City of Orangeburg v. Southern Ry. Co.

• Decision Date: 07 February 1944
• Docket Number: No. 454.,454.
• Citation: 55 F. Supp. 167
• Court: U.S. District Court — District of South Carolina
• Parties: CITY OF ORANGEBURG v. SOUTHERN RY. CO.

55 F. Supp. 167

CITY OF ORANGEBURG v. SOUTHERN RY. CO.

No. 454.

District Court, E. D. South Carolina, Orangeburg Division.

February 7, 1944.

Hugo S. Sims, of Orangeburg, S. C., for plaintiff.

Frank G. Tompkins, of Columbia, S. C., and Adam H. Moss, of Orangeburg, S. C., for defendant.

WARING, District Judge.

This is an action brought by The City of Orangeburg against the Southern Railway Company to foreclose an assessment lien for street improvements. The case was originally instituted in the Court of Common Pleas for Orangeburg County, South Carolina, and was removed to the federal court. A jurisdictional question arose and this court, by an opinion and decree dated June 25, 1942, retained jurisdiction of the cause, 45 F.Supp. 734. An appeal from this decision was affirmed by the Circuit Court of Appeals for the Fourth Circuit, 134 F.2d 890.

The cause having been remanded to this court was set for trial.

The complaint alleges street improvement liens against certain property held by the Southern Railway Company assessed by The City of Orangeburg, under authority of the Constitution and Statutes of the State of South Carolina. The defendant by its answer set up various defenses. The second defense is as follows:

"For a Second Defense

"That if any valid assessments were ever levied against the property mentioned and described in the complaint, the said assessments became due and payable on the 15th day of January, 1927, and constituted a lien on the said property for a period of five years, at the expiration of which time, to-wit, January 15, 1932, or thereafter and prior to the institution of this action, the said lien expired, and plaintiff now has no interest in or claim upon the real estate mentioned and described in its complaint for any street improvement assessments."

The Constitution of South Carolina, Article X, Section 16, authorizes the City of Orangeburg, South Carolina, to levy an assessment upon abutting property for the purpose of paying for permanent improvements; and an Enabling Act (March 11, 1915, 29 St. at Large, page 586), in substantially the same language was adopted by the General Assembly and under the authority of these the City of Orangeburg adopted an ordinance providing the method of levying assessments for improving streets and sidewalks. Under this ordinance abutting property was to be assessed for permanent street improvements upon certain action being taken by a majority of the abutting owners and the corporate authorities. Whether all of these requirements were properly complied with are matters not now under consideration.

The parties to this cause, after due notice, appeared before me for the purpose of presenting the sole issue raised by the above-quoted portion of the answer. They agreed that if the City of Orangeburg had lost its lien and the court should so find, that it would be useless labor and expense to go into the other allegations and defenses, as the trial of these issues would probably require the attendance of a number of witnesses and the presentation of considerable data as to the location and value of the lands and various other matters in connection therewith. In my opinion this request was reasonable and I, therefore, had a special hearing upon the sole issue of the defense set up in the above-quoted Second Defense. If the defense be good the complaint should be dismissed. If it be not good it should be stricken from the answer.

The facts on which this defense is based are not in dispute and the question is the construction of the laws and ordinances governing these assessments so as to determine whether the assessments are barred by lapse of time. I quote the pertinent parts of the ordinance from Section 1:

"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 sidewalks to have such assessments divided into five equal payments; the first installment thereof shall be due thirty days after the date of 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 and four years from the date of the first installment, with interest on all of such installments from the date of the first installment at the rate of six per cent per annum, payable annually until paid in full, and 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. And the City Council shall provide for the payment out of the City Treasury in the case of the improvement of streets of one third of the cost of the proposed improvement, and in the case of the improvement of sidewalks one-half of the cost of the proposed improvement."

Section 2 of the ordinance provides that the assessments shall be a lien upon the property so assessed and shall be entered in an appropriate book, and further provides:

"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 questions now to be decided are, what is meant by the foregoing language, and when did the assessments fall due and when the lien expired?

The attorneys for the respective parties appeared, filed briefs and fully argued the case before me. In the construction of the ordinance, statute and Constitution, governing these paving assessment liens, we, of course, must look to the construction and law as laid down by the courts of South Carolina. The leading case on this subject is Town of Cheraw v. Turnage, 184 S.C. 76, 191 S.E. 831. The plaintiff contends that this case governs the instant one and relies upon it. The defendant, on the other hand, claims that the Orangeburg ordinance more nearly resembles a paving ordinance of the City of Spartanburg, South Carolina, which has been referred to and passed upon in the cases of Cleveland v. City of Spartanburg, 185 S.C. 373, 194 S.E. 128, and Blake v. City of Spartanburg, 185 S.C. 398, 194 S.E. 124, 125, 114 A.L.R. 395.

It will be noted that in the Orangeburg ordinance it is provided that the owner "may" within thirty days after the completion and acceptance of the improvement pay into the City Treasury the full amount of the assessment, "or" shall have the right to have such assessment divided into ten equal payments. The ordinance is covering two classes of street improvements, namely, the roadway (called street in the ordinance), and the sidewalk and it is quite apparent from a reading of it that when the ordinance further says that the owner "in either of such cases" shall have the right to anticipate any or all of the installments it is referring to the two classifications of sidewalks and roadways.

Under the terms of the Constitution and Enabling Act the City of Orangeburg has full power to provide by ordinance for the terms and methods of payment, and,...