Lamar v. Croft

Decision Date06 March 1906
Citation53 S.E. 540,73 S.C. 407
PartiesLAMAR et al. v. CROFT et al., County Com'rs.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Aiken County; Aldrich Judge.

Action by B. D. Lamar and others against T. G. Croft and others county commissioners. From an order granting a temporary injunction, defendants H. M. Cassels and Luther W. Reese appeal. Reversed.

George T. Jackson, for appellants. Hendersons, Davis, Gunter & Gyles, Sawyer & Owens, T. R. Morgan, Rice & Johnson, for respondents.

GARY A. J.

This is an appeal from an interlocutory order of injunction. The complaint alleges that during the year 1903, the Governor upon petition filed in his office, ordered an election to be held in portions of the counties of Aiken, Edgefield, and Barnwell for the formation of a proposed new county, which was denominated to be the county of Hammond. That said election was held on the 15th of December, 1903, and resulted in the defeat of the proposed new county. That in 1905, and within four years from the date of said election, the same promoters of the proposed county of Hammond, filed in the office of the Governor, a petition for the formation of a new county from portions of Aiken and Edgefield counties, with the proposed name of Heyward. That the territory in the proposed counties of Hammond and Heyward is substantially and practically the same. That the Governor has appointed the defendants as commissioners who are about to engage upon the discharge of their duties in making contracts with surveyors, which will result in the unlawful expenditure of the funds of the counties. His honor, the circuit judge, issued a rule against the defendants to show cause why a temporary injunction should not be granted. The defendants made return to the rule to show cause, based upon the pleadings and affidavits.

The defendants Cassels and Reese interposed a demurrer to the complaint on grounds that will be hereinafter stated. The circuit judge overruled the demurrer, and in his order thus states his reasons for granting the temporary injunction "I have no hesitation in holding that the complaint states facts sufficient to constitute a cause of action, on the equity side of the court. *** The contention of the plaintiffs is, that the county now proposed to be formed by the name of Heyward is substantially, essentially and practically the same county as was the proposed county of Hammond, which was defeated by an election before the people in December, 1903, and that the effort on the part of the promoters of the said proposed county of Heyward, is inimical to the second section of the 7th article of the Constitution of South Carolina of 1895, which contains the express provision that 'an election upon the question of forming the proposed new county shall not be held oftener than once in four years.' The contention on the part of the defendants Cassels and Reese in their answer, is that the proposed county of Heyward is not the same as the formerly proposed county of Hammond. In the case of Riley v. Union Station Co., 67 S.C. 93, 45 S.E. 149, our Supreme Court, following the case of Cudd v. Calvert, 54 S.C. 457, 32 S.E. 503, decides that where the action is brought solely for the purpose of obtaining an injunction, and where, if the facts alleged in the complaint are found to be true, the proper case for injunction would be presented, it would be error to dissolve a temporary injunction upon a mere motion heard upon affidavits, as that would deprive the plaintiff of his right to have the facts determined in the mode prescribed by law, instead of by affidavits, a most unsatisfactory mode of eliciting proof. The prayer in the complaint of these plaintiffs is simply for injunction, and the allegations of the complaint as sustained by the exhibits and affidavit connected therewith show that they are entitled to the relief which they ask, nor in my judgment does the denial in the answer and the affidavit presented with it, effect sufficiently the case made by the plaintiff to authorize me in denying the preservation by this court of the status quo of this controversy until the matter can be finally determined by the court in the proper way, as it may seem to the presiding judge who shall finally hear the cause. If the defendants under the act of 1905, the constitutionality of which is not questioned, are proceeding to take steps looking towards the establishment of a new county, which...

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5 cases
  • Robinson v. McCown
    • United States
    • South Carolina Supreme Court
    • 12 Abril 1916
    ... ... The statute is ... merely directory, and the action of the Governor in this ... respect is not subject to review by the courts. Lamar v ... Croft, 73 S.C. 407, 53 S.E. 540; Fraser v ... James, 65 S.C. 78, 43 S.E. 292; State v. Board of ... Registration, 87 S.C. 474, 70 ... ...
  • Rentz v. Crosby
    • United States
    • South Carolina Supreme Court
    • 7 Enero 1918
  • Parler v. Fogle
    • United States
    • South Carolina Supreme Court
    • 14 Diciembre 1907
    ... ... county were laid down in the petition with sufficient ... definiteness was for the governor to determine. Lamar v ... Croft, 73 S.C. 407, 53 S.E. 540; Reese v. Ansel, ... Governor, 58 S.E. 933. So also it was within the ... discretion of the Governor to ... ...
  • State v. Blease
    • United States
    • South Carolina Supreme Court
    • 11 Diciembre 1913
    ... ... careful consideration of the petition herein, we are ... satisfied that a prima facie case is not made out under the ... authority of Lamar ... satisfied that a prima facie case is not made out under the ... authority of Lamar v. Croft ... ...
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