Cheves v. City Council of Charleston

• Decision Date: 20 July 1927
• Docket Number: 12240.
• Citation: 138 S.E. 867,140 S.C. 423
• Parties: CHEVES et al. v. CITY COUNCIL OF CHARLESTON.
• Court: South Carolina Supreme Court

138 S.E. 867

140 S.C. 423

CHEVES et al. v. CITY COUNCIL OF CHARLESTON.

No. 12240.

Supreme Court of South Carolina

July 20, 1927

Appeal from Common Pleas Circuit Court of Charleston County; M. L Bonham, Judge.

Several actions, by Henry C. Cheves and another, by St. J. Alison Lawton, by Virginia Hays Osburn, by Henry C. Cheves and another, individually, and Augustine T. Smythe, as substituted trustee under the will of Alice Middleton, by Henry M. Hunter, by Louise G. Logan, and by Langdon Cheves against the City Council of Charleston, which cases were consolidated for trial. Judgments for plaintiffs, and defendant appeals. Affirmed.

The judgment of the circuit court, affirmed on appeal, is as follows:

"The plaintiffs in these cases contend that under certain contracts, or, more properly, deeds, entered into with the city council of Charleston, there is no obligation on their part to pay, except as previously agreed upon, any proportion of the cost of paving or improving Murray boulevard.

All of the cases were brought for the purpose of restraining and enjoining the city council of Charleston from claiming any liens against the property of the plaintiffs, or attempting to collect the assessments already levied, or attempted to be levied, for improvements made, or to be made on Murray boulevard, and also to restrain and enjoin the issuance of bonds representing the amount claimed to be due to the city council of Charleston under the said assessments. Pursuant to the provisions of an act passed by the General Assembly of South Carolina, on the 10th of March, 1922 (32 St. at Large, p. 1346), the city council of Charleston was authorized and empowered to levy assessments upon abutting property for the purpose of paying for permanent improvements to streets and sidewalks. Under the provisions of this act the city council of Charleston passed an ordinance on the 18th day of April, 1922, providing for the levy of such assessments, and it is under this ordinance that the assessments in these cases have been attempted to be levied. By agreement of counsel, and with the consent of the court all of the above cases were consolidated.

"Since hearing the testimony taken before me, I have given very careful thought to this matter and have listened attentively to the arguments of counsel made before me to-day. The case is one of public interest and, in my opinion, should be promptly decided. I therefore conclude that the city council of Charleston is bound by the contracts in these cases and that subsequent acts of the Legislature, or ordinances of the city council of Charleston, cannot operate to permit the defendant to impair the obligation of its pre-existing contracts, regularly made and authorized. The fact that certain of the plaintiffs may not have protested at the various times required under the ordinance referred to, cannot now deprive these parties of their rights, particularly in view of the fact that it appears that all of the suits were very promptly instituted, after notice of the attempted assessments. Those who brought their suits after the ten days stipulated in the ordinance were within a very few days of that time, and the other suits had already been brought, so that the city had full knowledge that the question would be raised and was in no way prejudiced by the lapse of a few days. Those who served the injunction proceedings upon the city council of Charleston within the period of ten days were clearly within the reason of its terms, even though they made no further protest-the injunction suit being protest enough. Aside from all this, however, as I have said, the Legislature and city council could not put a time limit on plaintiffs' rights to enforce their pre-existing contractual rights.

"In the cases of Cheves, Hunter, Lawton, and Osburn, the city agreed to fill in the low land and to pave the boulevard, both sidewalks and driveway, and it is apparent, under the testimony that these parties, or their predecessors in title, parted with valuable property rights, in consideration of the covenants and agreements on the part of the city council of Charleston to be performed. The same reasoning applies to the contract entered into with the distributees of the estate of Henry A. Middleton, under which certain parties in these proceedings claim. In this last agreement, the city council of Charleston covenanted and agreed to pave the boulevard in front of its own land and of the lands of the estate, within four years from the date of the contract, and the other parties agreed to pay one-third of the cost of the paving, not, however, exceeding $3,000, provided the boulevard be paved within four years from the date of the contract. Counsel for the parties claiming under this contract stated that it was not their contention that because the paving was not, in fact, done within four years that these parties are therefore relieved from paying their proportion of the cost originally agreed upon, but only that, the operation of the contract having been extended, due to the fact that Murray boulevard has only recently been considered adaptable to a hard-surface paving, the contract should now be enforced as originally written. Such a construction of this contract would be equitable.

"The testimony adduced by the plaintiffs was conclusive on the point that the paving originally contemplated, at the time of the execution of the contracts in question, was asphalt, or some other suitable hard surface, and counsel for the defendant conceded on the argument that this was the case stating, however, that at the time the answers of the city council were prepared, counsel did not have all of the information which he later acquired. The defense of the statute of limitation interposed in the various answers was also withdrawn. Therefore the...