Ashmore v. Greater Greenville Sewer Dist.

• Decision Date: 28 August 1947
• Docket Number: 15982.
• Citation: 44 S.E.2d 88,211 S.C. 77
• Parties: ASHMORE et al. v. GREATER GREENVILLE SEWER DIST. et al.
• Court: South Carolina Supreme Court

44 S.E.2d 88

211 S.C. 77

ASHMORE et al. v. GREATER GREENVILLE SEWER DIST. et al.

No. 15982.

Supreme Court of South Carolina

August 28, 1947

[Copyrighted Material Omitted]

John Bolt Culbertson, of Greenville, for appellants.

J. Wilbur Hicks, of Greenville, and Huger Sinkler of Charleston, for respondents.

STUKES Justice.

There was approved June 3, 1940, 41 Stat. 2510, an Act of the General Assembly, No. 1210, entitled as follows 'An Act to provide for the Erection, Control and Use of an Auditorium and Community Center for Greater Greenville Sewer District in Greenville County, to Appoint a Board of Trustees Therefor, to Provide for the Issue of Bonds for Greater Greenville Sewer District not to Exceed Three [Hundred] Thousand ($300,000.00) Dollars, to Submit this Question to the Qualified Electors of said Greater Greenville Sewer District and to Levy a Tax to Retire and Bonds Hereby Issued.'

History of the creation of Greater Greenville Sewer District is conveniently found in the opinion in the case in this Court of Rutledge v. Greater Greenville Sewer Dist. et al., 139 S.C. 188, 137 S.E. 597.

It will be seen by reference to the published Act of 1940 that it undertook to establish a Board of Trustees for the erection, maintenance and management of an auditorium for the use of the people of the District, which Board should be composed as follows:

'The Board of Trustees shall consist of ten members and be composed as follows: (a) L. E. Brookshire, a representative of labor, whose successor shall be elected by the Greenville County Legislative Delegation, Senator from Greenville County in the State Senate, the Mayor of the City of Greenville, the Chairman of the County Board of Commissioners for Greenville County, the President of the Kiwanis Club, the President of the Rotary Club, the President of the Lions Club, the President of the Exchange Club and the President of the Chamber of Commerce for the City of Greenville, all of whom except the first named shall become members of this Board of Trustees by reason of the office they hold and shall remain on the Board of Trustees so long as they hold their respective offices, and their successors in office shall immediately become members of the Board of Trustees upon qualifying for their respective offices; (b) one member of the Greenville County Delegation who shall be elected by the said Delegation and who shall remain on the said Board of Trustees so long as he is a member of the said Delegation.'

It was provided in section 3 that the auditorium should serve for all public meetings and, quoting, 'educational rallies, philanthropic, charitable and community betterment assemblies, and it shall serve as the headquarters for all public welfare activities for Greenville County.' Other sections authorized the County Board of Commissioners of Greenville County to order an election, upon the request of the Board of Trustees, in the Sewer District on the day of the first Democratic Primary in August 1940, wherein the qualified electors of the Sewer District should vote upon the question of the issuance of coupon bonds in the amount of $300,000 and upon the favorable result of the election the County Commissioners should advertise and sell bonds upon terms and maturities within their discretion, at interest not exceeding six per cent. per annum, and the proceeds of the sale should be deposited with the County Treasurer and paid out on order of the County Commissioners for the stated purposes. The bonds should be obligations of Greater Greenville Sewer District and, quoting, 'the full faith, credit and taxing power' of the District was irrevocably pledged for the payment of the bond principal and interest. Finally, a survey of the District was provided for the determination and marking of its boundaries, the cost thereof to be paid from the proceeds of the sale of the bonds.

The election was held and resulted in a majority in favor of the issuance of the bonds. There were contests before the County Board of Canvassers and the State Board, but they were dismissed and the declared result of the election was confirmed.

This action for injunction was commenced on October 25, 1941, by J. D. Ashmore, as petitioner or plaintiff, who was later joined by additional plaintiffs who were represented by other counsel. This counsel later became ill and died, which accounts in part for the great delay in the litigation.

Numerous grounds of constitutional and other attack were made by the plaintiffs, all of which were overruled by the Master, to whom the case was referred, and by the trial Judge who heard and dismissed the exceptions to the Master's report, the latter by decree dated August 17, 1946. This appeal followed.

Meanwhile during the progress of the action two pertinent acts were passed by the General Assembly at its 1945 session, the first published being No. 332, approved May 7, 1945, 44 Stat. 956, the intent of which was to validate the creation of the territory of Greater Greenville Sewer District into a body corporate and politic for the purpose of the erection and maintenance of the auditorium and community center; to validate the bond election and declare the bonds obligations of the Auditorium District; to levy taxes for payment of the principal and interest of the bonds and operate the auditorium; and to validate all appointments to the governing Board of Trustees. The terms of the act are appropriate to accomplish the purposes which we have stated from the title. The election is referred to as having authorized the creation of the District and the issuance of the bonds for the purpose of purchasing a site, erecting and equipping the auditorium for the purposes stated in Section 2 of the Act; and provided that the bonds when issued shall constitute legal obligations of the District, both as to principal and interest, and the prior proceedings looking to the issuance of the bonds were expressly validated, ratified and confirmed.

There follows in Section 3 of this first Act of 1945 the following with reference to the composition of the Board of Trustees of the Auditorium District:

'That any and all appointments to the board of trustees created by the said Act hereinabove referred to, be and the same hereby are validated, ratified, confirmed, approved and declared legal in all respects and Messrs. L. E. Brookshire, a representative of labor, the Senator from Greenville County in the State Senate, Ben T. Leppard, and his successor, Ray R. Williams, the Mayor of the City of Greenville, C. Fred McCullough, the Chairman of the County Board of Commissioners for Greenville County, R. A. Jolley, the president of the Kiwanis Club, George Ross, and his successor, Dupre Rhame, the president of the Rotary Club, Frank G. Hamblen, the president of the Lions Club, Herbert H. Provence, the president of the Exchange Club, Robert R. Scales, Jr., the president of the Chamber of Commerce for the City of Greenville, G. Heyward Mahon, Jr., and the member of the Greenville County Delegation elected by said Delegation, Charles Verner, and the successor of any or all of them, are declared, the former members to have been, and their successors to be the duly qualified and acting members of the Board of Trustees of the Greenville Auditorium and Community Center, with all the rights, powers and duties granted into the Board of Trustees of the Greenville Auditorium and Community Center by Act No. 1210 of the Acts of the Legislature of the State of South Carolina of the year 1940 and Acts supplemental thereto and amendatory thereof.'

The subsequently published Act of 1945, also approved May 7, but is No. 333, 44 Stat. 958, was in part for the purpose of amending the original Act of 1940 by substituting in Section 1 the following provision relating to the composition of the Board of Trustees:

'The Board of Trustees shall consist of thirteen (13) members and be composed as follows: (a) The Senator from Greenville County in the State Senate; a member of the House of Representatives from Greenville County Delegation who shall be elected by the Delegation and shall serve for the term specified by the Delegation; (b) L. E. Brookshire, a representative of organized labor who has heretofore acted by virtue of authority of this Act and shall continue to act until his successor has been selected and has qualified, as herein authorized. Immediately after the approval of this Act, the Greenville Trades and Labor Council shall select a representative to succeed L. E. Brookshire, and such representative shall serve for a period of three years, and succeeding representatives shall be so selected for a like period thereafter; (c) The Mayor of the City of Greenville the Chairman of the County Board of Commissioners for Greenville County; and (d) A representative of each of the following organizations of the City of Greenville, each of which shall elect its own representative and the first representative so elected shall serve for the terms named: The Lions Club whose first representative shall serve for a period of three years; the Kiwanis Club whose first representative shall serve for a period of three years; the Rotary Club whose first representative shall serve for a period of three years, the Exchange Club whose first representative shall serve for a period of two years; the Optimist Club whose first representative shall serve for a period of two years, The Altruso Club whose first representative shall serve for a period of two years, The American Legion Post whose first representative shall serve for a period of one year, and the Chamber of Commerce of the City of Greenville whose first representative shall serve for a period of one year. After the expiration of the first term, all such...