[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
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,
and, according to my notion, should be considered and determined separately.
THE SULLIVAN ACTION
Lucy C. Sullivan, a citizen and taxpayer in the city of Charleston, by her complaint seeks to enjoin the city council of Charleston from issuing $193,000 of bonds. These bonds which the city council proposes to issue represent the amount due to the city upon unpaid assessments upon abutting property for permanent street improvements. The object of the proposed issue of bonds is nothing more than to provide a convenient and available method of negotiating the assets of the city, now in the form of assessments upon abutting property, in order to raise funds for the immediate prosecution of the work of permanent improvement contemplated.
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
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
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:
"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.
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.
(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
conceivable that the entire issue should be invalidated on that account.
As to the third objection: The case of Dick v. Scarborough,73 S.C. 150; 53 S.E., 86, completely explodes the notion that the election upon a bond issue is invalid unless the exact amount, or a maximum amount of the proposed issue, is expressed in the petition or in the order of an election. In that case the election was ordered, and the issue to be determined was thus expressed:
"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
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,20 S.C. 361:
"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
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, 17 Wyo., 90; 96 Pac., 244, it is held:
"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, 75 Okla. 149; 182 Pac., 511, it is held:
"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, 190 Ky., 246;227 S.W., 170, the question printed upon the ballot was: "Are you in favor of the improvement bond issue?" It was contended as here, that the question did not state the amount of the bond proposed to be issued; that it presented an issue so indefinite as to be incapable of intelligent action upon it. The Court held that: "The voters must have understood that the indebtedness was proposed to be created to the
extent and to the amount allowed by the constitutional limitations and manifestly could not have been misled, nor failed to have understood the extent of debt proposed to be created."
In Moores v. Board, 189 Ky., 148; 224 S.W. 645, it was held that in view of the Statute authorizing trustees to call elections for the issuance of bonds, and expressly prescribing that the amount should not exceed a certain limit, it was not a valid objection that the order calling the election did not fix the limitation on the amount of bonds. The Court quotes from another case with approval:
"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.
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."
THE SMITH ACTION
The plaintiff in this action does not make common cause with the plaintiff in the Sullivan action in her attack upon the proposed bond issue. His sole contention is that the city council had no right to include in the assessment against his property abutting on Meeting Street the item $246.53, as the equivalent in cost of installing a drain twelve inches in diameter in place of the drain then existing.
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."
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, 239 U.S. 207;36 Sup. Ct., 66; 60 L.Ed., 230; Seattle v. Kelleher,195 U.S. 351; 25 Sup. Ct., 44; 49 L.Ed., 232; Leominsterv. Conant, 139 Mass. 384; 2 N.E., 690; Warren v. Com'rs.,187 Mass. 290; 72 N.E., 1023; Hall v. Com'rs., 177 Mass. 434;59 N.E., 68; Butler v. Toledo, 5 Ohio St., 225; Howellv. Buffalo, 37 N.Y., 267; Righter v. Mayor,45 N.J. Law, 104; Brevoort v. Detroit, 24 Mich., 322; 2 Dill M.C. (4th Ed.), Section 814; Davis v. Newark,54 N.J. Law, 144; 23 Atl., 276; Willoughby v. Chicago, 235 U.S. 45;35 Sup. Ct., 23; 59 L.Ed., 123; Re O'Mara, 194 Pa., 86;45 Atl., 127; Jelliff v. Newark, 48 N.J. Law, 101;2 Atl., 627.
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.
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
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.