Seegers v. Gibbes
52 S.E. 588
S.C.
1905
Check Treatment

The opinion of the Court was delivered by

Mr. Justice Woods.

This proceeding in the original jurisdiction of this Court was brought by the petitioner, John C. Seeg'ers, a taxpayer and freeholder of the city of Columbia, on behalf of himself and all others in like situation, who will come in and share the expense of the cause, to enjoin the city council from issuing bonds for a greater amount than $75,097.70' for the purpose of enlarging, extending and repairing the city water works, the allegation being that the council is about to' issue illegally $400,000' of bonds for that purpose. The facts are not in dispute, and they are fully set out in the petition and answer.

1 The petition first charges that the statute under which the election was held to authorize the issue of bonds to the amount of $400,000 required that “Commissioners of Public Works” should be voted for, and as no such officers were elected, the entire election was illegal, and the issue of the bonds would be without authority. The act of March 2, 1896 (Civil Code, secs. 2008, 2009), authorizes cities and towns to construct and operate water works, and to raise funds for that purpose by the issue of bonds, but requires such bond issue to be approved beforehand by the qualified electors at an election held by the municipal authorities. This act requires that at such election three citizens shall be elected “Commissioners of Public Works,” who are vested with authority to sell and dispose of the bonds, and to build, operate and control the water works. It will not be doubted if the election is to be referred to this statute, the failure to elect the commissioners of public works would invalidate the election, because without these officers the whole scheme contemplated by the act would be defeated. This act relates to the construction purchase and operation of water works and electric light plants, and obviously was intended to carry into effect section 5, of article VIII., of the Constitution of 1895, which is as follows: “Cities and towns may acquire, by construction or *542 purchase, and may operate water works systems and plants for furnishing lights, aixd may furnish water and lights to individuals, firms and private corporations for reasonable compensation: Provided, That no such construction 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.”

On the 9th day of March, 1896, another act was passed (Civil Code, secs. 2021, 2022), which provided: “That it shall be the duty of the municipal authorities of any incorporated city or town of this State, upon the petition of a majority of the freeholders of said city or town, as shown by its tax books, h> order a special election in any such city or town for the purpose of issuing bonds for any corporate purpose set forth in said petition: Provided, That the aggregate bonded indebtedness of any city or town shall never exceed eight per centum of the assessed value of the taxable property therein” (22 Stat., '88). No1 mention is made iix this act of the former statute of March 2, 1896, above recited, though it had been passed only seven days before. This last statute of March 9, 1896, was subsequently amended, and at the time of the election here under consideration the poilion material to this discussion read as follows: “It shall be the duty of the municipal authorities of any incorporated city or town of this State, upon the petition of a majority of the freeholders of said city or town, as shown by its tax books, to order a special election in any such city or town for the purpose of issuing bonds for the purchasing, repairing or improving of city or town hall, or park or grounds therefor, markets and guard house, enlarging, extending or establishing electric light plants or other lights, or water works, or sewerage, erecting, repairing or altering school buildings, fire protection purposes, improvement of streets and sidewalks, or any corporate purpose set forth in said petition: Provided, That the aggregate bonded indebtedness of any city or town shall never exceed eight per centum of the assessed value of the taxable property therein.” Civil Code, section 2021. *543 This act contains no requirement for the election of commissioners of public works.

By referring bo the portions of the Constitution and statutes we have italicized, it will be seen the statute first enacted was intended to provide for the construction and operation of water works and electric light plants where none had existed, and it was, therefore, reasonable that the General Assembly should require the election of commissioners of public works — new officers to take charge of a new municipal enterprise. The distinct characteristic of the latter act is that it provides for the issue of bonds not only for establishing-, but for enlarging or extending water works and other public works. When these public works are already in existence under the management of municipal officers already provided, there would be far less, if any reason at all, to require a complete change of administration upon their enlargement or extension. It may be, as far as these acts are in pari materia, that is, as far as they both relate to the establishment of water -works, they must be construed as orre act, and that the later act would not justify the issue of bonds for the construction and operation of water works where none had been in operation before, in pursuance of an election which did not include the choice of commissioners of public works. But that is not the question here, for the city of Columbia already has water works in operation and under the management ■ of its municipal officers, and although the site and mechanical construction may be entirely new, there would still be nothing- more than the enlargement or extension of a specific public enterprise already in existence and in operation. The act of March S, 1896, has no application, and the act of March 9, 1896, as amended, to which the election must be referred, does not require the election of commissioners of public works.

*544 2 *543 It is next contended 'the bond issue will be illegal because “the city of Columbia and the said city council do- not intend to devote the entire revenue of its water works as enlarged, extended and repaired, as contemplated, solely and .exclu *544 sively toi the maintenance and operation, of the same.” The provision of the Constitution on which the petitioner relies as requiring the city of Columbia to devote the entire revenue of its water works to the purposes mentioned, is so obviously limited in its application to. the city of Georgetown that it is only necessary to quote the amendment itself to make the point clear: “Provided. That the limitation imposed by this section and by section 5, article IV., of this Constitution, shall not apply to. bonded indebtedness incurred by the cities of Columbia, Rock Hill, Charleston and Florence, where the proceeds of said bonds are applied solely for the purchase, establishment, maintenance or increase of water works plants, sewerage system; and by the city of Georgetown, when the proceeds of said bonds are applied solely for the purchase, establishment, maintenance 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 operation of the same, and where 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.” If the intention had been to place Georgetown and the other cities mentioned upon the same footing- as to the conditions upon which the municipal debt could be increased beyond eight per cent. of the value of the taxable property, and the purposes to which the proceeds of the bonds and the earnings of the public works should be applied, respect for the intelligence of the framers of the amendment requires us to. think they would have merely placed the word “Georgetown” after “Florence,” and omitted what would have been the useless repetition of many words. The plain meaning is, the city of Georgetown is allowed to exceed the eight per cent, limit for gas and electric light plants, as well as for water works and sewerage, while the excess as to the other cities is restricted to water works and sewerage; and, on the other hand, *545 Georgetown is restricted in the use of the revenue arising from these public enterprises to their maintenance and operation, while the other cities are not so' restricted. . ■ .

The petitioner next contends that though the amendment to the Constitution last above quoted allows the city of Columbia to incur a bonded debt exceeding eight per cent., of the taxable property of the city itself, the amendment did not affect the following provisions of section 5, article X., of the Constitution: “And wherever there shall be several political divisions or municipal corporations covering or extending over the territory, or portions thereof, possessing- a power to levy a tax or contract a debt, then each of such political divisions or municipal corporations shall so exercise its power to increase its debt under the foregoing eight per cent, limitation that the aggregate debt over and upon any territory of this State shall never exceed fifteen per centum, of the value of all taxable property in such territory as valued for taxation by the State. *■ * *” It is admitted if this limitation of fifteen per cent, is unaffected by the amendment, the issue of $400',000 of bonds would be illegal, as the aggregate debt of the “several political divisions or municipal corporations” covering the territory embraced in the city of Columbia would exceed fifteen per cent, of the taxable property of such territory. But for the unfortunate slip' in making the amendment of February 8, 1901 already quoted, apply to section 5, article IV., which relates to an entirely different subject, instead of to section 5, article X., this question could not arise, for “the limitation” removed as to the amount of the bonded debt of the city of Columbia and other cities mentioned would have referred obviously to the fifteen per cent, limitation, as well as to the eight per cent, limitation, both being mentioned in that section. It must be confessed this mistake has given rise to doubt and confusion. The amendment by its terms, nevertheless, removed the eight per cent, limitation as to. the cities mentioned, because that limitation is provided in section 7, article VIII., which is expressly referred to in the amendment, and hence section 5, article X., *546 was inconsistent with the amendment, as far as it provided for an eight per cent, limitation, and this eight per cent, limitation there repeated, necessarily was also' taken away. Bray v. City Council of Florence, 62 S. C., 57, 39 S. E., 810.

It is true, the fifteen per cent, limitation might operate without the eight per cent, limitation, but the terms of section 5, article X., 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, by 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 might 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 bonds by the school district, though the necessity might be ever so1 great. The repeal of the eight per cent, limitation defeated the original constitutional scheme as to1 the cities mentioned for the limitation of municipal indebtedness, of which the fifteen per cent, limitation was a part. Even, however, if it be considered the mistake in the enactment of the constitutional amendment made this question a knot which cannot be untied, in cutting it we have effected the manifest purpose that the amendment was intended to1 serve.

The conclusions reached as to the questions herein discussed make the consideration of the other questions presented unnecessary.

The judgment of the Court denying the petition has already been filed.

The Chief Justice did not participatt m this opinion because of illness.