Nettles v. Cantwell

June 23, 1919. The opinion of the Court was delivered by This is an appeal from an order, refusing to enjoin the defendants from issuing bonds, under an act of the legislature approved the 26th of February, 1917, and entitled "An act to provide for a bond issue for Charleston county, not exceeding in amount $275,000, for permanent roads, and to construct or purchase bridges, and to provide for sinking fund therefor, and also for an election to determine the same." 30 St. at Large, p. 542.

The fifth and sixth sections of the act are as follows:

"Sec. 5. The said bonds shall be turned over to the said sanitary and drainage commission of Charleston county, to be disposed of for cash, at not less than par, at such times and in such amounts" as the building and repairing of public roads and bridges in said county may, in their discretion, require, "said sale to be upon such notice by advertisement and competitive bids as the said sanitary and drainage commission shall deem proper.

"Sec. 6. That whenever any township or townships in the county of Charleston applies to or petitions the said sanitary and drainage commission to purchase or construct a bridge for the betterment of such township or townships, or to construct a permanent road in such township or townships, the said commission shall have the right to use the proceeds of said bonds for such purposes: Provided, That said township or townships contribute one-third of the building or buying such bridges and constructing such roads."

The complaint alleged that the act was unconstitutional in the following particulars:

(1) "Violation of article X, section 5, in that the bonded debt over and upon the city of Charleston exceeds 15 per cent. of the value of all taxable property in such city as valued for taxes by the State, and the issue of said bonds by the county of Charleston will proportionately increase the debt over and upon the said city, and the aggregate amount of the outstanding debt over and upon the county of Charleston and the several political divisions and municipal corporation therein exceeds 15 per cent. of the taxable property in the county of Charleston."

(2) "Violation of article X, section 6, in that act authorizes the purchasing of bridges; whereas, article X, section 6, limits power of county to issue bonds only for the purpose of building and repairing roads, buildings, and bridges."

(3) "Violation of article X, Section 1, in that the act authorizing the issue imposes upon certain townships the burden of contributing one-third of the cost of building or buying bridges and construction of roads in addition to the tax laid upon such townships for the buying or building of bridges and the construction of roads throughout the county, and secures to other townships the purchase or construction of bridges and the construction of roads within such townships, without any additional contribution whatsoever."

(4) "That as the sanitary and drainage commission of Charleston county intends to use the proceeds of said bonds in the construction of roads and construction or purchase of bridges in townships where no application has been made therefor, and without requiring any contribution from such townships, such issue will be illegal."

The case was heard by his Honor, the Circuit Judge, on an agreed statement of facts, which will be reported.

The first question that will be considered is whether there was error on the part of his Honor, the Circuit Judge, in ruling that the act was not in violation of section 5, article X, of the Constitution, which provides that the bonded debt of no county, township, municipal corporation, or political division, or subdivision of the State, shall ever exceed 8 per centum of the assessed value of all the taxable property therein as assessed for State taxation. "And, wherever there shall be several political divisions or municipal corporations, covering or extending over the same 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: Provided, That nothing herein shall prevent the issue of bonds for the purpose of paying or refunding any valid municipal debt heretofore contracted in excess of eight per centum of the assessed value of all the taxable property therein."

The cases of Todd v. Laurens, 48 S.C. 395, 26 S.E. 682;McCreight v. Camden, 49 S.C. 78, 26 S.E. 984; LancasterSchool District v. Robinson-Humphrey Co., 64 S.C. 545,42 S.E. 998; Seegers v. Gibbes,. 72 S.C. 532, 52 S.E. 586;Bethea v. Town of Dillon, 91 S.C. 413, 74 S.E. 983; Lillardv. Melton, 103 S.C. 10, 87 S.E. 421; and Beacham v.City of Greenville, 104 S.C. 421, 89 S.E. 401 — are conclusive of this question; and the exception raising it is overruled.

The next question for consideration is whether there was error in the ruling that the act was not obnoxious to section 6, art. X, of the Constitution, in that it authorizes the purchasing of bridges; whereas, the word "purchase" is not mentioned in that section of the Constitution.

The case of Verner v. Muller, 89 S.C. 545, 72 S.E. 393, shows that the exception raising this question cannot be sustained.

The third ground upon which the plaintiff contends that the provisions of section 6 of the act are repugnant to section 1, article X, of the Constitution, was also overruled by his Honor, the Circuit Judge, and the next question to be determined is whether his ruling was erroneous.

That section provides that "The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation."

Section 11, art. VII, of the Constitution, contains the provision that "Each of the several townships of this State * * * shall constitute a body politic and corporate."

Section 5, art. X, of the Constitution, provides that "The corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property, within the jurisdiction of the body imposing the same."

It will thus be seen that the county of Charleston and the townships therein are separate and distinct entities — no one of them being liable for the debts of the other. The only tax imposed by the act in question is upon Charleston county, and not upon the townships therein.

If section 6 had not been inserted in the act, no question could have arisen as to its constitutionality, on the ground that the tax was not uniform in Charleston county. The act does not impose a tax upon those townships in Charleston county, petitioning for the preference or privilege mentioned in section 6 of the act, upon the conditions therein stated. But even if a tax had been imposed upon the townships for said purpose, it would not have contravened the provisions of the Constitution as to uniformity, for the reason that there is a compliance with the requirements of the Constitution, in this respect, whenever the tax is uniform in the particular subdivision of the State upon which it is imposed.

The last exception is as follows: "That his Honor erred in not holding that, as the defendants have admitted that part of the proceeds of said bonds are to be used in the construction of roads and construction or purchase of bridges in townships, where no application has been made therefor, and without requiring any contributions from such townships, such use would be illegal, and for that reason the said issue of bonds is enjoined."

No constitutional question is raised by this exception, but only the right of the sanitary and drainage commission to exercise its discretion, in the selection of the townships, within which the work shall be completed first. If it should be made to appear hereafter that the commission was arbitrarily exercising its discretion, so as to be prejudicial to any of the taxpayers of Charleston county, such taxpayers would be entitled to relief. But the exercise of this discretion does not, in any respect, involve the constitutionality of the bonds, which must be placed in the hands of the commission before its discretion can be exercised. Nor is there any necessary conflict between the provisions of section 6 of the act and the exercise of the discretion conferred by section 5 on the commissions, as to where the work should first be completed.

Appeal dismissed.