Opinion
12821
January 30, 1930.
Before FEATHERSTONE, J., Greenwood, January, 1930. Affirmed.
Action by W.F. Waits against the Town of Ninety-Six and others. Decree of Dismissal, and plaintiff appeals.
The decree of Judge Featherstone, directed to be reported, was as follows:
This is an action by the plaintiff on the equity side of the Court to enjoin and restrain the Town of Ninety-Six in this State from issuing and selling bonds of said town for the amount of Sixty-five Thousand Dollars for the purposes of establishing and constructing a system of water works and a system of sewerage within the corporate limits of the said town. Plaintiff is an elector, freeholder and taxpayer of the said town.
The cause comes before me on a demurrer to the verified complaint on the several grounds set forth in the notice of said demurrer.
It appears from the complaint that on July 1, 1929, a petition was filed with the town council of the town of Ninety-Six, signed by the required number of electors, freeholders and taxpayers, asking that said town council order an election and cause same to be held in said town, "for the purpose of establishing and constructing water works and sewerage system within the corporate limits of the said town of Ninety-Six for the use and benefit of the said town and its citizens." The above quotation is taken from the petition.
Thereafter in due time an ordinance of said town of Ninety-Six was adopted ordering a special election to be held on August 8, 1929, "for the purpose of submitting the question of issuing interest bearing coupon bonds of said town in the sum of Sixty-five Thousand Dollars for the purpose of establishing and constructing water works and sewerage system within the corporate limits of the said town."
The election was held in accordance with said ordinance from which the language just quoted is taken and at said election the issue of bonds for such purpose was carried and authorized by a large majority.
It further appears that the question submitted to the qualified electors at said election was in the following form:
"Shall the town of Ninety-Six issue its interest bearing coupon bonds in the sum of Sixty-five Thousand Dollars, the proceeds thereof to be used for the purpose of establishing and constructing water works and sewerage system within the corporate limits of the said town of Ninety-Six, such bonds to bear interest at a rate not in excess of five per cent per annum."
The printed ballots used at said election carried this question with some signed "Yes" and an equal number signed "No."
The result of the election was declared by a resolution of the said town council on August 12, 1929. The resolution declaring the result further directed that said bonds be issued and sold; that they be dated September 1, 1929, and mature serially as therein provided; that the proceeds be used for the purpose of establishing and constructing water works and sewerage system in said town. The resolution also directed the said bonds to be duly advertised for sale, lithographed or engraved and otherwise prepared by the proper officers for execution and delivery.
The complaint alleges that the said bond issue is in violation of the Constitution of this State for the following reasons:
1. That the petition is illegal in that two separate and distinct questions are combined therein and separate petitions should have been filed by the freeholders and electors.
2. That the ordinance ordering the election combined the two separate questions which were joined together in the petition, and directed that the same be submitted as a single proposition.
3. That by reason of the combining of the two questions qualified electors were denied the right to pass upon each question separately.
The defendants have answered admitting the material allegations of the complaint so far as the facts are concerned, but denying specifically that the issue and sale of the said bonds would be in violation of constitutional or statutory provisions, and alleging that the said bonds are valid and binding obligations of the said town of Ninety-Six.
The demurrer of the defendants is upon the ground that the complaint does not state facts sufficient to constitute a cause of action in that:
(a) Under the Constitution of South Carolina the Town of Ninety-Six has the right to issue bonds for the establishment and construction of a system of water works and a system of sewerage.
(b) That the petition joining the two purposes and the duly adopted ordinance of the town council of the town of Ninety-Six, calling and ordering an election, submitting the two purposes as a single question, was legal in all respects both under the Constitution and statutes of this State.
(c) That neither under the provisions of the Constitution relating to bonded indebtedness of municipal corporations, nor the general statutes adopted pursuant thereto, is, or was, it necessary that the freeholders of said town should file separate petitions on the separate questions, the establishment and construction of a water works system, and the establishment and construction of a sewerage system.
The petition upon which the election was ordered and held, and the question submitted to the electors, did not separately state the items, nor the amount of the bonds to be issued for the establishment of the water works system, and the amount to be issued for the installation of a sewerage system. Thus it is clearly seen that only questions of law are presented for consideration. The facts, of course, are admitted. The question, therefore, resolves itself into whether or not an issue of municipal bonds is illegal and invalid where the petition upon which the election was ordered and held, combines two separate and distinct purposes such as the acquisition and establishment of a water works system, and the installation of a sewerage system, and where the said separate purposes, and the amount of bonds to be issued therefor, respectively, are not submitted to the qualified electors as separate and distinct propositions.
The plaintiff contends that because the two separate and distinct purposes mentioned were united in the petition of freeholders, and submitted to the voters as a single question, the issue of bonds by the town of Ninety-Six in the sum of $65,000.00 for the two said purposes must be declared illegal and invalid.
The electors were overwhelmingly in favor of the combined proposition, for it was carried by a vote of 85 for and only 5 against the bonds.
As to the matter of the Constitutional provisions, and alleged violation thereof, plaintiff contends that Art. 8, Sec. 7; Art. 10, Sec. 5, and Art. 8, Sec. 5, together with all applicable amendments contain the mandatory requirement that each purpose for which bonds are to be issued shall be submitted separately to the voters.
This precise question has been before the Court several times, and in no case have I been able to find where it has been held, or even suggested, that the Constitution requires the separate submission of the purposes for which bonds may be issued by municipalities; on the contrary, I am satisfied the Constitution does not so provide.
In the case of Herbert v. Griffith, 99 S.C. 1, 82 S.E. 986, 987, the Court considered this question under Sec. 4473 of the Code (old Section 3050). The opinion declares, "The statute under which these bonds were voted provides for the issuing of bonds `for the purchasing, repairing, or improving of city or town hall, or park or grounds therefor, markets and guardhouse, enlarging, extending or establishing electric light plants or other lights, or waterworks or sewerage.' It will be seen that the various purposes for which bonds may be issued are stated in the alternative, which indicates that, to the legislative mind, they are susceptible of separate and independent consideration. It must not be inferred from this that each of these alternative purposes must necessarily be submitted separately." (Italics added.) However, the Court decided that a separate submission was necessary in that case under the statutes considered in accordance with the rule as laid down in case of Ross v. Lipscomb, 83 S.C. 136, 65 S.E., 451, 137 Am. St. Rep., 794; Johnson v. Roddey, 83 S.C. 462, 65 S.E., 626; Chase v. Gilbert, 83 S.C. 546, 65 S.E., 735; State v. Brasington, 93 S.C. 447, 76 S.E., 1086; Weeks v. Bryant, 99 S.C. 8, 82 S.E., 988. These cases, however, were decided prior to the general statute now Section 4429 of Code of 1922, which was enacted in 1918, and evidently for the express purpose of changing the rule declared in the above cases. At any rate the general statute Sec. 4429 does have that effect, for it is plain that all three purposes, water works, lighting plants, and sewerage systems are tied together; whereas under former provisions of the Code water works plant and sewerage systems were provided for under entirely different sections. The Court in Harby v. Jennings, 112 S.C. 483, 101 S.E., 649, discussing this statute, declared that it would have no reasonable meaning unless it is read throughout as an act intended to leave municipalities which desire to acquire any of the public utilities named as free as possible from all restraints in connection therewith, except such as are imposed by the Constitution itself.
This matter is again discussed but under a special provision in Lucas v. Barringer, 120 S.C. 68, 112 S.E., 746, where it was held that the case of Herbert v. Griffith, 99 S.C. 1, 82 S.E., 986, and other cases were not applicable, for the reason that the special statute therein questioned, allowed the joint submission of the questions. There is no special statute applicable to the Town of Ninety-Six. The case of Sullivan v. City Council, 123 S.C. 91, 116 S.E., 104, while not exactly in point is by parity of reasoning persuasive for the views I entertain in this case.
In connection with the Lucas case, it is contended that the general amendment of February 3, 1911, requires that the voters must be permitted to vote separately upon the question of issuing water works bonds and sewerage bonds; that the election considered in that case was held in order to comply with other amendments to Sec. 7 of Art. 8, which as the Court points out, contain slightly different language. It will be observed that that portion of the decree of the Circuit Judge was in answer to the contention that Sec. 7 of Art. 8 was mandatory that each purpose for which bonds are issued should be submitted to the voters. The Court does not so hold. Judge Shipp, whose decree was affirmed and adopted as the opinion of the Court expressly stated that the contention could not be sustained, although his conclusion was rested upon the amendments of 1915 and 1919 containing special provisions relating to the City of Florence. Following the case further it appears that the Court adopts a portion of the concurring opinion in the case of Johnson v. Roddey, 83 S.C. 466, 65 S.E., 626, 627, where it was said: "Where the statute confers upon the municipality the power to contract for water works and sewerage in an aggregate sum, and to submit the question of bonds issued therefor as a single proposition, I do not think the courts have a right to interfere because in their view such submission is unwise and dangerous." Certainly this language would be meaningless if there was a Constitutional requirement that this very thing be done. The purpose of the general statute, Sec. 4429, as declared in Harby v. Jennings, 112 S.C. 483, 101 S.E., 649, renders the matter perfectly clear. Again the case of Johnson v. Roddey, supra, discloses the fact that statutes there under consideration necessarily require the submission of the two propositions separately, not only because of the peculiar wording of Section 4430, but also on account of Sec. 4432 wherein the Commissioners of Public Works who are elected at the same time that bonds are issued under Sec. 4430, are limited to the purchase, building, and contracting, for water works and electric lights, and have no power of control whatever over sewerage systems. Unless these two sections are so construed they would be irreconcilable for the funds for building water works pass into the hands of one commission, and the funds for the building of a sewerage system are administered by another commission.
And furthermore as I have suggested above, it must have been for this very reason that the general provisions of Sec. 4429 were enacted so as to place entirely within the power of the town authorities the issuance of bonds, the building and construction of water works, electric lights and sewerage system enabling the whole matter to be handled by the corporate officers of the town. Reading these decisions then in the light of these statutes it is plain that there are no limitations as to how the questions are to be submitted, but the matter is left entirely to the General Assembly to be provided by statute. Art. 8, Sec. 7, and Art. 10, Sec. 5, simply fix certain limitations upon the bonded indebtedness of municipal corporations and the general amendment of 1911 removes these limitations where the proceeds are applied solely and exclusively to the purchase, establishment and maintenance of a water works plant, sewerage system or electric lights 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.
It is further contended on behalf of the plaintiff that even if it be assumed that the above mentioned provisions do not require a separate vote for bonds for each separate purpose, that the provisions of Art. VIII, Sec. 5, which requires a vote of the people for the acquisition of a water works system makes the bond issue of the Town of Ninety-Six bad.
This Section is confined to water works systems and electric light plants, it is true, 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.
The only other question is whether or not the petition for holding the election, and proceedings thereunder are legal so far as the statutes are concerned. Necessarily in disposing of the Constitutional questions supra, this matter has been adverted to. It is perfectly clear, under the cases, some of which have already been cited, that the manner in which the purposes for which municipalities may issue bonds, shall be submitted to the electorate, is one purely of legislative cognizance, with which the Constitution does not purport to deal except "as provided in the Constitution upon the question of bonded indebtedness," which has reference to provisions of the Constitution that such bond issues be submitted to the electorate in general terms, leaving the details to legislative provisions. This conclusion is abundantly supported by the cases of Ross v. Lipscomb, 83 S.C. 136, 65 S.E., 451, 137 Am. St. Rep., 794; Johnson v. Roddey, 83 S.C. 462, 65 S.E., 626, and subsequent cases in line therewith. These cases were decided prior to the Act of 1918, now General Statutes, Sec. 4429 of Code of 1922. The cases were confined to statutory construction. The excerpt quoted above from the Johnson case is a clear cut declaration of the principle, and in connection with the declared purpose of the statute as contained in Harby v. Jennings, 112 S.C. 483, 101 S.E., 649, the proposition is free from doubt.
Therefore under the facts of this case and the construction placed upon the Constitution and General Statutes by our Court, I am satisfied that the bonds issued by the Town of Ninety-Six as described in the pleadings herein are legal, valid and binding obligations of said town.
It is, therefore, ordered that the demurrer be, and the same is hereby sustained, and the complaint be and the same is hereby dismissed.
Mr. Chas. A. Young, for appellant, cites: As to constitutionality: 120 S.C. 68; 83 S.C. 462; 99 S.C. 7. Statutory question: Secs. 4430, 4473, Code; 83 S.C. 462; 83 S.C. 136; 112 S.C. 479.
Messrs. Park, McDonald Todd, for respondents, cite: Constitutional: 120 S.C. 68; 83 S.C. 466; 99 S.C. 7; Id., 8; 112 S.C. 483. Statutory question: 83 S.C. 136; Id., 462; Id., 546; 93 S.C. 447; 99 S.C. 8; 112 S.C. 483; Sec. 4429, Code; 33 Stat. 986; Secs. 5321, 5322, Code.
January 30, 1930.
The opinion of the Court was delivered by
For the reasons stated by his Honor, Judge Featherstone, in his decree, which will be reported, the judgment of the circuit Court is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE, and CARTER concur.