138 S.E. 867 (S.C. 1927), 12240, Cheves v. City Council of Charleston

Docket Nº:12240.
Citation:138 S.E. 867, 140 S.C. 423
Opinion Judge:WATTS, C.J.
Party Name:CHEVES et al. v. CITY COUNCIL OF CHARLESTON.
Attorney:Lionel K. Legge, of Charleston, for appellant. Simeon Hyde, Jr., Nath. B. Barnwell, Augustine T. Smythe, and W. Turner Logan, all of Charleston, for respondents.
Judge Panel:CARTER, J., did not participate.
Case Date:July 20, 1927
Court:Supreme Court of South Carolina
 
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Page 867

138 S.E. 867 (S.C. 1927)

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.

Page 868

[140 S.C. 425] 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 [140 S.C. 426] 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...

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