Beattie v. City Council of City of Greenville

• Decision Date: 29 March 1920
• Docket Number: 10390.
• Citation: 102 S.E. 751,113 S.C. 541
• Parties: BEATTIE ET AL. v. CITY COUNCIL OF CITY OF GREENVILLE ET AL.
• Court: South Carolina Supreme Court

102 S.E. 751

113 S.C. 541

BEATTIE ET AL. v. CITY COUNCIL OF CITY OF GREENVILLE ET AL.

No. 10390.

Supreme Court of South Carolina

March 29, 1920

Appeal from Common Pleas Circuit Court of Greenville County; T. J Mauldin, Judge.

Action by W. E. Beattie and another against the City Council of City of Greenville and the Board of Fire Commissioners of the City. From judgment for plaintiffs, defendant Fire Commissioners appeal. Affirmed.

The decree of the court below follows:

This action has been brought by the plaintiffs herein, as citizens and taxpayers of the city of Greenville, in behalf of themselves and all other citizens and taxpayers of said city to declare the act under which the defendants, the fire commissioners of said city, claim authority to act, as unconstitutional, upon the grounds set forth in said petition, and to permanently enjoin said board of fire commissioners and the members thereof from attempting to exercise any authority in the matter of purchasing supplies and equipment for the fire department of said city.

Upon the verified petition of the petitioners, Chief Justice Gary issued an order requiring the defendants to show cause before him at Abbeville, S. C., on March 12, 1919, why the prayer of the petition should not be granted. The defendants made return to said rule to show cause, the city of Greenville admitting the allegations of the petition, and joining in the prayer thereof, and upon the hearing of the case Chief Justice Gary granted a temporary injunction until the case could be heard on its merits. Subsequent thereto the defendants the fire commissioners of the city of Greenville amended their return, and asked that the city council of Greenville be also enjoined until the case could be heard upon its merits, and by consent of the attorneys an order was granted by Chief Justice Gary also enjoining the said city council from exercising any control over the fire department or purchasing any supplies and equipment for the fire department until the further order of the court.

The plaintiffs have demurred to the return or answer of the board of fire commissioners "upon the ground that it appears from the face of said answer that it does not constitute a defense to the cause of action set up in the complaint, in that it admits all material facts set up in the complaint and in that the new matter alleged in said answer does not constitute a defense, and it follows that, as a matter of law, the plaintiffs are entitled to the relief demanded," and further that said answer is frivolous and prays for judgment thereon.

The case is therefore before me for a decision of the questions involved. The facts may be stated briefly as follows: The city of Greenville was chartered under an act approved December 22, 1885 (19 St. at Large, p. 106); it being declared in said act that the charter should continue for a period of 21 years and until the end of the next ensuing session of the General Assembly. Section 15 of this act gave the city council full authority to organize, equip, and control the fire department. By an act of February 16, 1903 (24 St. at Large, p. 242), there was created for the city of Greenville a board of fire commissioners, with authority to purchase all material and supplies for the fire department of said city. In February, 1907, after the expiration of the said special charter, the city of Greenville was rechartered under the general law as contained in the Code of Laws of 1912 as a city of more than 5,000 inhabitants. A controversy arose in the early part of 1918 between the city council and the board of fire commissioners as to the purchase of a pumping engine. The fire commissioners recommended the purchase of a La France fire engine, and the city council decided to purchase a Seagrave fire engine. Thereupon a suit was brought by one J. N. Stewart against the city council to enjoin them from purchasing a Seagrave fire engine, and to construe the act of 1903, under which said board of fire commissioners was created. Judge Wilson construed said act, and held that the fire commissioners were vested with full power to purchase equipment and supplies, and enjoined said city council from purchasing the Seagrave fire engine, and based that injunction upon the construction of the statute. The constitutionality of the statute was not raised by the pleadings in the case, and the court in no wise undertook to pass upon the constitutionality of the statute. The defendants the fire commissioners are now contending that the judgment in the case of Stewart against the city of Greenville is res judicata, and that said judgment precludes the plaintiffs herein from making any constitutional objections to the act of 1903 under which said board of fire commissioners was created.

The first question that I shall pass upon is the question of res judicata. It is a familiar principle that, where legal proceedings involve rights claimed under a statute, the court will not consider the question as to whether the statute is constitutional unless such question is clearly made by the pleadings. It necessarily follows, therefore, that no judgment involving merely the construction of a statute will be regarded as determining the constitutionality of the statute. In order that there should be an adjudication touching the constitutionality of a statute, that question must be clearly raised and decided by the court. It is also well settled that a judgment in a case questioning the constitutionality of a statute upon one ground will not adjudicate the question as to whether the statute is unconstitutional upon a different ground. The following authorities sustain these propositions: 23 Cyc. 1230; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195; W. & W. R. R. v. Alsbrook, 146 U.S. 279, 13 S.Ct. 72, 36 L.Ed. 972; Nesbitt v. Riverside Independent District, 144 U.S. 610, 12 S.Ct. 746, 36 L.Ed. 562; Douglass v. County of Pike, 101 U.S. 677, 25 L.Ed. 968; Whaley v. Gaillard, 21 S.C. 575; Hart v. Bates, 17 S.C. 35; Anderson v. Cave, 49 S.C. 505, 27 S.E. 478; State v. Tucker, 56 S.C. 516, 35 S.E. 215; Ex parte Florence School, 43 S.C. 15, 20 S.E. 794; State v. Cain, 78 S.C. 352, 58 S.E. 937; Cannon v. Cox, 98 S.C. 185, 82 S.E. 399; Kirven v. V. C. Chem. Co., 77 S.E. 493, 58 S.E. 424; Id., 215 U.S. 252, 30 S.Ct. 78, 54 L.Ed. 179; Board of Commissioners v. Union Bank, 37 C. C. A. 493, 96 F. 293; Board of Commissioners v. Sutliff, 38 C. C. A 167, 97 F. 270.

In State v. Tucker, supra, quoting from the syllabus, it is held: "An adjudication in one appeal of one constitutional objection to a statute does not preclude the same party from making another constitutional objection to the same statute on a subsequent appeal."

"A judgment on a different cause of action is not res judicata in a subsequent action where the issues involved in the second action were not necessarily involved, and were not actually litigated, in the first action." Cannon v. Cox, supra. To the same effect, see Whaley v. Gaillard, supra.

In the case of Ex parte Florence School, supra, it was held the court will never "pass upon the constitutionality of an act of the Legislature * * * unless it is necessary to the determination of the case in which such a question is presented."

Judge Wilson, in the case of Stewart v. City Council, did not attempt to pass upon the constitutionality of the act of 1903, which was before him, for the question of the constitutionality of the act was not necessarily involved. It was merely a question under the provisions of the act as to who had the power to purchase the equipment for the fire department. The constitutionality of the act not having been raised or decided in the Stewart case, I am of the opinion that the judgment of Judge Wilson is not res judicata as to the questions raised in this case.

The other question to be determined is as to whether the act of February 16, 1903, under which the board of fire commissioners of the city of Greenville was created, contravenes section 1 of article 8 of the Constitution of 1895, which is as follows: "The General Assembly shall provide by general laws for the organization and classification of municipal corporations. The powers of each class shall be defined so that no such corporation shall have any powers or be subject to any restrictions other than all corporations of the same class. Cities and towns now existing under special charters may reorganize under the general laws of the state, and when so reorganized their special charters shall cease and determine."

The statute in question applies only to Greenville, and the restrictions therein put upon Greenville are not placed upon other municipal corporations in the same class, which is plainly violative of the Constitution as special legislation. Carroll v. Town of York, 109 S.C. 1, 95 S.E. 121; Paris Mt. Water Co. v. City of Greenville, 105 S.C. 180, 89 S.E. 669. By the express terms of the Constitution, the special charter of the city of Greenville ceased and determined upon its reorganization under the general laws. The city of Greenville was organized as a city of more than 5,000 inhabitants under article 3 of the Code of Laws, § 2924 et seq.

Article 4 of the Code of Laws contains provisions common to all cities and towns containing more than one thousand inhabitants. By section 2952 of the Code of Laws it is provided: "The said [city] council shall have power and authority to equip and control a fire department for the protection of said city in such way as they may deem necessary." It is manifest that by the Constitution it was intended that the cities organized under the Constitution and laws passed in pursuance thereof should possess only those powers and be subject to those restrictions applicable...