Harby v. Jennings

• Decision Date: 25 August 1919
• Docket Number: 95.
• Citation: 101 S.E. 649,112 S.C. 479
• Parties: HARBY v. JENNINGS, MAYOR, ET AL.
• Court: South Carolina Supreme Court

101 S.E. 649

112 S.C. 479

HARBY v. JENNINGS, MAYOR, ET AL.

No. 95.

Supreme Court of South Carolina

August 25, 1919

Appeal from Common Pleas Circuit Court of Sumter County; John S Wilson, Judge.

Action by A. S. Harby against L. D. Jennings, Mayor, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The following opinion was delivered by Judge Wilson in the circuit court:

This matter was heard by me at chambers with the consent of all parties. The pleadings are verified, and, as the answer admits all the allegations of fact in the complaint, there only remain to be decided the questions of law arising therefrom.

Three questions are raised by the pleadings, and, briefly, they are as follows: (a) Whether or not the petition, the election and the bonds when issued should necessarily provide that the said bonds should only mature at the expiration of 40 years (b) whether or not it was necessary to have voted for commissioners of public works at the time the question of issuing the bonds was voted on; (c) whether it required a majority of the qualified electors of the city to vote in favor of the purchase of the lighting plant before bonds could be issued therefor.

As the first question above indicated has given the court the most concern, the said questions will be considered in an inverse order.

(c) Whether it required a majority of the qualified electors of the city to vote in favor of the purchase of the lighting plant, before bonds could be issued therefor. This question arises from the peculiar wording of the first proviso in section 1 of Act No. 463 of the Acts of 1918, said proviso being as follows: "Provided, that the question of such purchase or establishment shall be submitted to an election, and no such purchase or construction shall be made except upon a majority of the electors of such cities or towns who are qualified to vote on the bonded indebtedness of said cities or towns." This act has the apparent intention of providing by legislation for the construction or purchase of certain public utilities, including lighting plants, and of leaving to the cities and towns the same freedom in determining the details connected with the said construction and purchase as is contemplated in the ninth proviso of paragraph 7 of article 8, of the Constitution, when read in connection with paragraph 5 of said article. In fact, the proviso above quoted appears to be a verbatim quotation from paragraph 5 of article 8, with the exception that the word "vote" is omitted from the act. The proviso of the act above quoted is capable of only two constructions. It either means that such construction or purchase cannot be made except upon the vote of a majority of the qualified electors of the city voting in favor thereof, or it means that such construction or purchase cannot be made except upon a majority vote of the qualified electors. To give this proviso the former construction would make it hostile to said paragraph five of article 8 of the Constitution; while to give it the latter construction harmonizes it with said paragraph by virtue of which it appears to have been passed. I therefore hold that, since a majority of the qualified electors who voted at said election voted in favor of the construction or purchase, this ground submitted by the plaintiff cannot be sustained. 15 Cyc. 388.

(b) Whether or not it was necessary to have voted for commissioners of public works at the time the question of issuing the bonds was voted on. It appears that the city of Sumter had a board of commissioners of public works, for the Legislature in 1913, by Act No. 142, provides as follows "Be it enacted by the General Assembly of the state of South Carolina, that the board of commissioners of public works in and for the city of Sumter be, and the same is hereby, abolished, and the duties heretofore imposed by law upon said board are hereby devolved upon the council of the city of Sumter." Then follows a repealing clause. This act clearly abolishes the said board in so far as the city of Sumter is concerned, and devolves the duties of such a board upon the city council. This repeals the provisions of section 3016 of the Code in so far as Sumter is concerned. If such board had been elected when the issue of bonds was voted on, then such board would have no duties to perform, as such had been devolved upon the city council, and their election would be a useless thing. Moreover, it was clearly the intention of section 3016 of the Code, in requiring the election of commissioners of public works at such bond elections, merely to provide...