116 S.E. 104 | S.C. | 1923
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *93 February 8, 1923. The opinion of the Court was delivered by These two cases were heard by consent together by Hon. John S. Wilson, Circuit Judge, at the October term, 1922, of the Court of Common Pleas for Charleston County.
It appears that they were heard upon the pleadings, certain exhibits, and certain admissions, which are set forth in the circuit decree, which will be reported.
The cases are very different in their facts and purposes, having, as I understand, only a single element in common, *109 and, according to my notion, should be considered and determined separately.
The authority of the city council to levy the assessments and to issue the proposed bonds is claimed under the following constitutional, statutory, and municipal provisions:
The amendment to Section 14a of Article 10 of the Constitution, ratified February 15, 1919 (31 Stat., 25), is as follows:
"The General Assembly may authorize the corporate authorities of the cities of Charleston and Beaufort to levy an assessment upon abutting property for the purpose of paying for permanent improvements on streets and sidewalks immediately abutting such property, and in the city of Charleston to pay for the permanent improvement of intersection of streets and for placing curbing and for laying drains abutting such property: Provided, That said improvements be ordered only upon the written consent of two thirds of the owners of the property abutting upon the street, sidewalk, or part of either, proposed to be improved, and upon condition that said corporate authorities shall pay at least one-half of the costs of such improvements. But this provision shall not apply to the city of Charleston, in *110 which city the city council shall have the right to levy an assessment upon abutting property for the purpose of paying for permanent improvements on streets, the intersection of streets and sidewalks, and to pay for curbing of streets and for drains abutting such property, without the consent of the owner of the property abutting upon the streets, intersection of streets, sidewalks, or a part of either, proposed to be improved, or where curbing is to be placed or drains laid, and without paying for any of the costs of such improvements."
On July 15, 1921, a petition was filed with the city council, purporting to be signed by a majority of the freeholders of the city, praying that an election be held on "the question of issuing bonds or certificates of indebtedness by the city of Charleston, the said bonds or certificates of indebtedness to be issued from time to time in such amounts, denominations, and rates of interest as shall appear necessary to the city council of Charleston, for the placing of permanent improvements on streets the intersection of streets and sidewalks, and for curbing of streets and drains, in the city of Charleston, the proceeds of said bonds or certificates of indebtedness to be applied solely and exclusively to the payment of such improvements on streets and sidewalks, and for curbing of streets and drains, and the entire revenue accruing from assessments to be levied by the city council of Charleston upon abutting property as provided in and by the amendment to Section 14a. Article 10 of the Constitution of the State of South Carolina, ratified February 15, 1919, to be devoted solely and exclusively to the payment of said bonds or certificates of indebtedness."
On the same day, July 15, 1921, the city council adopted an ordinance ordering an election to be held on November 8, 1921, upon the question above stated. This election was held as ordered, and the commissioners of election made return to the effect that a majority of the qualified voters voting at said election voted in favor of the issuance of the *111 bonds or certificates of indebtedness as the question was submitted to them.
The Act of 1922 (32 Stat., p. 1346), as authorized by the amendment of 1919 to Section 14a of Article 10 of the Constitution, confers upon the city of Charleston the authority and power to levy assessments upon abutting property for the purposes stated in said amendment. The Act prescribes the manner in which such assessments shall be made — that is, in such manner as the city council shall direct. It further provides that no assessments shall be laid or confirmed until after at least one week's publication shall have been given that the assessment roll, containing the proposed assessments against each property owner, is in the office of the city treasurer and will there remain for one week, within which time objections and exceptions to the proposed assessments must be made. Provision is made for the hearing of such objections or exceptions. It is further provided that, if no objection be made, or if made and disposed of, the city council shall by ordinance or resolution confirm the assessments, and that no appeal from the order of confirmation of assessments, or attack upon the assessments, shall be made after the expiration of ten days from the date of confirmation. The Act further provides that the city council may issue bonds of the city of Charleston to pay the cost of such authorized improvements, when the question of incurring such indebtedness shall have been submitted to the freeholders and qualified voters of the city as provided in the Constitution for other bonded indebtedness; that a sinking fund shall be created for the payment of the principal and interest upon said bonds, and an annual tax shall be levied to meet the payment of the principal and interest as they become due; and that the revenue from the assessments shall be devoted exclusively to the payment of said bonds.
On April 18, 1922, the city council passed an ordinance entitled: *112
"An ordinance to provide for and regulate the construction of permanent improvements of the streets and sidewalks and the laying of drains in the city of Charleston, and to provide for the levy and enforcement of an assessment upon abutting property for the purpose of paying for such improvements, and authorizing the issuance of bonds or certificates of indebtedness of the city council of Charleston representing the amounts of assessments due to the said city council of Charleston as deferred payments or installments of such assessments and to provide for their payment."
The ordinance was substantially a reproduction of the provisions of the Act of 1922 above referred to.
Thereafter the city council published four times within fifteen days in the official journal of the city notice of its intention to pave that portion of Meeting Street abutting upon which the plaintiff's property is situated, and after the expiration of said period caused an assessment roll to be prepared showing the amount assessed against each abutting piece of property upon that portion of Meeting Street so paved or intended to be paved, and lodged the assessment roll with the city treasurer. The city treasurer then published a notice that the assessment roll was in his office, and would there remain for one week from the date of publication, and requiring all persons to file in writing with him, during that period of one week, such objections or exceptions as they desired to make against the proposed assessments. Neither the plaintiff nor any one else filed any objections or exceptions thereto. Thereupon the city council by ordinance confirmed the assessments so laid, and entered the same upon the Assessment Liens Book prescribed to be kept by the Act of 1922 and said ordinance of the city. No appeal was filed by the plaintiff, or by any one else, from said confirmation, nor was any attack made upon the assessments within the ten days provided in the Act. *113
On February 24, 1921 (32 Stat., 69), the following amendment to Article 8, Section 7, of the Constitution, relating to the limit of bonded debt of cities, was ratified:
"That the limitations imposed by this Section and by Section 5, Article X, of the Constitution shall not apply to the bonded indebtedness 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 permanent improvements on streets, the intersection of streets and sidewalks and for curbing of streets and for drains, when the city council of said city shall levy and assessment upon abutting property, as provided in and by the amendment to Section 14a, 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 or 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 indebtedness."
The plaintiff, Lucy C. Sullivan, urged the following objections to the bond issue:
(1) That the petition for the election upon the question of issuing bonds was not signed by a majority of the freeholders of the city.
(2) That the assessments against the property of the plaintiff is excessive, as are also the assessments against the other abutting properties on Meeting Street, and that, if a true and correct assessment were made, it should be shown that the amount due on assessments properly laid for the correct amount thereof would not amount to the sum of $193,000 and bonds to that amount cannot legally be issued by the city. *114
(3) That the proposition submitted at the election held on November 8, 1921, was void for indefiniteness, in that neither an exact amount nor a maximum amount of bonds to be issued was stated in that proposition.
(4) That the amendment of 1921 (Article 8, Section 7), in requiring the entire revenue from the assessments to be devoted to the payment of the bonds, impliedly prohibits the levy of the tax provided for in the ordinance of April 18, 1922, for interest and sinking fund for the bonds.
(5) That the title of the Act of 1922 does not conform to the body thereof, in that the title provides for an assessment of abutting property owners, while the body provides for an assessment upon abutting property.
As to the first objection: The reasoning and conclusions of the Circuit Judge satisfactorily disposes of this objection. In addition thereto it may be suggested that this matter does not come up upon a demurrer to the complaint, where the facts properly pleaded are admitted to be true, but was before the Court upon the pleadings and certain admitted facts. There is nothing before the Court by way of evidence or admission tending to sustain the facts thus relied upon.
As to the second objection: There is nothing before the Court to sustain the allegation that the assessment upon the plaintiff is excessive. There is nothing to sustain the allegation that the assessments upon other abutting property owners are excessive, with the debatable exception of the assessment upon the property of the other plaintiff, Henry A.M. Smith. The amount of that assessment claimed by him to be excessive is only $246.53, the entire assessment aggregating $193,086.31; and, even if the plaintiff Sullivan should be entitled to go into the case of the plaintiff, tried at the same time, but each standing upon its own facts, the discrepancy of $160.22 is too small for consideration. If that should prove to be the only objection to the proposed issue of $193,000 of bonds, it is hardly *115 conceivable that the entire issue should be invalidated on that account.
As to the third objection: The case of Dick v. Scarborough,
"Shall the city of Sumter purchase the property and rights of the Sumter Water Power Company and issue bonds in payment thereof in such amount as may be necessary?"
The same objection as here was raised to the validity of the election. The Court held:
"The facts of this case do not warrant the Court in sustaining the objection to the form of the ballot. Without doubt it is safer in such elections (not essential), to have the ballot express the precise amount to which it is proposed to issue bonds, for then there can be no doubt of the voter having fair notice of the import of his vote. But there is no statutory (or constitutional) provision as to the form of the ballot, and the most that the Court can require in this respect is that the voter have reasonable notice of the election and the issue it involved." (Italics and parentheses added.)
The Court lays some stress upon the fact that the purchase price of the waterworks had been agreed upon by the city council, and that the public had been informed of it. This, while persuasive, could not have been controlling, for no binding contract was or could have been made prior to the election; and, if no price had been mentioned, the election would still have been valid in that each voter had reasonable notice of the election and the issue involved. So in the case at bar the city council proposed to proceed under the amendment to Section 14a, Art. 10, of the Constitution, by levying assessments upon abutting property for certain *116 improvements. The assessments were capable of definite and certain ascertainment and were definitely and certainly ascertained before the bonds were proposed to be issued. The money had to be raised in order to prosecute the work, either by hypothecating the unpaid assessments or by issuing bonds corresponding in amount, which, as a convenient method of negotiation, was very properly adopted.
The precise amount of bonds to be issued, corresponding to the amount of the assessments which were in futuro could not possibly have been ascertained at the time of the election; but the proposed plan was plain, easily understood, and susceptible of definite ascertainment, and each voter necessarily had "reasonable notice of the election and the issue it involved." A contrary conclusion would shut the city council up to the alternative of hawking the individual assessments in a financial market suspicious of such abnormal securities, where they would encounter either an inability to realize upon them or suffer a loss by heavy discount.
As this Court has said in the case of Trimmier v. Bomar,
"In elections the great matter is the result. Where this is clearly ascertained, it sweeps away all technicalities. * * * Certainly manner and form should not be allowed to defeat the undoubted will of the people clearly expressed. This would be indeed subordinating and sacrificing the substance to the shadow."
Beyond the protection to life, liberty, and property which the law guarantees, the greatest benefit which the average citizen obtains from his government is the enjoyment of good roads, good streets, and good schools. An advance along these lines should not be discouraged; and in the absence of any statutory or constitutional requirement that a definite or maximum amount be specified in the election issue, and in an instance of practical unanimity as to a proposition feasible and approved, it should not be withered *117 by a strained and technical construction. Obstructionists to public enterprise and progress always appear; and while their legal rights must be respected, the enterprise and progress should not be balked except upon the plain demonstration of such legal rights.
In Cheyenne v. State,
"A Statute authorizing the issuance by municipalities of bonds for public improvements should be construed so as not to defeat the manifest object of the enactment, and hence a substantial compliance with the formalities in submitting the question of a bond issue to the voters, is generally sufficient."
In Hughes v. Sapulpa,
"Irregularities in a municipal bond election not tending to affect results are not to defeat the will of the majority, which is to be respected, even when irregularly expressed."
Moreover, it is not by any means an unreasonable construction of the amendment of 1921 to Section 14a, of Article 10 of the Constitution that the very course adopted here is authorized thereby. If the amendment had been intended to require the levy of assessments to precede the election on the question of issuing bonds the expression would have been "when the city council shall have levied an assessment," instead of as it is "when the city council shall levy," denoting futurity, and not a condition precedent.
In Bosworth v. Middlesboro,
In Moores v. Board,
"The voters are presumed to possess sufficient intelligence to understand the Constitution and laws of the State, and to know in a general way what bonded indebtedness they are willing to bear for the purposes of education; therefore the resolution and the notice of the election, it seems to us, gave them sufficient data by which they could intelligently determine how they desire to vote upon the proposition of issuing the bonds. They knew, as said before, that the indebtedness could not exceed $10,000 in all events, and that it was the desire of the trustees to issue bonds up to the full constitutional limit, whatever that was, not to exceed $10,000. `Id certum est quod certum reddi potest.'"
As to the fourth objection: No authorities are cited by the appellant to sustain the proposition contended for in this objection. The fact that under the amendment of 1921 the city is authorized to issue bonds for the purpose of street improvements necessarily constitutes them obligations of the city. The provision that "the entire revenue arising from the assessments so levied by the city council shall be devoted solely and exclusively to the payment of said bonds" can in no wise affect that obligation, but is simply security therefor and a precaution against the city diverting it to other purposes — an attractive feature to a purchaser of the bonds. *119
As to the fifth objection: This is the limit of microscopic criticism. There can be no appreciable difference between the two provisions. Besides, in the body of the Act the terms are used interchangeably, and in several places reference is made to "the proposed assessment against each property owner"; that the assessments "may be enforced as the payment of city taxes is enforced," which implies personal obligations; "such assessments shall become due and payable"; "assessments to be made against abutting property owners."
It appears that in the year 1854 a subsurface drain more than twelve inches in diameter was installed by the city in that portion of Meeting Street on which the plaintiff Smith's property abuts, which at that time was paid for out of the general fund of the city.
The city council claims the right to impose this assessment upon the plaintiff's property under the following provision of its ordinance of April, 1922:
"Should subsurface * * * drains have been installed in a street or portion thereof in advance of paving, so much of the cost of installation of such surface drains * * * as would be equivalent to the cost of installing subsurface drains twelve inches in diameter, and all work incidental thereto, shall be included in the cost of paving, just as though such subsurface drains * * * had not been previously installed." *120
Their claim of right under this provision of their ordinance is based upon the several constitutional and statutory enactments hereinbefore set out in the discussion of the Sullivan action.
Under the following authorities there does not appear to be any question that, if the constitutional and statutory enactments make provision for it, "a subsequent assessment may be levied because of the benefits conferred by the former action of the city in improving in front of the lots assessed"; Wagner v. Leser,
The question is not whether the constitutional and statutory enactments were intended to have a retrospective as well as prospective effect, but it is whether or not these enactments were intended to have a present application to improvements which had theretofore been installed. The admitted law, which has been cited, that a Statute will not be given a retrospective effect unless such intention clearly appear, is therefore inapplicable to the issue; for it is impossible to read the authorities from the highest Court in the land, with a disposition to be controlled by them, without coming to the conclusion that, if the enactments were intended to have a present application to improvements constructed and paid for prior to their passage, there is no constitutional or other legal objection to their enforcement. *121
The primary authority in the matter of assessments upon abutting property for street improvement, so far as the city is concerned, is in the amendment of 1919 to Section 14a of Article 10 of the Constitution. There the city council is authorized (or the General Assembly is authorized to authorize them) "to levy an assessment upon abutting property, for the purpose of paying for permanent improvements on streets * * * and to pay for * * * drains abutting such property, without the consent of the owners of the property abutting upon the street * * * proposed to be improved or where curbing is to be placed or drains laid."
It would be difficult to extract from this grant the authority to assess abutting property for improvements not only proposed to be made, but for those already made, or for drains not only to be laid, but for those already laid. The inclusion of the one would appear to be the exclusion of the other.
The Act of 1922 (32 Stat., 1346), passed in pursuance of the amendment of 1919, goes somewhat beyond the terms of the amendment. It provides that the city council shall have the power of assessment in reference to streets "improved or intended to be improved," or in which "drains are laid or intended to be laid."
If the question turned upon the construction of the Act, there could be little doubt of the correctness of the city's contention; but, unfortunately for it, the source of their authority is the amendment, and not the Act, and the latter is necessarily limited by the grant in the amendment, which does not cover streets theretofore improved or drains theretofore laid.
An inequality exists under the ordinance in the matter of assessments for the equivalent costs of drains, between the owners of lots abutting an improved street and those of lots abutting an unimproved street, in each of which a prehistoric drain may exist. The former would pay; the latter *122 not; for the assessment can be made only "in advance of paving," which means that the street is to be improved.
A point common to both cases: The respondent urges as a conclusive obstacle to the actions by both of the plaintiffs that neither has availed himself or herself of the privilege of objecting to the assessments within the time fixed by the Act of 1922, and are estopped now from doing so.
Under the Act the property owner receives notice of the proposed assessment for one week after the assessment roll has been filed with the city treasurer. If he does not exercise his right of objection within that week, he still has ten days after the assessments have been confirmed by the city council to make such attack as he deems proper. After the expiration of that time "no appeal from the order of confirmation of assessments shall be permitted and no attack upon such assessments shall be made."
It is not deemed necessary to consider this contention of the respondent for the reason that the issues already determined dispose of the Sullivan appeal; and as to the Smith appeal the Circuit Judge held: "I hold the estoppel above referred to would not be operative if the assessment was unconstitutional," from which there is no appeal. It has been concluded that the assessment upon the Smith property for the pre-existing drain is not authorized by the Constitution, and under the ruling stated he would not be estopped.
The judgment of this Court is that the decree of the Circuit Court, in so far as it affects the Sullivan action, be affirmed, and that, so far as it affects the Smith action, it be reversed.
MR. JUSTICE MARION and MR. CHIEF JUSTICE GARY concur.
MR. JUSTICE WATTS did not sit, but participated.
Dissenting Opinion
These are proceedings for injunction against the levy of an assessment on certain property in the city of Charleston for street improvements, and an injunction against the issuance of bonds *123 to pay for the same. The injunction was refused. The facts are set forth in the Circuit decree as follows:
"The above two cases were heard by me, and, as the objections raised in subdivision 2 of allegation 5 of the Sullivan suit involved the question raised in the Smith suit, it was agreed by counsel that the cases should be heard together and decided at the same time.
"It was admitted in both cases that the citations from the Constitution, Acts of the General Assembly, and ordinances of city council set forth in the respective pleadings were correctly set forth; that notices of the proposed improvements of Meeting Street, on which the property involved is situate, was given by city council by publication in the official journal of the city four times within fifteen days, and, the contract for such improvements having been made by city council, an assessment roll was filed with city treasurer showing the assessment against, among others, the property owned by each plaintiff herein; that notice was published by city treasurer in the journal of city council that such assessment roll was in his office and would remain there for one week from the date of the publication, and that all persons concerned could within that time file objections or exceptions thereto; that no objections were filed during that week; that thereafter city council confirmed said assessments, and the same were entered in the Assessment Liens Book kept by city treasurer; the publication of the ordinance of city council ratified April 18, 1922, referred to in the pleadings, was made in the official journal of city council on April 20, 1922; that no attack upon said assessments was made by either of the plaintiffs within ten days after the confirmation of the assessments; that city council had by ordinance declared that, as appears by Assessment Liens Book of the city of Charleston, there was outstanding and unpaid on the assessments levied against abutting property to meet the cost of permanent improvements on streets, the intersection of streets and sidewalks, *124 and for curbing of streets and drains in the city of Charleston, the sum of $193,086.31, and directed the issuance of $193,000 of bonds of the city of Charleston, and directed the application of the proceeds of said assessments, when collected, solely to the payment of said bonds; that said bonds have never been actually issued and are still in the hands of the city council.
"It was further admitted that the statements of the plaintiff, Henry A.M. Smith, as to his business engagements and his correspondence with city council and assessment notices as received, all of which are set forth in his reply, are correct.
"It was further admitted that the assessment roll as filed with city treasurer covering the assessment against the property of plaintiff Henry A.M. Smith had the following entries: 26-24 Meeting Street roadway, $236.60; proportion of intersections, $8.37; 12-inch drain, $246.53; curb, $59.62.
"It was further admitted that at the time of the improvement of the roadway on which premises 26-24 Meeting Street abuts no new drain was laid, but that an old drain in excess of 12 inches which had been laid by city council about the year 1854, and paid for at that time out of the general funds of the city, was in said street and allowed to remain there, and that the item in the assessment roll `12-inch drain $246.53' represented the assessment which could have been made, if the cost were really so much, against said property, if a new 12-inch drain had been laid at the time of paving the roadway.
"The suit of Lucy C. Sullivan is for an injunction restraining the issuance of the bonds, and the suit of Henry A.M. Smith is for an injunction restraining city council from claiming any lien upon his property by reason of the assessment of $246.53 for drains and from collecting the same." *125
1. The first question to be considered is: Can the city levy this assessment for drains laid prior to the passage of the constitutional amendment of 1919?
The amendment, so far as this case is concerned, reads:
"The General Assembly may authorize the corporate authorities of the cities of Charleston and Beaufort to levy an assessment upon abutting property for the purpose of paying for permanent improvements on streets and sidewalks, immediately abutting such property and in the city of Charleston to pay for the permanent improvement of intersecting streets and for placing curbing and for layingdrains abutting such property." (Taken from respondent's argument.)
It will be noted that the provision is to provide payment "for laying drains." There is nothing in the record to show, and it is not claimed, that the drains already there have not been paid for. There are more than three periods of the "Twenty-year presumption of payment" that have expired. The proposition is for payment, and not for repayment.Curtis v. Renneker,
The rule that a Statute will never be given such construction (retroactive), unless it is required by express words of the Statute, or must necessarily be implied from such words, is too well settled to need the citation of any authority to support it.
Before the constitutional amendment of 1919 there could have been no assessment of abutting property. The amendment is clearly not retroactive, and the Statute and ordinance need not be considered on this point. The exceptions that raise this question should be sustained.
II. Is it necessary for the voters to know the amount or a maximum amount of the bond issue?
In Dick v. Scarborough,
"At the time of the submission of this question to the electorate it was impossible to ascertain the exact or maximum amount of bonds to be issued."
The city council itself did not know the amount. The very fact that an election was necessary required that there should be a question to be determined. The amount of the bonds was an essential element of the election. It need not be printed on the ballot, but the voter must know the amount or there was no question to be voted on. The exception that raises this question should be sustained.
III. Was sufficient notice of the assessment given?
In respondent's argument we find:
"There is published in the daily newspaper, which is the official journal of the city, at least four times within fifteen days, notice that the city intends to improve a certain street. After the contract has been let and the assessment roll is made up and filed with the city treasurer, he then gives notice in the same newspaper that the assessment roll is on file in his office and will be there for one week, during which time the property owner can examine the same and file any objections that he might have thereto. If there are no objections filed, or even when objections have been filed, the city treasurer so reports to city council, which by ordinance duly thereafter published confirms or modifies the assessment so filed. Thereafter the abutting property owner has ten days within which to raise objections to the assessment so made, or to contest the same. Each step in the preparation and making of the assessment is fully published."
The record shows that there were 2,800 freeholders. The assessment roll was to be on file one week. It would have been utterly impossible for these 2,800 freeholders to examine the list to see what was the amount of his assessment, and yet we are asked to hold that each of the 2,800 voters is bound. This Court cannot say how long, but the time allowed must be possible. It does not appear that all *127 of the 2,800 were on Meeting Street, but it must appear that this was a reasonable time for inspection.
This objection should also be sustained.
The judgment should be reversed, and the injunctions granted.
MR. JUSTICE WATTS concurs.
Addendum
The points suggested in the petition of the parties hereto as to which a more definite expression is craved were substantially covered by the decision heretofore filed. The Court is of the opinion that the city council of Charleston has power to levy assessments upon the abutting property of the plaintiff for permanent improvements to streets and drains laid between the date of the ratification of the constitutional amendment ratified February 15, 1919, and the approval of the Act of the Legislature authorizing the city council of Charleston to make such assessments approved March 10, 1922, and that the city council of Charleston may assess and collect from the abutting property on Meeting Street, between Calhoun and Sheppard Streets, the cost of the drains laid on Meeting Street between July, 1920, and July, 1921.
