145 S.E. 412 | S.C. | 1928
Lead Opinion
The order of Judge DeVore follows:
An election was held in the town of Saluda, this State, September 19, 1927, for the purpose of submitting to the qualified voters of said town the questions of '(1) establishing a waterworks system and issuing $100,000 of bonds therefor; and (2) establishing a sewer system and issuing $75,000 of bonds for that purpose. The result of the elecr tion was as follows: For waterworks and bonds therefor 232 votes, against 35 votes; and for sewer system and bonds therefor 231 votes, against 33 votes. If the result of the election is an approximate indication of the sentiment of the community, then undoubtedly the overwhelming opinion of the citizens of the town is in favor o-f establishing both systems and issuing bonds for their construction.
The plaintiffs brought this action asking a permanent injunction against the issuance and sale of said bonds, alleging that the election, which apparently authorized the same, is null and void for the following reasons:
(a) New of the voters at said election held county registration certificates.
(b) The supervisor of registration for the town did not take the oath of officer required by law, and he allowed other persons who had not taken the oath to' act for him at times in issuing town registration certificates.
(c) A number were allowed to vote in the election who had not paid 1926 taxes.
(d) Voters were not required to produce registration certificates and tax receipts at the time of voting.
(e) Amount of bonds proposed by said election exceeds 8 per cent, of the assessed value of property for taxation, and is contrary to’ the Constitution.
(f) Amount of bonds proposed exceeds 15 per cent, of assessed value of property, and is contrary to the Constitution.
(g) Less than 10 per cent, of the voters produced county registration certificates and tax receipts to obtain municipal registration certificates.
(h) The issuance of the proposed bonds will amount to a confiscation of property within the town and a taking thereof without due process of law, in violation of the State and Federal Constitutions.
(i) The amendments to the State Constitution removing the limitations on the amount of bonds that may be issued by the town for the establishment of water and sewer systems are invalid, null and void.
Have the plaintiffs established a primen facie case entitling them to an injunction during the litigation? I will first consider the grave constitutional questions raised in the complaint. The contention of the plaintiffs is that neither Section 7 of Article 8, nor Section 5 of Article 10 of the Constitution has been amended to lift the limitation on the amount of bonds that may be issued by the town to establish water and sewer systems. There are printed, in Volume 1 of the Code of 1922, numerous amendments to-the Constitution which seem to lift the limitation imposed upon municipal corporations in the issuance of bonds to be applied solely and exclusively to the purchase, establishment, and maintenance of a waterworks plant or sewerage system, etc. " The General Assembly passed a j oint resolution, which was approved the 28th day of February, 1910 (26 St. at Large, p. 1055), submitting to the qualified electors of .the State in the general election of that year, an amendment to Section 7 of Article 8 of the Constitution, by adding a proviso thereto, in the following words:
“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 water works 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.”
Attorneys for plaintiffs argued with great force and earnestness that this amendment and other amendments to which reference will be made later, could not have the effect of changing the limitation of 15 per cent, imposed in Section 5 of Article 10 of the Constitution, for the reason that the amendment adopted was an addition to Section 7 of Article 8 of the Constitution, and could not control the 15 per cent, limitation therefore adopted in Section 5 of Article 10. A careful consideration of the matter convinces me that this point is disposed of by the case of Seegers v. Gibbes, 72 S. C., 545, 52 S. E., 586. In that case an amendment to' Section 7 of Article 8, which was satisfied by an Act of the Legislature approved February 8, 1901 (23 Stat., 616), was attacked on the ground that it did not lift the fifteen per cent, limitation imposed in Section 5 of Article 10. That amendment, in part, was as follows:
“Provided, that the limitation imposed by this section [Section 7 of Article 8] and by Section 5, Article 4, of this Constitution, shall not apply to bonded indebtedness incurred by the cities of Columbia,” etc.
Since Section 5 of Article 4 of the Constitution had no relation to the subject being dealt with, it was clearly apparent that there was an error in the wording of the act ratifying the amendment, that it was intended to read “Article 10” instead of “Article 4,” which first-mentioned article contains the limitation of 15 per cent, on the aggregate bonded debt of municipalities. After stating that the amount of the bonds proposed to. be issued would be in excess of the 15
“It is true, the fifteen per cent, limitation might operate without the eight per cent, limitation, but the terms of Section 5, Article 10, under discussion, indicated these limitations were intended to operate together, the former to be a restriction on the latter, and hence we think the reasonable view is that they fell together." "If the fifteen per "cent, limitation should be held in force, notwithstanding the repeal of the eight per cent, limitation, the result would be that one municipal corporation could be contracting a bonded indebtedness amounting to fifteen per cent, of its taxable property, exclude another municipal corporation or political division of the State limited to the same territory from incurring any bonded indebtedness whatever, however great may be the necessity. To illustrate: A city coterminous with a school district might issue bonds to the amount of fifteen per cent, of the taxable property of the common territory, and thus forever prevent the issue of the bonds
“I have carefully considered the case of Welch v. Getzen, 85 S. C., 156, 67 S. E., 294, cited on behalf of the plaintiffs, but I do not see that it in any way modifies the law as declared in Seegers v. Gibbes, supra, even if it has any bearing on the point at issue at all.
“Again, I find-that another amendment to Section 7 of Article 8 of the Constitution was ratified by the General Assembly January 30, 1917. (The 30 Stat., 224) ; .and this amendment specifically states that the’ limitation imposed by this section and by Section 5 of Article 10 of the Constitution shall not appfy to bondedness in and by any municipal corporation when the proceeds of the bonds are applied solely and exclusively for the purchase, establishment and maintenance of the water work plant or sewerage system,” etc.
A third amendment to the Constitution, was adopted by the General Assembly February 11, 192Í (32 Stat., 29) which is in practically the same language as that already quoted.
In 1921, still another amendment to the Constitution was ratified by the Legislature (32 Stat., 68), which has direct application to the defendant, Town of Saluda, and it reads as follows:
“Provided,-further, That the limitations imposed by this section and Section 5 of Article 10 of the Constitution of the State of South Carolina, shall not apply to the bonded indebtedness of the Towns of Saluda, in Saluda County,*505 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, water works, lighting plants, sewerage system, fire department or Town Hall and guard house 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 incurring 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.”
It seems to mp that, in the light of the decision of the Supreme Court of Seegers v. Gibbes, supra, there can no longer be any question as to the validity of the several constitutional amendments heretofore duly adopted lifting the limitation on the amount of bonded debt that may be assumed by a municipal corporation in the manner provided by law for the purpose of establishing water or sewefage system therein. Hence I hold as a matter of law that there is no constitutional or statute limit on the amount of bonds that may be issued by the municipal corporation for the purpose of establishing either a water or sewerage system, or both.
1 will take up the points made by plaintiffs in the order stated above, excluding the constitutional question already considered, to wit:
(a) Pew Voters Had County Registration Certificates. — About 116 of the voters participating in said election filed affidavits setting forth that they held county registration certificates at the time of the said election; and, in addition, there is. an affidavit made by W. N. Padgett, H. B. Hare, J. W. Chadwick, and T. D. Fulmer, reputable citizens of Saluda, stating that they checked the books of registration for Saluda county against ¿the polls list in said election and found that 162 of those participat
(b) Town Registrar Did Not Take Oath, etc.— This point, it seems to me, is disposed of by the case of the State v. Coleman, 54 S. C., 282, 32 S. E., 406. It is not disputed that the gentleman acting as supervisor of registration for the town had been performing the duties of this office for a long time, and that preceding this election he was holding the office and acting in the capacity of registrar for the town. In the absence of a showing of fraúd, I hold that he was at least a de facto officer, and that his failure to subscribe to the required oath of office, upon his last appointment, will not vitiate the election. Nor do I think that the mere fact that he had others assisting him in the clerical work of issuing registration certificates will affect the validity of the registration certificates issued by him and in his name as supervisor of registration for the town, unless there was some showing of fraud in connection therewith. It is a well-recognized fact that officers frequently have to engage the service of others to assist them in the performance of their official duties, and that fact alone will not void their official acts.
(c) A Number of Voters Piad Not Paid 1926 Taxes.— This allegation is supported .only by the verification to the' complaint, which is made upon information and belief, without stating the sources of the information or the ground of belief. On the other hand, an affidavit was filed on this hearing, signed by four reputable and outstanding gentle
(d) Voters Not Required to Produce Registration Certificates and Tax Receipts at Potts.- — Article 2 of the Constitution deals with the right of suffrage. The first section provides that all elections shall be by ballot; the second fixes the qualifications for office; the third declares who shall be electors; the fourth supplies the qualifications for suffrage, including residence, registration every ten years, the payment of taxes, the certificates of registration, etc.; the fifth provides a remedy for those denied registration; the sixth declares who shall be disqualified from registering and voting; the seventh defines residence; and the eighth provides for the appointment of a registration board for each county and the opening of the books of registration; the ninth relates to polling precincts; the tenth to primary elections; and the eleventh to the closing of the books 'of registration. These first eleven sections of Article 2 of the Constitution relate primarily to State or county elections as distinguished from town elections. Immediately following these sections, we have Section 12, which provides, as follows:
“Municipal Elections — Registration in. — Electors in municipal elections shall possess the qualifications and be*508 subject to the disqualifications herein prescribed. The production of a certificate of registration from the registration officers of the county as an elector at a precinct included in the incorporated city or town in which the voter” resides “is declared a condition prerequisite to his obtaining a certificate of registration for municipal elections, and in addition he must have been a resident within the corporate limits at least four months before the election and have paid all taxes due and collectible for the preceding fiscal year. The General Assembly shall provide for the registration of all voters befofle each election in municipalities: Provided, That nothing herein contained shall apply to any municipal elections which may be held prior to- the general election of the year 1896.”
It will be noted that this section says that “electors in municipal elections shall possess the qualifications and be subject to the disqualifications herein prescribed.” It is undoubtedly true that, before a person can vote in either State, county, or town elections, he must show, among other things, that he has paid all taxes asstitution providing for town elections does not specifically say before whom he shall make the showing, and much, therefore, is left to be supplied by the Legislature in giving force and effect to the constitutional provisions.
The sections of the Constitution just quoted prescribe as a prerequisite to procuring a certificate of registration for municipal elections that the applicant shall show (1) he has a certificate of registration from the registration officers of the county; (2) that he has been a resident within the corporate limits of the town for at least four months before the election; and (3) that he has paid all taxes due and collectible for the preceding fiscal* year. The very language of this section that framers of the Constitution intended that the showing of a county registration certificate, residence, and the payment of taxes should be made before a town registration officer and not before the managers of
Besides 116 of the voters participating in said election filed an affidavit, stating that at the time they presented themselves to the managers of the election to vote in said election they had in their possession a town registration certificate and were prepared to offer proof of the payment of all taxes for the preceding year, and that the only reason they did not produce said registration certificates and proof of the payment of taxes was that the managers of election did not require it.
As stated in Rawl v. McCown, 97 S. C., 9, 81 S. E., 961:
“These provisions of the law are directed to the officers who are entrusted with its administration, and not to those who apply for registration, unless they are guilty of a fraudulent participation in violating them. It would be unreasonable and unjust to deny to honest electors, who complied with the law, and those who were ready and willing to comply with it, their constitutional right of suffrage on account of the fraud, caprice, ignorance or neglect of duty of the registration officers.”
If all of the votes should be disregarded except the 116 that are shown to have all the qualifications required for voting, the result of the election would not be affected. Allowing those opposed to the bond issue their full number of 35 votes, there would still remain 81 legal votes in favor of the issuance of bonds.
(g) Not 10 Per Cent, of Voters Produced County Registration Certificates and Tax Receipts to Obtain Municipal Registration Certificates.- — This point seems to be conclusive^ disposed of in the case of Rawl v. McCown, supra. After reciting the various constitutional and statutory provisions relating to the registration of voters, the Court had this to say:
“These provisions of the law make manifest the intention that registration by the proper officer's is conclusive evi*511 dence of the qualifications of the elector therefor, until reversed or set aside in the manner prescribed, for which ample time and opportunity is allowed. This does not mean that registration alone, or the possession of. a registration certificate, entitles the holder thereof to vote. A registered elector may be denied the right to vote on numerous grounds; as, for example, if he was registered within thirty days of the election (Gunter v. Gayden, 84 S. C., 48, 65 S. E., 948), or if, since his registration, he has removed his residence from the county, or his precinct, or has been convicted of a disqualifying offense, and for other causes. It means only that registration concludes collateral inquiry into the qualification of the elector therefor at the time it was granted. His vote may, however, be challenged at the polls, or on contest of the election, for any other cause which makes it an illegal vote.”
(h) Issuance of Bonds Will be Confiscation of Property and the Taking Thereof Without Due Process of Law. — Counsel for the plaintiffs, in their printed arguments, lay great stress on this point, but it will be noted that practically all the authorities offered in support of the contention relate to special assessments laid against property, on account of special benefits to be derived from improvements made out of the proceeds of the tax levy, as in the case of taxing abutting property for street improvements. It seems to me that this line of cases has no application to the point at issue. Undoubtedly the establishment of a water and sewer system in a town would be a great benefit to the persons living in the town. Among other things, it would reduce the cost of insurance on property, it would improve the health conditions in the community, and would be an undoubted convenience to all the citizens of the town requiring water for domestic and other purposes. The court will take judicial knowledge of the fact that the establishment of such improvements would require for a term of years the imposition of a tax levy to
Upon a full consideration of the case, I am of the opinion that an injunction pendente lite should not be issued and that the restraining order heretofore passed should be dissolved. It is so ordered.
The opinion of the court was delivered by
For the reasons assigned by his Honor, Judge DeVore, it is the judgment of this .Court that the judgment of the Circuit Court be affirmed.
Concurrence Opinion
(concurring) : Many of the issues passed by the late Judge DeVore in this case were decided in the recent case of Hunter v. Town of West Greenville, 146 S. C., 338, 144 S. E., 62, and that case sustains the holdings of the circuit Judge.
