 31 S. E. 677, 865 (1898); Ex parte 
Ware Furniture Co., 49 S. C. 20. 27 S. E. 
9 (1897); McCreery v. Davis, 44 S. C. 195, 
22 S. E. 178 (1895); City Council v. Weller, 
34 S. C. 357, 13 S. E. 628 (1891). 

II. APPLICATION OF SECTION. 

Section does not apply to appeals from 
Industrial Commission. — This section and 
§§ 72-356 and 7-301, providing for appeal to 
the circuit court from inferior courts and 
decisions under them, are not pertinent to 
appeals from tlie Industrial Commission for 
the simple reason that the latter is not a 
court in the constitutional and statutory 
sense. And by the same token, the author- 
ity of those decisions is not impinged upon 
by the construction and application of the 
Workmen's Compensation Act to contro- 
versies within its sphere. Schwartz v. 
Mount Vernon — Woodberrv Mills, 206 S. C. 
227, 33 S. E. (2d) 517 (1945); Willow Con- 
solidated High School District v. Union 
School District, 216 S. C. 445, 58 S. E. (2d) 
729 (1950). 

Nor to appeals from county board of ed- 
ucation. — A county board of education is 
not an inferior court within the meaning of 
this section of the Constitution. Willow 
Consolidated High School District v. Un- 
ion School District, 216 S. C. 445, 58 S. E. 
(2d) 729 (1950). 

Jurisdiction of claim for damages for 
lynching. — Claim for damages for lynching 
is within the jurisdiction of court of com- 
mon pleas and not of county board, and 
hence is not barred by rejection bv board. 
Best V. Barnwell County, 114 S. C. 123, 103 
S. E. 479 (1920). 

Jurisdiction of "will or no will" issue. — 
Court of common pleas has jurisdiction of 
issue of "will or no will" presented upon 



stipulation waiving trial before probate 
judge in view of this section and S. C. 
Const., Art. 5, § 19. Muldrow v. Jeffords, 
144 S. C. 509, 142 S. E. 602 (1928). 

Statute providing for review of issue of 
"will or no will" contemplates trial de novo, 
and practically confers jurisdiction on court 
of common pleas in view of this section and 
S. C. Const., Art. 5, § 19. Muldrow v. Jef- 
fords. 144 S. C. 509. 142 S. E. 602 (1928). 

Jurisdiction to annul marriages. — The 
court of common pleas is not only express- 
ly authorized by statute to annul a mar- 
riage, but, apart from the statutory provi- 
sions, the power to do so may be asserted 
with confidence under the jurisdiction con- 
ferred on that court by this section of the 
Constitution. Evcrlv v. Baumil, 209 S. C. 
287.39 S. E. (2d) 905" (1946). 

Jurisdiction to declare void marriages 
prohibited by statute. — Davis v. Whitlock, 
90 S. C. 233, 73 S. E. 171 (1911). 

Jurisdiction over appeals from magis- 
trates' courts. — In view of this section and 
S. C. Const., Art. 5, §§ 1 and 23, an act 
creating a county court for Richland Coun- 
ty, purporting to confer upon that court ex- 
clusive jurisdiction over appeals from mag- 
istrates' courts, is constitutional so far as 
it gives such court jurisdiction of such 
appeals, and is unconstitutional and void 
only so far as it attempts to make that 
jurisdiction exclusive. Strickland v. Sea- 
board, etc., Ry. Co., 112 S. C. 67, 98 S. E. 
853 (1919). 

Concurrent jurisdiction with probate 
court in suits for accounting. — Under this 
section, conferring jurisdiction upon the 
court of common pleas in "all civil cases," 
its jurisdiction with that of the probate court 
in suits against administrators for account- 
ing is concurrent. Epperson v. Jackson, 83 
S. C. 157. 65 S. E. 217 (1909). 

Attack on jurisdiction for lack of process. 
— Parties waiving trial in probate court and 
submitting issue to court of common pleas 
could not attack jurisdiction for lack of 
process in view of this section and S. C. 
Const., Art. 5, § 19. Muldrow v. Jeffords, 
144 S. C. 509, 142 S. E. 602 (1928). 



§ 16. Sit twice. 

The Court of Common Pleas shall sit in each County in this State at least 
twice in every year at such stated times and places as may be appointed by 
law. 

See Const. 1868, Art. IV, § 16. 



Only one court is provided. — There is 
provided but one court of common pleas for 
the entire State. Ex parte Ware Furniture 
Co., 49 S. C. 20, 27 S. E. 9 (1897). 



Applied in Haughton v. Order of United 
Commercial Travelers, 108 S. C. 73, 93 S. E. 
393 (1917). 



182 



Art. 5, § 17 Constitution of the State of South Carolina Art. 5, § 18 



§ 17. Decisions ; when filed. 

It shall be the duty of the Justices of the Supreme Court to file their de- 
cisions within sixty days from the last day of the Court at which the cases 
were heard ; and the duty of the Judges of the Circuit Courts to file their 
decisions within sixty da}s from the rising of the last Court of the Circuit 
then being held. 

See Const. 1868, Art. IV, § 17. 



Delay caused by act of court does not 
invalidate decision. — A decision filed after 
the expiration of sixty days will not be in- 
valid if the delay is caused by act of the 
Court and not by the laches of the parties. 
Griffith V. Cromlev, 58 S. C. 448. 36 S. E. 
73S. (1900). 

Jurisdiction of special judge continues un- 
til opinion filed. — Jurisdiction of special 
judge who reserves his decision continues 
until he files his opinion in the cause, re- 
gardless of the provisions of this section, 



and judgment of the circuit court filed three 
months after adjournment of court will not 
be overthrown because the record contained 
a statement that the whole case was heard 
by the judge in open court during term 
time. Newbold v. McCrorey, 103 S. C. 299, 
87 S. E. 542, 1103 (1916). 

Applied in Duncan v. Record Pub. Co., 
145 S. C. 196, 143 S. E. 31 (1927). 

Cited in National City Bank v. Huev 
Martin Drug Co., 113 S. C. 333, 102 S. E. 
516 (1920). 



§ 18. Court of general sessions. 

The Court of General Sessions shall have jurisdiction in all criminal cases 
except those cases in which exclusive jurisdiction shall be given to inferior 
Courts, and in these it shall have appellate jurisdiction. It shall also have 
concurrent jurisdiction with, as well as appellate jurisdiction from, the in- 
ferior Courts in all cases of riot, assault and battery, and larceny. It shall 
sit in each County in the State at least twice in each year at such stated times 
and places as the General Assembly may direct. 

See Const. 1868, Art. IV, § 18. 

Preliminary examination of accused does 
not violate section. — Section 43-232 of the 
Code, which provides for preliminary ex- 
amination by a magistrate when demanded 
by the person accused of crime, does not 
contravene this section of the Constitution. 
State V. Flintroy, 178 S. C. 89, 182 S. E. 311 
(1935). 

And this is true of act requiring notice 
of dismissal of death sentence appeal. — Act 
requiring Supreme Court clerk to notify 
Penitentiary superintendent of dismissal of 
appeal suspending execution of death sen- 
tence was held not unconstitutional as de- 
priving court of general sessions of jurisdic- 
tion to pronounce sentence and as depriving 
defendant of right to make other motions. 
Ex parte Howell, 168 S. C. 197, 167 S. E. 
230 (1932). 

Court may remit offense to magistrate's 
court for trial. — \\'here the court of general 
sessions, being a court of general jurisdic- 
tion, and the magistrate's court, being a 
court of limited jurisdiction, have concur- 
rent jurisdiction of the oft'ense of carrying 
a concealed deadly weapon, it is not error 
for the court of general sessions to remit 
such an offense to the magistrate's court 



for trial. State v. McClenton, 59 S. C. 226, 
37 S. E. 819 (1901). 

Jurisdiction of indictment for larceny. — 
The court of general sessions has jurisdic- 
tion of an indictment for the larceny of 
property where the value thereof is less 
than $5.00. State v. Crosbv, 51 S. C. 247, 
28 S. E. 529 (1898). 

Jurisdiction of indictment for obstruct- 
ing public road. — The court of general ses- 
sions has concurrent jurisdiction with the 
magistrate's court of one indicted for will- 
fully obstructing and closing the public road 
by erecting a house thereon. State v. 
Wolfe, 61 S. C. 25. 39 S. E. 179 (1901). 

Jurisdiction of indictment for receiving 
stolen goods. — Where a defendant was tried 
before a court of genera! sessions upon an 
indictment for receiving stolen goods, inter 
alia, and the jury found a verdict of guilty 
and also found that the property stolen and 
received was of the value of $18. the 
court of general sessions had no jurisdiction 
to enter a sentence for the magistrate's 
court has exclusive jurisdiction w'here pun- 
ishment does not exceed a fine of $100 or im- 
prisonment for 30 days. This decision was 
reached in view of this section, S. C. Const., 



183 



Art. 5, § 19 Constitution of the State of South Carolina Art. 5, § 19 



Art. 5, § 21, and pertinent statutes of the 
Code. State v. Brown, 201 S. C. 417, 23 
S. E. (2d) 381 (1942). 

For additional related cases, see State v. 
Lang-ford, 55 S. C. 322, 33 S. E. 370 (1899) ; 
State V. Gallman, 79 S. C. 229, 60 S. E. 
682 (1908). 



Stated in State v. Morelli, 107 S. C. 262, 
92 S. E. 475 (1917); State v. Jenkins, 26 S. 
C. 121, 1 S. E. 437 (1887); State v. Hamp- 
ton, 105 S. C. 275, 91 S. E. 314 (1917). 

Cited in State v. Stanley, 131 S. C. 513, 
127 S. E. 574 (1925), 



§ 19. Court of probate. 

The Court of Probate shall remain as now established in the County of 
Charleston. In all other Counties of the State the jurisdiction in all matters 
testamentary and of administration, in business appertaining to minors, and 
the allotiuent of dower, in cases of idiocy and lunacy, and persons non compos 
mentis, shall be vested as the General Assembly may provide, and until such 
provision such jurisdiction shall remain in the Court of Probate as now es- 
tablished. 

See Const. 1868, Art. IV, § 20. 

Probate court is not a constitutional court. 
Bradford v. Richardson, 111 S. C. 205, 
97 S. E. 58 (1918). 

Jurisdiction of probate court. — The court 
of probate in South Carolina has only such 
jurisdiction as is vested in it by the General 
Assembly and limited by this section of the 
Constitution. Davis v. Davis, 214 S. C. 247, 
52 S. E. (2d) 192 (1949). 

Is subject to legislative change. — - The 
legislature may vest the jurisdiction former- 
ly exercised by the probate court, or any 
part of it, in other courts as it may deem 
expedient. This power necessarily includes 
the power to abolish the court entirely, and 
consequently the power to invest it with 
such jurisdiction as the legislature may see 
fit, not inconsistent with other provisions of 
the Constitution. Bradford v. Richardson, 
111 S. C. 205, 97 S. E. 58 (1918). 

Even though its constitutional jurisdic- 
tion cannot be destroyed. — This section 
gives the probate court jurisdiction "in all 
matters testamentary," and its constitution- 
al jurisdiction cannot be destroyed. Hand 
v. Kelly, 102 S. C. 151, 86 S. E. 382 (1915) 
dis. op. of Eraser, J. 

Section provides jurisdiction over mental 
competence issue. — This section is the 
source of jurisdiction of a probate proceed- 
ing adjudging the mental competence of a 
person. Cobb v. South Carolina Nat. Bank, 
210 S. C. 533, 43 S. E. (2d) 465 (1947). 

Probate court has no exclusive jurisdic- 
tion of matters testamentary. — Under this 
section, probate court has not exclusive 
jurisdiction excluding judicial inquiry by 
court of common pleas into matters testa- 
mentary or of administration, when subject 
matter of such inquiry is not already res 
judicata by virtue of judgment of court of 



probate. Beatty v. National Sur. Co., 132 
S. C. 45, 128 S. E. 40 (1925). 

Provided action is not already pending in 
probate court. — Court of common pleas 
will decline to entertain jurisdiction of mat- 
ters embraced in action already pending in 
probate court. Beattv v. National Sur. Co., 
132 S. C. 45, 128 S. E. 40 (1925). 

A probate judge can require the general 
guardian of a minor to give a nevr bond 
when such guardian is about to receive 
funds not in contemplation when the orig- 
inal bond was executed. Williams v. 
Weeks, 70 S. C. 1, 48 S. E. 619 (1904). 

Probate judge as public guardian. — Act- 
ing as public guardian is a new duty im- 
posed by the legislature upon the judge of 
probate, is merely incidental to his office, 
and does not create a new ofiice. State v. 
Green, 52 S. C. 526, 30 S. E. 1006 (1898); 
State V. Green, 52 S. C. 520, 30 S. E. 683 
(1898). 

Failure to serve notice of inquisition on 
lunatic when appointing committee. — The 
validity of a decree of a probate court ap- 
pointing a committee for a lunatic was not 
aflfected by the fact that the lunatic was not 
served with notice of the inquisition. Cath- 
cart v. Hopkins, 119 S. C. 190, 112 S. E. 64 
(1922). 

Appeal from decree of insanity. — Cer- 
tiorari will not lie to a decree of the probate 
court declaring a person to be of unsound 
mind, but appeal is the proper remedy. Ex 
parte Gregory, 58 S. C. 114, 36 S. E. 433 
(1900). 

Applied in Muldrow v. Jeffords, 144 S. C. 
509, 142 S. E. 602 (1928); McNair v. Howie, 
123 S. C. 252, 116 S. E. 279 (1923); Hendrix 
V. Holden, 58 S. C. 495, 36 S. E. 1010 (1900). 



184 



Art. 5, § 20 Constitution of the State of South Carolina Art. 5, § 20 



§ 20. Magistrates ; term of office ; constables ; salary. 

A sufficient number of Magistrates shall be appointed and commissioned 
by the Governor, by and with the advice and consent of the Senate, for each 
County, who shall hold their offices for the term of two years and until their 
successors are appointed and qualified. Each Magistrate shall have the 
power under such regulations as may now or hereafter be provided by law, 
to appoint one or more Constables to execute writs and processes issued by 
him. The present trial Justices are declared Magistrates as herein created 
and shall exercise the powers and duties of said office of Magistrate until 
their successors shall be appointed and qualified. Each Magistrate shall re- 
ceive a salary, to be fixed by the General Assembly, in lieu of all fees in 
criminal cases. Provided, however, that in the Counties of Aiken and Hamp- 
ton the Magistrates shall hold their office for a term of four years and until 
their successors are appointed and qualified. 

1944 (43) 1571; 1946 (44) 1323. 

Provided, further. That, in tiie County of Berkeley, Magistrates shall hold 
office for a term of four (4) years and until their successors are appointed and 
qualified. 

1947 (45) 867; 1949 (46) 15. 

Provided, that in the county of Florence the magistrates shall hold their 
offices for the term of four years and until their respective successors are 
appointed and qualified. 

1949 (46) 1207; 1951 (47) 38. 

Provided, that in the county of Richland the Magistrates shall hold their 
offices for the term of four years and until their respective successors are ap- 
pointed and qualified. 



1949 (46) 1560; 1951 (47) 74. 
See Const. 1868. .A.rt. IV, § 21. 

Section guarantees salary of magistrate. 

— Tlie office of magistrate is a constitutional 
one, and the salary of magistrates is guar- 
anteed by this section of the Constitution. 
Gaffnev v. Mallory, 186 S, C. 337, 195 S. E. 
840 (1938). 

Magistrate must be appointed by Gov- 
ernor. — A statute calling for "election" of 
a candidate for magistrate was construed to 
mean "nomination" of a candidate and con- 
stituted a mere suggestion to the Governor 
which could be ignored, since this section 
of the Constitution^reqrrires^-appointment of 
the magistrate by the Governor. Young v. / 
Sapp, 167 S. C. 364, 166 S. E. 354 (1932). / 

With consent and advice of Senate. — 
State v. Bowdcn, 92 S. C. 393, 75 S. E. 866 
(1912). 

This section is not inconsistent with S. C. 
Const., Art. 1, § 11. Prior to the adoption 
of the Constitution of 1895, offices in this 
state might be held during good behavior. 
The purpose of S. C. Const., Art. 1, § 11, 
was to change this rule and make the term 
a limited one so as to make office holders 
more amenable to the elective or appointive 



power. It would be most unreasonable to 
impute to the constitutional convention a 
purpose to give to the expression, "some 
specified period," a meaning so narrow as 
to prohibit any legislative provision against 
the inconvenience arising from vacancies in 
public otfice, which would occur if the in- 
cumbent could not be allowed to hold office 
until the appointment or election and qualifi- 
cation of his successor. Such a construc- 
tion of the Constitution is impossible. The 
convention could not have meant to pro- 
hibit itself and the General Assembly from 
doing that which it later in the same Consti- 
tution actually did in providing that the 
Governor and the justices of the Supreme 
Court should hold their office for the num- 
ber of years mentioned and until their suc- 
cessors should be elected and qualified, and 
that magistrates should hold their offices for 
two years and until their successors should 
be appointed, confirmed, and should qualify. 
State V. Bowden, 92 S. C. 393, 75 S. E. 866 
(1912). 

Trial justices were continued in office as 
magistrates. — Trial justices were continued 



185 



Art. 5, § 21 Constitution of the State of South Carolina Art. 5, § 21 



in office upon the adoption of the Constitu- 
tion of 1895 under the name of magistrates, 
with all the powers and duties previously 
belonging to the office of trial justice. In 
re Hooper, 48 S. C. 149, 26 S. E. 466 (1897). 
Magistrate may appoint regular constable. 
— Section 43-1014. allowing the appoint- 
ment or designation of a constable by the 
Senator of Spartanburg County, is unconsti- 
tutional under this section insofar as it takes 
away from the magistrate the right to ap- 
point his own constable and gives the con- 
stable appointed by the Senator the right 
to serve all papers issued by the magistrate 



and collect fees, whether the constable 
served the papers or not. Harrison v. Lan- 
caster, 204 S. C. 318, 28 S. E. (2d) 835 
(1944). 

And also special constables. — A magis- 
trate may appoint a special constable for a 
particular occasion. Cromer v. Watson, 59 
S. C. 488, 38 S. E. 126 (1901). 

Applied in Columbia v. Smith, 105 S. C. 
348, 89 S. E. 1028 (1916). 

Stated in McDowell v. Burnett, 90 S. C. 
400, 7Z S. E. 782 (1912). 

Cited in Carlisle v. Prior, 48 S. C. 183, 
26 S. E. 244 (1897). 





§ 21. Jurisdiction of magistrates ; examining courts. 

Magistrates shall have jurisdiction in such civil cases as the General As- 
sembly may prescribe: Provided, Such jurisdiction shall not extend to cases 
where the value of property in controversy, or the amount claimed, exceeds 
one hundred dollars, or to cases where the title to real estate is in question, 
or to cases in chancery. They shall have exclusive jurisdiction in such crim- 
inal cases as the General Assembly may prescribe: Provided, further. Such 
jurisdiction shall not extend to cases where the punishment exceeds a fine of 
one hundred dollars or imprisonment for thirty days. In criminal matters 
beyond their jurisdiction to try, they shall sit as Examining Courts, and com- 
mit, discharge, or, except in capital cases recognize, persons charged with such 
offences, subject to such regulations as the General Assembly may provide. 
They shall also have the power to bind over to keep the peace and for good 
behavior for a time not to exceed twelve months. 

Provided, That in the County of Sumter, jurisdiction of magistrates in civil 
pases shall extend to where the value of property in controversy or the amount 
claimed is not more than Two Hundred ($200.00) Dollars, except in the Third 
Magisterial District, where the amount shall not exceed One Thousand 
($1,000.00) Dollars. 

1932 {Z7) 1399; 1933 (38) 586. 

Provided, fitrther, That in addition to the jurisdiction conferred by this 
Constitution upon magistrates in Anderson County, any magistrate or magis- 
trates residing in the City of Anderson, or within seven {7) miles of the cor- 
porate limits of said City, who are licensed to practice law in this State and 
who have been actively engaged in the practice of law in this State for a 
period of two (2) years shalljliave_the , sam£- Jurisdiction as the _Court of 
Common Pleas and the judges thereof and concurrent therewith in all cases 
in law and equity, special proceedings and remedial remedies, where the 
value of the property in controversy or the amount claimed does not exceed 
the sum of One Thousand ($1,000.00) Dollars, to issue and hear writs of 
habeas corpus to determine the custody of minor children : Provided, however, 
They shall not have jurisdiction in any case where the title to real estate is 
involved, and such magistrate or magistrates shall have jurisdiction in such 
criminal cases a s the Genera l Ass embly may prescri be, but such jurisdiction 
shall not extend to cases where the punishment exceeds a fine of Five Hundred 

186 



Art. S, § 21 Constitution of the State of South Carolina Art. 5, § 21 



($500.00) Dollars and/or irnprisonmentfor_eighteen(18) months, (either or 
both) with or without hardTabor, except, however, such jurisdiction in crim- 
inal cases may be extended by the General Assembly to include any and all 
violations of the laws relating to into.xicating and/or alcoholic liquors, cases 
charging non-support of wife and/or child or children, bastardy, drawing 
and uttering fraudulent check, driving motor vehicle under the influence of 
intoxicating liquor, and disposing of property under lien, and in such cases 
said magistrates shall have the power to impose such sentences as are pro- 
vided by law for such offences. The said magistrates having the additional 
jurisdiction herein provided, may be designated special magistrates, County 
Judges, or by such other title as the General Assembly may prescribe. The 
manner of selecting jurors to serve said magistrates in exercising such ad- 
ditional jurisdiction and the area from which such jurors are selected, may 
be as the General Assembl}^ shall prescribe. 

1934 (38) 1627; 1935 (39) 341; 1946 (44) 1822; 1947 (45) 34. ' 

Provided, that the General Assembly may increase the jurisdiction of any 
magistrate in Darlington County who is licensed to practice law in this State, 
to civil cases where the value of the property in controversy, or the amount 
claimed, does not exceed One Thousand Dollars ($1,000.00). 

1950 (46) 2980; 1951 (47) 223. 

See Const. 1868, Art. IV, §§ 22, 23. 



I. General Consideration. 
II. Application of Section. 

Cross Reference. 

As to jurisdiction of the court of general 
sessions, see S. C. Const., Art. S, § 18. 

I. GENERAL CONSIDERATION. 

Jurisdiction of magistrates is fixed by the 
Constitution and statutes enacted pursuant 
thereto. Clemmons v. Nicholson, 188 S. C. 
124, 198 S. E. 180 (1938). 

And extends throughout county in ab- 
sence of restriction. — As the General As- 
sembly has not restricted territorial juris- 
diction of magistrates in Greenville County 
concerning civil actions, such jurisdiction 
extends throughout the county. Baker v. 
Irvine. 61 S, C. 114. 39 S. E. 252 (190n. 

Against all defendants subject to process 
or who voluntarily appear. — Best v. Sea- 
board, etc., Ry., 72 S. C. 479, 52 S. E. 223 
(1905). 

Where summons is issued to divide crop 
and it is agreed that proceeding be treated 
as action to recover amount of laborer's 
wages, measured by value of one half of 
crop less laborer's debt to landlord, the ap- 
pearance of the parties gives magistrate ju- 
risdiction of whole matter. Wilkie v. Mur- 
phy, 88 S. C. 415. 70 S. E. 1028 (1911). 

Burden is on plaintiff to establish juris- 
diction.— Stroy V. Nicpee, 105 S. C. 265, 89 
S. E. 666 (1916). 



And he may reduce claim to bring it with- 
in jurisdiction. — It is no objection to the ju- 
risdiction of a trial justice that plaintiff re- 
duce his demand to bring it within the 
amount over which the justice has jurisdic- ' 
tion. Catawba Mills v. Hood, 42 S. C. 203, 
20 S. E. 91 (1894). 

But fictitious claim may not be made. — 
Under this section, a party cannot put a 
fictitious value on property in order to con- 
fer jurisdiction. Stroy v. Nicpee, 105 S. C. 
265, 89 S. E. 666 (1916). 

This section includes suits against cor- 
porations. Dennis v. Atlantic Coast Line 
R. Co., 86 S. C. 258, 68 S. E. 455 (1910). 

Including foreign corporations. — This 
section gives a magistrate jurisdiction of an 
action against a foreign corporation having 
property in the State to recover a penalty 
by due service of summons. Best v. Sea- 
board, etc., Ry., 72 S. C. 479. 52 S. E. 223 
(1905). 

Action must not be equitable in nature.^ 
Where proof showed that plaintiff and de- 
fendant in an action of claim and delivery 
were joint owners, their riglits, equitable 
in nature, could not be administered in a 
magistrate's court in view of this section. 
Driggers v. Cannon, 107 S. C. 322, 92 S. E. 
1049 (1917). 

Penalty for offense must be fixed. — A 
magistrate's court has no jurisdiction as to 
an obstruction of a highway or neighbor- 
hood road, an indictable ofTense under the 



187 



Art. 5, § 21 Constitution of the State of South Carolina Art. 5, § 21 



common law, where the penalty therefor has 
not been limited. State v. Mellette, 106 S. 
C. 224, 91 S. E. 4 (1916). 

Within constitutional limits. — Magis- 
trate's court has exclusive jurisdiction 
where fine is not over $100. State v. Brown, 
201 S. C. 417, 23 S. E. (2d) 381 (1942). 

Or amount claimed must be within consti- 
tutional limits. — An action for possession of 
chattels of the value of $100, and for $75 
damages, or, if they cannot be returned, for 
a judgment for $175. is under this section in 
excess of the jurisdiction of a magistrate. 
Reynolds v. Philips, 72 S. C. Z2, 51 S. E. 
523 (1905). 

Judgment is not reversed where basis 
for finding exists. — Judgment will not be 
reversed where evidentiary basis for trial 
judge's finding exists and the conclusion is 
correct. Stewart-Jones Co. v. Shehan, 127 
S. C. 451, 121 S. E. 374 (1924). 

For additional related cases, see State v. 
Wolfe. 61 S. C. 25. 39 S. E. 179 (1901); 
Burckhalter v. Jones. 58 S. C. 89, 36 S. E. 
495 (1900) ; Dill v. Durham, 56 S. C. 423. 35 
S. E. 3 (1900) : State v. .\dams, 49 S. C. 518. 
27 S. E. 523 (1897); State v. Morelli, 107 
S. C. 262, 92 S. E. 475 (1917); Lewis v. 
Cooley, 81 S. C. 461, 62 S. E. 868 (1908). 

Applied in Barnes v. Charleston, & W. C. 
Ry. Co., 106 S. C. 227, 90 S. E. 1017 (1916); 
Mavfield v. Bessinger. 87 S. C. 369. 69 S. E. 
673 (1910); Holliday v. Poston, 60 S. C. 103, 
38 S. E. 449 (1901) ; Harby v. Wells, 52 S. C. 
156, 29 S. E. 563 (1898); City Council v. 
Weller, 34 S. C. 357, 13 S. E. 628 (1891); 
City Council v. Ashley Phosphate Co., 33 
S. C. 25, 11 S. E. 386 (1890); State v. Jen- 
kins, 26 S. C. 121, 1 S. E. 437 (1887). 

Quoted in Metropolitan Life Ins. Co. v. 
Stuckey, 194 S. C. 469, 10 S. E. (2d) 3 
(19401. 

Stated in .\nderson v. Selingman, 85 S. 
C. 16, 67 S. E. 13 (1910); Jenkins v. Atlan- 
tic, etc., R. Co., 84 S. C. 343. 66 S. E. 409 
(1909); Central v. Madden. 81 S. C. 7, 61 
S. E. 1028 (1908); In re Hooper, 48 S. C. 
149. 26 S. E. 466 (1896); State v. Williams, 
40 S. C. 373, 19 S. E. 5 (1893). 

Cited in Columbia v. Smith. 105 S. C. 
348. 89 S. E. 1028 (1916); State v. Pickett. 
47 S. C. 101, 25 S. E, 46 (1896). 

II. APPLICATION OF SECTION. 

In contract matters jurisdiction is de- 
termined by amount claimed. — B run son v. 
Furtick, 72 S. C. 579. 52 S. E. 424 (1905). 

And judgment on claim in excess of such 
amount is void. — Strov v. Nicpee, 105 S. C. 
265, 89 S. E. 666 (1916). 

Plaintiff can forego part of claim. — Stroy 
V. Nicpee, 105 S. C. 265, 89 S. E. 666 (1916). 



But he cannot later sue on amount omit- 
ted. — Where plaintiff, in reducing his claim 
so as to bring it witliin the jurisdiction of 
a trial justice, leaves out an item which 
could be included in his cause of action, he 
cannot thereafter sue on such item. Cataw- 
ba Mills V. Hood. 42 S. C. 203, 20 S. E. 91 
(1894). 

If a party foregoes part of his claim to 
give the magistrate jurisdiction of the suit, 
he cannot, after judgment, sue for the 
amount so omitted. Stroy v. Nicpee, 105 S. 
C. 265. 89 S. E. 666 (1916). 

Magistrates have jurisdiction to forfeit 
goods exposed for sale on Sunday. — Laws 
autliorizing confiscation of goods offered or 
exposed for sale on Sunday are not invalid 
as extending power and authority of mag- 
istrates. Xepapas v. Richardson. 149 S. C. 
52. 146 S. E. 686 (1929). 

As term "punishment" does not include 
forfeiture. — State v. Hondros, 100 S. C. 
242. 84 S. E. 781 (1915). 

Magistrate can commit to jail one in de- 
fault of peace bond. — A magistrate has ju- 
risdiction, on finding defendant guilty of 
breach of the peace, to commit him to jail 
in default of a peace bond conditioned for a 
year and a day. State v. Garlington. 56 
S. C. 413, 34 S. E. 689 (1900). 

And may hear estoppel defense in claim 
and delivery. — Although this section pro- 
vides that the jurisdiction of magistrates 
shall not extend to cases in chancery, in an 
action in claim and delivery to recover pos- 
session of a horse, tried before a magistrate, 
defense of estoppel was in pais and not equi- 
table in its nature, and hence the magistrate 
had jurisdiction thereof. ."Mken v. Seaburv, 
107 S. C. 376, 92 S. E. 1048 (1917). 

But he may not try housebreaking and 
grand larceny. — A trial in a maaistrate's 
court for housebreaking and grand larceny, 
both of which are felonies, is a nullity under 
this section, and hence is not a bar to a 
subsequent trial and conviction on the same 
charges in the court of general sessions. 
State V. Rountree, 127 S. C. 261, 121 S. E. 
205 0924). 

Preliminary examination of accused does 
not violate section. — See note to S. C. 
Const., Art. 5, § 18. 

Jurisdiction is not lost because title to 
realty is involved. — A magistrate does not 
lose jurisdiction of a criminal case merely 
because title to land is incidentally involved. 
State V. Holcomb, 63 S. C. 22. 40 S. E. 
1017 (1902). 

Or because of mere attempt to deny land- 
lord's title. — Notwithstanding this section, 
mere attempt to deny landlord's title or as- 
sertion of a superior title will not oust the 
magistrate of jurisdiction in a summary pro- 

188 



Art. 5, § 22 Constitution of the State of South Carolina Art. 5, § 22 



ceeding. Stewart-Jones Co. v. Shelian, 127 
S. C. 451, 121 S. E. 374 (1924). 

Jurisdiction in actions for possession of 
realty. — In actions between landlord and 
tenant for the mere possession of realty, the 
jurisdiction of the magistrate is not affected 
by the value of the property but only by 
the value of the possession. American Oil 
Co. V. Cox, 182 S. C. 419, 189 S. E. 660 
(1937). 



Bond on appeal from magistrate's court. 

— Section 41-113 of tlie Code, which pro- 
vides for an appeal bond in the event of an 
appeal from a magistrate's judgment in an 
ejectment action by a landlord against his 
tenant, is not unconstitutional in the sense 
that it permits a magistrate to require a 
bond in excess of $100, for it bears no direct 
or necessary relation to jurisdiction. Amer- 
ican Oil Co. V. Cox, 182 S. C. 419, 189 S. E. 
660 (1937), 



§ 22. Trial by jury ; Jury in inferior courts ; grand jury. 

All persons charged with an offence shall have the right to demand and 
obtain a trial by jury. The jury in cases civil or criminal in all municipal 
Courts, and Courts inferior tO Circuit Courts, shall consist of six. The grand 
jury of each County shall consist of eighteen members, twelve of whom must 
agree in a matter before it can be subiuitted to the Court. The petit jury of 
the Circuit Courts shall consist of twelve men, all of whom must agree to a 
verdict in order to render the same. Each juror must be a qualified elector un- 
der the provision of this Constitution, between the ages of twentj'-one and six- 
ty-five years, and of good moral character. 

See Const. 1868, Art. I, § 11. 



I. General Consideration. 
II. Grand Jury. 
III. Disqualification of Jurors. 

Cross References. 

As to presentment of grand jury required 
as a condition precedent to trial of crime, 
see note to S. C. Const., Art. 1, § 17. As to 
right to speedy and public trial by an im- 
partial jury, see S. C. Const., Art. 1, § 18. 

I. GENERAL CONSIDERATION. 

Section incorporates law existing at time 
of its adoption. — The first clause of this sec- 
tion did not change the law then in force, 
but only made it permanent by incorporat- 
ing it in the organic law of the land. Burck- 
halter v. Jones, 58 S. C. 89, 36 S. E. 495 
(1900). 

And does not inhibit legislation where 
trial by jury did not then exist. — The pro- 
vision does not inhibit legislation as to 
cases where the right of trial by jury did 
not exist at its adoption, nor as to analo- 
gous cases. On the contrary, proceedings 
witliout jury, existing before the adoption 
of the S. C. Constitution, serve to author- 
ize analogous proceedings by the legislature 
subsequently. Frazee v. Beattie, 26 S. C. 
348, 2 S. E. 125 (1887). 

Thus a statute giving county commis- 
sioners the power to condemn land for pub- 
lic roads and assess damages therefor does 
not violate this section, since no right to 



trial by jury existed in such proceedings 
prior to its adoption. Gilmer v. Hunnicutt, 
57 S. C. 166, 35 S. E. 521 (1900). 

A statute providing a summary mode of 
ejecting tenants, who either hold over after 
the expiration of their leases or fail to pay 
rent when due, and conferring jurisdiction 
on justices of the peace in such cases is not 
unconstitutional as violating the right to 
a trial by jury guaranteed by this section 
for the reason that previous to the adoption 
of the Constitution no right to a jury trial 
existed in such proceeding. Frazee v. Beat- 
tie, 26 S. C. 348, 2 S. E. 125 (1887). 

Capital felony must be tried by jury of 
twelve men. — One charged with capital fel- 
ony cannot be tried by a jury of less that 12 
men, though his attorney consented to trial 
by 11 men and though the accused remains 
silent and testifies before the eleven men. 
State V. Hall, 137 S. C. 261 101 S. E. 662 
(1919). 

Jury trial may be waived. Belcher v. 
Com'rs, 2 McC. (13 S. C. L.) 23. 

Right to serve as juror is not a vested 
right. Garrett v. Weinberg, 54 S. C. 127, 
31 S. E. 341, 34 S. E. 70 (1899). 

Act providing for jury of six is constitu- 
tional. — An act establishing the Greenwood 
County court, and providing for a jury of 
six is constitutional under this section as 
applied to a conviction for violating the 
State prohibition law. State v. Klugh, 127 
S. C. 429, 121 S. E. 262 (1924). 



189 



Art. 5, § 22 Constitution of the State of South Carolina Art. 5, § 22 



Refused charge on assault and battery 
not violating section. — In prosecution for 
assault and battery with intent to kill, re- 
fusal to instruct on law of simple assault 
and battery did not violate defendant's con- 
stitutional rights. State v. Bush, 156 S. C. 
526. 143 S. E. 490 (1930). 

For additional related cases, see Columbia 
V. Smith, 105 S. C. 348, 89 S. E. 1028 (1916): 
In re Hooper, 48 S. C. 149, 26 S. E. 466 
(1897). 

Applied in Columbia v. Smith, 105 S. C. 
348, 89 S. E. 1028 (1916); State v. Williams, 
40 S. C. 373, 19 S. E. 5 (1893); Utsev v. 
Charleston, S. & N. R. Co., 38 S. C. 399, 17 
S. E. 141 (1893). 

Quoted in Glvmph v. Smith, 170 S. C. 486, 
170 S. E. 913 (1933). 

Stated in Best v. Barnwell County, 114 
S. C. 123, 103 S. E. 479 (1920); State v. 
Barden, 64 S. C. 206, 41 S. E. 959 (1902). 

Cited in McCulIough v. Brown, 41 S. C. 
220. 19 S. E. 458 (1894); State v. DeYoung, 
209 S. C. 482, 41 S. E. (2d) 100 (1947). 

II. GRAXD JURY. 

Section is mandatory as to grand juries. 
— This section, declaring that the grand 
jury of each county shall consist of eighteen 
members, is mandatory. State v. Powers, 

59 S. C. 200, 37 S. E. 690 (1901). 

And as to qualified electors. — The pro- 
vision of this section that only a qualified 
elector may be a member of the grand jury 
is mandatory. State v. Rector, 158 S. C. 
212, 155 S .E. 385 (1930); State v. Bibbs, 
192 S. C. 231, 6 S. E. (2d) 276 (1939). 

"Qualified elector" means "registered 
elector." — Tlie term "qualified elector," 
within constitutional provision regarding 
jurors, means "registered elector." State v. 
liector, 158 S. C. 212, 155 S. E. 385 (1930); 
State V. Grant, 199 S. C. 412, 19 S. E. (2d) 
638 (1941). 

Any good citizen qualified under the Con- 
stitution may be drawn to serve on the 
grand iurv. State v. Graham, 79 S. C. 116, 

60 S. E. 431 (190S). 

There is no distinction between qualifica- 
tions of a grand and of a petit juror. State 
V. Williams, 35 S. C. 344, 14 S. E. 819 (1892). 

Both grand and petit jurors must be reg- 
istered electors. — A juror, grand as well as 
petit, must be registered elector of county 
in which he is called to serve. State v. 
Rector, 158 S. C. 212, 155 S, E. 385 (1930); 
State v. Bibbs, 192 S. C. 231, 6 S. E. (2d) 
276 (1939); State v. Grant, 199 S. C. 412, 19 
S. E. (2d) 638 (1941); State v. Middleton, 
207 S. C. 478, 36 S. E. (2d) 742 (1946). 

Court properly quashed indictment where 
at least two of seventeen grand jurors, who 



participated in finding it. were not regis- 
tered electors and were disqualified to act. 
State v. Rector, 158 S. C. 212, 155 S. E. 
385 (1930). 

In State v. Bibbs, 192 S. C. 231, 6 S. E. 
(2d) 276 (1939), a murder indictment was 
set aside upon the ground that the grand 
jury which found the indictment was not a 
legally qualified one, since five members of 
the jury were not legally registered electors 
due to the fact that their certificates of reg- 
istration were not signed in accordance with 
the Code. 

Where a grand jury was duly drawn, duly 
organized, and acted upon the indictment 
in the regular and usual manner; where it 
was a grand jury of the court of general 
sessions for the term at which the indict- 
ment was found; where it was selected by 
the officers having lawful authority so to do 
and was composed of members duly sworn; 
and where all the proceedings were regular 
in every respect, except only that it after- 
wards appeared that there was a statutory 
irregularity in the issuance of certificates of 
registration to these grand jurors, although 
each of them was qualified to receive a 
correct and proper certificate and the de- 
fendant expressly waived such irregularity, 
it was held that he could not later attack 
the validity of the indictment under this 
section because a member of the grand jury 
was not qualified. State v. Hann, 196 S. 
C. 211, 12 S. E. (2d) 720 (1940). 

Although they need not have voted or 
paid poll tax. — This section requires both 
grand and petit jurors to be registered elec- 
tors. But they are not required to have 
voted or to have paid poll tax. State v. 
Middleton, 207 S. C. 478, 36 S. E. (2d) 742 
(1946). 

Twelve grand jurors may find indictment. 
— Twelve grand jurors are a sufficient 
number to be present when an indictment is 
found. State v. Williams, 35 S. C. 344, 14 
S. E. 819 (1892). 

III. DISQU.\LIFICATION OF 
JURORS. 

Disqualification must be proved.— Motion 
to quasli indictment on ground of juror's 
disqualification will be denied in absence 
of proof thereof. State v. Bazen, 89 S. C. 
260, 71 S. E. 779 (1911). 

And must be unknown before verdict. — 
Accused, seelcing a new trial on the ground 
of the disqualification of a juror, must show 
the disqualification, that it was unknown 
before the verdict, and that he was not 
negligent in failing to discover the disquali- 
fication before verdict. State v. Jones, 90 
S. C. 290, 73 S. E. 177 (1912). 



190 



Art. 5, § 22 Constitution of the State of South Carolina Art. 5, § 22 



Disqualification for failure to register 
must be established before trial. — A party 
in a civil action is not entitled to a new 
trial because a juror was not registered, 
though such fact was unknown to the party 
during the trial, since it could have been 
known by a search of the registration books 
which are public records. Mew- v. Charles- 
ton & S. Ry. Co., 55 S. C. 90, 32 S. E. 8_'8 
(1899). 

So also disqualification because of age. — 
Where the trial court, on motion for new 
trial on the ground of the disqualification of 
a juror because over 65 years old, found 
that the jurors had been drawn for 14 days, 
that their names had been published in 
the county papers a week or ten days be- 
fore the court convened, that the juror was 
well known in the community, and that the 
slightest inquiry would have made known 
the fact that he was over age, a finding of 
failure to exercise diligence in discovering 
the disqualification before trial v\'as justified. 
State V. Jones, 90 S. C. 290, 7Z S. E. 177 
(1912). 

Or because of service on former trial. — 
Where a defendant fails to use the means 
afforded by law to ascertain the qualifica- 
tions of jurors, it is not error to refuse a 
new trial based on the alleged ground that 
a juror had served on a former trial of the 
case, which fact was unknown to defendant 
or his counsel until after the trial. State 
V. Robertson, 54 S. C. 147, 31 S. E. 868 
(1899). 

Disqualification of single grand juror 
does not invalidate indictment, unless the 
grand jury was composed of onlv 12 men. 
State v. Bazen, 89 S. C. 260, 71 S. E. 779 
(1911). 

Determination that juror is competent 
cannot be reviewed. — Where a juror is ex- 
amined on a voir dire, and after such exam- 
ination the circuit judge determines that he 
is a competent juror, such determination, 
being on a question of fact, cannot be re- 
viewed. State V. Robertson, 54 S. C. 147, 
31 S. E. 868 (1899). 

Moral character of juror is presumed good 
unless disproved. — Under Federal statutes 
requiring jurors in United States courts to 
have the same qualifications as jurors in the 
highest court of the State, this section re- 
quiring each juror to be a qualified elector 
of good moral character, and S. C. Const., 
Art. 2, § 6, disqualifying persons convicted 
of certain named offenses, one who had 
been convicted on plea of guilty of a viola- 
tion of the act to regulate commerce by 
making false reports of the weight of cer- 
tain articles shipped was not thereby dis- 
qualified to serve as a grand juror. The 



commission of that offense does not show 
that the juror was not a man of good moral 
character, since such character is presumed 
unless the want of it is shown by convic- 
tion of a disqualifying crime or is made to 
appear by evidence outside the record. 
Christopoulo v. United States, 230 F. 788 
(1916). 

Rights of defendant where objection is 
timely taken. — ^\'hile the disqualification of 
a gi'and juror may be waived by a defendant 
if he does not make the objection in time, 
yet when a defendant does insist at the prop- 
er time, he is entitled, as a matter of con- 
stitutional right, to have the grand jury 
which indicts him composed onh' of such 
persons as the Constitution has plainly de- 
clared may act. State v. Hann, 196 S. C. 
211, 12 S. E. (2d) 720 (1940). 

Venire is not quashed where one member 
is overage. — .^ jury venire should not be 
quashed because of the disqualification for 
being overage of one of the persons included 
therein to serve in the courts as a juror. 
State V. Rasor, 168 S. C. 221, 167 S. E. 396 
(1933). 

Defendant must consent to substituted 
juror. — A juror regularly drawn cannot 
have another substituted in his place with- 
out tlie consent of the defendant, and where 
such was the case, a new jury was properly 
drawn. State v. Coleman, 54 S. C. 282, 32 
S. E. 406 (1899). 

Allegation of racial discrimination must 
be proved. — It is necessary to aver and 
prove an allegation that negroes are dis- 
criminated against in the selection of grand 
jury and petit jury which tried negro de- 
fendant. State V. Middleton, 207 S. C. 478, 
36 S. E. (2d) 742 (1946). 

Members of defendant's race need not be 
on jury absent discrimination. — Refusal to 
quash an indictment or to sustain a chal- 
lenge to the array of grand and petit jurors 
because no member of the race to which 
defendant belonged was on the grand jury 
which found the bill of indictment is not 
error, no discrimination against defendant's 
race being shown. State v. Brownfield, 60 
S. C. 509, 39 S. E. 2 (1901), affirmed in 
189 U. S. 426, 23 S. Ct. 513, 47 L. Ed. 882 
(1903). 

Women are not permitted to serve as 
jurors. — Under this section, providing, that 
the petit jury of the criminal courts shall 
consist of 12 men, women are not permitted 
to serve as jurors, notwithstanding the fur- 
ther provision that each juror shall be a 
qualified elector, which does not mean that 
every qualified elector shall be a qualified 
juror. State v. Mittle, 120 S. C. 526, 113 
S. E. 335 (1922). 



191 



Art. 5, § 23 Constitution of the State of South Carolina Art. 5, § 23 



Person convicted of larceny cannot serve 
as juror. — A verdict rendered by a jury, 
one of whom is disqualified to serve on ac- 
count of having been convicted of larceny, 
is void. Garrett v. Weinberg, 54 S. C. 127, 
31 S. E. 341, 34 S. E. 70 (1899). 

A person convicted of larceny is dis- 
qualified from sitting as a juror, and where 
such a person is drawn and it is a fact 
that none of the parties to the action had 
knowledge of the conviction, his disqualifi- 
cation entitled defendants to a new trial. 
Garrett v. Weinberg. 54 S. C. 127, 31 S. E. 
341, 34 S. E. 70 (1899). 

Juror duly registered in 1927 was not dis- 
qualified by failure to reregister in 1928 
prior to trial of case. Veronee v. Charles- 
ton Consol. Ry., etc., Co., 152 S. C. 178, 
149 S. E. 753 (1929). 

Jurors registered and qualified when 
drawn in December are not disqualified for 
service because not reregistering prior to 
service in following year. Veronee v. 
Charleston Consol. Rv., etc., Co., 152 S. C. 
178, 149 S. E. 753 (1929). 

As no provision exists as to time of reg- 
istration in particular year. — It is evident 



from the provisions of the Constitution and 
statute law that a new registration is re- 
quired every tenth year, but nowhere in the 
Constitution or in the statute is provision 
made for the time of the year at which this 
registration shall take place. All of these 
provisions must be construed together to 
give proper force to each, and only under 
a strained construction could it be held 
that it was necessary for every elector in 
the State to reregister on the first day of 
January of the tenth year in order to per- 
form jury duty, provided he was otherwise 
qualified. Veronee v. Charleston Consol. 
Rv.. etc., Co., 152 S. C. 178, 149 S. E. 753 
(1929). 

And failure to pay current taxes does not 
disqualify juror. — Under this section requir- 
ing each juror to be a qualified elector, it 
was not necessary that the juror should 
have paid taxes during the current year, 
which is an essential to his right to vote 
at any particular election but is not essen- 
tial to his being a qualified elector registered 
as such. State v. Mittle, 120 S. C. 526, 113 
S. E. 335 (1922). 



§ 23. Actions in magistrates' courts. 

Every civil action cognizable by Magistrates shall be brought before a Mag- 
istrate in the County where the defendant resides, and every criminal action 
in the County where the offence was cominitted. In all cases tried by them, 
the right of appeal shall be secured under such rules and regulations as may 
be provided by law : Provided, That in Counties where Magistrates have sep- 
arate and exclusive territorial jurisdiction, criminal causes shall be tried in 
the Magistrate's district where the oft'ence was committed, subject to such 
provision for change of venue from one Magistrate's district to another in 
the same County as may be provided by the General Assembly. 

See Const. 1868, Art. IV, § 24. 



Cross references. — As to civil jurisdiction 
of magistrates, see § 43-51 of the Code. As 
to proceedings in claim and delivery before 
magistrates, see §§ 43-171 to 43-173, 43-175, 
43-178 and 43-179. As to appeals from mag- 
istrate's court in criminal cases, see §§ 7-101 
to 7-107. 

This constitutional provision does not de- 
fine the word "resides", and the legisla- 
ture has power to declare the residence of 
corporations for the purposes of suit. Gibbes 
V. National Hospital Service, 202 S. C. 304. 
24 S. E. (2d) 513 (1943). 

Jurisdiction is coextensive with county in 
which defendant resides. — Under this sec- 
tion providing that e%'ery civil action cog- 
nizable by a magistrate shall be brought be- 
fore a magistrate in the county where de- 



fendant resides, magistrates in a county 
have jurisdiction coextensive with the coun- 
ty, which jurisdiction is not limited to ac- 
tions in the township where the defendant 
resides. Wise v. Werts, 72 S. C. 132, 51 
S. E. 547 (1905). 

Action is not brought in county where it 
arose. — Under this section providing that 
every civil action cognizable by a magis- 
trate shall be brought before a magistrate 
in the county where the defendant resides, 
a requirement that an action should be 
brought before a magistrate in the county 
where the cause of action arose is unau- 
thorized. Baker v. Irvine, 62 S. C. 293, 40 
S. E. 672 (1902). 

Bond on appeal in ejectment does not 
violate section. — The requirement that an 



192 



Art. 5, § 24 Constitution of the State of South Carolina Art. 5, § 25 



appeal bj- a tenant in an ejectment case for 
breach of lease, brought under § 41-113, 
must be dismissed unless bond is filed with- 
in five days does not violate this section. 
Horn V. Blackwell, 212 S. C. 480, 48 S. E. 
(2d) 322 (1948). 

Sufficiency of pleadings as to residence. — 
Though this section provides that every civil 
action before a magistrate shall be brought 
in the county where the defendant resides, 
and though the jurisdiction of the court 
must be established affirmatively by the 
record, yet where, in actions before a mag- 
istrate, a defendant in two suits is located 
in one suit in the town of W., which is in G. 
county, and the other in D. township, in G. 
county, it sufticiently appears in the record 
that the location of the defendant is in G. 
county to confer jurisdiction in a magis- 
trate's court in such county under § 43-89, 
providing that pleadings are not required to 
be in any particular form before a magis- 
trate, but must be such as to enable a person 
of a common understanding to know what 
is intended. Hall & Pearsall v. Sullivan, 
70 S. C. 397, SO S. E. 27 (1905). 

Action by attachment against nonresident 
and judgment in rem. — This section does 
not prevent an action by attachment against 
a nonresident and a judgment in rem. 
Burckhalter v. Jones, 58 S. C. 89, 36 S. E. 
495 (1900). 

Waiver of want of jurisdiction. — Where 
a defendant in claim and delivery in a mag- 
istrate's court did not reside within the ter- 
ritorial jurisdiction of the court, as defined 
by this section and statutes enacted pur- 
suant thereto, and did not appear, though 
duly notified, he waived the want of juris- 
diction over him and a default judgment was 
valid. Ex parte Townes, 97 S. C. 56, 81 
S. E. 278 (1914). 



Waiver of objection to jurisdiction by ap- 
pearance. — Jurisdiction for penalty under 
act (24 Stat. 81) may be acquired by magis- 
trate in another county than the one in 
which cause of action arose by appearance 
of carrier, pleading, and participating in the 
cause. Jenkins v. .Atlantic Coast Line R. 
Co., 84 S. C. 343, 66 S. E. 409 (1909). 

Statutes inconsistent with section. — Tliis 
section providing that every civil action 
cognizable by magistrates shall be brought 
before a magistrate in the county where 
defendant resides, being inconsistent there- 
with, repeals an act of 1887 (19 St. at Large, 
p. 1027), which provides for the location of 
a magistrate at Greers, in Greenville Coun- 
ty, who shall have jurisdiction in the coun- 
ties of Greenville and Spartanburg, so far 
as jurisdiction of an action against a resi- 
dent of Spartanburg county is concerned. 
Dill V. Durham, 56 S. C. 423, 35 S. E. 3 
(1900). 

In view of the positive provisions of this 
section of the Constitution, § 10-307 of the 
Code, which gives the plaintiff the right to 
bring his claim in the county where the loss 
occurred, is not applicable to a magistrate's 
court. Gibbes v. National Hospital Serv- 
ice, 202 S. C. 304, 24 S. E. (2d) 513 (1943) 

Applied in State v. Fundcrburk, 130 S. C, 
352, 126 S. E. 140 (1925); Strickland v. Sea- 
board, etc., Ry. Co., 112 S. C. 67. 98 S. E, 
853 (1919); Ragin v. Northwestern R. Co., 
108 S. C. 171. 93 S. E. 860 (1917); Columbia 
V. Smith, 105 S. C. 348, 89 S. E. 1028 (1916) 
Citv Council v. Fowler, 48 S. C. 8, 25 S. E 
900 (1896). 

Stated in O'Rourke v. Atlantic Paint Co. 
91 S. C. 399, 74 S. E. 930 (1912); State v 
Easterlin, 61 S. C. 71, 39 S. E. 250 (1901); 
In re Hooper, 48 S. C. 149, 26 S. E. 466 
(1897). 



§ 24. Compensation for all other officers. 

All officers other than those named in Section nine provided for in this 
Article shall receive for their services such compensation as the General 
Assembl}' may from time to time by law direct. 

See Const. 1868, Art. IV, § 25. 

Legislature may not make "special pro- 
vision" as to salaries. — This section grants 
no power to the legislature to make "special 
provision" as to salaries of officers. It mere- 
ly provides that their compensation shall be 
fixed by the General Assembly, and this 



power to fix must remain subject to the 
prohibition found in S. C. Const., Art. 3, § 
34, that special laws cannot be enacted when 
a general law can be made applicable. 
Gamble v. Clarendon County, 188 S. C. 
250, 198 S. E. 857 (1938). 



§ 25. Powers at chambers. 

Each of the Justices of the Supreme Court and Judges of the Circuit Court 
shall have the same power at chambers to issue writs of habeas corpus, man- 
damus, quo warranto, certiorari, prohibition and interlocutory writs or orders 
[7 SC Code] — 13 193 



Art. 5, § 25 Constitution of the State of South Carolina Art. 5, § 26 



of injunction as when in open Court. Tlie Judges of the Circuit Courts shall 
have such powers at chambers as the General Assembly may provide. 



This section does not restrict the Supreme 
Court's power to issue writs of injunction to 
cases pending in such court, either in its 
original or appellate jurisdiction. Salinas v. 
Aultmau & Co., 49 S. C. 378, 27 S. E. 385 
(1897). 

Circuit judge has power to grant inter- 
locutory order of injunction. — No one 
doubts, or has doubted, that a judge of a 
circuit has the power to grant an inter- 
locutory order of injunction at chambers 
in any action brought in his circuit. Salinas 
V. Aultman & Co., 49 S. C. 378, 27 S. E. 
385 (1897). 

And likewise justice of Supreme Court. — ■ 
A justice of tlie Supreme Court lias juris- 
diction to grant an interlocutory order of 
injunction at chambers. This section de- 
clares that "each" of the justices of the 
Supreme Court shall have the same power 
at chambers to issue interlocutory writs or 
orders of injunction as when in open court 
— that is. as all the justices when in open 
court. Salinas v. .Quitman & Co., 49 S. C. 
378. 27 S. E. 385 (1897). 

Justice may issue writ in Supreme Court's 
original jurisdiction. — Single justice of Su- 
preme Court has power to issue writ or 
order in Court's original jurisdiction and 
make it returnable to Court as whole. King 
V. Aetna Ins. Co., 168 S. C. 84, 167 S. E. 
12 (1932). 

Judge of another circuit sitting at cham- 
bers has jurisdiction to appoint receiver, 
where party opposing appointment appears 
and contests application on merits without 
objecting to court's jurisdiction. Trucsdell 
V. Johnson, 144 S. C. 188, 142 S. E. 343 
(1928). 

Where there is no resident judge, judge 
of another circuit has authority to appoint 
receiver in chambers, in case of default or 
by consent of parties. Truesdell v. John- 
son, 144 S. C. 188, 142 S. E. 343 (1928). 

Judge cannot hear mandamus application 



arising in his circuit while presiding else- 
where. — A circuit judge, while holding court 
in a circuit other than his own, has no ju- 
risdiction to hear and determine, at cham- 
bers, in such other circuit, an application 
for mandamus in a cause which arose in his 
circuit. La Motte v. Smith, 50 S. C. 5SS, 27 
S. E. 933 (1897). 

Jury trial of issues of fact in quo warranto 
is not demandable by either party as of 
right, though the court or judge hearing the 
proceeding, if he desires, in his discretion 
and for his own assistance, may have the 
benefit of a verdict of a jury on the issues 
of fact. State v. Gibbes, 109 S. C. 135, 95 
S. E. 346 (1918). 

Motion for discontinuance may be heard 
and granted at chambers. Shelton v. 
Southern Ry. Co., 80 S. C. 74, 61 S. E. 
220 (1908). 

Order for alimony pendente lite may be 
granted at chambers. — .^n order granting 
alimony pendente lite is an interlocutory 
one, which the court has power to grant at 
chambers, though the marriage is denied. 
Messervv v. Messervy, 80 S. C. 277, 61 S. E. 
442 (I9C8). 

Vahd act requiring notification of dis- 
missal of appeal from conviction. — .\ct re- 
quiring Supreme Court clerk to notify Pen- 
itentiary superintendent of dismissal of ap- 
peal suspending execution of death sen- 
tence was held not unconstitutional as de- 
priving Supreme Court justices and circuit 
court judges of right to issue writs of man- 
damus, quo warranto, etc., at chambers. 
Ex parte Howell, 168 S. C. 197, 167 S. E. 
230 (1932). 

For additional related cases, see Rawlin- 
son v. Ansel, 76 S. C. 395, 57 S. E. 185 
(1907); State v. Kirkland, 41 S. C. 29, 19 
S. E. 215 (1894). 

Applied in Smith v. Smith, 51 S. C. 379, 
29 S. E. 227 (1898); In re Bowen, 186 S. C. 
125, 195 S. E. 253 (1938). 



§ 26. Charge to juries. 

Judges shall not charge juries in 
clare the law. 

See Const. 1868, Art. IV, § 26. 

I. General Consideration. 
II. Object of Section. 

III. Discretion of Judge. 

IV. Powers of Judge. 
V. Duties of Judge. 

VI. Charges Not Contravening Section. 
VII. Charges Contravening Section. 



respect to matters of fact, but shall de- 



I. GENERAL CONSIDERATION. 

Historical note. — Some of the cases con- 
struing this section were decided under the 
provisions of the S. C. Constitution of 1868, 
although most of them were decided under 
the provisions of the S. C. Constitution of 
1895, the section as it now stands. While 

194 [7SCCode] 



Art. 5, § 26 Constitution of the State of South Carolina Art. 5, § 25 



the first claiL-ie of the old section remains 
unclianged — "Judges shall not charge juries 
in respect to matters of fact" — the second 
clause has been changed in two important 
particulars. The permission to "state the 
testimony" has been omitted, and the per- 
mission to "declare the law" has been 
changed into a mandate. Instead of the 
former permissive clause, "Judges . . . 
may . . . declare the law," we find the 
now imperative provision, "Judges . . . 
shall declare the law." See Norris v. 
Clinkscales, 47 S. C. 488, 25 S. E. 797 
(1896). 

Section embodies common-law concept of 
trial. — Upon the common-law concept of 
the trial has been ingrafted the theory of 
jurv trial now embodied in this section. 
Powers V. Rawles, 119 S. C. 134, 112 S. E. 
78 (1922). 

Magistrates are included in the word 
"judges" in this section, and it is their duty 
to charge juries in their court. March- 
banks V. Marchbanks, 58 S. C. 92, 36 S. E. 
438 (1900). 

Exception that court violated this section 
must specify particulars. — An exception that 
the court in giving instructions violated this 
section prohibiting judges from charging in 
respect to matters of fact, which exception 
fails to specify in what particulars such in- 
structions trenched on the constitutional 
provision, is too general to be considered. 
Love V. Turner. 78 S.> C. 513. 59 S. E. 529 
(1907). 

An assignment of error that the trial 
judge in his charge violated the constitution- 
al provision in relation to charging upon 
the facts of the case in his manner of stat- 
ing the testimony is too general to be con- 
sidered. State v. Aughtry. 49 S. C. 285, 26 
S. E. 619, 27 S. E. 199 (1897). 

Part of charge alleged to constitute com- 
ment on facts must be read in connection 
with other parts of charge. State v. Stal- 
vey, 146 S. C. 275, 143 S. E. 817 (1928). 

For additional related cases, see State v. 
Dill. 48 S. C. 249, 26 S. E. 567 (1897) : State 
V. Godfrey, 60 S. C. 498, 39 S. E. 1 (1901): 
McDaniel v. Monroe, 63 S. C. 307, 41 S. E. 
456 (1902); Willcox, Ives & Co. v. Jeflfcoat, 
135 S. C. 149, 133 S. E. 463 (1926); Jeffords 
v. Tokio Marine & Fire Ins. Co., 123 S. C. 
467, 117 S. E. 79 (1923); State v. Danellv, 
116 S. C. 113, 107 S. E. 149 (1921) ; Burnett 
& Johnson v. Senn, 91 S. C. 175, 74 S. E. 
376 (1912); State v. Anderson, 85 S. C. 229, 
67 S. E. 237 (1910); Garrett v. Weinberg, 
59 S. C. 162, 57 S. E. 51, 225 (1900). 

Applied in Walker v. Life Ins. Co., 175 
S. C. 153, 178 S. E. 618 (1935); State v. 



Woods, 199 S. C. 252, 19 S. E. (2d) 103 
(1942); State v. Bagwell, 201 S. C. 2&7. 23 
S. E. (2d) 244 (1942); State v. Cash, 209 S. 
C. 391, 40 S. E. (2d) 498 (1946); Levcsque 
v. Clearwater Alfg. Co., 209 S. C. 494, 41 
S. E. (2d) 92 (1947). 

Stated in State v. Smith, 200 S. C. 188, 20 
S. E. (2d) 726 (1942). 

Cited in State v. Harrell, 142 S. C. 24, 
140 S. E. 258 (1927); State v. Center, 133 
S. C. 185, 130 S. E. 646 (1925); Richardson 
V. Northwestern R. Co., 131 S. C. 57, 126 
S. E. 397 (1924) ; State v. Jackson, 126 S. C. 
244, 119 S. E. 576 (1923); State v. Mason, 
118 S. C. 171, 110 S. E. 128 (1921); Clark v. 
Southeastern Life Ins. Co., 101 S. C. 249, 
85 S. E. 407 (1915); Settlemeyer v. South- 
ern Ry. Co., 97 S. C. 85, 81 S. E. 465 (1914) ; 
Strauss v. Atlantic Coast Line R. Co., 94 
S. C. 324, 17 S. E. 1117 (1913); Craig v. 
Augusta-Aiken Rv. Co., 89 S. C. 161, 71 
S. E. 983 (1911); Martin v. Columbia St. 
Ry., etc.. Power Co., 84 S. C. 568, 66 S. E. 
993 (1910); Dyson v. Southern Ry. Co., 
83 S. C. 354, 65 S. E. 344 (1909); Forrest 
V. McEee, 78 S. C. 105. 58 S. E. 955 (1907); 
Frasier v. Charleston & W. C. Ry. Co., 7Z 
S. C. 140, 52 S. E. 964 (1905); Weber v. 
Southern Ry. Co.. 65 S. C. 356, 43 S. E. 888 
(1903); State v. Marchbanks, 61 S. C. 17, 
39 S. E. 187 (1901); State v. Meares, 60 S. 
C. 527, 39 S. E. 245 (1901); Sparkman v. 
Supreme Council, 57 S. C. 16, 35 S. E. 391 
(1900) ; Tucker v. Charleston & W. Ry. Co., 
51 S. C. 306. 28 S. E. 943 (1898); Ober & 
Sons Co. V. Blalock, 40 S. C. 31, 18 S. E. 264 
(1893); Sanders v. Bagwell, 37 S. C. 145, 
15 S. E. 714, 16 S. E. 770 (1892); Amaker v. 
New, Zi S. C. 28, 11 S. E. 386 (1890); State 
V. Bigham, 119 S. C. 368, 112 S. E. 332 
(1922); Rcnno v. Seaboard, etc., Ry., 120 
S. C. 7, 112 S. E. 439 (1922); Anderson v. 
Merchants' Grocery Co., 99 S. C. 383, 84 
S. E. 109 (1914); Deal v. Deal, 91 S. C. 
351, 74 S. E. 482 (1912); German-American 
Ins. Co. v. Southern Ry. Co., 77 S. C. 467, 
58 S. E. d,i7 (1907); State v. Norton, 69 
S. C. 454. 48 S. E. 464 (1904); State v. 
Adams, 68 S. C. 421, 47 S.. E. 676 (1904); 
State v. Bowers, 65 S. C. 207, 43 S. E. 
656 (1903) ; McCoy v. State Highwav Dept., 
169 S. C. 436, 169 S. E. 174 (1933); Gar- 
rison v. Coca Cola Bottling Co., 174 S. C. 
396, 177 S. E. 656 (1934); State v. Eskew, 
206 S. C. 519, 34 S. E. (2d) 767 (1945), re- 
printed with corrections in 211 S. C. 565, 
34 S. E. (2d) 767 (1945). 

II. OBJECT OF SECTION. 

Judge shall state principles of law. — This 
section simply means that the judge shall 



195 



Art. 5, § 26 Constitution of the State of South Carolina Art. 5, § 26 



state the controlling principles of law ap- 
plicable to the case in the light of the plead- 
ings and the evidence, even if no request is 
presented by counsel for either party. If 
any elaboration thereof or a charge on some 
specific phase is desired, counsel must bring 
the matter to the attention of the court or 
it will be deemed to have been waived. It 
is manifest that this rule does not apply if 
the court has given "erroneous directions." 
Coleman v. Lurev. 199 S. C. 442. 20 S. E. 
(2d) 65 (1942); Trexler v. Mclntrye, 216 
S, C. 469, 58 S. E. (2d) 887 (1950). 

But jury shall decide all questions of 
fact. — The real object of this clause of the 
Constitution is to leave the decision of all 
questions of fact to the jury exclusively, 
uninfluenced by any expressions of opinion 
bv the judge. 'State v. White, IS S. C. 381, 
(1881); State v, Davis. 27 S. C. 609. 4 S. E. 
567 (1888); State v. Pruitt, 187 S. C. 58, 
196 S. E. 371 (1938); Havnes v. Graham, 
192 S. C. 382, 6 S. E. (2d) 903 (1940); State 
V. Coggins, 210 S. C. 242, 42 S. E. (2d) 240 
(1947), dis. op. of Taylor, A. J. 

This section was intended clearly to leave 
to the jury all questions of fact, and to pre- 
vent the judges from forcing upon juries 
their own convictions as regards matters 
of fact. The force and efifect of any evi- 
dence is for the jury; it is for them to deter- 
mine what credence they will give to it and 
wliat weight it will have with them. The 
juries are the judges of all matters of fact, 
and cannot look to the court for a control- 
ling view; they are to form their own con- 
clusions from the facts submitted to them, 
and the court cannot employ its influence 
over the minds of the jurors to force upon 
them its conclusions in any case. The court 
is not at liberty to give its conclusions in 
any particular portions of the testimony. 
The real object of this clause in the Consti- 
tution is to leave the decision of all ques- 
tions of fact to the jury exclusively, uninflu- 
enced by any expressions of opinion by the 
judge. The judge's position would natural- 
ly add great weight to any opinion he might 
express upon any question of fact arising 
in a case, and for this reason he should 
carefully refrain from and avoid expressing 
any opinion that he may have formed from 
the facts as to the force, weight, and effect, 
leaving it to the jury to draw their own 
conclusions, and not impress upon them 
any impressions that the testimony may 
have made in the mind of the judge. The 
juries are to determine all questions of 
fact, uninfluenced by the judge and un- 
biased by his impressions. State v. Ma- 
haffey, 125 S. C. 313, 118 S. E. 623 (1923). 



Judge may not intimate opinion of case 
to jury. — The purpose of this section is to 
prevent trial judge from intimating to jury 
his opinion of the case, what weight should 
be given to the evidence, and participating 
in any manner with jury's finding of fact. 
Enlee v. Seaboard, etc., Ry. Co., 110 S C 
137, 96 S. E. 490 (1918); State v. Green, 
167 S. C. 359, 166 S. E. 359 (1932); Haynes 
V. Graham, 192 S. C. 382. 6 S. E. (2d) 903 
(1940); Watson v. Coxe Bros. Lumber Co, 
203 S. C. 125, 26 S. E. (2d) 401 (1943); 
Jones v. Elbert, 206 S. C. 508, 34 S. E. (2d) 
796 (194S), reprinted with corrections in 
211 S. C. 553. 34 S. E. (2d) 796 (1945). 

A judge violates this provision when he 
expresses in his charge his own opinion 
upon the force and effect of the testimony 
or of any part of it, or intimates his views 
of the sufliciency or insuft'iciency of the 
evidence in whole or in part. Norris v. 
Clinkscales, 47 S. C. 488, 25 S. E. 797 
(1896) ; Gathings v. Great Atlantic & Pacific 
Tea Co., 168 S. C. 385, 167 S. E. 652 (1933); 
State V. Pruitt. 187 S. C. 58, 196 S. E. 371 
(1938). 

Either expressly or impliedly. — A trial 
judge cannot convex' to the jury, either ex- 
pressly or impliedly, his opinion of the force 
and effect of testimony upon any question 
of fact at issue. Jackson v. Jackson, 32 S. 
C. 591, 11 S. E. 204 (1890); State v. Pruitt. 
187 S. C. 58. 196 S. E. 371 (1938); State v. 
Simmons, 209 S. C. 531, 41 S. E. (2d) 217 
(1947). 

In State v. Howell, 28 S. C. 250, 5 S. E. 
617 (1888). the court construed this section 
to mean that while trial judges may state 
the testimony and so arrange it as to enable 
the jury to apply it to the legal points in- 
volved, yet they cannot convey to the 
jury, either expressly or impliedly, their 
opinions as to the force of said testimony 
upon any question of fact at issue between 
the parties. In other words, the jury must 
be left perfectly free in reaching a conclu- 
sion upon the testimony introduced, un- 
trammeled by any intimation from the 
judge as to whether a certain fact at issue 
has been proved or not. Havnes v. Graham, 
192 S. C. 382, 6 S. E. (2d) 903 (1940). 

Or intentionally. — Under this section the 
trial court should avoid expressions of opin- 
ions reasonably calculated to influence the 
jury in deciding material issue of fact. 
Powers V. Rawles, 119 S. C. 134, 112 S. E. 
78 (1922). 

Or unintentionally. — The trial court may 
not, even unintentionally, intimate to the 
jury any opinion it may have as to the 
facts of the case, as this section in express 
terms reserves this power to the jurors, un- 



19$ 



Art. 5, § 26 Constitution of the State of South Carolina Art. 5, § 26 



influenced by the weight of the judge's 
views. Peay v. Durham Life Ins. Co., 185 
S. C. 78. 193 S. E. 199 (1937). 

At any stage of trial. — A judge may not 
become a participant in the verdict of the 
jury by indicating an opinion at any stage 
of the trial on an issuable fact. Jones v. 
Elbert, 206 S. C. 508, 34 S. E. (2d) 796 
(1945), reprinted with corrections in 211 S. 
C. 553, 34 S. E. (2d) 796 (1945). 

By interrogation of witnesses or remarks 
upon evidence offered. — Not only must the 
formal cliarge to the jury be kept free from 
any statement of facts in issue or expression 
as to the weight and sulticiency of evidence, 
but it has been frequently held that a trial 
judge should not by the interrogation of 
witnesses, by remarks in ruling upon evi- 
dence ofifered, or by comment upon the facts 
in relation to interlocutory motions, indi- 
cate opinions or express views reasonably 
calculated to influence the jury in deciding 
a material issue of fact. Powers v. Rawles, 
119 S. C. 134. 112 S. E. 78 (1922); Lusk v. 
State Highway Dept., 181 S. C. 101, 186 
S. E. 786 (1936); Crenshaw v. Southern Ry. 
Co., 214 S. C. 553, 53 S. E. (2d) 789 (1949). 

Or by ridiculing witness. — Any comment 
of the trial judge, in the presence of the 
juTv, upon the testimony of a witness dur- 
ing the trial of a case which tends to 
weaken the weight of the testimony of such 
witness, especially where the witness is ridi- 
culed, comes within the proliibition of this 
section of the Constitution. Crenshaw v. 
Southern Ry. Co., 214 S. C. 553, 53 S. E. 
(2d) 789 (1949). 

It was error for the trial judge to say 
in the presence of the jury concerning the 
appellant's principal witness, "I don't think 
he's got sense enough to understand the 
English language," under the provision of 
this section. Crenshaw v. Southern Rv. 
Co., 214 S. C. 553, 53 S. E. (2d) 789 (1949'). 

Or by declaring law so as to ignore one 
party to other's advantage. — If the judge 
may not become a participant in the verdict 
of the jury by indicating an opinion at any 
stage of the trial on an issuable fact, clearly 
he may not participate in the verdict by so 
declaring the law as to ignore or minimize 
legitimate contentions of fact of one party 
to the advantage of the other. To do so 
may be to express an opinion indirectly 
upon the weight and sufficiency of evidence 
far more influential in molding the jury's 
verdict than isolated expressions of opinion 
upon detached portions of the evidence. 
Powers V. Rawles, 119 S. C. 134, 112 S. E. 
78 (1922). 

Or by stating testimony in instructions. — 



Ballentine v. Hammond, 68 S. C. 153, 46 
S. E. 1000 (1904). 

Or by charging rule of evidence. — A 
charge stating a rule of evidence is erro- 
neous as a charge on the facts. State v. 
Philips, 73 S. C. 236, 53 S. E. 370 (1906). 

Or by charge intimating inference to be 
drawn from facts. — Request which intimates 
to jury inference to be drawn from facts in 
case therein stated in detail is charge on 
facts. Weaver v. Southern Ry. Co., 76 S. C. 
49, 56 S. E. 657 (1907). 

Or by stating undisputed facts in absence 
of uncontradicted evidence. — State v. Can- 
non. 49 S. C. 550. 27 S. E. 526 (1897). 

But hypothetical illustration may be prop- 
er. — Giving illustrations with respect to de- 
ducing a conclusion from facts and circum- 
stances, but making no reference to any 
disputed fact except in a hypothetical way, 
was not in violation of this section forbid- 
ding a charge on the facts. State v. Hig- 
gins. 215 S. C. 153, 54 S. E. (2d) 553 (1949). 

As may charge merely stating rule of 
evidence. — A charge merely stating a rule 
of evidence does not come within the in- 
hibition of the Constitution. State v. Phil- 
ips. 73 S. C. 236. 53 S. E. 370 (1906). 

Modification of requested instruction is 
proper. — It is proper to modify a requested 
instruction which, unmodified, would consti- 
tute a violation of this section. State v. 
Cooper, 120 S. C. 280, 113 S. E. 132 (1922). 

Request to charge on weight of evidence 
of violation of this section is properly re- 
fused. Glenn v. Walker, 113 S. C. 1, 100 
S. E. 706 (1919). 

III. DISCRETION OF JUDGE. 

This section does not affect discretion of 
trial judge in conduct of trial, nor pre- 
vent liim from asking questions of witness- 
es. Wilson V. Ohio River, etc., Ry. Co., 
52 S. C. 537, 30 S. E. 406 (1898). 

And the court may in declaring the law 
base it on hypothetical findings of fact. 
State V. Jones, 86 S. C. 17, 67 S. E. 160 
(1910); Sentell v. Southern Ry. Co., 70 
S. C. 183, 49 S. E. 215 (1904): Ballentine v. 
Hammond, 68 S. C. 153, 46 S. E. 1000 
(1904); Jenkins v. Charleston St. Ry. Co., 
58 S. C. 373, 36 S. E. 703 (1900); State v. 
Aughtrv, 49 S. C. 285, 26 S. E. 619, 27 S. E. 
199 (1897); Norris v. Clinkscales, 47 S. C. 
488. 25 S. E. 797 (1896); Greene v. Duncan, 
37 S. C. 239, 15 S. E. 956 (1892); Kitchens 
V. Southern Ry. Co., 80 S. C. 531, 61 S. E. 
1016 (1908); Bellamy v. Conway, etc., R. 
Co., 85 S. C. 450, 67 S. E. 545 (1910). 



197 



Art. 5, § 26 Constitution of the State of South Carolina Art. 5, § 26 



IV. POWERS OF JUDGE. 

Judge may state issues presented. — Under 
this section a statement of the issues pre- 
sented, and all the evidence on which the 
State and the defendant relied to support 
their respective positions, is authorized. 
State V. Johnson, 66 S. C. 23, 44 S. E. 58 
(1903). 

And may assume uncontested fact. — • 

Where there is nothing in the testimony 
contesting a fact, the assumption of such 
fact in an instruction is not erroneous as a 
charge on the evidence. Riser v. Southern 
Ry. Co., 67 S. C. 419, 46 S. E. 47 (1903). 

Facts stated in a charge which were not 
in dispute do not make the charge erroneous 
as one on facts in violation of this section. 
Turner v. Lvles. 68 S. C. 392, 48 S. E. 301 
(1904). 

Or refer to testimony already in case. — 
It is not a violation of this section for the 
judge, in giving his reason for a ruling on 
evidence, to refer to testinionv already in 
the case. State v. Thrailhill, 71 S. C. 136, 
SO S. E. 551 (1905). 

In refusing to charge that there is no 
evidence to show that acts in question were 
intentional or wilful, it is not a charge on 
facts for the judge to say that there is some 
evidence of such acts, if there be such evi- 
dence, disclaiming any intention to give 
opinion as to weight or sufficiency of evi- 
dence. Thomasson v. Southern Rv. Co., 72 
S. C. 1, 51 S. E. 443 (1905). 

Or refer to admitted state of facts. — Wil- 
liams V. .Atlantic Coast Lumher Corp., 136 
S. C. 423, 134 S. E. 390 0926). 

Or repeat portion of evidence. — The court 
does not violate this section by repeating 
a short portion of the evidence given with- 
out expressing any opinion as to its truth 
or falsitv. State v. Moorman, 27 S. C. 22, 
2 S. E. 621 (18871. 

Or explain ordinance. — Judge's explana- 
tion of municipal ordinance regulating 
speed of automobiles is not charge on facts. 
Daughritv v. Williams, 144 S. C. 437. 142 
S. E. 722 (1928). 

Or control argument of counsel. — Under 
the power of the court to control the argu- 
ment of counsel and to keep the same with- 
in the proper limits, the trial judge has the 
right to see that counsel in his enthusiasm 
does not go out of the record. So, where 
the defendant denied that he intended to 
participate in a holdup and there was no 
evidence on this point, it was correct for 
the trial judge to remind the attorney rep- 
resenting the defendant that there was no 
evidence in the record. This would not 
make him a participant with the jury in 



determining the facts. State v. Bolin, 177 
S. C. 57, 180 S. E, 809 (1935). 

Or state testimony susceptible of only 
one inference. — Where testimony is sus- 
ceptible of only one inference, the court may 
direct the jury to so find. Harrison v. 
Phoenix Assur. Co., 127 S. C. 205. 120 S. 
E. 848 (1924). 

But trial judge has no power to weigh 
the evidence. Cato v. .\tlanta & Charlotte, 
etc., Ry. Co., 164 S. C. 123, 162 S. E. 239 
(1931). 

Colloquy is not necessarily prejudicial. — 
Colloquy among foreman of jury, counsel, 
and judge as to certain evidence is not nec- 
essarilv prejudicial. State v. Gibson, 83 
S. C. 34. 64 S. E. 607, 916 (1909). 

That trial judge, in colloquy with attor- 
ney, related contents of newspaper editorial 
on jurors' duty to assist courts in enforce- 
ment of laws was held not error as charge 
on facts. State v. Green, 167 S. C. 359, 166 
S. E. 359 (1932). 

And incidental remark does not violate 
section. — .A remark by the judge in making 
a ruling during tlie trial docs not violate this 
section. State v. Crawford, 39 S. C. 343, 17 
S. E. 799 (1893). 

It would be a great stretch of construc- 
tion to hold that an incidental remark, made 
during the progress of the case, amounted 
to a violation of this section. State v. Tur- 
ner. 36 S. C. 534, 15 S. E. 602 (18921. 

Even where it would constitute error if 
included in instruction. — When addressing 
counsel and otherwise making necessary 
rulings, a trial judge may make use of ex- 
pressions that would constitute prejudicial 
error if included in his instructions to the 
jurv upon the law. State v. Deas, 202 S. C. 
9, 23 S. E. (2d) 820 (1943). 

V. DUTIES OF JUDGE. 

Judge must declare the law. — The re- 
quirement that tlie judge "shall declare the 
law" means that he shall explain so much 
of the criminal law as is applicable to the 
issues made by the evidence adduced on 
the trial. State v. White, 211 S. C. 276, 
44 S. E. (2d) 741 (1947). 

But jury must draw inference from facts. 
— Xegligence being a mixed question of law 
and fact, it is the court's duty to define neg- 
ligence, but it is the jury's province to draw 
the inference from the facts. TurbyfiU v. 
.\tlanta & C, etc., Rv. Co., 83 S. C. 325. 65 
S. E. 278 (1909): Hunter v. Pelham Mills, 
52 S. C. 279. 29 S. E. 727 (1898): Lampley 
v. .Atlantic Coast Line R. Co., 71 S. C. 156, 
50 S. E. 773 (1905). 

In an action for damages for malicious 
prosecution, whether circumstances relied 



198 



Art. 5, § 26 Constitution of the State of South Carolina Art. 5, § 26 



on to rebut implication of malice from want 
of probable cause are conclusive is, ordi- 
narily, an issue of fact for the jury. Jen- 
nings V. Clearwater Mfg. Co., 171 S. C. 498, 
172 S. E. 870 (1934). 

Duty of judge to declare law is manda- 
tory. — Conjoined with the duty to refrain 
from trespassing upon the domain of the 
facts is the mandatory and nondelegable 
duty imposed upon the judge of declaring 
the law. Powers v. Rawles, 119 S. C. 134, 
112 S. E. 78 (1922). 

But right to have law declared may be 
waived. — This section is mandatory, but it 
has repeatedly been held, both in civil cases 
and in criminal cases not involving capital 
punishment, that the right to have the law 
declared may be waived like any other right. 
State V. Duck. 210 S. C. 94, 41 S. E. (2d) 
628 (1947). 

Of course, the right to have all the law 
declared mav be waived like anv other right. 
Watson v. Sprott. 134 S. C. 367, 133 S. E. 
27 (1926). 

By failure to request instructions. — The 
right to have all the law declared may be 
waived like any other right and an omission 
acquiesced in. The failure to request in- 
structions on any particular point is regard- 
ed as a waiver of the right to such instruc- 
tion and acquiescence in the omission. 
White v. Charleston, etc., Rv. Co., 132 S. C. 
448, 129 S. E. 457 (1925); State v. Lyles, 
210 S. C. 87, 41 S. E. (2d) 625 (1947). 

Unless omission is fundamental. — If in- 
structions given are correct as far as they 
go, it cannot be assigned as error that the 
court omitted to instruct on all points in- 
volved in the case if the attention of the 
court has not been directed thereto by 
special request for instructions on those 
points, unless the omission relates to a 
matter which is basic or fundamental. 
State V. Lyles, 210 S. C. 87, 41 S. E. (2d) 
625 (1947). 

Or by failure to request additional 
charges. — Failure to declare the law appli- 
cable to the case to the jury, as required 
by this section, is not reversible error in 
the absence of a request for additional 
charges. Huffman v. Moore, 122 S. C. 220, 
lis S. E. 634 (1923). 

Or to ask for amplification of charge. — 
Charge of trial court should not on appeal 
be held defective for failure to declare law, 
as required by this section, where judge 
was not asked to amplifj* his charge and no 
request was made for further charge. State 
V. Wardlaw, 153 S. C. 175, 150 S. E. 614 
(1929). 

Failure to give instructions may be cured 
by verdict. — In motorist's action for colli- 



sion with wagons, magistrate's failure to 
give instructions except as to kind of ver- 
dict jury might render was held not in com- 
pliance with this constitutional provision 
requiring judges to charge on the law but 
not on the facts. However, failure so to 
charge was not prejudicial where the prop- 
er result was reached. Westbrook v. Jef- 
ferics, 173 S. C. 178, 175 S. E. 433 (1934). 

The law is the right of a party arising out 
of a state of facts. A jury ought to be in- 
structed about what right springs out of a 
fact to be determined by them. The jury 
ought not to be left to cut a way through 
the woods with no compass to guide it. But 
if the jury has found the right way without 
a compass, then no real wrong has been 
done. Collins-Plass Thaver Co. v. Hewlett, 
109 S. C. 245, 95 S. E. 510 (1918). 

Exception to charge must not be too gen- 
eral. — .-\n exception tliat the court erred in 
not charging the law applicable to the issues 
is too general for consideration on appeal, 
because it fails to specify in what particular 
there was error. State v. Hendri.x, 86 S. C. 
64, 68 S. E. 129 (1910). 

VI. CHARGES NOT CONTRA- 
VENING SECTION. 

Charges were held not to contravene this 
section in cases treating the following sub- 
jects. — • 

Account and accounting. Crosland Co. v. 
Pearson, 86 S. C. 313, 68 S. E. 625 (1910); 
adultery. State v. Martin, 120 S. C. 2C8, 112 
S. E. 922 (1922); adverse possession, Bryan 
V. Donnelly, 87 S. C. 388, 69 S. E. 840 
(1910); assault and batter3', State v. Green. 
167 S. C. 359, 166 S. E. 359 (1932); auto- 
mobiles, Denny v. Doe, 116 S. C. 307, 108 
S. E. 95 (1921); burden of proof, Clayton 
V. Southern Ry. Co., 110 S. C. 122, 96 S. E. 
479 (1918) ; Waters v. South Carolina Light, 
etc., Co., 103 S. C. 489, 88 S. E. 289 (1916); 
burglary and grand larcenv. State v. Hurt, 
212^5. C. 461, 48 S. E. (2d) 313 (1948); 
carriers, Harris v. Greenville Tract. Co., 
101 S. C. 360, 85 S. E. 899 (1915); Dodd v. 
Spartanburg Ry. Gas, etc., Co., 95 S. C. 9, 
78 S. E. 525 (1913); Nelson v. Charleston, 
etc.. Rv. Co., 92 S. C. 151, 75 S. E. 408. 121 
S. E. 198 (1912); Ladshaw v. Southern Ry. 
Co., 90 S. C. 462, 73 S. E. 879 (1912); 
Home V. Southern Ry. Co., 186 S. C. 525, 
197 S. E. 31 (1938); compensation. Ott v. 
American Chemical Co., 171 S. C. 359, 172 
S. E. 304 (1934); conspiracy. State v. Mc- 
Adams, 167 S. C. 405, 166 S. E. 405 (1932) ; 
crossings, Thomasson v. Southern Rv. Co., 
72 S. C. 1, 51 S. E. 443 (1505); Gosa v. 
Southern Ry. Co., 67 S. C. 347, 45 S. E. 



199 



Art. 5, § 26 Constitution of the State of South Carolina Art. 5, § 26 



810 (1903); Brown v. Southern Ry. Co., 
65 S. C. 260, 43 S. E. 794 (1903); Davis v. 
Atlanta & C, etc., Ry. Co., 63 S. C. 370, 41 
S. E. 468 (1902) ; Kirby v. Southern Ry. Co., 
63 S. C. 494, 41 S. E. 765 (1902); Edwards 
V. Southern Ry. Co.. 63 S. C. 271, 41 S. E. 
458 (1902); TurbvfiU v. Atlanta & C, etc., 
Ry. Co., 86 S. C. 379, 68 S. E. 687 (1910); 
TurbyfiU v. Atlanta & C, etc., Ry. Co., 83 
S. C. 325, 65 S. E. 278 (1909); damages, 
Bussey v. Charleston, etc., Ry. Co., 52 S. C. 
438, 30 S. E. 477 (1898) ; ejecting from train, 
Enlee v. Seaboard, etc., Ry., 110 S. C. 137, 
96 S. E. 490 (1918) ; ejectment, Bradley v. 
Drayton, 48 S. C. 234, 26 S. E. 613 (1897); 
electricity. Walker v. Southern Bell Tel. & 
Tel. Co., 92 S. C. 188, 75 S. E. 1024 (1912); 
evidence. State v. Johnson, 66 S. C. 23, 44 
S. E. 58 (1903); State v. Taylor, 54 S. C. 
174, 32 S. E. 149 (1899) ; fertilizers, Durham 
Fertilizer Co. v. Pagett, 39 S. C. 69, 17 S. E. 
563 (1893); fire insurance, Kingman v. 
Lancashire Ins. Co., 54 S. C. 599, 32 S. E. 
762 (1899); gambling. State v. Lane, 82 
S C. 144, 63 S. E. 612 (1909); homicide. 
State V. Kennedy, 143 S. C. 318. 141 S. E. 
559 (1928); State v. Pittman, 137 S. C. 75, 
134 S. E. 514 (1926); State v. Brown, 108 
S. C. 490, 95 S. E. 61 (1918); State v. Gall- 
man, 79 S. C. 229, 60 S. E. 682 (1908); 
State V. Davis, 50 S. C. 405, 27 S. E. 905 
(1897); State v. Aughtrv, 49 S. C. 285, 26 
S. E. 619. 27 S. E. 199 (1897); State v. Dill, 
48 S. C. 249, 26 S. E. 567 (1897); State v. 
Way, 38 S. C. 333, 17 S. E. 39 (1893); 
State V. Littlejohn, 33 S. C. 599, 11 S. E. 
638 (1890); State v. Jackson, 36 S. C. 487, 
15 S. E. 559 (1892); State v. Davis, 27 S. C. 
609, 4 S. E. 567 (1888); State v. Milling, 
35 S. C. 16, 14 S. E. 284 (1892); State v. 
Wyse, 32 S. C. 45, 10 S. E. 612 (1890), 
affirmed in 33 S. C. 582, 12 S. E. 556 (1891); 
State v. James, 31 S. C. 218, 9 S. E. 844 
(1889); State v. Williams, 31 S. C. 238, 9 
S. E. 853 (1889); State v. Norton, 28 S. C. 
572, 6 S. E. 820 (1888); State v. Addy, 28 
S. C. 4, 4 S. E. 814 (1888); housebreaking 
and larceny, State v. Lucas, 88 S. C. 520, 
71 S. E. 27 (1911); State v. Howard, 32 
S. C. 91, 10 S. E. 831 (1890); injury on 
highways, Latimer v. Anderson County, 95 
S. C. 187, 78 S. E. 879 (1913); injury on 
railroad bridge, Rembert v. South Carolina 
Ry. Co., 31 S. C. 309, 9 S. E. 968 (1889); 
insurance, Rearden v. State Mut. Life Ins. 
Co., 79 S. C. 526, 60 S. E. 1106 (1908); 
Lagrone v. Timmerman, 46 S. C. 372, 24 
S. E. 290 (1896); Tinsley v. Prudential Ins. 
Co., 183 S. C. 457, 191 S. E. 307 (1937); 
intoxicating liquors. State v. Arnold, 127 
S. C. 80. 120 S. E. 747 (1924); State v. 
Nickels, 65 S. C. 169, 43 S. E. 521 (1903); 



larceny. State v. Roof, 196 S. C. 204, 12 
S. E. (2d) 705 (1941); libel, Duncan v. 
Record Pub. Co., 145 S. C. 196, 143 S. E. 
31 (1927); logs and logging, Williams v. 
Atlantic Coast Lumber Corp., 136 S. C. 
423, 134 S. E. 390 (1926); marriage. Pooler 
V. Smith, 73 S. C. 102, 52 S. E. 967 (1905); 
master and servant, Pincknev v. Atlantic 
Coast Line R. Co., 92 S. C. 528, 75 S. E. 
964 (1912); Wilson v. Southern Ry. Co., 
73 S. C. 481, 53 S. E. 968 (1906); master 
and servant — negligence, McKain v. Cam- 
den Water, etc., Co., 89 S. C. 378, 71 S. E. 
949 (1911); membership in benevolent 
societv, Thompson v. Family Protective 
Union, 66 S. C. 459, 45 S. E. 19 (1903); 
nuisances. State v. Nelson, 79 S. C. 97, 60 
S. E. 307 (1908) ; obstructing culvert. Shores 
V. Southern Ry. Co., 72 S. C. 244, 51 S. E. 
699 (1905): partition. Moss v. Smith, 73 
S. C. 231, 53 S. E. 284 (1906) ; ruling on mo- 
tion for nonsuit. Hunt v. .Atlantic Coast 
Lumber Corp., 101 S. C. 64, 85 S. E. 229 
(1915); sales, Pittsburgh Plate Glass Co. v. 
Monroe Bros., 79 S. C. 564, 61 S. E. 92 
(1908); taking land without compensation, 
Bavnham v. State Highway Dept., 181 S. C. 
43S", 187 S. E. 528 (1936); temporary in- 
sanity, State v. Stalvey, 146 S. C. 275, 143 
S. E. 817 (1928); warehouses and ware- 
housemen, Jordan v. Hudgens, 146 S. C. 
209, 143 S. E. 811 (1928); witnesses, State 
V. Crosby, 88 S. C. 98, 70 S. E. 440 (1911); 
State V. Anderson, 26 S. C. 599, 2 S. E. 699 
(1887). 

VIII. CHARGES CONTRAVENING 
SECTION. 

Charges were held to violate this section 
in cases treating the following subjects. — 

Adverse possession, Lewis v. Pope, 86 
S. C. 285, 68 S. E. 680 (1910); alibi. State 
v. Smalls, 98 S. C. 297, 82 S. E. 421 (1914); 
assault and batterv. State v. Howell. 28 
S. C. 250, 5 S. E. 617 (1888) ; burglarv. State 
V. Brown, 33 S. C. 151, 11 S. E. 641 (1890); 
carriers — negligence, Lawson v. Southern 
Ry. Co., 91 S. C. 201, 74 S. E. 473 (1912); 
contracts. StoufJer v. Erwin, 81 S. C. 541, 
62 S. E. 843 (1908) ; conviction on testimony 
of accomplice, State v. Clark. 85 S. C. 273, 
67 S. E. 300 (1910); State v. Sowell, 85 
S. C. 278. 67 S. E. 316 (1910); evidence. 
State V. Mitchell, 56 S. C. 524, 35 S. E. 210 
(1900): Burnett v. Crawford. 50 S. C. 161, 
27 S. E. 645 (1897) : State v. Stello, 49 S. C. 
488. 27 S. E. 659 (1897) ; intoxicating liquor. 
State V. Burns, 133 S. C. 238. 130 S. E. 641 
(1925); larcenv. State v. Caddon, 30 S. C. 
609, 8 S. E. 536 (1889); negligence, China 
v. Sumter, 51 S. C. 453, 29 S. E. 206 (1898); 



200 



Art. 5, § 27 Constitution of the State of South Carolina Art. 5, § 29 

partnership, Wilson v. Moss. 79 S. C. 120, 60 Western Union Tel. Co., 76 S. C. 248, 57 

S. E. 313 (1908); slander, Gatliings v. Great S. E. 117 (1907); witnesses, Sumter Trust 

Atlantic & Pacific Tea Co., 168 S. C. .185. Co. v. Holman, 134 S. C. 412, 132 S. E. 811 

167 S. E. 652 (1933); telegraphs, Toale v. (1926). 

§ 27. Clerk of court. 

There shall be elected in each county, by the electors thereof, one Clerk for 
the Court of Common Pleas, who shall hold his office for the term of four 
years, and until liis successor shall be elected and C|ualified. He shall, by virtue 
of his office, be Clerk of all other Courts of record held therein, but the General 
Assembly may provide by law for the election of a Clerk, with a like term of 
office, for each or any other of the Courts of record, and may authorize the 
Judge of the Probate Court to perform the duties of Clerk for his Court under 
such regulations as the General Assembly may direct. Clerks of Courts shall 
be removable for such cause and in such manner as shall be prescribed by 
law. 
See Const. 1868. .\rt. IV, § 27. 

Legislature has no power to vary term of person so elected is in conflict with this 

clerk of court fi.xed by State Constitution constitutional provision and is, therefore, 

at four vears. Cannon v. Sligh, 170 S. C. inoperative and void. Cannon v. Sligh, 170 

45, 169 S. E. 712 (1933). S. C. 45, 169 S. E. 712 (1933); Limehouse v. 

And statutes limiting such term are un- Blackwell, 190 S. C. 122, 2 S. E. (2d) 483 

constitutional. — A statute, construed as lim- (1939). 

iting the terra of the clerk of court, elected But statutes providing for time of elec- 
to fill vacancy caused by death of prede- tion are constitutional. — Sections 15-1701 
cessor, to unexpired portion of predecessor's and 23-303, providing for the time of elec- 
term is unconstitutional as varying the term tion of the clerks of court, are not in con- 
fixed in this section. Cannon v. Sligh. 170 flict with this section, but are, on the con- 
S. C. 45, 169 S. E. 712 (1933). trarv, supplementary thereto and valid. 

So much of § 14-302 of the Code as pro- Cannon v. Sligh, 170 S. C. 45, 169 S. E. 

vides for an election "to fill the unexpired 712 (1933). 
term" and for the tenure of oftice of the 

§ 28. Attorney General. 

There shall be an Attorney General for the State, who shall perform such 
duties as may be prescribed by law. He shall be elected by the qualified elec- 
tors of the State for the term of four years, and shall receive for his services 
such compensation as shall be fi.xed by law. 

1924 (33) 1492; 1926 (34) 961. 
See Const. 1868, .^rt. IV, § 28. 

Cited in Coolev v. South Carolina Tax 
Comm., 204 S. C. 10, 28 5. E. (2d) 445 
(1943). 

§29. Solicitor. 

There shall be one Solicitor for each Circuit, who shall reside therein, to be 
elected by the qualified electors of the Circuit, who shall hold his office for 
the term of four years, and shall receive for his services such compensation 
as shall be fixed by law. In all cases when an attorney for the State of any 
Circuit fails to attend and prosecute according to law, the Court shall have 
power to appoint an attorney pro tempore. In the event of the establishment 
of County Courts the General Assembly may provide for one Solicitor for 

201 



Art. 5, § 30 Constitution of the State of South Carolina Art. 5, § 31 



each County in the place and instead of the Circuit Solicitor, and may pre- 
scribe his powers, duties and compensation. 
See Const. 1868, .'^rt. IV, § 29. 



Filling vacancy. — The solicitor is an "offi- 
cer of the executive department," and the 
Governor has no power to appoint a solici- 
tor for a time extending beyond the first 
general election held after the vacancy oc- 
curred. State V. Singleton, 100 S. C. 465, 
84 S. E. 989 (1915). 



For additional related case, see State v. 
Hough, 103 S. C. 87, 87 S. E. 436 (1915). 

Quoted in State v. Charles, 183 S. C. 188, 
190 S. E. 466 (1937). 



§ 30. Sheriff and coroner. 

The qualified electors of each County shall elect a Sheriff and Coroner, for 
the term of four years, and until their successors are elected and qualified; 
they shall reside in their respective Counties during- their continuance in office, 
and be disqualified for the office a second time if it should appear that they, 
or either of them, are in default for monej's collected by virtue of their re- 
spective offices. 



See Const. 1868, Art. IV, § 30. 

Legislature may fix time for elections 
and filling vacancies. — This section makes 
no provision wliatever for filling a vacancy, 
nor does it prescribe any time for the elec- 
tion of sherififs. Hence, it follows that these 
matters are within the legislative power 
and discretion. Privette v. Grinnell, 191 
S. C. 376, 4 S. E. (2d) 305 (1939). 



Sheriff is constitutional officer not sub- 
ject to legislative control. — The sherifif is a 
constitutional officer, and as such is not 
subject to the specific control of the legis- 
lature as contemplated in S. C. Const., Art. 
7, § 11. Gamble v. Clarendon County, 188 
S. C. 250, 198 S. E. 857 (1938). 

Applied in State v. Hough, 103 S. C. 87, 
87 S. E. 436 (1915). 



§ 31. Writs ; indictments. 

All writs and processes shall run and all prosecutions shall be conducted in 
the name of the State of South Carolina ; all writs shall be attested by the 
Clerk of the Court from which they shall be issued; and all indictments shall 
conclude "against the peace and dignity of the State." 

See Const. 1868, Art. IV, § 31. 



Substantial compliance with section is 

sufficient. — A literal compliance with the 
mandatory formulas of this section is not 
exacted, but a substantial compliance is suf- 
ficient. Smith v. Jennings, 67 S. C. 324, 45 
S. E. 821 (1903). 

And indictment substantially complying 
herevyith is not quashed. — .'Xn indictment 
should not be quashed when it concludes 
with the words "against the peace and dig- 
nity of the same State aforesaid," instead 
of the words "against the peace and dignity 
of the State," as required by this section, as 
the additional words may be regarded as 
surplusage. State v. Mason. 54 S. C. 240, 
32 S. E. 357 (1899); State v. Robinson, 27 
S. C. 615, 4 S. E. 570 (1888). 

Term "prosecutions" applies to indict- 
ments for crime, and does not afifect suits 
under penal statutes, which suits may be 



brought in the name of any person in the 

manner provided by the statute creating the 
same. Johnson v. .Seaboard Air Line Ry., 
73 S. C. 36, 52 S. E. 644 (1905). 

And to information charging violation of 
ordinance. — This section docs not prohibit 
a prosecution on information under oath 
for violation of a citv ordinance. City Coun- 
cil v. Leopard, 61 S. C. 99, 39 S. E. 248 
(1901). 

Summons is not process within this sec- 
tion. — The courts of South Carolina have 
decided that a summons is not a "process" 
within its Constitution, and that, therefore, 
it need not be in the name of the State. 
A summons issued in South Carolina by the 
circuit court of the United States need not 
be in the name of the United States in 
order to conform to the procedure of tliat 
state. Chamberlain v. Mensing, 47 F. 435 
(1891). 



202 



Art. 5, § 32 Constitution of the State of South Carolina Art. 6, § 2 

Applied in Southern Cotton Oil Co. v. Edgefield County v. Georgia-Carolina Pow- 
Hewlett, 107 S. C. 532, 93 S. E. 195 (1917); er Co., 104 S. C. 311, 88 S. E. 801 (.1916). 

§ 32. Decisions of Supreme Court. 

The General Assembly shall provide by law for the speedy publication of 
the decisions of the Supreme Court made under this Constitution. 

See Const. 1868, Art. IV, § 32. 

§ 33. Sentence to labor on highways. 

Circuit Courts and all Courts inferior thereto and municipal Courts shall 
have the power, in their discretion, to impose sentence of labor upon high- 
ways, streets and other public works upon persons by them sentenced to im- 
prisonment. 

This section makes no distinction between stetler, 213 S. C. 319, 49 S. E. (2d) 585 
convicts on account of sex. State v. Huff- (1948). 

§ 34. Matters now pending. 

All matters, civil and criminal, now pending within the jurisdiction of any 
of the Courts of this State shall continue therein until disposed of according 
to law. 

Effect of S. C. Constitution as to trial fining the duties of magistrates. In re 

justices.— Trial justices in office at the time Hooper. 48 S. C. 149, 25 S. E. 466 (1897). 

the S. C. Constitution went into effect Applied in Middleton v. Taber, 46 S. C. 

should act as magistrates until the Icgisia- 337, 24 S. E. 282 (1896). 
ture should pass a law regulating and de- 

ARTICLE VI. 

Jurisprudence. 
§ 1. Arbitration. 

The General AssembI}' shall pass laws allowing differences to be decided 
by arbitrators, to be appointed by the parties who may choose that mode of 
adjustment. 

See Const. 1868, .^rt. V, § 1. 

Cross reference. — For Code sections pro- question of fact by arbitration shall be a 

viding for arbitration, see §§ 10-1901 to 10- condition precedent to a right of action 

1905. thereon will be upheld where the other 

Contract providing for arbitration of ques- party witliout good excuse failed so to 

tion of fact is enforced. — Under this section, arbitrate. Jones v. Enoree Power Co., 92 

a contract providing expressly or impliedly S. C. 263, 75 S. E. 452 (1912). 
that tlie determination of some specific 

§ 2. Change of venue. 

It shall be the duty of the General Assembly to pass laws for the change 
of venue in all cases, civil and criminal, over which the Circuit Courts have 
original jurisdiction, upon a proper showing, supported by affidavit, that a 
fair and impartial trial cannot be had in the County where such action or pros- 
ecution was commenced. The State shall have the same right to move for a 
change of venue that a defendant has for such offences as the General As- 
sembly may prescribe. Unless a change of venue be had under the provi- 
sions of this Article the defendant shall be tried in the County where the 
offence was committed: Provided, hotvever. That no change of venue shall 

203 



Art. 6, § 3 Constitution of the State of South Carolina Art. 6, § 3 



be granted in criminal cases until after a true bill has been found by the grand 
jury: And provided, further, That if a change be ordered it shall be to a county 
in the same Judicial Circuit. 
See Const. 1868, Art. V, §2. 



Cross references. — As to specific section 
providing for change of venue by circuit 
court, see §§ 10-310 and 10-311. As to spe- 
cific section providing for change of venue 
by magistrates, see § 43-131. 

Object of section is to satisfy court that 
fair trial could not be had. — The object of 
this section is to satisfy the mind of the 
judge who hears the motion that a fair and 
impartial trial could not be had in the 
county where the action or prosecution was 
begun; and this conviction of the judge 
must be founded on sworn statements. 
State v. Sullivan, 39 S. C. 400, 17 S. E. 865 
(1893). 

This section is not exhaustive in its pro- 
visions, and it did not prevent the legisla- 
lature from enacting § 10-310 (relative to 
change of venue in general) of the Code. 
Utsey v. Charleston, S. & N. R. Co., 38 
S. C. 399, 17 S. E. 141 (1893). 

Statute may not ignore venue provisions. 
— A statute taking State's action on con- 
tract with individual out of general statu- 
tory rule as to venue is void. State v. 
Columbia Rv. Gas & Elec. Co., 129 S. C. 
455, 124 S. E. 758 (1924). 

Meaning of "county where offense was 
committed." — The provision of this sec- 
tion entitling a defendant to trial in the 
"county where the offense was committed" 
is construed to mean where the offense was 
deemed committed under existing laws; and 
hence, where a person was wounded in C. 
county but died in S. county, defendant was 
properly indicted and convicted for the 
crime in the latter county. State v. Mc- 
Coomer, 79 S. C. 63, 60 S. E. 237 (1908). 

"Affidavit" defined. — An affidavit is a 
statement of fact under oath, reduced to 
writing, certified to by the officer before 
whom the same is made, and usually, 
though not necessarily unless required by 



statute, signed by the afliant. State v. Sul- 
livan, :9 S. C. 400, 17 S. E. 865 (1893). 

Motion for change must be made on affi- 
davit. — An act providing that the court may 
change ^e place of trial "when there is 
reason to believe that an impartial trial 
cannot be had therein," but making no pro- 
vision that the motion therefor shall be 
upon affidavits, does not meet the require- 
ments of this section. Willoughby v. North- 
eastern R. Co., 46 S. C. 317, 24 S. E. 308 
(1896). 

Requirements are met when witnesses 
sworn and statements taken. — The require- 
ments of this section are complied with 
when witnesses are introduced in open 
court, sworn by the presiding judge, and 
their statements, at the time and place, 
reduced to writing by the official stenog- 
rapher. State V. Sullivan, 39 S. C. 400, 17 
S. E. 865 (1893). 

Judge may grant change in county con- 
stituting entire circuit. — In spite of the pro- 
vision of this section that a change of 
venue shall be in a county in the same ju- 
dicial circuit, a circuit judge in a county 
constituting an entire circuit has common 
law power to grant a change of venue in a 
criminal case in that circuit. State v. Har- 
vey, 128 S. C. 494, 122 S. E. 860 (1924). 

Change of venue is not reviewed absent 
abuse of discretion. — Where there is no 
abuse of discretion shown in granting a 
change of venue, the Supreme Court will 
not consider whether a proper showing was 
made in the court below authorizing the 
granting of the motion. Carrol v. Charles- 
ton & S. R. Co., 61 S. C. 251, 39 S. E. 364 
(1901). 

Cited in McCown v. Northeastern R. Co., 
55 S. C. 384, Zi S. E. 506 (1899); Winn v. 
Harby, 166 S. C. 99, 164 S. E. 434 (1932); 
Metropolitan Life Ins. Co. v. Stuckey, 194 
S. C. 469, 10 S. E. (2d) 3 (1940). 



§ 3. Law and equity. 

Justice shall be administered in a uniform mode of pleading without dis- 
tinction between law and equity. 



Object of section is to simplify pleading 

and practice. — The prime object of tliis sec- 
tion was to simplify the system of pleading 
and practice, so as to rid it as far as prac- 
ticable of the stringent and extremely tech- 
nical rules which had disfigured the system 



that previouslv prevailed. Jerkowski v. 
Alarco, 56 S. c' 241, 34 S. E. 386 (1899). 

Equitable defense can be set up in a law 
case. Bell v. Mackey, 191 S. C. 105, 3 S. E. 
(2d) 816 (1939). 

New trial may be granted on equity side 



204 



Art. 6, § 4 CoNSTiTUTiox of the State of South Carolina Art. 6, § 5 

by motion and cause shown. — Under this close a mortgage and alleging the death 
section, a circuit judge presiding on the of the mortgagor, leaving defendant as his 
equity side of the court of common pleas sole heir and distributee at law, is not de- 
may grant a new trial in such a cause on murrable for failure to set out a condition 
motion and cause shown, without adopting of the mortgage alleged to be broken and 
the old process of a petition for rehearing to state whether the mortgagor died tes- 
on a bill of review. Covington v. Coving- tate or intestate, or to set forth any facts 
ton. 47 S. C. 263. 25 S. E. 193 (1896). showing defendant to be the sole heir at 

Court of common pleas has equal juris- law and distributee of the mortgagor. Ruth- 
diction with other like courts. — Under tliis erford v. Johnson, 49 S. C. 465, 27 S. E. 470 
section, S. C. Const. .A.rt. S, § 15, and §§ 15-6 (1897). 

and 15-7 of the Code, a court of common Cited in DeLoach v. Sarratt, 55 S. C. 254, 

pleas has equal and coordinate jurisdiction 33 S. E. 2, 35 S. E. 441 (1899); E.x parte 

in all respects with any other like court of Carolina Nat. Bank, 56 S. C. 12, 33 S. E. 

any other county, except as to territorial 781 (1899); McKenzie v. Sifford, 45 S. C. 

jurisdiction. Fidelitv Fire Ins. Co. v. Wind- 496, 23 S. E. 622 (1896); New York Life 

ham, 134 S. C. 373. 133 S. K. 35 (1926). Ins. Co. v. Mobley, 90 S. C. 552, 73 S. E. 

Complaint held not demurrable for failure 1032 (1912) ; Blackwell v. Faucett, 117 S. C. 

to set out condition broken.— In view of 60, 108 S. E. 295 ((1921). 
this section, a complaint seeking to fore- 

§ 4. Statute public law. 

Every Statute shall be a public law, unless otherwise declared in the Statute 
itself. 

§ 5. Codification of laws. 

The General Assembly, at its first session after the adoption of this Con- 
stitution, shall provide for the appointment or election of a Commissioner, 
whose duty it shall be to collect and revise all the General statute laws of this 
State then of force as well as that which shall be passed from time to time, 
and to properh' inde.x and arrange the said statutes when so passed. And the 
said Commissioner shall reduce into a systematic Code the general statutes, 
including the Code of Civil Procedure, with all the amendments thereto, and 
shall, on the first day of the session for the year nineteen hundred and one, 
and at the end of every subsequent period of not more than ten years, report 
the restilt of his labors to the General Assembh', with such recommendations 
and suggestions as to the abridgement and amendments as may be deemed 
necessary or proper. Said report when ready to be made shall be submitted 
to the General Assembly at the first session in such manner as may be pro- 
vided by law, but shall not be taken up for consideration until the next session 
of the said General Assembly. The said Code shall be declared by the Gen- 
eral Assembly, in an Act passed according to the forms of this Constitution 
for the enactment of laws, to be the only general statutory law of the State ; 
but no alterations or additions to any of the laws therein contained shall be 
made except by Bill passed under the formalities heretofore prescribed for 
the passage of laws. Provision shall be made by law for imposing such other 
duties as may be desired, for filing vacancies, regulating the term of office 
and the compensation of said Commissioner. And the General Assembly shall 
by committee inquire into the progress of his work at each session. 

1932 (37) 1396; 1933 (38) 587. 
See Const. 1868, .'Xrt. V, § 3. 

Cross reference. — For section of the Code Act incorporated in Code becomes law 

as to duties of Code Commissioner, see § 1- without reference to original title. — When 
306. an act is incorporated in the Code in accord- 

205 



Art. 6, § 6 Constitution of the State of South Carolina Art. 6, § 6 



ance with this section, it beomes statutory 
law without reference to its title as original- 
ly enacted, and the objection that the sub- 
ject of the act does not correspond with its 
title cannot be raised. Parks v. Laurens 
Cotton Mills, 75 S. C. 560. 56 S. E. 234 
(1907). 

Section repeals all laws not included in 
Code. — The inevitable consequence of this 
section is to repeal all general statutory 
laws which are not included in the Code 
because if the Code contains the only gen- 
eral statutory law of the State, of course 
there can be none other. Ne.xsen v. Ward, 
96 S. C. 313, 80 S. E. 599 (1914); Paris 
Mountain Water Co. v. Greenville, 105 S. C. 
180, 89 S. E. 669 (1916). 

Even if new Code section provides 



against repeal of prior acts. — Acts relative 
to appointment of school district trustees 
to permit their election in certain counties 
are inoperative under this section for fail- 
ure to incorporate the amendments bodily 
in the 1932 Code, thougli the new Code sec- 
tion provides that nothing therein should 
be construed to repeal previous acts pro- 
viding for different methods of selection of 
school trustees. State v. Meares, 148 S. C. 
lis, 145 S. E. 695 (1928). 

Applied in Greenville v. Pridmore, 162 
S. C. 52, 160 S. E. 144 (1931). 

Cited in Edwards v. Southern Rv. Co., 66 
S. C. 277, 44 S. E. 748 (1903); Duncan v. 
Record Pub. Co., 145 S. C. 196, 143 S. E. 31 
(1927) ; Craig v. Bell, 211 S. C. 473, 46 S. E. 
(2d) 52 (1948). 



§ 6. Prisoner lynched through negligence of officer ; penalty on officer ; county 
liable for damages. 

In the case of any prisoner lawfully in the charge, custody or control of 
any officer, State, County or municipal, being seized and taken from said 
officer through his neghgence, permission or connivance, by a mob or other 
unlawful assemblage of persons, and at their hands suffering bodily violence 
or death, the said officer shall be deemed guilty of a misdemeanor, and, upon 
true bill found, shall be deposed from his office pending his trial, and upon 
conviction shall forfeit his office, and shall, unless pardoned by the Governor, 
be ineligible to hold any office of trust or profit within this State. It shall be 
the duty of the prosecuting Attorney within wdiose Circuit or County the 
ofi'ence may be committed to forthwith institute a prosecution against said 
officer, who shall be tried in such County, in the same circuit, other than the 
one in which the offence was committed, as the Attorney General may elect. 
The fees and mileage of all material witnesses, both for the State and for the 
defence, shall be paid by the State Treasurer, in such manner as may be pro- 
vided by law : Provided, In all cases of lynching when death ensues, the 
County where such lynching takes place shall, without regard to the con- 
duct of the officers, be liable in exemplary damages of not less than two thou- 
sand dollars to the legal representatives of the person lynched : Provided, fur- 
ther. That any County against which a judgment has been obtained for damages 
in any case of lynching shall have the right to recover the amount of said 
judgment from the parties engaged in said lynching in any Court of compe- 
tent jurisdiction. 



Cross reference. — For section of the Code 
providing for lial)ility by county for Ij'nch- 
ing, see § 10-1961. 

Section should be liberally construed. — 
This section, and § 10-1961 of the Code, 
should receive a liberal interpretation to the 
end that the remedy prescribed should not 
be denied in any case coming substantiall}' 
within their spirit. Kirkland v. .'\llendale 
County, 128 S. C. 541, 123 S. E. 648 (1924). 



Action is for money damages only. — .\n 

action for damages against a county for 
lynching plaintifif's intestate, under this sec- 
tion, is for money only, and at common law 
was triable by jury. Best v. Barnwell Coun- 
ty, 114 S. C. 123, 103 S. E. 479 (1920). 

Meaning of "without regard to the con- 
duct of the officers." — The words, "without 
regard to the conduct of the oflicers." when 
considered in connection with the evil which 



206 



Art. 7, § 1 Constitution* of the State of South Carolina Art. 7, § 1 



the Constitution intended to remedy, must 
be construed to mean "without reference to 
what has been said in regard to the conduct 
of the officers," or in other words, without 
reference to other provisions of the section. 
Brown v. Oraneeburg County, 55 S. C. 45, 
32 S. E. 764 (1899). 

"Mob" means imlawful assembly. — Under 
this section, an instruction that "mob" 
means the same thing as "unlawful as- 
semblage" is a proper instruction. Cantey 
V. Clarendon Countv, 101 S. C. 141, 85 S. E. 
2-'S (1915). 

But "lynching" has no technical legal 
meaning. — The word "lynching" has no 
teclinical legal meaning, but is merely a de- 
scriptive phrase which is universally under- 
stood to signify the illegal infliction of pun- 
ishment by a combination of persons for 
an alleged crime. Kirkland v. ."Mlendale 
County, 128 S. C. 541. 123 S. E. 648 (1924); 
Green v. Greenville County, 176 S. C. 433, 
180 S. E. 471 (1935). 

Section limits liability to cases where 
death ensues. — This section limits the lia- 
bility of counties in cases of mob violence 
to cases where death ensues to the party 
mobbed or Ivnched. Brazzill v. Lancaster 
County. 132 S. C. 347. 128 S. E. 728 (1925). 

And includes mob acts contributing to 
death of prisoner. — Where a mob bent on 
killing a negro prisoner took him from slier- 
iff and, while seriously wounded and bleed- 
ing, carried him a considerable distance in 



an automobile and left him lying therein 
more dead than alive, without medical or 
other attention, there was a "lynching" 
rendering county liable under this section, 
if such acts contributed to his death, even 
though he was dead before his body was 
hanged or burned. Kirkland v. Allendale 
County, 128 S. C. 541, 123 S. E. 648 (1924). 

Such as lynching on removal from one 
county to another. — Taking deceased out of 
Pickens County jail and killing him in 
Greenville County constituted sufficient 
facts of mob violence to bring action against 
Greenville Countv under this section. Earle 
V. Greenville, 215 S. C. 539, 56 S. E. (2d) 
348 (1949). 

But victim need not be prisoner. — This 
section autliorizes a recovery against the 
county, whether the one lynched was a 
prisoner or not. Brown v. Orangeburg 
County, 55 S. C. 45, 32 S. E. 764 (1899). 

Section does not apply to destruction of 
tobacco by mob. — If § 16-107 of the Code 
were construed to mean that damages re- 
sulting from destruction of a crop of to- 
bacco by a mob of disorderly and riotous 
persons should be paid by the county, then 
such statute would be repugnant to this sec- 
tion of the Constitution. Warr v. Darling- 
ton County, 181 S. C. 254, 186 S. E. 920 
(1936). 

Stated in Green v. West, 161 S. C. 161, 
159 S. E. 23 (1931). 



ARTICLE VII. 

Counties and County Government. 

§ 1. Formation of new counties ; county seats and name. 

The General Assembly may establish new Counties in the following' man- 
ner : Whenever one-third of the qualified electors within the area of each sec- 
tion of an old County proposed to be cut off to form a new County shall pe- 
tition the Governor for the creation of a new County, setting forth the 
boundaries and showing compliance with the requirements of this Article, 
the Governor shall order an election, within a reasonable time thereafter, by 
the qualified electors within the proposed area, in which election they shall 
vote "Yes" or ''No" upon the question of creating said new County ; and at 
the same election the question of a name and a County seat for such County 
shall be submitted to the electors. 



Construction. — When two sections of a 
constitution are inconsistent, efifect will or- 
dinarily be given to that which, is in har- 
mony with other provisions rather than to 
that which is inconsistent with more than 
one provision. Ma.-^scy v. Glenn, 106 S. C. 
53, 90 S. E. 321 (1916). 

207 



For example, the word "fhall" in S. C. 
Const., Art. 7, § 2, which provides that if 
two thirds of the qualified electors shall 
vote "yes," then the General Assembly at 
the next session "shall" establish such new 
county, is in conflict with the word "may" 
in this section which provides that the 



Art. 7, § 1 Constitution of the State of South Carolina Art. 7, § 1 



General Assembly "may" establish new 
counties, etc. It is also in conflict with 
the construction necessarily placed on the 
word "shall" in that part of this section 
which provides that at the same election 
the question of a county seat shall be sub- 
mitted to the electors. Massey v. Glenn. 
106 S. C. 53, 90 S. E. 321 (1916). 

"Old county" and "new county" defined. 
— This section shows clearly that the con- 
vention meant by "old county" any county 
then in existence, and by "new county" 
only those counties proposed and in process 
of formation under the law. Rhame v. Du 
Rant, 93 S. C. 217, 75 S. E. 1028, 76 S. E. 
611 (19121. 

All qualified electors in proposed county 
may vote. — -All qualified electors witliin the 
territory to be included in the new county 
are entitled to vote on that question, and 
the legislature cannot deny that right by 
failing to provide a means of voting for such 
electors in a statute designed to carry out 
the constitutional provision. Callison v. 
Peeples, 102 S. C. 256, 86 S. E. 635 (1915). 

And means must be provided for qualified 
electors to vote. Calli-'^on v. Peeples, 102 
S. C. 256. 86 S. E. 635 (igUS'). 

Two-thirds vote is only on issue of creat- 
ing new county. — This and the following 
section require a two-thirds vote only on the 
question of the creation of a new county 
and not on the question of a name or countv 
seat. State v. Parler, 52 S. C. 207, 29 S. E. 
651 (1898). 

This section does not refer to divisions of 
the county such as townships, school dis- 
tricts, and the like, but means that portion 
of the old county which is proposed to be 
embraced within the new county without 
regard to county or school district lines. 
Eraser v. James, 65 S. C. 78, 43 S. E. 292 
(1902). 

Governor alone determines compliance 
with election prerequisites. — This section 
imposes exclusively on the Governor the 
duty to determine whether there has been 
a compliance with the Constitution prepara- 
tory to the ordering of an election for the 
formation of a new county, and courts have 
no power to interfere with him in the exer- 
cise of his discretion, Lamar v. Croft, 7i 
S, C. 407, 53 S. E. 540 (1906). 

And may grant or refuse amendment to 
petition. — It is within the discretion of the 
Governor to refuse or allow an amendment 
to a petition for the creation of a new coun- 
ty, setting forth with more definiteness the 
boundaries thereof. Parler v. Fogle, 78 S. 
C. 570, 59 S. E. 707 (1907), 



And courts cannot control the Governor's 
prerogative, under this section, in deter- 
mining whether constitutional requirements 
preparatory to holding an election to estab- 
lish a new county have been met. State 
V. Weeks, 87 S. C. 474, 70 S. E. 898 (1911). 

But one Governor can review and vacate 
an order of his predecessor calling an elec- 
tion on a satisfactory showing of noncom- 
pliance with some constitutional require- 
ment, especially if no private or property 
right is thereby destroved. State v. Weeks, 

87 S, C. 474, 70 S. E. 898 (1911). 
Constitution does not establish definite 

form of county government. — .\n examina- 
tion of this Article of the S. C. Constitution, 
relating to counties and county government, 
will not show a single provision with regard 
to the creation of a constitutional office, or 
any attempt whatever to define or create 
a corporate authority, or to establish a uni- 
form or definite form of county government. 
In this particular the present State Con- 
stitution differs materially from that of 
1868. Lillard v. Melton, 103 S. C. 10, 87 
S. E. 421 (1915). 

Legislature may prescribe powers of new 
county. — The fact that the S. C. Constitu- 
tion provides for creation of county does 
not deprive legislature of right to prescribe 
its powers. Park v. Greenwood County, 
174 S. C. 35. 176 S. E. 870 (1934). 

New county may not take over assets of 
parent county. — This article contains regu- 
lations pertinent to the creation of new 
counties and the transfer of territory from 
one county to another, with provisions for 
the moving territory to carry with it its just 
portion of the indebtedness of its old coun- 
ty. But there is no provision for it to take 
any of the assets of its former parent coun- 
ty. Gamble v. DuBose, 215 S. C. 252, 54 
S. E. (2d) 803 (1949). 

Hydroelectric system is within proper 
county purposes. — Erection, maintenance, 
and operation of hydroelectric system is 
within proper corporate purposes of county, 
and revenue bonds issued for construction 
of plant are valid obligations of the county. 
Park V. Greenwood County, 174 S. C. 35, 
176 S. E. 870 (1934). 

Cited in Segars v. Parrott, 54 S. C. 1, 31 
S. E. 677, 865 (1898); State v. Board of 
Canvassers, 79 S. C. 414, 60 S. E. 967 
(1908) : Robinson v. McCown, 104 S. C. 285, 

88 S. E. 807 (1916): Paris Mountain Water 
Co. V. Greenville, 110 S. C. 36, 96 S. E. 
545 (1918). 



208 



Art. 7, § 2 Constitution of the State of South Carolina Art. 7, § 4 



§ 2. Section of old county to be cut off. 

If two-thirds of the quaHfied electors voting' at such election shall vote "Yes" 
upon such questions, then the General Assembly at the next session shall es- 
tablish such new County : Provided, No section of the County proposed to be 
dismembered shall be thus cut off without consent by a two-thirds vote of those 
voting in such section; and no County shall be formed without complying with 
all the conditions imposed in this Article. An election upon the question of 
forming the same proposed new County shall not be held oftener than once in 
four vears. 



All requirements in formation of new 
county must be met. — Those who seek the 
formation of <t new county must see that all 
the constitutional requirements are com- 
plied with. State v. Board of Registration. 
87 S. C. 474, 70 S. E. 898 (1911). 

Void election does not bar election one 
year later. — .\n attempted election as to 
formation of a new county, set aside as 
void, does not bar another election on the 
same question a year later. Robinson v. 
McCown, 104 S. C. 285. 88 S. E. 807 (1916). 

County formed under Constitution of 1895 
is not an "old county." — Rhame v. DuRant. 
93 S. C. 217, 75 S. E. 1028, 76 S. E. 611 
(1912). 

Failure of election in one of two counties 
where held. — Where an election is held in 



portions of two counties on proposition of 
forming new county out of portions of terri- 
tory of each, and the election fails in one 
county, the validity of the election held in 
the other is immaterial. State v. State 
Board of Canvassers, 86 S. C. 55, 67 S. E. 
1072 (1910). 

As to legislative determination of forma- 
tion of new county, see Eraser v. James, 
65 S. C. 78, 43 S. E. 292 (1902). 

Cited in State v. Parler, 52 S. C. 207, 29 
S. E. 651 (1898): Segars v. Parrott, 54 S. C. 
1, 31 S. E. 677, 865 (1898) ; Massey v. Glenn, 
106 S. C. 53, 90 S. E. 321 (1916) Lamar v. 
Croft, 73 S. C. 407, 53 S. E. 540 (1906); 
Paris Mountain Water Co. v. Greenville, 
110 S. C. 36, 96 S. E. 545 (1918). 



§ 3. Inhabitants ; taxable property ; area of nevi^ county. 

No new County hereafter formed shall contain less than one one-hundred and 
twenty-fourth part of the whole number of inhabitants of the State, nor shall 
it have less assessed ta.xable property than one and one half million of dollars 
as shown by the last tax returns, nor shall it contain less area than four 
hundred square miles. 



Quoted m Rhame v. Du Rant, 93 S. C. 
217, 75 S. E. 1028, 76 S. E. 611 (1912). 

Cited in State v. Board of Registration, 
87 S. C. 474, 70 S. E. 898 (1911); Rhame v. 



DuRant, 93 S. C. 217, 75 S. E. 1028. 76 S. 
E. 611 (1912); Robinson v. McCown, 104 
S. C. 285, 88 S. E. 807 (1916). 



§ 4. Area, taxable property and inhabitants of old county. 

No old County shall be reduced to less area than five hundred square miles, 
to less assessed taxable property than two million dollars, nor to a smaller 
popidation than fifteen thousand inhabitants. 



Counties created since S. C. Constitution 
adopted may be reduced. — This section of 
the S. C. Constitution, forbidding in the 
creation of new counties the reduction of 
"old counties" to a less area than 500 square 
miles, does not forbid the reduction below 
500 square miles of counties created since 
the Constitution was adopted, the words 



"old county" being used to designate only 
counties then existing. Rhame v. DuRant, 
93 S. C. 217, 75 S. E. 1028, 76 S. E. 611 
(1912); Robinson v. McCown, 104 S. C. 285, 
88 S. E. 807 (1916). 

Cited in Rliame v. DuRant, 93 S. C. 217, 
75 S. E. 1028, 76 S. E. 611 (1912); Callison 
v. Peeples, 102 S. C. 256, 86 S. E. 635 (1915). 



[7 SO Code] — 14 



209 



Art. 7, § 5 Constitution of the State of South Carolina Art. 7, § 9 

§ 5. Eight mile limit. 

In the formation of new Counties no old County shall be cut within eight 
miles of its courthouse building. 

Quoted in Rhame v. DuRant, 93 S. C. Cited in Callison v. Peeples, 102 S. C. 256, 

217,75 S. E. 1028,76 5. E. 611 (1912): Eras- 86 S. E. 635 (1915); Robinson v. McCown, 
er V. James, 65 S. C. 7S, 43 S. E. 292 (1902) ; 104 S. C. 285, 88 S. E. 807 (1916). 
State V. Hammond, 66 S. C. 219, 44 S. E. 797 
(1903). 

§ 6. Indebtedness. 

All new Counties hereafter formed shall bear a just apportionment of the 
valid indebtedness of the old County or Counties from which they have been 
formed. 

Cited in Rhame v. DuRant, 93 S. C. 217, (1916): State v. McMillan, 52 S. C. 60, 29 
75 S. E. 1028, 76 S. E. 611 (1912); Robin- S. E. 540 (1898). 
son V. McCown, 104 S. C. 285, 88 S. E. 807 

§ 7. Alteration of county lines. 

The General Assembly shall have the power to alter County lines at any 
time: Provided, That before any existing County line is altered the question 
shall be first submitted to the qualified electors of the territory proposed to 
be taken from one County and given to another, and shall have received two- 
thirds of the votes cast : Provided, further, That the change shall not reduce 
the County from which the territory is taken below the limits prescribed in 
Sections 3, 4 and 5 of this Article : Provided, That the proper proportion of 
the existing County indebtedness of the section so transferred shall be assumed 
by the County to which the territory is transferred. 

Cited in Clarendon County v. Sumter pies, 102 S. C. 256, 86 S. E. 635 (1915); 

County, 116 S. C. 258. 108 S. E. 103 (1921); Robinson v. McCown, 104 S. C. 285, 88 S. 

Rhame v. DuRant, 93 S. C. 217, 75 S. E. E. 807 (1916); McLure v. IiIcEIroy, 211 S. 

1028, 76 S. E. 611 (1912); Callison v. Pee- C. 106, 44 S. E. (2d) 101 (1947). 

§ 8. Removal of county seat. 

No County Seat shall be removed except by a vote of two-thirds of the qual- 
ified electors of said County voting in an election held for that purpose, but 
such election shall not be held in any County oftener than once in five years. 

Cited in Paris Mountain Water Co. v. 
Greenville, 110 S. C. 36, 96 S. E. 545 (1918). 

§ 9. Election district; body corporate. 

Each County shall constitute one election district, and shall be a body politic 
and corporate. 

County may be divided into representa- not restrict legislature's right to authorize 

tion areas. — Section 14-1162, dividing county to build and operate h3'droelectric 

Charleston County into five areas of repre- plant. Park v. Greenwood County, 174 S. 

sentation, does not violate this section of C. 35, 176 S. E. 870 (1934). 

the Constitution. Gaud v. Walker, 214 S. Cited in Fooshe v. McDonald, 82 S. C. 

C. 451. 53 S. E. (2d) 316 (1949). 22, 63 S. E. 3 (1908); Heape v. Berkeley 

And may be authorized to operate hydro- County, 80 S. C. 32, 61 S. E. 203 (1908); 

electric plant. — Because section declares McLure v. McElroy, 211 S. C. 106, 44 S. 

counties bodies politic and corporate does E. (2d) 101 (1947). 

210 [7SCCode] 



Art. 7, §10 CoNSTiTCTiox of the State of South Carolina Art. 7, §11 

§ 10. Consolidation of two or more counties. 

The General Assembly may provide for the consolidation of two or more 
existing Counties if a majority of the qualified electors of such Counties voting 
at an election held for that purpose shall vote separately therefor, but such 
election shall not be held oftener than once in four j'ears in the same Counties. 

Cited in Paris Mountain Water Co. v. 
Greenville, 110 S. C. 36, 96 S. E. 545 (1918). 



§ 11. Townships; body corporate; township government. 

Each of the several townships of this State, with names and boundaries as 
now established by law, shall constitute a body politic and corporate, but this 
shall not prevent the General Assembly from organizing other townships or 
changing the boundaries of those already established ; and the General As- 
sembly may provide such system of township government as it shall think 
proper in an}^ and all the Counties, and may make special provision for mu- 
nicipal government and for the protection of chartered rights and powers of 
municipalities : Provided, That this Section shall not apply to the following 
townships in the following Counties: Dunklin and Oaklawn in the County of 
Greenville; the Townships of Cokesbury, Ninety Six and Cooper, in the Coun- 
ty of Greenwood; Sullivan Township, in the County of Laurens; Huiett and 
Pine Grove, in the County of Saluda. That the corporate existence of said 
townships be, and the same is hereby, destroyed, and all officers under said 
townships are abolished, and all corporate agents removed. 

1902 (23) 1227; 1903 (24) 3. 



I. General Consideration. 
II. Application of Section. 

Cross References. 
As to constitutional prohibition against 
local or special laws, see S. C. Const., .^rt. 
3, § 34. .\s to formation of new counties, 
see note to S. C. Const., Art. 7, § 1. 

I. GENERAL CONSIDERATION. 

Constitutionality. — .^n amendment to this 
section may not impair obligation of ex- 
isting contracts. Smith v. Walker, 74 S. 
C. 519, 54 S. E. 779 (1906). See also, Gra- 
ham V. Folsom. 200 U. S. 248, 26 S. Ct. 245, 
50 L. Ed. 464 (1906-). 

Section is construed with S. C. Const., 
Art. 3, § 34. — This section may not be 
soundly applied to uphold every special leg- 
islative provision with respect to municipal 
government in disregard of the inhibition 
of S. C. Const., Art. 3. § 34. Owens v. 
Smith. 216 S. C. 382, 58 S. E. (2d) 332 
(1950). 

The authority to make special provision 
for municipal government as contained in 
this section was evidently framed in view 
of the provisions of S. C. Const., Art. 3, § 
34, and was intended to give the legislature 



a wider latitude in the making of special 
provisions for county and township gov- 
ernment. Gaud V. Walker, 214 S. C. 451, 53 
S. E. (2d) 316 (1949). 

General Assembly may control govern- 
ment of county. — This section has been re- 
peatedly construed to give the General .-\s- 
sembly complete control over the govern- 
ment and other internal affairs of the coun- 
ties of the State. Reese v. Hinnant, 187 
S. C. 474, 198 S. E. 403 (1938). 

Through delegation of powers to coun- 
ty. — The legislature may grant county pow- 
er to discharge such governmental functions 
as it thinks proper to promote prosperity', 
safety, convenience, health and common 
good of county's inhabitants. Park v. 
Greenwood Count v, 174 S. C. 35. 176 S. E. 
870 (1934). 

But police power may not be delegated to 
county. — This section, granting authority 
to make special provision for municipal gov- 
ernment, must be interpreted in the light of 
all other provisions and restrictions con- 
tained in the Constitution, and when so 
construed, does not permit the General 
Assembly to delegate the police power to 
some particular county. Sansing v. Chero- 
kee County Tourist Camp Board, 195 S. C. 



211 



Art. 7, § 12 Constitution of the State of South Carolina Art. 7, § 12 



7, 10 S. E. (2d) 157 (1940) ; Owens v. Smith, 
216 S. C 382, 58 S. E. (2d) 332 (1950). 

"Municipal government" relates to coun- 
ties and not cities. — Carroll v. York, 109 
S. C. 1, 95 S. E. 121 (1918); Flovd v. Cal- 
vert, 114 S. C. 116, 103 S. E. 82 (1920); 
State V. Touchberry, 121 S. C. 5, 113 S. E. 
345 (1922); Spartanburg County v. Miller, 
135 S. C. 348, 132 S. E. 673 (1924); Caro- 
lina Grocery Co. v. Burnet, 61 S. C. 205, 39 
S. E. 381 (1901). 

The term "municipal government" has 
been uniformly construed by the Supreme 
Court to embrace the governmental affairs 
of counties. Gaud v. W'alker, 214 S. C. 451, 
53 S. E. (2d) 316 (1949). 

"Township" is a division of the county 
made for governmental purposes, and under 
the express provisions of this section is a 
bodv politic. Gallishaw v. Jackson, 99 S. C. 
342,' 83 S. E. 454 (1914); Battle v. Willco.x, 
128 S. C. 500, 122 S. E. 516 (1924). 

"County" and "township" are separate 
entities for certain taxation. \\ here an act 
imposes a uniform tax in a particular town- 
ship, S. C. Const., Art. 10, § 1, would not 
be violated. Nettles v. Cantwell. 112 S. C. 
24. 99 S. E. 765 (1919). 

Section does not qualify constitutional 
ban on certain taxes. — This section contains 
no qualification of the ban of S. C. Const., 
Art. 10, § 6 against ta.xes and bond issues 
for other than the stated objects and ordi- 
nary county purposes mentioned in such 
ban. Doran v. Robertson, 203 S. C. 434, 27 
S. E. (2d) 714 (1943). 

II. APPLICATION OF SECTION. 

County may make appropriations, levy 
taxes, etc.— Sections 14-1169 and 14-1191, 
which give the Charleston County council 
power to make appropriations, levy taxes, 
incur indebtedness and issue bonds, are not 
an invalid delegation to the county coun- 
cil of legislative authority in violation of 
S. C. Const., Art. 3, § 1, which vests the 
legislative power of the State in the Gen- 
eral .\ssembly, but such authority may be 
delegated under this section and S. C. 
Const., Art. 10, § 5. Gaud v. Walker, 214 
S. C. 451, 53 S. E. (2d) 316 (1949). 

Office of delinquent tax collector is local 
government matter. — Section 65-2191, cre- 



ating the office of delinquent tax collector 
in Pickens County and transferring certain 
powers formerly vested in the sheriff to the 
collector, is a matter of local government 
dealing with the personnel involved in the 
enforcement of delinquent taxes within the 
provisions of this section of the Constitu- 
tion, and is not a matter of State legisla- 
tion in the sense contemplated by the re- 
quirement of uniformity contained in S. C. 
Const., Art. 3, § 34. Craig v. Pickens Coun- 
ty. 189 S. C. 164, 200 S. E. 825 (1939). 

Abolishing office of county supervisor. — 
.'\n act, 25 Stat. 1203, abolishing the office 
of the county supervisor for Fairfield Coun- 
ty and changing the townships of the 
county, is valid. Fooshe v. McDonald, 82 
S. C. 22, 63 S. E. 3 (1908). 

Repeal of charter of town. — An act, 25 
Stat. 280, repealing charter of town of 
Moultrieville and establishing township 
government for Sullivan's Island as town- 
ship of Charleston County, if such repeal 
affects merely public government of munic- 
ipality, is permissible. Board Township 
Com'rs V. Bucklev, 82 S. C. 352, 64 S. E. 
163 (1909). 

For additional related cases, see Fleming 
v. Royall, 145 S. C. 438, 143 S. E. 162 (1928), 
holding the townships of Christ Church 
Parish and St. James Santee, Charleston 
County, to be bodies politic; Folsom v. 
Ninety Six, 159 U. S. 611, 16 S. Ct. 174, 40 
L. Ed. 278 (1895). 

Applied in DeLoach v. Scheper, 188 S. C. 
21, 198 S. E. 409 (1938). 

Cited in Askew v. Smith, 126 S. C. 159, 
119 S. E. 378 (1923); Ruff v. Boulware, 133 
S. C. 420, 131 S. E. 29 (1925); Law v. Spar- 
tanburg, 148 S. C. 229, 146 S. E. 12 ( 1928) ; 
Duke Power Co. v. Bell, 156 S. C. 299, 152 
S. E. 865 (1930); Sallev v. McCov, 186 S. 
C. 1, 195 S. E. 132 (1932); Gamble v. Clar- 
endon County, 188 S. C. 250, 198 S. E. 857 
(1938); Ridgill v. Clarendon County, 188 
S. C. 460, 199 S. E. 683 (1938); Parrott v. 
Gourdin. 205 S. C. 364, 32 S. E. (2d) 14 
(1944); Anderson v. Page. 208 S. C. 146, Z7 
S. E. (2d) 289 (1946); Aloselev v. Welch, 
209 S. C. 19, 39 S. E. (2d) 133 (1946); Bvrd 
v. Lawrimore, 212 S. C. 281, 47 S. E. (2d) 
728 (1948). 



§ 12. Boundaries of counties; boundaries of Saluda and Edgefield. 

Until changed by the General Assembly, as allowed by this Constitution, the 
boundaries of the several counties shall remain as now established, except that 
the boundaries of the County of Edgefield shall undergo such changes as are 
made necessary by the formation of a new County from a portion of Edgefield, 

212 



Art. 7, § 13 Constitution of the State of South Carolina Art. 8, § 1 

to be known as Saluda, the boundaries of which are set forth in a Constitu- 
tional Ordinance. The election ordered in said ordinance for the location of 
its County seat shall be held under the Constitution and laws now of force. 
And the General Assembly shall provide for the assessment of property in the 
County of Saluda for the fiscal year beginning January first, eighteen hundred 
and ninety-six, and for the collection of said taxes when assessed. 

Cited in Fooshe v. McDonald, 82 S. C. 22, 
63 S. E. 3 (1908). 

§ 13. Judicial and Congressional districts. 

The General Assembly may at any time arrange the various Counties into 
Judicial Circuits, and into Congressional Districts, including the County of 
Saluda, as it may deem wise and proper, and may establish or alter the location 
of voting precincts in any County. 

Cited in Fooshe v. McDonald, 82 S. C. 22, 
63 S. E. 3 (1908); McLure v. McElroy, 211 
S. C. 106, 44 S. E. (2d) 101 (1947). 

§ 14. No county line through city or town. 

Hereafter no County lines shall be so established as to pass through any 
incorporated city or town of this State. 

ARTICLE VIII. 

Municipal Corporations and Police Regulations. 

§ 1. Organization and classification of municipal corporations. 

The General Assembly shall provide by general laws for the organization 
and classification of municipal corporations. 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. Cities and 
towns now existing under special charters may reorganize under the general 
laws of the .State, and when so reorganized their special charters shall cease 
and determine. 

I. General Consideration. This Article does not apply to townships. 

II. Application of Section. — The wliole trend of tliis .\rticle indicates 

A. Acts Contravening Section. its appHcation to cities and towns and not to 

B. Acts Not Contravening Section. townships, and the action of the General 

Assembly in making a classification of cities 
Cross Reference. and towns, and none of townships. lends 

As to General Assembly's power to enact ^°'°^_ ' r^'t'^VT^o' c 'p°",7« V,o'T^^• ^"''"'' 
special provisions in general laws, see note ^26 S. C 159, 119 S. E. 378 (1923). _ _ 
to S. C. Const., Art. 3, § 34, subdiv. 10. ^"'^ '^'^ ^"*"°" *° "nation of municipal 

courts. — It IS not the intention of the Con- 
I. GENERAL CONSIDERATION. stitution to make the creation, jurisdiction, 

and incidents of a municipal court the sulj- 
Uniformity is purpose of section. — One of ject of a "general law" which must be in 
tlie purposes sought to be accomplished by force in every county in the State and which, 
tliis section is to make uniform the law on while it may contain special provisions 
like subjects. Carroll v. York, 109 S. C. 1, making its effect different in certain coun- 
95 S. E. 121 (1918); Owens v. Smith, 216 ties, cannot exempt them from its entire 
S. C. 382, 58 S. E. (2d) 332 (1950). operation. Thus, the provision of an act 

213 



Art. 8, § 1 Constitution of the State of South Carolina Art. 8, § 1 



providing a method of preparing and draw- 
ing jurors in tlie recorder's court for the 
city of Columbia is valid. Columbia v. 
Smith, 105 S. C. 348. 89 S. E. 1028 (1916). 

Section forbids restricting or adding to 
power of part of class. — An act which gives 
power to or restricts one of a class of cities 
is forbidden by this section. Flovd v. Cal- 
vert, 114 S. C. 116, 103 S. E. 82 (1920). 

Special provisions may be in general laws. 
- — That there may be special provisions in 
general laws is true. Carroll v. York, 109 
S. C. 1, 95 S. E. 121 (1918); Floyd v. Cal- 
vert, 114 S. C. 116, 103 S. E. 82 (1920). 

But may not deprive laws of general char- 
acter. — If a special provision robs a law of 
its general character, it is plainly not per- 
missible. Carroll v. York, 109 S. C. 1, 95 
S. E. 121 (1918); Floyd v. Calvert, 114 S. 
C. 116, 103 S. E. 82 (1920). 

Reincorporation of city supersedes orig- 
inal charter. — The reincorporation of a city 
under the general laws superseded the old 
charter and an act which gave it special 
powers in regard to a board of fire commis- 
sioners, as the act was in the nature of 
an amendment to the original charter, and 
to have held it otherwise would be to con- 
travene this section of the Constitution. 
Beattie v. City Council, 113 S. C. 541, 102 
S. E. 751 (1920). See also, Rutledge v. 
Greenville, 155 S. C. 520, 152 S. E. 700 
(1930). 

But involves no break in corporate exist- 
ence. — While tliis section ordains that the 
old charter shall cease and determine, clear- 
ly it does not ordain expressly or by im- 
plication that the corporate life of the town 
shall be cut ofT even for a moment. The 
provision is not that the existing city or 
town shall go out of existence, but that one 
charter shall be substituted for another; 
not that there shall be destruction of the 
city or town, but merely reorganization. 
This substitution of one charter for another 
and reorganization of the municipality is 
not a break in the corporate existence of the 
city or town, but a continuation of it with 
the powers and franchises conferred by the 
general law. Black v. Fishburne, 84 S. C. 
451, 66 S. E. 681 (1910). 

And proceedings begun under old charter 
may be completed. — By the provisions of 
this section, the property of the munici- 
pality acquired under the old charter con- 
tinues its property under the new, its 
contracts legally made under its old char- 
ter remain valid under the new, and all 
corporate proceedings legally undertaken 
while the old charter was in force may be 
carried to completion after the issuance 



of the new charter, unless they will result 
in the doing of an act which could not be 
legally done under the new charter. Black 
V. Fishburne, 84 S. C. 451, 66 S. E. 681 
(1910). 

Under this section, municipal corpora- 
tions can issue bonds maturing beyond 
their corporate life under their charters, the 
statutes in effect being amendments of their 
original charters extending their corporate 
existence as to such bonds until their pay- 
ment. Thus the surrender of their special 
charter and reincorporation under the gen- 
eral laws would not affect the validity of 
bonds, even if actually issued after incor- 
poration under the general law. Black v. 
Fishburne. 84 S. C. 451, 66 S. E. 681 (1910). 

Legislature may establish municipal 
court.— Greenville v. Foster, 101 S. C. 318, 
85 S. E. 769 (1915). 

The power conferred upon the General 
Assembly to provide by general laws for 
the reorganization and classification of mu- 
nicipal corporations includes the power to 
establish municipal courts. Greenville v. 
Foster. 101 S. C. 318. 85 S. E. 769 (1915). 

Quoted in Gaud v. Walker, 214 S. C. 451, 
53 S. E. (2d) 316 (1949). 

Cited in Luther v. Wheeler, 73 S. C. 83, 
52 S. E. 874 (1905); Com'rs v. Bank of 
Commerce, 97 U. S. 374, 24 L. Ed. 1060 
(1878). 

IL APPLICATION OF SECTION. 
A. Acts Contravening Section. 

Act providing for cotton tax. — .\ct which 
allowed some towns to tax merchants sell- 
ing cotton and prohibited others from doing 
so contravenes this section prohibiting spe- 
cial laws. Carroll v. York, 109 S. C. 1, 95 
S. E. 121 (1918). 

Without reasonable basis for classifica- 
tion. — .\ law prohibiting 40 named towns 
without some reasonable basis for classifica- 
tion to collect a license tax from persons 
engaged in the sale of cotton, no mention 
being made of other towns, would seem to 
be a local or special law in form and in 
essence. Carroll v. York, 109 S. C. 1, 95 
S. E. 121 (1918). 

Act conferring right to vote on nonresi- 
dents. — In Thomas v. Macklen, 186 S. C. 
290, 195 S. E. 539 (1938), the court held un- 
constitutional sections of an act which con- 
ferred upon nonresident freeholders of a 
proposed incorporated town the right to 
vote and to hold office therein, on the 
ground that such act was obnoxious to this 
section and other constitutional provisions. 

Act providing for election on abandoning 
form of city government. — An act which 



214 



Art. 8, § 2 Constitution of the State of South Carolina Art. 8, § 3 



required an election on the question of 
abandoning the commission form of gov- 
ernment in a named city is contrary to this 
.section. Flovd v. Calvert, 114 S. C. 116, 
103 S. E. 82 (1920). 

Statutes authorizing acquisition of water- 
works. — Provisions of the Code, which au- 
thorized three cities to acquire waterworks 
systems by condemnation, violate this sec- 
tion when there is a fourth city in the same 
class. Paris Mountain Water Co. v. Green- 
ville, 105 S. C. 180, 89 S. E. 669 (1916). 

B. .A.cts Not Contravening Section. 

Act abolishing township highway com- 
mission and devolving all tlieir duties upon 
an advisory board and the county engineer 
is not in conflict with this section in view 



of S. C. Const., Art. 7, § 11. Askew v. 
Smith, 126 S. C. 159, 119 S. E. 378 (1923). 

Act providing for erection of tuberculosis 
hospital for Spartanburg County and for 
selection of site by board of trustees of 
Spartanburg General Hospital is not viola- 
tive of this section as subjecting city of 
Spartanburg to restrictions other than those 
imposed on other corporations of the same 
class. Law v. Spartanburg, 148 S. C. 229, 
146 S. E. 12 (1928). 

Statute classifying cities with commission 
form of government. — In Forde v. Owens, 
160 S. C. leS, 158 S. E. 147 (1931), a stat- 
ute classifying cities adopting commission 
form of government was held constitution- 
al, notwithstanding it contained some spe- 
cial provisions. 



§ 2. Electors must consent to organization. 

No city or town shall be organized without the consent of the majority of 
the electors residing and entitled by law to vote within the district proposed 
to be incorporated ; such consent to be ascertained in the manner and under 
such regulations as may be prescribed by law. 



Majority of all electors is necessary to 
carry election. — Paris Mountain Water Co. 
V. Greenville, 110 S. C. 36, 96 S. E. 545 
(1918). 

Section does not apply to municipal an- 
nexation. — This section of the Constitution 
by its own specific language relates to the 
original organization or incorporation of a 
municipality, and does not apply to subse- 
quent annexation. Wliitmire v. Cass, 213 
S. C. 230, 49 S. E. (2d) 1 (1948). 



"Organized" means "incorporated." — The 

word "organized" in this section is synony- 
mous with the word "incorporated." Whit- 
mire v. Cass, 213 S. C. 230, 49 S. E. (2d) 1 
(1948). 

Act conferring right to vote on nonresi- 
dents. — See note to S. C. Const,, .\rt. 8. § 1. 

Cited in Park v. Greenwood County, 174 
S. C. 35, 176 S. E. 870 (1934). 



§ 3. Taxes. 

The General .■\ssembly shall restrict the powers of cities and towns to levy 
taxes and assessments, to borrow money and to contract debts, and no tax 
or assessment shall be levied or debt contracted except in pursuance of law, 
for public purposes specified by law. 



Restriction on tax power is not upon leg- 
islature. — The restriction of this section as 
to the power of taxation is not upon the 
legislature, but the injunction is to the legis- 
lature to restrict the powers of the town to 
levy taxes. Paris Mountain Water Co. v. 
Greenville, 110 S. C. 36, 96 S. E. 545 (1918). 

This section relates to bonded indebted- 
ness of municipalities. — Lillard v. Melton, 
103 S. C. 10, 87 S. E. 421 (1915). 

Which may not exceed eight per cent of 
value of taxable property therein.— The 
bonded indebtedness of an incorporated city 
or town may not exceed eight per cent of 
the assessed value of its taxable property; 



but up to that limit the city may incur bond- 
ed indebtedness, as long as the expenditures 
be for corporate or public purposes. Mar- 
shall v. Rose, 213 S. C. 428, 49 S. E. (2d) 
720 (1948). 

And does not authorize creation of any 
debt. — For the creation of a debt of any de- 
scription, it is necessary for municipal au- 
thorities to find either legislative authority 
or warrant in some other provision of the 
Constitution itself tlian in tliis section, 
Luther v. Wheeler, 73 S. C. 83, 52 S. E, 874 
(1905). 

It is modified by S. C. Const., Art. 8, § 7. 
— This section is modified by S. C. Const., 



215 



Art. 8, § 4 Constitution of the State of South Carolina Art. 8, § 4 



Art. 8, § 7, which allows indebtedness to 
be incurred in anticipation of the collection 
of taxes. Luther v. Wheeler, 7i S. C. 83, 
52 S. E. 874 (1905). 

Which allows debts to be made for legiti- 
mate purposes. — This section of the Con- 
stitution, providing that no debt shall be 
contracted e.xccpt in pursuance of law for 
public purposes specified by law, is neces- 
sarily modified by S. C. Const., Art. 8. § 7, 
which allows indebtedness to be incurred in 
anticipation of the collection of taxes. 
There is in this last section no specification 
of any particular purposes for which such 
debts may be contracted, and the meaning, 
therefore, manifestly is that they may be 
contracted for any legitimate corporate 
purpose. United States Rubber Products 
V. Batesburg, 183 S. C. 49, 190 S. E. 120 
(1937). 

And is construed with other sections of 
S. C. Constitution.— This section, .Art. 8, § 7, 
Art. 2, § 13, Art 10, § 6, Art. 10, § 5, and Art. 
10, § 13 of the S. C. Constitution, when con- 
sidered together, show clearly how careful 
the framers of the Constitution were to 
throw safeguards around bonded indebted- 
ness, whether it was of the State, munici- 
palities, or political divisions or subdivisions 
of the State. Lillard v. Melton, 103 S. C. 
10, 87 S. E. 421 (1915). 

Section contemplates corporate utilities as 
public purposes. — This section and S. C. 
Const., Art. 8, §§ 4 and 5 contemplate tliat 
the construction and operation of water and 
electric plants, not only for the purposes of 
the corporation, strictly speaking, but for 
supplying citizens of the municipality with 
light and water, shall be a public purpose 
for which the municipality may incur debts 



and lew taxes. Irvine v. Greenwood, 89 
S. C. 511, 72 S. E. 228 (1911). 

And also recreation center and pool. — A 
recreation center and a swimming pool are 
within the scope of public or corporate pur- 
poses and, therefore, are objects for which 
taxes may be levied or indebtedness in- 
curred. Marshall v. Rose, 213 S. C. 428, 
49 S. E. (2d) 720 (1948). 

Act giving town council power to tax 
does not contravene section. — Tlie power 
of taxation given by an act of the legislature 
to the town council of Beaufort is not in 
conflict with this section. State v. Beau- 
ford, 39 S. C. 5, 17 S. E. 355 (1893). 

And legislature may vest county board 
with power to tax. — An act vesting a county 
board of education of a certain county with 
power to tax for support of higli schools 
was held not violative of constitutional pro- 
visions intended to limit public debt, among 
which is this section. Powell v. Hargrove, 
136 S. C. 345, 134 S. E. 380 (1926). 

Section does not repeal act conferring 
power to assess license tax. — The act of 
1871, 14 Stats. 569, conferring on the city 
of Columbia power to assess license tax, is 
not repealed by this section. Florida Cen- 
tral & P. R. Co. V. Columbia. 54 S. C. 266, 
32 S. E. 408 (1899). 

Cited in Germania Sav. Bank v. Darling- 
ton, 50 S. C. Zi7. 27 S. E. 846 (1897); Car- 
roll V. York, 109 S. C. 1, 95 S. E. 121 (1918) ; 
Martin v. School District, 57 S. C. 125, 35 
S. E. 517 (1900); Com'rs v. Bank of Com- 
merce, 97 U. S. 374. 24 L. Ed. 1060 (1878); 
Stehmcver v. Citj' Council, 53 S. C. 259, 31 
S. E. hi (1898); Robinson v. Columbia, 
116 S. C. 193, 107 S. E. 476 (1921). 



§ 4. Street railway, etc. 

No law shall be passed by the General Assembly granting the right to 
construct and operate a street or other railway, telegraph, telephone or electric 
plant, or to erect water or gas works for public uses or to lay mains for any 
purpose, without first obtaining the consent of the local authorities in control 
of the streets or public places proposed to be occupied for any such or like 
purposes. 



Section is limitation on power of legisla- 
ture. — This provision does not confer any 
authority upon a municipality, but is a limi- 
tation on the power of the General Assem- 
bly. Brookland v. Broad River Power Co., 
172 S. C. 115, 173 S. E. 71 (1934). 

Which may grant rights conditioned upon 
obtaining proper consent. — An act passed 
by the General Assembly, granting a right 



to lay and operate railroad tracks along a 
street but requiring that the consent of the 
proper authorities be first obtained, is not 
in violation of this section. Riley v. Cliarles- 
ton Union Station Co., 71 S. C. 457, 51 S. 
E. 485 (1905). 

Section contemplates corporate utilities 
as public purposes. — See note to S. C. 
Const., Art. 8, § 3. 



216 



Art. 8, § 5 Constitution of the State of South Carolina Art. 8, § S 



For additional related case, see Conway 
V. Atlantic Coast Line R. Co., 20 F. (2d) 
250 (1926). 



Cited in Rilev v. Charleston Union Sta- 
tion Co., 67 S. C. 84, 45 S. E. 149 (1903). 



§ 5. Waterworks systems ; plants furnish lights and ice. 

Cities and towns may acquire, by construction or purchase, and may operate, 
waterworks systems and plants for furnishing lights and ice manufacturing 
plants and may furnish water and lights and ice, to individuals, firms and pri- 
vate corporations for a reasonable compensation : Provided, That no such con- 
struction or purchase shall be made except upon a majority vote of the electors 
in said cities or towns who are qualified to vote on the bonded indebtedness 
of said cities or towns. 

1920 (31) 1707; 1921 (32) 273. 



I. General Consideration. 
II. Application of Section. 
III. Elections. 

Cross References. 

As to requirements of petition from ma- 
jority of frceliolders of city as condition 
precedent to election to bond city, see note 
to S. C. Const., Art. 2, § 13. As to provi- 
sions relating to incurring bonded debts by 
cities and towns and requiring elections 
therefor, see note to S. C. Const., Art. 8, 
§ 7. As to provisions for levying taxes for 
corporate purposes and limiting bonded 
debts, see note to S. C. Const., Art. 10, § 5. 
.As to provision for taking private property 
for public use only on making just compen- 
sation therefor, see note to S. C. Const., 
Art. 1, § 17. As to provisions prohibiting 
taking property without due process of law, 
see U. S. Constitution, Fifth .Amendment 
(limitations on Federal Government), and 
U. S. Constitution, Fourteenth .-Amendment 
(limitation on powers of states). .A.s to 
power of municipal corporations to con- 
demn lands for waterworks, see § 59-222. 
As to construction and operation of water- 
works and electric plants, issuance of bonds 
for such, elections required and power of 
condemnation in relation thereto, see §§ 59- 
241 to 59-245 and 59-247. As to provisions 
for issuance of general obligation bonds by 
cities and towns, see § 47-833. 

I. GENERAL CONSIDERATION. 

Historical note. — The power of a munic- 
ipality to operate an electric plant for furn- 
ishing lights to private residents did not 
exist in this State until the S. C. Consti- 
tution was adopted in 1895. L'nion v. Board 
of Com'rs. 91 S. C. 248, 74 S. E. 496 (1912). 
And a city's purchase and maintenance of 
one, to the extent of furnishing lights to 
private residences and places of business 



217 



at a compensation, were ultra vires. Maul- 
din v. City Council, 2i S. C. 1, 11 S. E. 434 
(1890). 

This section achieves three objectives. — 
This section (1) confers the riglu to pur- 
chase; (2) it limits the right to a majority 
vote of the electors of the city; and (3) it 
by necessary implication prescribes the way 
in which that majority shall be ascertained, 
that is to sa5', as electors voting on bonded 
indebtedness. Enterprise Real Estate Co. v. 
Citv Council, 107 S. C. 492, 93 S. E. 184 
(1917). 

And it is self-executing. — This section 
and S. C. Const., Art. 8, § 7, providing that 
cities may acquire waterworks and provide 
for payment therefor, are self-executing. 
Paris Mountain Water Co. v. Greenville. 
110 S. C. 36, 96 S. E. 545 (1918). See also. 
Chick Springs Water Co. v. State High- 
way Dept., I59 S. C. 481, 157 S. E. 842 
(I93n. 

City can acquire waterworks and light 
plant only as provided here. — Stehmever v. 
Citv Council. 53 S. C. 259, 31 S. E. 322 
(1898). 

An act which authorizes cities and towns 
to construct and operate waterworks, to 
raise funds for that purpose by the issue 
of bonds when approved by the qualified 
electors at an election by the municipal au- 
thorities, and further provides that at such 
election commissioners of public works 
shall be elected to sell and dispose of the 
bonds and to build and control the water- 
works, relates to the construction, purchase, 
and operation of waterworks and electric 
light plants, and obviously was intended to 
carry into effect the provisions of this sec- 
tion. Seegers v. Gibbes, 72 S. C. 532, 52 
S. E. 586 (1905). 

Legislature may confer similar powers 
on counties. — The right given cities and 1 
towns by the Constitution to establish and V 
operate electric light plants, with approval I 



s I 



Art. 8, § 5 Constitution of the State of South Carolina Art. 8, § 5 



of their qualified electors, does not affect 
legislature's power to confer similar right 
on counties. Park v. Greenwood County, 
174 S. C. 35, 176 S. E. 870 (1934). 

Statute omitting word "purchase" is still 
sufficient. — A statute enacted to carry out 
the provisions of this section, though it does 
not use the word "purchase," is sufficient 
when considered with this section to war- 
rant the city to purchase waterworks. En- 
terprise Real Estate Co. v. City Council, 107 
S. C. 492, 93 S. E. 184 (1917). 

Cited in Greenwood v. Yoe, 89 S. C. 24, 
71 S. E. 238 (1911); Hyams v. Carroll, 146 
S. C. 470, 144 S. E. 153 (1928): Simons v. 
Citv Council, 181 S. C. 353, 187 S. E. 545 
(1936). 

II. APPLICATION OF SECTION. 

Section contemplates corporate utilities 
as public purposes. — See note to S. C. 
Const., Art. 8, § 3. 

And establishing waterworks is proper 
corporate purpose. — Under the provisions of 
this section, the establishment of a system 
of waterworks and electric light by a city 
can properly be regarded as a corporate 
purpose. McWhirter v. Newberry, 47 S. 
C. 418, 25 S. E. 216 (1896). 

This section does not limit service to 
those situated within city limits. Paris 
Moutain Water Co. v. Greenville, 110 S. C. 
36, 96 S. E. 545 (1918). 

And it does not authorize involuntary ac- 
quisition by condemnation. — Paris Moun- 
tain Water Co. v. Greenville, 105 S. C. 180, 
89 S. E. 659 (1916). 

But legislature may delegate power to 
condemn waterworks. — The primary right 
of a city to condemn a waterworks rests in 
eminent domain vested in the state not cre- 
ated by the Constitution, but affirmed by 
S. C. Const,, Art. 14, and limited in its ex- 
ercise by S. C. Const., Art. 1, § 17, and S. 
C. Const., Art. 9, § 20, the exercise of the 
right being vested in the legislature which 
may delegate it to the city. Paris Mountain 
Water Co. v. Greenville, 110 S. C. 36, 96 
S. E. 545 (1918). 

Vote must be taken before condemnation 
proceedings started. — This section requires 
a majorit}' vote in favor of construction or 
purchase before condemnation proceedings 
are started, assuming that purchase in- 
cludes the power to condemn. Paris Moun- 
tain Water Co. v. Greenville, 105 S. C. 180, 
89 S. E. 669 (1916). 

Effect on condemnation power of contract 
to supply water to nonresidents. — The 
fundamental right of a city to acquire by 
condemnation a waterworks plant cannot 



be defeated by the suggestion that persons 
outside of the city now supplied by contract 
may be hereafter cut off from use of water. 
Paris Mountain Water Co. v. Greenville, 
110 S. C. 36, 96 S. E. 545 (1918). 

Proposition to install sewerage system 
may be submitted. — This section is con- 
fined to waterworks systems and electric 
light plants, but there is nothing to indicate 
that the legislature might not provide that 
either or both of these two purposes might 
not be submitted to the voters along with 
the proposition to install a sewerage system. 
Waits V. Ninety-Six, 154 S. C. 350, 151 S. 
E. 576 (1930). 

City is not obligated to supply nonresi- 
dents. — This section cannot be held to mean 
that cities and towns, by exercising the 
power of operating waterworks, assume to 
nonresidents of the city the relation and 
duties of a public service corporation. 
Childs v. Columbia, 87 S. C. 566, 70 S. E. 
296 (1911). _ 

Unless it is bound to them by contract. — 
A city operating waterworks under this sec- 
tion is bound to a nonresident only by the 
contract made. Childs v. Columbia, 87 S. 
C. 566, 70 S. E. 296 (1911). 

City may agree that private company 
manage supply system. — Under this section 
a contract whereby a city builds an addi- 
tional water supply system to be managed, 
operated, and maintained by private com- 
pany is not invalid as involving exercise of 
power of taxation for purposes essentiallv 
private. Green v. Rock Hill, 149 S. C. 234, 
147 S. E. 346 (1929). 

III. ELECTIONS. 

This section implies power to hold elec- 
tion. — This section necessarily implies the 
power of the municipality to hold an elec- 
tion to ascertain the will of the majority, 
though possibly this may be defeated by the 
failure of the General Assembly to provide 
election machinery. Dick v. Scarborough, 
7Z S. C. 150, 53 S. E. 86 (1905). 

When construed with other sections of 
Constitution. — This section, and S. C. 
Const., Art. 2, § 13, and Art. 8, § 7, indicate 
procedure for an election on question of 
purchase of waterworks as well as payment 
of price. Enterprise Real Estate Co. v. 
Citv Council, 107 S. C. 492, 93 S. E. 184 
(1917). 

And legislature cannot deny right to vote. 
— The legislature can not so limit the use 
of the election machinery as to deny to the 
voter the constitutional right to vote for 
the purchase of waterworks, and all rights 
given by the Constitution may be exer- 



ns 



Art. 8, § 5 Constitution of the State of South Carolina Art. 8, § 6 



cised by the voters, whether expressly men- 
tioned in a statute or not. Dick v. Scar- 
borough. 7i S. C. 150. 53 S. E. 86 fl905). 

Petition for election must be signed by 
majority of freeholders. — Under S. C. 
Const., -Art. 2, § 13, petition for an election 
to issue bonds to meet the cost of construct- 
ing waterworks and electric light plants 
must be signed by a majority of the free- 
holders as shown by the tax books of the 
city or town. McWhirter v. Newberry, 47 
S. C. 418. 25 S. E. 216 (1896). 

But election hereunder is not dependent 
upon filing petition. — Act making the or- 
dering by municipality of election on the 
construction of a waterworks system de- 
pendent upon filing petition by a majority 
of freeholders was held not to construe this 
section as requiring that such a petition 
be filed before an election could be held, 
since this section is not ambiguous and 
needs no construction and since such act is 
regarded merely as a condition added to 
this section. Acker v. Cooley. 177 S. C. 
144. 181 S. E. 10 (1934). 

Ballot is sufficient if voter informed of is- 
sue. — In a city election to determine the 
issue or bonds for purchase of waterworks, 
any form of ballot in accordance with the 
previous notice, giving the voter full knowl- 
edge of the issue involved, is sufficient. 
Dick V. Scarborough. 73 S. C. 150, S3 S. E. 
86 (1905). 

Majority of those voting is sufficient. — 
A vote in favor of construction or purchase 
by a majority of the qualified voters who 
voted at the election is sufficient in view of 
this section. Harbv v. Jennings, 112 S. C. 
479, 101 S. E. 649 (1919). 

Under this and other constitutional sec- 
tions. — Elections under this section and S. 



C. Const., Art. 8, § 7 are controlled by S. C. 
Const., Art. 2, § 13, providing that a majori- 
ty of those voting at special elections is 
sufficient to autliorize city bonds. Paris 
Mountain Water Co. v. Greenville, 110 S. 
C. 36. 96 S. E. 545 (1918). 

And absent electors are presumed to as- 
sent to vifill of majority voting. — Qualified 
electors who have absented themselves from 
an election duly called are presumed to 
assent to the express will of the majority of 
those voting, unless the law providing for 
the election otherwise declares. Paris 
Mountain Water Co. v. Greenville, 110 S. C. 
36, 96 S. E. 545 (1918). 

Separate submission of purposes of bonds 
is not required. — This section. S. C. Const., 
Art. 8, § 7 and Art. 10, § 5 do not require 
the separate submission of purposes for 
which bonds may be issued by municipali- 
ties, since manner in which purposes for 
which municipalities may issue bonds shall 
be submitted to electorate is one purely of 
legislative cognizance. Waits v. Ninety- 
Si.x, 154 S. C. 350, 151 S. E. 576 (1930). 

Bonds issued by town, pursuant to elec- 
tion submitting as a general proposition the 
purpose of establishing and constructing 
waterworks and sewerage system within 
corporate limits, were valid and binding ob- 
ligations, there being no constitutional lim- 
itations relative to manner in which ques- 
tions are to be submitted. Waits v. Nine- 
ty-Six, 154 S. C. 350, 151 S. E. 576 (1930). 

And two issues may be submitted con- 
temporaneously. — Questions of purchase 
of waterworks and of bond issue for pay- 
ment thereof may be submitted to elector 
contemporaneously. Enterprise Real Es- 
tate Co. V. Citv Council, 107 S. C. 492, 93 
S. E. 184 (1917). 



§ 6. Corporate taxes must be uniform ; license taxes. 

The corporate authorities of cities and towns in this State shall be vested 
with power to assess and collect taxes for corporate purposes, said taxes to 
be uniform in respect to persons and property within the jurisdiction of the 
body composing the same; and all the property, except such as is exempt by 
law, within the limits of cities and towns shall be taxed for the payment of 
debts contracted under authority of law. License or privilege taxes imposed 
shall be graduated so as to secure a just imposition of such tax upon the classes 
subject thereto. 



I. General Consideration. 
II. Power to Tax. 
III. Application of Section. 

Cross Reference. 
As to the provisions for ta.xes and licenses 
for businesses and professions in towns and 
cities over 1,000 inhabitants, see § 47-271. 



I. GENERAL CONSIDERATION. 

Section is merely direction to General 

Assembly, and is not a direct grant of pow- 
er. Cliarleston Heights Co. v. City Council, 
138 S. C. 187, 136 S. E. 393 (1926); Gaud v. 
Walker, 214 S. C. 451, 53 S. E. (2d) 316 
(1949). 



219 



Art. 8, § 6 Constitution of the State of South Carolina Art. 8, § 6 



In Carroll v. York, 109 S. C. 1, 95 S. E. 
121 (1918), the court held that the lan- 
guage of this section was not such as to 
give a direct grant of authority to municipal 
corporations, but that it was a direction to 
the General Assembly. Great Atlantic & 
Pacific Tea Co. v. Spartanburg, 170 S. C. 
262, 170 S. E. 273 (1933). 

And it is not applicable to franchises 
granted by State. — This section is applicable 
only to licenses imposed by municipal cor- 
porations, and not to franchises granted by 
the State. Ware Shoals Mfg. Co. v. Jones, 
78 S. C. 211, 58 S. E. 811 (1907). 

Scope of section as construed with S. C. 
Const., Art. 10, § 5. — By this section and 
S. C. Const., Art. 10, § 5, it is directed: (1) 
that the corporate authorities of cities shall 
be vested with the power to tax for corpo- 
rate purposes; (2) that such taxes shall be 
uniform in respect to persons and property; 
(3) that all property (save that excepted) 
shall be taxed; (4) that this power to tax 
to borrow money and to contract debts 
shall be restricted. The General Assembly 
is empowered to confer on towns the pow- 
er to tax and to limit its e-xercise in these 
four particulars. Carroll v. York, 109 S. C. 
1, 95 S. E. 121 (1918). 

Indebtedness may not exceed eight per 
cent of value of taxable property. — The 
bonded indebtedness of an incorporated 
city or town may not exceed eight per cent 
of the assessed value of its taxable property, 
but up to that limit the city may incur bond- 
ed indebtedness, so long as the expenditures 
be for corporate or public purposes. Mar- 
shall V. Rose, 213 S. C. 428, 49 S. E. (2d) 
720 (1948). 

AppHed in Triplett v. Chester, 209 S. C. 
455, 40 S. E, (2d) 684 (1946). 

Cited in Western Union Tel. Co. v. 
Winnsboro, 71 S. C. 231, SO S. E. 870 
(1905); Martin v. School Dist, 57 S. C. 125, 
35 S. E. 517 (1900); State v. Neely, 30 S. 
C. 587, 9 S. E. 664 (1889) ; Kalber v. Stokes, 
194 S. C. 339, 9 S. E. (2d) 785 (1940). 

II. POWER TO TAX. 

Legislature has exclusive power of taxa- 
tion. — The S. C. Constitution of 1895 has 
not taken from the legislature the exclusive 
power of taxation. Carroll v. York, 109 
S. C. 1, 95 S. E. 121 (1918). 

Which it may delegate to cities and towns. 
—Carroll v. York, 109 S. C. 1, 95 S. E. 121 
(1918). 

Although the word "levy" is not used in 
this section, the authority of the General 
Assembly to delegate to cities and towns 
the power to levy taxes has never been 



doubted. Gaud v. Walker, 214 S. C. 451, 53 
S. E. (2d) 316 (1949). 

Lacking inherent right to tax. — This sec- 
tion does not give towns an inherent right 
to collect a license tax, such being an ex- 
clusive power of the legislature which it 
may delegate. Carroll v. York. 109 S. C. 
1, 95 S. E. 121 (1918). 

Such delegation is only for corporate pur- 
pose. — Under a proper construction of this 
section, the taxing power of the legislature 
cannot be delegated e-xcept for a corporate 
purpose. Floyd v. Perrin, 30 S. C. 1, 8 
S. E. 14 (1888); Atlantic Trust Co. v. Dar- 
lington, 63 F. 76 (1894), affirmed in 68 F. 
849 (1895), dismissed in 18 S. Ct. 947, 42 
L. Ed. 1214 (1898). 

Such as recreation center and pool. — 
A recreation center and a swimming pool 
are for public or corporate purposes and, 
therefore, are purposes for which taxes may 
be levied or indebtedness incurred. Mar- 
shall V. Rose, 213 S. C. 428, 49 S. E. (2d) 
720 (1948). 

Which purpose must be declared. — .\n act 
declaring townships along the line of a 
railroad bodies corporate, with power to 
subscribe stock and assess and collect taxes 
to pay the subscription, but not declaring 
for what corporate purpose the power is 
given, is in violation of this section. Floyd 
V. Perrin, 30 S. C. 1, 8 S. E. 14 (1888). 

Object of graduation is to make taxes 
uniform. — The object of the graduation 
is to make such taxes as far as possible 
uniform, a just imposition being the end in 
view. Ware Shoals Mfg. Co. v. Jones, 78 
S. C. 211, 58 S. E. 811 (1907). 

In order to tax reasonably and fairly. — 
An ordinance of the city of Sumter, pro- 
viding that if the gross annual income from 
the business of auctioning horses and mules 
does not exceed $2,000, the license tax shall 
be $300 a day, and $300 plus two and one- 
half per cent of the excess if the gross an- 
nual income exceeds that amount, was held 
void under this section and § 47-271, as it 
fixes an unreasonable sum for the license 
and does not graduate the license fairly ac- 
cording" to gross income nor according to 
capital invested. Ex parte Bates, 127 S. C. 
167, 120 S. E. 717 (1923). 

Tax must be uniform as to members of 
class. — A city ordinance requiring persons 
in certain occupations and professions to 
pay a license or privilege tax, which is uni- 
form as to the members of each class or 
occupation on which it operates, is not in 
violation of this section requiring such taxes 
to be just because the different classes are 
not taxed alike. Hill v. City Council, 59 
S. C. 396, 38 S. E. 11 (1901). 



220 



Art. 8, § 6 Constitution of the State of South Carolina Art. 8, § 6 



And must be on all property not exempt- 
ed. — A contract between a city and corpora- 
tion that the latter shall construct a system 
of waterworks and an electric light plant, 
and convey them to the city, and that the 
city shall operate such plants, and shall 
among other stipulations yearly collect a 
certain sum from owners of lots fronting 
on streets in which water mains are laid, 
so much a foot for the ground, with a 
certain addition in case of improvements, 
violates this section requiring that ta.xation 
shall be on assessment of property accord- 
ing to its value and that all the property, 
except such as is exempt, shall be taxed 
for payment of debts. Stehmever v. City- 
Council, S3 S. C. 259, 31 S. E. 322 (1898). 

Exemptions are only of property used 
for public purposes. — The only exemptions 
under this section are of property used for 
municipal, educational, literary, scientific, 
religious, or charitable purposes. Atlantic 
Trust Co. V. Darlington, 63 F. 76 (1894), 
affirmed in 68 F. 849 (1895), dismissed in 18 
S. Ct. 947, 42 L. Ed. 1214 (1898). 

But not property of manufacturing com- 
pany. — The property of a manufacturing 
company is not exempt under this section. 
.\tlantic Trust Co. v. Darlington, 63 F. 76 
(1894). affirmed in 68 F 849 (1895), dis- 
missed in 18 S. Ct. 947, 42 L. Ed. 1214 
(1898). 

Only express provisions make taxes lien 
on property. — Taxes imposed under this 
section are not a lien on property taxed in 
absence of statute expressly creating a lien. 
Charleston Heights Co. v. City Council, 138 
S. C. 187, 136 S. E. 393 (1926). 

And this section does not create lien. — 
Assuming that this section is a direct grant 
of power to cities "to assess and collect 
taxes," it does not carry with it by implica- 
tion a lien on property taxed. Charleston 
Heights Co. v. City Council, 138 S. C. 187, 
136 S. E. 393 (1926). 

III. APPLICATION OF SECTION. 

Ordinance may classify local and out-of- 
town bakeries. — A license tax ordinance 
which required local bakeries to pay $25.00, 
and bakeries with established place of busi- 
ness out of the city but selling or delivering 
their products within the city to pay $50.00 
per year, was held valid, there being noth- 
ing to show that imposition of a higher li- 
cense on nonresidents was unreasonable, 
capricious or confiscatory. American Bak- 
eries Co. V. Sumter, 173 S. C. 94, 174 S. E. 
919 (1934). 



And also chain stores and individual 
stores. — Municipality has power to impose 
license tax upon chain stores different from 
tax imposed upon individual stores, where 
license was graduated on gross income and 
applied uniformly to all of same class. 
Great Atlantic & Pacific Tea Co. v. Spartan- 
burg, 170 S. C. 262, 170 S. E. 273 (1933). 

Taxing money lenders except banks is 
constitutional. — A city ordinance providing 
that persons, firms, and corporations, ex- 
cept regularly established banks, lending 
money on personal property security, should 
pay licenses according to a schedule of their 
gross business, thus placing such money 
lenders in a class different from that of 
banks, was not unconstitutional as discrim- 
inatory. Cowart V. City Council, 67 S. C. 
35, 45'S. E. 122 (1903). 

Assessment within specially created as- 
sessment district is not a tax within mean- 
ing of this section. Sanders v. Greater 
Greenville Sewer District, 211 S. C. 141, 44 
S. E. (2d) 185 (1947). 

Section is inapplicable to sanitary tax. — 
This section was held inapplicable in Marion 
V. Ba.xley, 192 S. C. 112, 5 S. E. (2d) 573 
(1939), where an annual town sanitary tax 
was in question. 

Complaint seeking refund of taxes must 
allege nongraduation. — In a complaint 
seeking to recover a license tax paid under 
protest, it will not be presumed that the 
tax was not graduated in the absence of al- 
legations to that effect. Florida Cent. & P. 
R. Co. V. Columbia, 54 S. C. 266, 32 S. E. 
408 (1899). 

Ordinance requiring license tax but ex- 
empting licensed dealers is unconstitution- 
al. — An ordinance requiring dealers in oils 
to pay a license of a certain sum per year, 
and providing that this license shall not ap- 
ply to dealers handling oils on which the 
license has been paid, is unconstitutional be- 
cause there is no reasonable ground for 
such classification, this section providing 
for uniformity of taxes. Standard Oil Co. 
V. Spartanburg, 66 S. C. 37, 44 S. E. ill 
(1903). 

Taxing power of Patrick municipal au- 
thorities. — This constitutional provision 
does not raise an implication of the vesting 
of a greater power to tax in the municipal 
authorities of Patrick than has been done 
by the enactment of § 47-161 of the Code. 
Brown v. Patrick, 202 S. C. 236, 24 S. E. 
(2d) 365 (1943). 



221 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 



§ 7. Bonded debt; certificates of indebtedness; sinking fund; refunding bonded 
debt; provisos as to certain cities added by amendment. 
No city or town in this State shall hereafter incur any bonded debt which, 
including existing bonded indebtedness, shall exceed eight per centum of the 
assessed value of the taxable property therein, and no such debt shall be creat- 
, ed without submitting the question as to the creation thereof to the qualified 
electors of such city or town, as provided in this Constitution for such special 
elections; and unless a majqriJx_of such electors voting on the question shall 
be in favor of creating such further bonded debt, none shall be created : Pro- 
vided, That this Section shall not be construed to prevent the issuing of cer- 
'^ificates of indebtedness in anticipation of the collection of taxes for amounts 
actually contained or to be contained in the taxes for the year when such cer- 
tificates are issued and payable out of such taxes : And provided, further, That 
such cities and towns shall on the issuing of such bonds create a sinking fund 
for the redemption thereof at maturity. Nothing herein contained shall prevent 
the issuing of bonds to an amoimt sufificient to refund bonded indebtedness ex- 
isting at the time of the adoption of this Constitution: Provided, That the lim- 
itation imposed by this Section and by Section 5, Article IV, of this Constitu- 
tion shall not apply to bonded indebtedness incurred by the Cities of Columbia, 
Rock Hill, Charleston and Florence, where the proceeds of said bonds are ap- 
plied solely for the purchase, establishment, maintenance or increase of water 
works plants, sewerage system ; and by the City of Georgetown, when the pro- 
ceeds of said bonds are applied solely for the purchase, establishment, mainte- 
nance or increase of water works plant, or sewerage system, gas and electric 
light plants where the entire revenue arising from the operation of such plants 
or systems shall be devoted solely and exclusively to the maintenance and op- 
eration of the same, and where the question of incurring such indebtedness is 
submitted to the freeholders and qualified voters of such municipality, as pro- 
vided in the Constitution, upon the question of other bonded indebtedness : Pro- 
vided, further, That the limitations imposed by this Section and by Section 5, 
Article X, of this Constitution, shall not apply to bonded indebtedness incurred 
by the City of Greenville, but said City of Greenville may increase its bonded 
indebtedness in the manner provided in said Section of said Article, to an 
amount not exceeding fifteen per cent of the value of the taxable property 
therein, where the proceeds of said bonds are applied solely to the payment 
of past indebtedness, to expenses and liabilities incurred, or to be incurred 
in the improvements of streets and sidewalks, and for providing sewerage for 
said city, or any part thereof, for purchasing, establishing, owning or operat- 
ing water works or electric light plants : Provided, further. That the limitations 
imposed by this Section, and by Section 5, of Article X, of this Constitution, 
shall not apply to the bonded indebtedness incurred by the City of Bennetts- 
ville, where the proceeds of said bonds are applied solely and exclusively for 
the purchase, establishment and maintenance of a water works plant or sewer- 
age system, and where the question of incurring such indebtedness is sub- 
mitted to the freeholders and qualified voters of such municipality, as pro- 
vided in the Constitution upon the question of other bonded indebtedness. Pro- 

222 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

vided, further, That the limitations imposed by this Section and by Section S, 
of Article X, of this Constitution, shall not apply to bonded indebtedness in- 
curred by the Town of Gaflfney, in the County of Cherokee, when the proceeds 
of said bonds are applied solely and exclusively for the building, erecting, es- 
tablishing and maintenance of waterworks, electric light plants, or sewerage 
system, and where the question of incurring such indebtedness is submitted 
to the qualified electors of said municipality as provided in the Constitution 
upon the question of bonded indebtedness: Provided, That the limitation im- 
posed by this Section and by Section 5, of Article X, of this Constitution, shall 
not apply to bonded indebtedness incurred by the Town of Darlington, where 
the proceeds of said bonds are applied solely for the purpose of drainage of 
said town and street improvements, and where the question of incurring such 
indebtedness is submitted to the freeholders and qualified voters of such mu- 
nicipality, as provided in the Constitution, upon the question of other bonded 
indebtedness : Provided, further, That the limitations imposed by Jhis Section, 
and by Section 5, of Article X, of this Constitution, shall not apply to the 
bonded indebtedness incurred by the towns of Aiken, in the County of Aiken ; 
Camden, in the County of Kershaw; Cheraw, in the Count}' of Chesterfield; 
Clinton, in the County of Laurens; Edgefield, in the County of Edgefield; and 
St. Matthews, in the County of Calhoun, when the proceeds of said bonds are 
applied solely and exclusively for the building, erecting, establishing and main- 
tenance of waterworks, electric light plants, sewerage system or streets, and 
where the question of incurring such indebtedness is submitted to the qualified 
electors of said municipality, as provided in the Constitution upon the c]uestion 
of bonded indebtedness : Provided, further. That the limitations imposed by 
this Section, and by Section 5, of Article X, of this Constitution, shall not 
apply to the bonded indebtedness in and by any municipal corporation when 
the proceeds of said bonds are applied solely and exclusively for the purchase, 
establishment and maintenance of a waterworks plant, or sewerage system, or 
lighting plant, and when the question of incurring such indebtedness is sub- 
mitted to the freeholders and qualified voters of such municipality, as provided 
in the Constitution, upon the question of other bonded indebtedness: Provided, 
further. That the limitations imposed by this Section, and by Section 5, Article 
X, of this Constitution, shall not apply to bonded indebtedness incurred by the 
Town of St. Matthews, but said Town of St. Matthews may increase its 
bonded indebtedness in the manner provided in said Section of said article 
to an amount not exceeding fifteen per cent of the value of the taxable prop- 
erty therein, where the proceeds of said bonds to the amount of twenty thou- 
sand ($20,000) dollars shall be turned over by the Town Council of said Town 
of St. Matthews to the duly appointed commissioners of the County of Cal- 
houn for the purpose of aiding in the construction of public buildings for 
the County of Calhoun. 

1900 (23) 570; 1901 (23) 616; 1904 (24) 676: 1905 (24) 955; 1906 (25) 365; 1907 (25) 
488; 1908 (25) 1460; 1909 (26) 36; 1910 (26) 1046; 1911 (27) 9; 1910 (26) 1054; 1911 (.27) 
12; 1910 (26) 1055; 1911 (27) 13; 1910 (26) 1058; 1911 (27) IS. 



223 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

Provided, further, That the limitations imposed by this section and Section 
5, of Article X, of the Constitution, shall not apply to the bonded indebtedness 
incurred by the Cities of Chester and Sumter, but the said Cities of Chester 
and Sumter may increase each its bonded indebtedness to an amount not ex- 
ceeding fifteen per cent, of the assessed value of the taxable property therein 
where said bonds are issued for the sole purpuose of paying the expenses or lia- 
bilities incurred or to be incurred in the improvements of streets and side- 
walks where the abutting property owners are being assessed for two-thirds 
or one-half of the cost thereof. 

1914 (28) 955; 1915 (29) 60. 

Provided, further. That the limitations imposed by this Section and by Sec- 
tion 5, of Article X, of this Constitution shall not apply to the bonded in- 
debtedness incurred by the school district of Yorkville, in the County of 
York, when the proceeds of said bond are applied exclusively to erecting or 
making additions to school buildings in the said district, and where the 
question of incurring such indebtedness is submitted to the qualified electors 
of said district, as provided in the Constitution, upon the question of bonded 
indebtednesss. 

1914 (28) 949; 1915 (29) 107. 

That the limitations imposed by this Section and Section 5, Article X, of 
the Constitution, shall not apply to the bonded indebtedness incurred by the 
City of Florence, in the County of Florence, when the proceeds of said bonds 
are applied exclusively for the building, erecting, establishing, and maintain- 
ing of streets, waterworks, lighting plants, sewerage system or for the pay- 
ment of debts already incurred, exclusively for any of said purposes ; and 
when the question of incurring such indebtedness is submitted to the qualified 
electors of said municipalit}', as provided in the Constitution upon the ques- 
tion of bonded indebtedness. 

1914 (28) 954; 1915 (29) 87. 

Provided, further. That the limitations imposed by this Section and by 
Section 5, of Article X, of the Constitution, shall not apply to the bonded 
indebtedness incurred by the City of Anderson, but, in addition to the powers 
now possessed, said City of Anderson may increase its bonded indebtedness 
in the manner provided in said Section 7 of Article VIII, to an amount not 
exceeding fifteen per cent of the value of the taxable property therein, where 
the proceeds of said bonds are applied to the payment of past indebtedness, 
to the expenses and liabilities incurred or to be incurred in the improvements 
of streets, sidewalks or other public places, or the purchase, establishment, 
maintenance, operation or increase of a city market or a public park or parks, 
or any corporate purpose. But nothing herein contained shall be construed 
to limit the operation of the amendment to Section 7, of Article XIII, of the 
Constitution, approved February third, 1911, which said amendment reads as 
follows : 

"Provided, further, That the limitations imposed by the Section and by Sec- 
tion 5, of Article X, of this Constitution shall not apply to the bonded in- 

224 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

debtedness in and by any municipal corporation, when the proceeds of the 
bonds are applied solely and exclusively for the purchase, establishment and 
maintenance of a waterworks plant, or sewerage system, or lighting plant, 
and when the question of incurring such indebtedness is submitted to the 
freeholders and qualified voters of such municipality, as provided in the Con- 
stitution, upon the question of other bonded indebtedness," and said amend- 
ment shall remain in full force and effect. 

1916 (29) 1235; 1917 (30) 224. 

Provided, further. That the limitations imposed by this Section and Section 
5, of Article X, of the Constitution, shall not apply to the bonded indebted- 
ness incurred by the City of Abbeville, but, in addition to the powers now 
placed, said City of Abbeville may increase its bonded indebtedness in the 
manner provided in Section 7, of Article VIII, to an amount not exceeding 
fifteen (15) per centum of the value of the taxable property therein, where the 
proceeds of said bonds are applied to the payment of expenses and liabilities 
incurred or to be incurred in the improvements of streets and sidewalks ; but 
nothing herein contained shall be construed to limit the operation of the 
amendment to Section 7, of Article VIII, of the Constitution, approved Feb- 
ruary 3, 1911. 

1917 (30) 662; 1919 (31) 28. 

Provided, further. That the limitations imposed by this Section, and by Sec- 
tion 5, of Article X, of the Constitution, shall not apply to the bonded indebt- 
edness incurred by the Cities of Rock Hill, in the County of York, and Flor- 
ence, in the County of Florence, when the proceeds of any bonds issued by 
said cities are applied exclusively to the purchase, erection, improvement and 
maintenance of streets, sidewalks, waterworks, lighting plants, gas plants, 
sewerage system, or for the payment of debts incurred, and when the question 
of incurring such indebtedness is submitted to the qualified electors of the 
said municipalities as provided by law. 

1918 (30) 1140; 1919 (31) 74. 

Provided, further, That the limitations imposed by this section, and by 

Section 5 of Article X, of this Constitution, shall not apply to the bonded 

indebtedness incurred by the town of McCormick, but that said town of 

McCormick may increase its bonded indebtedness in the manner provided in 

said section of said article to an amount exceeding fifteen per centum of the 

value of the taxable property therein where the proceeds of the said bonds, 

which are to be in the amount of thirty thousand ($30,000) dollars, shall be 

turned over by the Town Council of the said town of McCormick to the duly 

elected Commissioners of the County of McCormick for the purpose of aiding 

in the construction of the public buildings of the said county of McCormick. 

1918 (30) 1138; 1919 (31) 58. (See 1920 (31) 803 for meaning of ratifying joint 
resolution of 1919.) 

Provided, that the limitations imposed by this Section, and Section 5, of 
Article X, of the Constitution of the State of South Carolina, shall not apply 
to the bonded indebtedness of the City of Orangeburg when the proceeds of 
[7 SC Code] — 15 225 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

such bonds are applied exclusively for the building, erecting, purchasing, de- 
veloping, improving, establishing, repairing, extending or maintaining of side- 
walks, streets, waterworks, lighting plants, sewerage system, fire department 
or city hall and guardhouse for such city, parks, playgrounds, airports, real 
estate and municipal buildings, or for any or either of such puposes, and when 
the question of incurring such bonded indebtedness is submitted to the quali- 
fied electors of such municipality by the City Council of said city and a ma- 
jority of those voting in such election or elections shall vote in favor thereof. 
1918 (30) 1135; 1919 (31) 124; 1942 (42) 2465; 1944 (43) 2321. 

Provided, further, That the limitations imposed by this Section, and by 
Section 5, of Article X of the Constitution, shall not apply to the bonded in- 
debtedness incurred by the City of Abbeville, but in addition to the powers 
now possessed said City of Abbeville may increase its bonded indebtedness 
in the manner provided in said Section 7, of Article VIII, to an amount not 
exceeding 15 per cent of the value of the taxable property therein where the 
proceeds of said bonds are applied to the payment of expenses and liabilities 
incurred or to be incurred in the improvement of streets and sidewalks. But 
nothing herein contained shall be construed to limit the operation of the 
amendment to Section 7, of Article VIII of the Constitution, approved Feb- 
ruary 3, 1911, which said amendment reads as follows: Provided, further, That 
the limitations imposed by this Section and by Section 5, of Article X, of this 
Constitution shall not apply to the bonded indebtedness in and by any mu- 
nicipal corporation when the proceeds of the bonds are applied solely and ex- 
clusively for the purchase, establishment and maintenance of a waterworks 
plant, or sewerage system, or lighting plant, and when the question of incur- 
ring such indebtedness is submitted to the freeholders and qualified voters of 
such municipality, as provided in the Constitution, upon the question of other 
bonded indebtedness. 

1917 (30) 662; 1919 (31) 229; 1920 (31) 761. 

Provided, further, That the limitations imposed by this Section, and by Sec- 
tion 5, of Article X, of this Constitution shall not apply to the bonded indebt- 
edness incurred by the City of Charleston where the proceeds of said bonds 
are applied solely for the acquisition, purchase, establishment, improvement, 
maintenance or operation of lands, water or riparian rights, wharves, docks, 
warehouses, buildings, rights of way, or any other property for the develop- 
ment of the port and terminal utilities of the port of Charleston, where the 
question of incurring such indebtedness is submitted to the freeholders and 
qualified voters of the city of Charleston as provided in the Constitution, upon 
the question of other bonded indebtedness. 

1920 (31) 1714; 1921 (2,2) 21. 

Provided, further, That the limitations imposed by this Section and by Sec- 
tion 5, of Article X, of the Constitution, shall not apply to the bonded indebted- 
ness incurred by the City of Laurens, in addition to the powers possessed, said 
City of Laurens may increase its bonded indebtedness in the manner provided 
in Section 7, of Article VIII, where the proceeds of said bond are applied 

226 [7SCCode] 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

to the pa3-ment of expenses and liabilities incurred, or to be incurred, in tlie 
improvement of streets and sidewalks. But nothing herein contained shall 
be construed to limit the operation of the amendment of Section 7, of Article 
VIII, of the Constitution, approved February 3, 1911, which amendment reads 
as follows: 

Provided, further. That the limitations imposed by this Section and by Sec- 
tion 5, of Article X, of this Constitution shall not apply to the bonded indebted- 
ness in and by any municipal corporation when the proceeds of the bond are 
applied solely and exclusively for the purchase, establishment and maintenance 
of the waterworks plant or sewerage system, or lighting plant, and when the 
question of incurring such indebtedness is submitted to the freeholders and 
qualified voters of such municipality as provided in the Constitution upon the 
question of other bonded indebtedness, said amendment shall remain in full 
force and effect. 

1920 (31) 1710; 1921 (32) 29. 

Provided, That the limitations imposed in Section 7, of Article VIII, and Sec- 
tion 5, of Article X, of the Constitution of the State of South Carolina, shall 
not apply to the bonded indebtedness incurred by the Town of Hartsville, 
when the proceeds of any bonds issued by said town are applied exclusively 
to the purchase, erection, improvement and maintenance of streets and side- 
walks, where the abutting property owners are assessed for as much as two- 
thirds the cost thereof, or for waterworks, lighting plants, gas plants, sewer- 
age system, or for the payment of debt incurred, and when the question of 
incurring such indebtedness is submitted to the qualified electors of the said 
municipality by law. 

1920 (31) 1719; 1921 (32) 30. 

Provided, That the limitations imposed in Section 7, of Article VIII, and 
of Section 5, of Article X of the Constitution of the State of South Carolina, 
shall not apply to the bonded indebtedness incurred by the Town of Chester- 
field when the proceeds of any bonds issued by said town are applied ex- 
clusively to the purchase, erection, improvement and maintenance of streets 
and sidewalks, where the abutting property owners are assessed for as much as 
one-half the cost thereof, or for waterworks, lighting plants, gas plants, sew- 
erage systems, or for the payment of debts incurred, and when the question 
of incurring such indebtedness is submitted to the qualified electors of the 
said municipality as provided by law. 

1920 (31) 1718; 1921 (32) 32. 

Provided, That the limitations imposed by this Section and Section 5, of 
Article X of the Constitution of the State of South Carolina, shall not ap- 
ply to the bonded indebtedness of the Town of Marion, when the proceeds 
of such bonds are applied exclusively for the building, erecting, establishing 
and repairing, extending or maintaining of sidewalks, streets, waterworks, 
lighting plants, sewerage system, fire department or town hall and guard- 
house for such town, or for either of such purposes or for the payment of any 
indebtedness already incurred for any or either of such purposes; and when 

227 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

the question of incurring such bonded indebtedness is submitted to the quali- 
fied electors of said municipality by the town council of said town, and a ma- 
jority of those voting in such election or elections shall vote in favor thereof. 
1920 (31) 1702; 1921 (32) 41. 

Provided, further, That the limitations imposed by this Section, and by 
Section 5, Article X of the Constitution, shall not apply to the bonded in- 
debtedness incurred by the Town of Bishopville, but that the said Town of 
Bishopville may increase its bonded indebtedness in the manner provided in 
said Section of said Article to an amount not exceeding 15 per cent of the 
assessed value of the taxable property therein, where the proceeds derived 
from said bonds are applied for the improvement of the streets and side- 
walks in the said Town of Bishopville: Provided, the question of increasing 
such bonded indebtedness is submitted or has been submitted to the qualified 
electors of said municipality by the Town Council of said Town of Bishopville, 
a majority of those voting in such election shall vote in favor thereof. 

1920 (31) 1716; 1921 (32) 42. 

Provided, further. That the limitations imposed by this Section, and by 
Section 5 of Article X of the Constitution, shall not apply to the bonded in- 
debtedness incurred by the Town of Newberry ; but in addition to the powers 
now possessed said Town of X'ewberry may increase its bonded indebtedness 
in the manner provided in said Section 7, of Article VIII, to an amount not 
exceeding twenty per cent of the value of the taxable property therein, where 
the proceeds of said bonds are applied to the expenses and liabilities incurred, 
or to be incurred, in the improvement of streets, sidewalks or other public 
places, or the purchase, establishment, maintenance, operating or increase of 
a city market or a public park or parks, or other corporate purposes. But 
nothing contained herein shall be construed to limit the operation of the 
amendment of Section 7, of Article VIII, of the Constitution, approved Feb- 
ruary 3, 1911, which said amendment reads as follows: "Provided, further, 
That the limitations imposed by this Section and by Section 5. of Article X 
of this Constitution, shall not apply to the bonded indebtedness in and by any 
municipal corporation when the proceeds of the bonds are applied solely and 
exclusively for the purchase, establishment and maintenance of a waterworks 
plant, or sewerage system, or lighting plant, and when the question of in- 
curring such indebtedness is submitted to the freeholders and qualified voters 
of such municipality as provided in the Constitution upon the question of 
other bonded indebtedness," and said amendment shall remain in full force 
and efi'ect. 

1920 (31) 1715; 1921 (32) 50. 

Provided, further, That the limitations imposed by this Section and Section 
5, of Article X of the Constitution of the State of South Carolina, shall not 
apply to the bonded indebtedness of the Towns of Saluda, in Saluda County, 
and Kingstree, Williamsburg County, when the proceeds of such bonds are 
applied exclusively to the building, erecting, establishing, repairing, extending 
or maintaining of sidewalks, streets, waterworks, lighting plants, sewerage 

228 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

system, fire department or town hall and guardhouse for such town, or for 
any or either of such purposes, or for the payment of any indebtedness already 
incurred for any or either of such purposes, and when the question of incur- 
ring such bonded indebtedness is submitted to the qualified electors of said 
municipalities by the Town Council of said towns, a majority of those voting 
in said election or elections shall vote in favor thereof. 
1920 (31) 1703; 1921 (32) 68. 

Provided, further, That tlie limitations imposed by this Section and by 
Section 5, Article X of the Constitution, shall not applj" to the bonded in- 
debtedness incurred by the City of Charleston, nor to the issuing of certificates 
of indebtedness by said city, where the proceeds of said bonds or certificates 
of indebtedness are applied solely and exclusively to the payment of perma- 
nent improvements on streets, the intersection of streets and sidewalks and 
for curbing of streets and for drains, where the City Council of said city shall 
levy an assessment upon abutting property, as provided in and by the amend- 
ment to Section 14-A, Article X of said Constitution, ratified February 15, 
1919, and where the entire revenue arising from the assessments so levied by 
the City Council of said city shall be devoted solely and exclusively to the 
payment of said bonds or certificates of indebtedness and where the question 
of incurring such indebtedness is submitted to the freeholders and qualified 
voters of said city, as provided in the Constitution upon other bonded indebt- 
edness. 

1920 (31) 1704; 1921 (32) 69. 

Provided, That the limitations imposed in Section 7, Article VIII, and Sec- 
tion 5, Article X, of the Constitution of the State of South Carolina, shall not 
apply to the bonded indebtedness incurred by the City of Chester, when the 
proceeds of any bonds issued by said city are applied exclusively to the pur- 
chase, erection, improvements and maintenance of streets and sidewalks, where 
the abutting property owners are assessed for as much as one-half of the cost 
thereof, or for waterworks, lighting plants, gas plants, sewerage system, or for 
the payment of debts incurred, and when the question of incurring such indebt- 
edness is submitted to the qualified electors of said municipality as provided 
by law. 

1920 (31) 1720; 1921 (32) 107. 

Provided, further, That the limitations and restrictions imposed by this 
Section and by Section 13 of Article II, and Section 5 of Article X of the 
Constitution, shall not apply to bonds issued or to be issued by the City of 
Union for the purpose of funding or paying any indebtedness incurred be- 
fore February 15, 1920, for municipal purposes, and all such indebtedness in- 
curred before said date is hereby validated, and the General Assembly shall 
have power by special Act to authorize said city to issue bonds to fund the 
same without regard to limitations and restrictions. 

1920 (31) 1709; 1921 (32) 92. 

Provided, further. That the limitations imposed by Section 7, Article VHI, 
and Section 5, Article X of the Constitution, shall not apply to the bonded in- 

229 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

debtedness incurred by the Townships of Cross Keys, Santuc, Pickney, Gosh- 
en Hill, Union, Boganville, Jonesville and Fish Dam, in Union County ; and 
that the aforesaid townships may increase their bonded indebtedness in the 
manner provided in said Section of said Article to an amount not exceeding- 
thirty-five (35) per cent of the assessed value of the taxable property therein 
for improvements of the highways and bridges in the said townships of Union 
County: Provided, The question of increasing such bonded indebtedness is 
submitted, or has been submitted to the qualified electors of said townships, 
and a majority of those voting in such election or elections, shall vote in favor 
thereof. 
1920 (31) 1711; 1921 (32) 97. 

Provided, That the limitations imposed in Section 7, of Article VIII, and 
in Sections 5 and 6, of Article X, of the Constitution of the State of South 
Carolina, shall not apply to the bonded indebtedness incurred by the County 
of Richland, when the proceeds of any bonds issued by said county are applied 
exclusively to the purpose of erection, improvement and maintenance of a 
public hospital and court house or in payment of debts incurred, and when 
the question of incurring such indebtedness is submitted to the qualified elec- 
tors of said county, as provided by law. 

1920 (31) 1721; 1921 {,i2) 156. 

Proi'ided, That the provisions of Article VIII, Section 7, and Article X, Sec- 
tion 5, shall not apply to the bonded indebtedness incurred by the Town of 
Allendale, in Allendale County, when the proceeds of said bonds are applied, 
or are to be applied for the building, erecting, establishment and mainte- 
nance of waterworks, electric light plants, sewerage system or streets; or 
where the proceeds of said bonds are to be applied to the building and con- 
struction of a court house and jail in the said town. 

1920 (31) 1722; 1921 (32) 169. 

Provided, further, That the limitations imposed by this Section and by Sec- 
tion 5, of Article X of this Constitution, shall not apply to the bonded in- 
debtedness incurred by the City of Charleston where the proceeds of said 
bonds are applied solely for the acquisition, purchase, establishment, improve- 
ment, maintenance or operation of lands, water or riparian rights, wharves, 
docks, warehouses, buildings, rights of way, or any other property for the 
development of the port and terminal utilities of the port of Charleston where 
the question of incurring such indebtedness is submitted to the freeholders 
and qualified voters of the City of Charleston as provided in the Constitution 
upon the question of other bonded indebtedness. 

1920 (31) 1705; 1921 (32) 352. 

Provided, That the limitations imposed by this Section and Section 5, of 
Article X of the Constitution of the State of South Carolina, shall not apply 
to the bonded indebtedness of the Town of Bennettsville, when the proceeds 
of such bonds are applied exclusively for the building, erecting, establishing, 
repairing, extending or maintaining of sidewalks, streets, waterworks, light- 
ing plants, sewerage system, fire department, or town hall and guardhouse for 

230 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

such town, or for either of such purposes or for the payment of any indebted- 
ness already incurred for any or either of such purposes; and when the ques- 
tion of incurring such bonded indebtedness is submitted to the quaHfied elec- 
tors of said municipality by the town council of said town, and a majority of 
those voting in such elections shall vote in favor thereof. 
1920 (31) 1713, 1717; 1921 (32) 96. See 1922 (32) 821. 

Provided, further, That the limitations imposed by this Section and by 
Section Five (5) of Article Ten (10) of the Constitution shall not apply to 
bonded or other indebtedness of the Town of Bennettsville incurred for street 
or sidewalk improvements in cases where the corporate authorities of said 
town shall have levied or shall have determined to levy, special assessments 
on abutting propertj' for the purpose of paying for the improvement (whether 
including or not including improvements at street intersections) and such 
indebtedness of the Town of Bennettsville shall not be considered in deter- 
mining the amount of indebtedness permitted to be incurred by said town 
for other purposes, or by any other political or civil division or subdivision of 
the State for any purpose. 

1920 (31) 1713, 1717; 1922 (32) 916. See 1921 (32) 96; 1922 (32) 821. 

Provided, That the limitations imposed in Section 7, Article VIII, and by 
Section 5, of Article X, of the Constitution of the State of South Carolina 
shall not apply to the bonded indebtedness incurred by the City of Beaufort, 
when the proceeds of any bonds issued by said city are applied exclusively to 
the purchase, erection, improvements and maintenance of streets and sidewalks 
where the abutting property owners are assessed as much as one-half the cost 
thereof, or for the purchase, construction and maintenance of waterworks, 
lighting plants, gas plants, sewerage system or for the payment of debts in- 
curred and when the question of incurring such indebtedness is submitted to 
the qualified electors of said municipality as provided by law. 

1922 (32) 1329; 1923 (33) 1. 

Provided, That the limitations imposed in Section 7, Article VIII, and by 
Section 5, Article X, of the Constitution of the State of South Carolina shall 
not apply to the bonded indebtedness incurred by the Cit}' of Spartanburg 
when the proceeds of any bonds issued by said City are applied exclusively 
to the purchase, erection, improvements and maintenance of streets and side- 
walks, or for the purchase, construction and maintenance of waterworks, light- 
ing plants, gas plants, sewerage systems, or for the payment of debts incurred, 
and when the question of incurring such indebtedness is submitted to the 
qualified electors of the said municipality as provided by law : Provided, That 
the amount of bonds issued hereunder shall not exceed fifteen per cent, of the 
assessed valuation of property, in the City of Spartanburg. 

1922 (32) 1568; 1923 (33) 128. 

Provided, That all limitations imposed by Section seven of Article eight 
and Section five of Article ten of the Constitution of the State of South Car- 
olina shall not apply to bonded indebtedness incurred by the City of Union 

231 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

when the proceeds of said bonds issued by said city are applied exclusively 
to pay past indebtedness. 
1926 (34) 1373; 1927 (35) 207. 

Provided, That the limitations imposed by Article VIII, Section 7, and 
Article X, Section 5, of the Constitution shall not apply to the bonded in- 
debtedness incurred by the City of Charleston where the proceeds of said 
bonds are applied solely to the replacement of funds heretofore used for pur- 
poses other than those for which the taxes represented thereby were levied 
and collected, or to the funding or payment of any indebtedness incurred be- 
fore March 15, 1926, for municipal purposes, or to the laying, extension, repair 
and maintenance of drains, or to the costs of street improvement ; and the 
General Assembly shall have power by special Act or Acts to authorize said 
city to issue bonds for all or any of the purposes aforesaid, without regard to 
limitations or restrictions and for the issuance of such bonds it shall not be 
necessary, unless the Act authorizing such issue shall require it, to submit the 
question of the creation of such debt to the freeholders and qualified electors 
of said city and for a prerequisite for holding such election no petition from 
the freeholders of said city shall be necessary, any provisions in Section 13 
of Article II of the Constitution to the contrary notwithstanding. 

1926 (34) 1376; 1927 (35) 33. 

Providing, That the limitation Imposed by Section 7, Article VIII, and 
Section 5 of Article X of the Constitution of the State of South Carolina, 
shall not apply to the bonded indebtedness of the Town of Conway, Horry 
County, when the proceeds of such bonds are applied exclusively for the 
building, erecting, establishing, repairing, extending or maintaining side- 
walks, streets, street lighting, waterworks, lighting plants, storm sewers, 
drainage, sewerage S3'stem, fire departments, or public buildings for such 
town, or for any or either of such purposes, or for the payment of any in- 
debtedness already incurred for any or either of such purposes; when the 
question of incurring such bonded indebtedness is submitted to the qualified 
electors of said municipality by the Town Council of said Town, and a ma- 
jority of those voting in such election or elections shall vote in favor thereof. 

1926 (34) 1367; 1927 (35) 46. 

Provided, That the limitations imposed under Section 7 of Article VIII and 
Section 5 of Article X of the Constitution of the State of South Carolina, shall 
not apply to the bonded indebtedness incurred by the Town of Lancaster when 
the proceeds of any bonds issued by the said town are applied exclusively to 
the purchase, construction and maintenance of waterworks, construction and 
extension of the sewerage system, and for the purchase, construction and 
maintenance of streets and sidewalks where the abutting property owners 
are assessed as much as one-half the cost thereof, or for the payment of past 
indebtedness, and when the question of incurring such indebtedness is sub- 
mitted to the qualified electors of said municipality as provided by law. 

1926 (34) 1378; 1927 (35) 59. 

232 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

Provided, further. That the limitations imposed by this Section of the Con- 
stitution shall not apply to bonded or other indebtedness of the Town of McColl 
incurred for street or sidewalk improvements, in cases where corporate au- 
thorities of said town shall have levied or shall have determined to levy special 
assessments on abutting property for the purpose of paying for the improve- 
ments (whether or not including improvements at street intersections) ; and 
such indebtedness of the Town of McColl shall not be considered in determin- 
ing the amount of indebtedness permitted to be incurred by said town for 
other purposes, or by any other political or civil division or subdivision of the 
State for any purpose, and shall not exceed fifteen (15) mills of the assessed 
valuation of the property in said town. 

1926 (34) 1371; 1927 (35) 65. 

That the limitations imposed by Section 7, Article VIII, and Section 5, 
Article X, of the Constitution of the State of South Carolina, shall not apply 
to the Town of Dillon, when the proceeds of such bonds are applied exclusively 
for the building, establishing, erecting, repairing, extending, improving, pav- 
ing or maintaining of sidewalks, streets, fire department, city or town hall and 
guardhouse for such town, or for any or either of such purposes, or for pay- 
ment of any indebtedness already incurred for any or either of such purposes ; 
and when the question of incurring such bonded indebtedness is submitted 
to the qualified electors of said municipality by the Town Council of said town, 
and a majority of those voting in such election or elections shall vote in favor 
thereof. 

1926 (34) 1369; 1927 (35) 111. 

Provided, That the limitations imposed by this Section of the Constitution shall 
not apply to bonded or other indebtedness of the Town of Clio, said town being 
hereby expressly authorized to vote bonds to an amount not exceeding sixteen 
(16) per cent of the value of all taxable property within the corporate limits 
of said town as valued for taxation by the State under such restrictions and 
limitations as the General Assembly may prescribe, and where the question 
of incurring such indebtedness is submitted to the qualified electors of said 
town as provided in the Constitution upon the question of bonded indebted- 
ness. 

1926 (34) 1372; 1927 (35) 184. 

Provided, That the limitations imposed in Section 7, Article 8, and Section 5, 
Article 10, of the Constitution of the State of South Carolina, shall not apply 
to the Town of Alullins, in the County of Alarion to the extent herein provid- 
ed when the proceeds of any bond or other obligation issued by said town are 
applied to past indebtedness, street paving and other improvements of said 
streets; but the Town of Mullins is hereby authorized to issue bonds or other 
obligations for past indebtedness, street paving and other improvements of 
streets to an amount not exceeding seventy thousand ($70,000.00) dollars in 
addition to the limitations now imposed by the Constitution. 

1926 (34) 1374; 1927 (35) 303. 

233 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

Section 1. That the limitations imposed under Section 7, Article VIII, and 
Section 5, Article X, of the Constitution of the State of South Carolina shall 
not apply to the bonded indebtedness incurred by the Town of Kershaw, in 
the Counties of Lancaster and Kershaw, when the proceeds of any bonds is- 
sued by the said town are applied exclusively to the purchase, construction and 
maintenance of waterworks, sewerage system, and for the purchase, construc- 
tion and maintenance of streets and sidewalks where the abutting property 
owners are assessed as much as one-half the cost thereof. 

1928 (35) 1699; 1929 (36) 148. 

Section 1. That the limitations imposed under Section 7 of Article 8, and 
Section 5 of Article 10, of the Constitution of the State of South Carolina 
shall not apply to the bonded indebtedness incurred by the Town of Heath 
Springs, in the County of Lancaster, when the proceeds of any bonds issued 
by the said Town are applied exclusively to the purchase, construction and 
maintenance of waterworks, purchase, construction and maintenance of a 
sewerage system, and for the purchase, construction and maintenance of 
streets and sidewalks where abutting property is assessed as much as one- 
half the cost thereof, or for the payment of past indebtedness, when the 
question of incurring such indebtedness is submitted to the qualified electors 
of said municipality as provided by law. 

1928 (35) 1690; 1929 (36) 149. 

Provided, further, That the limitations imposed by this Section and by 
Section 5 of Article X, of the Constitution, and by any amendments thereof, 
shall not apply to the bonded indebtedness incurred by the City of Anderson, 
but, in addition to the powers now possessed, said City of Anderson may in- 
crease its bonded indebtedness in the manner provided in said Section 7 of 
Article VIII, to an amount not exceeding thirty (30%) per cent, of the value 
of the taxable property therein, where the proceeds of said bonds are applied 
to the payment of any indebtedness incurred by said city before January 1, 
1929, or to expenses and liabilities incurred or to be incurred in the improve- 
ments of streets, sidewalks or other public places, or to the purchase, estab- 
lishment, maintenance, operation or increase of a city cemetery or city market 
or public parks: Provided, hozvever, That nothing herein contained shall be 
construed to limit the operation of the amendment to Section 7 of Article VIII, 
of the Constitution approved February 3, 1911, by which the limitations im- 
posed by said Section 7 of Article VIII, and by said Section 5 of Article X, 
of the Constitution were removed from any municipal corporation when the 
proceeds of the bonds are applied solely and exclusively for the purchase, es- 
tablishment and maintenance of a waterworks plant, or sewerage system, or 
lighting plant, and when the question of incurring such indebtedness is sub- 
mitted to the freeholders and qualified voters of such municipality, as pro- 
vided in the Constitution upon the question of other bonded indebtedness, 
and said amendment of February 3, 1911, shall remain of full force and effect 
and said City of Anderson shall have the full benefit thereof. 

1928 (35) 1702; 1929 (36) 260. 

234 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

Provided, That the Hmitations Imposed by Article VIII, Section 7 and 
Article X, Section 5, of the Constitution of the State of South Carolina, shall 
not apply to the bonded indebtedness incurred or to be incurred by the City 
of Walterboro where the proceeds of such bonds are applied exclusively to 
the payment of expenses and liabilities incurred or to be incurred for the 
purchasing, repairing, enlarging, or improving of City or Town Hall, or public 
park, or parks, and grounds therefor; public market and guardhouse; pur- 
chasing, enlarging, extending, improving and establishing electric light and 
power plants, waterworks or sewage systems ; erecting, repairing, enlarging, 
improving, or altering school buildings, fire department and fire protection pur- 
poses ; improvement of streets and sidewalks and drainage therefor, or other 
corporate purposes for the said City of Walterboro, or for any or either of such 
purposes. And when the question of incurring such bonded indebtedness 
is submitted to the qualified electors of the City of Walterboro by the City 
Council of the said City of Walterboro, and the majority of those voting in 
such election, or elections, shall vote in favor thereof; and the said City 
of Walterboro shall have power to issue bonds for any or all of the purposes 
aforesaid in the manner above provided, without regard to limitations or 
restrictions ; and no petition from the freeholders of the said City shall be 
necessary as a prerequisite for holding such election, or elections, any provi- 
sions in Section 13, of Article II, of the Constitution to the contrary notwith- 
standing. 

1928 (35) 1688; 1929 (36) 280. 

Provided, further, That the limitations imposed by this Section and by 
Section 5 of Article X of the Constitution shall not apply to any bonded indebt- 
edness incurred by the City of Columbia, where the bonded indebtedness 
is authorized to be incurred for the purpose of enlarging and maintaining its 
fire department or for purchase, building and maintenance of fire stations, 
fire alarm systems or fire equipment, or for any one or more of said purposes, 
and when the question of incurring such bonded indebtedness is submitted to 
the qualified electors of said City at an election or elections to be called 
by the City Council of said City, and a majority of those voting thereon 
shall vote in favor thereof; and the General Assembly need not prescribe as 
a condition precedent to the holding of any such election a petition from the 
freeholders as provided in Section 13 of Article II of the Constitution. 

1930 (36) 1207; 1931 {Z7) 110. 

Provided, further, That the limitations imposed by this Section and by 
Section 5, Article X, of the Constitution, and by any amendments thereof, 
shall not apply to the bonded indebtedness incurred by the City of Ander- 
son, but, in addition to the powers now possessed, said City of Anderson may 
increase its bonded indebtedness in the manner provided in said Section 7, 
of Article VIII, to an amount not exceeding thirty per cent, of the value 
of the taxable property therein, where the proceeds of said bonds are ap- 
plied to the payment of any indebtedness of said City heretofore or hereafter 
incurred or to be incurred by said City, or to expenses and liabilities incurred 
or to be incurred in the improvements of streets, sidewalks or other public 

235 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

places, or to the purchase, establishment, maintenance, operation or increase 
of a city cemetery or city market or public parks, or to expenses, indebtedness 
or liabilities heretofore or hereafter incurred or to be incurred by said City 
in the purchase, establishment, maintenance or operation of an airport or 
airports located or to be located in Anderson County, South Carolina, or 
to any other municipal purpose : Provided, hoivever. That nothing herein 
contained shall be construed to limit the operation of the amendment to 
Section 7 of Article VIII of the Constitution, approved February 3, 1911, 
by which the limitations imposed by said Section 7 of Article VIII, and by 
said Section 5 of Article X of the Constitution were removed from any mu- 
nicipal corporation when the proceeds of the bonds are applied solely and 
exclusively for the purchase, establishment and maintenance of a waterworks 
plant, or sewerage system, or lighting plant and when the question of incurring 
such indebtedness is submitted to the freeholder and qualified voters of such 
municipalit}', as provided in the Constitution upon the question of other 
bonded indebtedness, and said amendment of February 3, 1911, shall remain 
of full force and effect and said City of Anderson shall have the full benefit 
thereof. 

1930 (36) 1279; 1931 {37) 1S7. 

Provided, That the limitations imposed by this Section and by Section 5 
of Article X of the Constitution shall not apply to the bonded indebtedness 
of the City of Georgetown for the purpose of retiring certain outstanding 
past indebtedness as evidenced by certain bonds and promissory notes of the 
City of Georgetown, as of December 31st, 1931, as shown by the audit of 
E. T. Campbell, Certified Public Accountant, of the City of Georgetown, or the 
retiring of other promissory notes outstanding having been issued in pay- 
ment of, or to renew the aforesaid promissory notes : Provided, However, 
That the total bonded indebtedness of the said City of Georgetown shall not 
exceed at an^- time, excluding bonds issued for waterworks, sewerage, electric 
light distribution system and street paving and tax anticipated notes, pledging 
the unincumbered taxes of the said Cit}' of Georgetown for the current fiscal 
year, fifteen (15%) per centum of the assessed value of the taxable property 
in the said City of Georgetown. 

1932 (37) 1400; 1933 (38) 585. 

Provided, That the limitations imposed by Section 7, Article 8 and Section 
5 of Article 10 of the Constitution of the State of South Carolina shall not 
apply to the bonded indebtedness of the town of St. George when the proceeds 
of such bonds are applied exclusively for the building, erecting, establish- 
ing, repairing, extending or maintaining of sidewalks, streets, water-works, 
lighting plants, sewerage system, fire department, or town hall and guard 
house for such town, or for either of such purposes or for the payment of 
any indebtedness already incurred for any or either of such purposes, and 
when the question of incurring such bonded indebtedness is submitted to 
the qualified electors of said municipality by the town council of said town and 
a majority of those voting in such elections shall vote in favor thereof. 

1930 (36) 1212; 1933 (38) 589. 

236 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 

Provided, further, That the limitations and restrictions imposed by this 
Section and by Section 13 of Article II, and Section 5 of Article X of the 
Constitution, shall not apply to bonds issued or to be issued by the Town 
of Walterboro and the Town of Manning, for the purpose of funding or pay- 
ing any indebtedness incurred before the ratification of this amendment by 
the General Assembly, for municipal purposes, and the General Assembly 
shall have power by special Act or Acts, to authorize said towns to issue their 
respective bonds to fund the same without regard to limitations and without 
the requirement of an election. 

1931 (m 281; 1933 (38) 588. 

Provided, That the limitations imposed by this Section and Section 5, Article 
X of the Constitution, shall not apply to the City of Greenwood when the pro- 
ceeds of bonds are applied solely and exclusively for the purchase, establish- 
ment and maintenance of a waterworks plant or sewer system or lighting 
plant, and, in addition to bonds issued for those purposes, the City of Green- 
wood may issue assessed bonds to an amount not exceeding twenty per cent 
(20%) of the value of the taxable property therein where the bonded in- 
debtedness is incurred for the cost of improving traffic conditions in said city 
by the relocation of all or part of the railroad tracks in said city, the said 
city being specifically authorized to provide new rights-of-way for the rail- 
roads whose tracks may be relocated, such new rights-of-way to be located 
both in the City of Greenwood and near the City of Greenwood, as well as 
for all costs or damages incident thereto and also for the cost of acquiring 
for street, parking, parkway, or traffic purposes the present rights-of-way 
of the said railroads whose tracks are relocated and also for any costs or ex- 
penses connected with or a part of the relocation of tracks, elimination of grade 
crossings and acquiring for street, parking, parkway or traffic purposes any 
property or rights-of-way now owned by railroads whose tracks are relocated 
as well as any reversionary interest therein when the question of increasing 
such bonded indebtedness is submitted to the qualified electors of said city 
at an election or elections to be called by the city council of said City, and a 
majority of those voting thereon shall vote in favor thereof. 

1940 (41) 1756; 1941 (42) 271. y^ 

. . . / ^ 

I. General Consideration. bonds within constitutional debt limitations' r 

II. Borrowing in .\nticipation of Taxes. for a corporate purpose, see §§ 47-831 to y^ 

III. Sinking Fund. 47-860. X, 

IV. Preliminary Incidents to Issuing / ^ 

Bonds. I. GENERAL CONSIDER.\TION. 
V. Application of Section. 

Intention of section. — In the dissenting 

Cross References. opinion of Paris Mountain Water Co. v. 

As to provisions for taxing to pay town- Greenville, 105 S. C. 180. 89 S. E. 669 

ship bonds issued in aid of railroads, see (1916), it is said that the intention of this 

§ 58-862. As to provisions for increasing section and S. C. Const., Art 8, § 5, is that 

bonded indebtedness of municipal corpora- the result in each instance shall be deter- 

tions, see S. C. Const., .A.rt. 10. § 5. As to mined by a majority of the qualified electors 

provisions for issuing bonds to refund or voting upon the respective questions, and 

pay in part or whole the bonded indebted- there is no good reason why both questions 

ness of a municipality, see §§ 1-681 to 1-699. cannot be submitted to the qualified electors, 

As to power of any municipality to issue provided the questions are so submitted that 

237 



^/ 



Art. 8, § 7 Constitution of the State of South Carolina Art. 8, § 7 



the electors shall be able to vote on each 
question. 

Meaning of this and other sections. — It 
seems that the following conclusions are 
deducible from this section and other con- 
stitutional provisions on assessment and 
taxation: (1) that all the property in the 
State is liable to be taxed except such as is 
specially exempted by the S. C. Constitution 
and except such as could not be taxed with- 
out a violation of the provisions of the Con- 
stitution of the United States; (2) that all 
taxes, whether State or county or municipal, 
must be laid upon the actual value of the 
property taxed, as the same shall be ascer- 
tained by an assessment previously made for 
that purpose," (3) that such assessment 
must be uniform, whether made for the 
purpose of State, county, or municipal taxa- 
tion; (4) that the corporate authorities of a 
town may be vested with power to assess 
and collect taxes for corporate purposes, 
but in doing so "the General Assembly shall 
require that all the property, except that 
heretofore exempted, within the limits of 
municipal corporations, shall be taxed for 
the payment of debts contracted under au- 
thority of law;" (5) that while there is no 
express provision authorizing the General 
.Assembly to invest the municipal author- 
ities of a town with power to borrow money 
and issue bonds to secure the same, yet this 
is necessarily implied by the provisions of 
this section; (6) that this power to borrow 
money and issue bonds is limited by this 
section providing that the bonded debt of 
any municipal corporation "shall never ex- 
ceed eight per centum of the assessed value 
of all the taxable property therein." Ger- 
mania Sav. Bank v. Darlington, 50 S. C. 
337, 27 S. E. 846 (1897). 

This section and other constitutional pro- 
visions on taxation practically show (1) 
that taxation of persons and property must 
be uniform, and based upon an assessment 
of property already made; (2) that taxes 
must be laid upon all the property within 
the territory of municipal corporations ac- 
cording to its value; (3) that taxes can only 
be levied by municipal corporations for pub- 
lic or corporate purposes; (4) that methods 
for increasing the public debt of municipal 
corporations are prescribed. Stehmever v. 
Citv Council, S3 S. C. 259, 31 S. E. 322 
(1898). 

"Past indebtedness" means up to time of 
filing petition for election. — The words "past 
indebtedness" witliin this section as amend- 
ed, authorizing the city of -Anderson to in- 
crease its bonded indebtedness to an amount 
not exceeding 15 per cent of the value of 
taxable property where proceeds are ap- 



plied to the payment of "past indebtedness," 
refers to all indebtedness existing at the 
time of the filing of the petition for an elec- 
tion as to issuance of bonds, irrespective 
of whether such indebtedness was created 
before or after the adoption of the amend- 
ment, and does not refer merely to the in- 
debtedness existing at the time of the adop- 
tion of the amendment. Clinkscales v. Pant, 
116 S. C. 206, 107 S. E. 515 (1921). 

This section is self-executing. — Paris 
Mountain Water Co. v. Greenville. 110 S. C. 
36, 96 S. E. 545 (1918) ; Chick Springs Water 
Co. v. State Highway Dept., 159 S. C. 481, 
157 S. E. 842 (1931). 

Relationship of section to S. C. Const., 
Art. 10, § S.— S. C. Const., Art. 10, § 5 deals 
among other things with the amount of 
bonded debt which may be incurred by any 
town or city, and any provision saving the 
power to refund existing indebtedness, 
which it was deemed necessary to include 
in that proviso, was also included in this 
section of the Constitution. Williams v. 
Rock Hill, 177 S. C. 82, 180 S. E. 799 (1935). 

S. C. Const., Art. 10, § 16 does not pro- 
vide exception to section. — The provisions 
of the last section 16 to S. C. Const., Art. 
10, providing for assessment upon abutting 
property by the town of Timmonsville. does 
not provide for an e.xception to the limita- 
tion on bonded indebtedness set out in this 
section of the Constitution. Rose v. Bask- 
ins, 178 S. C. 69, 182 S. E. 153 (1935). 

Last assessment is used to ascertain valid- 
ity of bonds. — In applying tliis section to 
ascertain if bonds issued are in excess of 
eight per cent "of the assessed value of all 
the taxable property therein," reference 
must be had to the last ofiicial assessment 
made by a town preceding the issue of the 
bonds. This assessment investors have the 
right to rely on when they make inquiry as 
to the power of the city to issue the amount 
of bonds in question. State v. Tollv, 37 S. 
C. 551, 16 S. E. 195 (1892); State v. Corn- 
well, 40 S. C. 26, 18 S. E. 184 (1893). Only 
in the absence of a legal city assessment 
should reference be had to the assessment 
of property within the city made for State 
and county purposes. State v. Kelly, 45 
S. C. 457, 23 S. E. 281 (1895). Reference 
should be had to the legal assessment by 
the city to test whether the issue of bonds 
by the city is excessive, because the assess- 
ment and ta.x thereon is the source from 
which payment is to be derived. Germania 
Sav. Bank v. Darlington. SO S. C. 337, 27 
S. E. 846 (1897). 

Third proviso in section contains errone- 
ous reference. — Reference