Southern Ry. Co. v. City of Orangeburg

• Decision Date: 11 November 1944
• Docket Number: No. 5288.,5288.
• Citation: 145 F.2d 725
• Parties: SOUTHERN RY. CO. v. CITY OF ORANGEBURG.
• Court: U.S. Court of Appeals — Fourth Circuit

145 F.2d 725 (1944)

SOUTHERN RY. CO. v. CITY OF ORANGEBURG.

No. 5288.

Circuit Court of Appeals, Fourth Circuit.

November 11, 1944.

Adam H. Moss, of Orangeburg, S. C., and Frank G. Tompkins, of Columbia, S. C., for appellant and cross-appellee.

Hugo S. Sims, of Orangeburg, S. C., for appellee and cross-appellant.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This action was brought by the City of Orangeburg against Southern Railway Company for the foreclosure of a paving assessment lien. The District Judge rendered a judgment for the plaintiff for the amount of the assessment, $6,925.67, with simple interest at 6% from January 15, 1927, 55 F.Supp. 167 and 171. The Railway Company appealed from the entire judgment and the city appealed from so much thereof as allows simple interest only.

The case was first instituted in the Court of Common Pleas for Orangeburg County, South Carolina, and later removed to the District Court. A jurisdictional question was raised and decided for the plaintiff. See 134 F.2d 890. The case is now before us on the merits.

The Railway Company resisted the enforcement of the assessment on the grounds: (1) That the assessment was invalid because under the South Carolina law, such an assessment can be imposed only on the written consent of a majority of the owners of the property abutting on the street to be improved, and such consent was lacking in this case; (2) that the improvement for which the assessment was levied was of no appreciable benefit to the Railway Company; and (3) that the limitation for the collection of the assessment had expired by lapse of time under the provisions of the ordinance of the City of Orangeburg which authorized the levy.

On the first ground, the Railway Company undertook to show that although the petition for the improvement purported to be signed by a majority of four out of seven abutting property owners, the majority was obtained only by dividing the tract of one property owner into three parcels and conveying two of them to different grantees, who were not bona fide owners but held them solely to create the false impression of ownership until the improvement was finished, when the two parcels were reconveyed to the real owner.

On the second ground the Railway Company undertook to show that it had received no benefit from the pavement because the Railway's abutting land consisted of its narrow right of way approximately 3,000 feet long and from 105 to 169 feet wide, traversed by a high fill, ditches and drains, so that the available land was too small for any use other than railroad purposes which were in no way furthered by the new improvement. The case was said to be similar in essential respects to that decided by this court in Carolina & N. W. R. Co. v. Town of Clover, 4 Cir., 46 F.2d 395, where it was held that an assessment for the pavement of a road which paralleled the Railway's right of way did not benefit the Railway in any way and therefore could not be enforced.

These questions are important and would call for careful examination if we were not satisfied that the lien of the assessment, even if originally valid, cannot now be enforced against the Railway Company because the pending suit was not brought until after the expiration of the five year period during which the lien was continued and kept alive by the terms of the assessment ordinance. The ordinance in question was passed by the City Council of Orangeburg on July 12, 1918, pursuant to the authority contained in Art. X, Section 16 of the Constitution of South Carolina of 1895 and Act No. 345 of the General Assembly of the State of 1915, Act March 11, 1915, 29 Stat. at Large, p. 586. Section 16 of Article X of the Constitution empowers the General Assembly of the State to authorize the corporate authorities of the City of Orangeburg to levy assessments upon abutting property for the purpose of paying for permanent improvements on streets, on the written consent of a majority of the owners of the abutting property, and on condition that the corporate authorities pay at least one-third of the total cost. Act No. 345 of the General Assembly of 1915 grants to the City of Orangeburg the authority to levy such an assessment upon the same conditions as are contained in the constitutional enactment.

Section 1 of the ordinance of the City Council of Orangeburg, passed under the authority of these enactments, provides inter alia that an assessment be levied upon any property in the city immediately upon the commencing of permanent improvements upon abutting streets, provided that a majority of the abutting property owners consent in writing and that two-thirds of the cost be assessed against them, and one-third be borne by the city. It is further provided that the assessment against the property owner shall be paid in the following manner:

"Each owner of the property so assessed may within thirty days after the completion and acceptance by City Council of such improvement immediately abutting the property of such owner, pay into the city Treasury the full amount of said assessment, or shall have the right * * * in case of the improvement of streets to have such assessment divided into ten equal payments; the first installment thereof shall be due thirty days after the date of the completion and acceptance by City Council of such improvement immediately abutting his property, and the remaining installments shall be due in equal amounts, due respectively in one, two, three, four, five, six, seven, eight and nine years from the date of the first installment, with interest on such installments, from the date of the first installment, at the rate of six per cent per annum, payable annually until paid in full, provided that such owner in either of such cases shall have the right at any time to anticipate any or all of such installments".

Section 2 of the ordinance provides:

"That all assessments hereby levied shall be a lien upon the property so assessed, and payment thereof shall be enforced in the same manner and with the same costs as the collection of the city taxes is now enforced. All such assessments shall be entered in a book to be kept by the City Clerk and Treasurer, which book shall be entitled `Assessment Liens,' and which shall state the name of the owner of the property, its location, the amount of the assessment, the time or times for payment, and the payments made. Such lien shall continue from the date of the entry of the same on such assessment lien book, until five years after the date provided for the final payment, unless sooner paid."

The petition of the abutting owners of the property on which the assessment in suit was levied was filed April 10, 1925. On July 20, 1925, the Southern Railway Company, defendant herein, served notice on the city that it objected to the paving, regarded the assessment as invalid, and would not pay it. The pavement was nevertheless laid and accepted by the city by entry in the assessment book on December 16, 1926. Consequently under Section 2 of the ordinance the laying of the assessment upon the abutting property came into being on that date and continued "until five years after the date provided for final payment, unless sooner paid."

Section 1 of the ordinance provides that each owner of assessed property may within thirty days after the completion and acceptance of the improvement pay the full amount of assessment, or shall have the right to have it divided into ten equal payments, the first to be due thirty days after the completion and acceptance of the improvement and the remaining nine installments to be due in equal amounts annually. In this case the thirty days after the completion and acceptance of the work expired on January 15, 1927, and the due date of the last payment under the installment plan was January 15, 1936. The question for...