Beatty v. Wittekamp

• Decision Date: 24 November 1933
• Docket Number: 13722.
• Parties: BEATTY v. WITTEKAMP et al.
• Court: South Carolina Supreme Court

172 S.E. 122

171 S.C. 326

BEATTY v. WITTEKAMP et al.

No. 13722.

Supreme Court of South Carolina

November 24, 1933

Appeal from Common Pleas Circuit Court of Greenville County; Hayne F. Rice, Judge.

Suit by Anna M. Beatty against Mattie Florine Wittekamp and others. From a decree for plaintiff, the City of Greenville appeals.

Reversed and remanded.

The judge's decree and master's report directed to be reported follow:

Judge's Decree.

The above-stated cause is an ordinary action for the foreclosure of a mortgage, on a certain lot of land in the city of Greenville. The city was made a party because it claimed a first lien on the lot in question due it as a result of assessments levied to pay the cost of one-half of some paving done on the streets and sidewalks on which the said lot abutted.

In its answer, the city set up its lien, claiming it to be a first lien, and also pleading estoppel against the plaintiff. The issues both of law and fact were submitted to the master for said county, and at the fall, 1931, term of court for the county of Greenville the matters involved came before me on exceptions to the report of the master.

The main points in the case are: (1) Do the assessments levied by the city constitute a lien on the land in question? (2) Is such lien, if any, superior in rank to that of a mortgage already on the property at the time the city's lien became effective? (3) Is the plaintiff estopped from denying that the city has a first lien on the lot covered by the mortgage?

In his report the master sustains all of the contentions of the city and decides all of above-mentioned points in its favor. These findings of the master are all vigorously assailed by the attorneys for the plaintiff, and also by several other attorneys who have been allowed to file arguments by reason of the fact that each of them have clients who are in a situation similar to that of the mortgagee in this case.

It seems to me that it is now well settled in this state that without statutory authority, assessments such as that now in question would be no lien on the lot now under consideration. This was the ruling in the second case of Mauldin v. City of Greenville, 53 S.C. 293, 31 S.E. 252, 43 L. R. A 101, 69 Am. St. Rep. 855. Soon after the said ruling the city took steps to have the Constitution amended, and this was done, and the same amendment now appears as article 10, § 14. I omitted to state above that the Supreme Court held, in the Mauldin Case, that an assessment such as that in question was an undue burden on the property owners, and therefore was unconstitutional. The amendment cured this defect. The amendment was effective in 1911, and the enabling act was passed by the Legislature the same year.

The amendment merely states that certain cities named in such amendment, among them the city of Greenville, may be authorized by the General Assembly to levy an assessment on abutting property owners for the purpose of paying for permanent improvements on streets and sidewalks immediately abutting such property, the city to pay for one half the cost and the property owners the other half, and further providing that, before this can be done, a petition signed by not less than two-thirds of the property owners affected must be filed with the city council. However, no lien is provided in the amendment.

Those portions of the Act of Feb. 17, 1911 (27 St. at Large, pp 23, 24, §§ 1, 3) pertinent to our inquiries are as follows:

"Section 1. Be it enacted by the General Assembly of the State of South Carolina, That the cities of Columbia and Greenville and the town of Manning are authorized to provide by ordinance for the payment of the cost of the permanent improvement of their streets and sidewalks, by laying upon the owners of property immediately abutting on the streets and sidewalks so improved an assessment in proportion to the frontage only of such property on said streets or sidewalks, or parts thereof, so improved, of not exceeding in the aggregate one-half of the cost of such improvements: Provided, That no assessment shall be so laid upon the abutting property owners until such improvements have been ordered pursuant to such ordinance upon the written consent, signed and filed with the Clerk of Council, of two-thirds in number of the owners of the property abutting upon the street, sidewalk, or part of either proposed to be improved, and provision made for the payment out of the city or town treasury of not less than one-half of the costs of such improvement. Times and terms of payment and rates of interest on deferred payments of assessments by lot owners may be agreed upon as prescribed by ordinance.

"Sec. 3. That the assessments so laid shall constitute a lien upon the property so assessed, and payment thereof may be enforced as are the payment of city or town taxes: Provided, Such assessments be entered in a book kept by the city or town clerk, to be entitled 'Assessment Liens,' stating the name of the owner, the location of the property and the amount of the assessment and the time or times of payment: And provided, further, That such lien shall continue from the date of entry on such book until the expiration of five years from the date when final payment is due and payable, unless sooner paid."

Under the provisions of the above act the city proceeded, until in 1929 it decided to adopt the "Oklahoma Plan," which casts upon the owners of the property abutting upon the portions of the street or sidewalk desired to be improved the entire cost of same. But, in order to do this, another amendment to the Constitution was necessary, and this was had in 1929, and appears in the present Constitution as a proviso to the amendment of 1911, as follows:

"Provided, further, That the City of Greenville may be authorized, upon the written consent of the owners of two-thirds (2/3) of the frontage of the property abutting upon the street, roadway, alleyway, sidewalk or part of either, proposed to be improved, to levy an assessment upon the abutting property for the entire cost of such improvements, including lateral pipe lines; the corporate authorities, however, to pay the cost of improving the intersection of any such streets, roadways, alleyways or sidewalks: Provided, further, That said City of Greenville may be authorized and empowered without the necessity of an election to issue improvement certificates or bonds in an amount not exceeding the aggregate amount of the cost of such improvements, pledging the assessments as security therefor, and such certificates or bonds shall not be deemed a part of the bonded indebtedness within the meaning of the constitutional limitation: Provided, further, Said City of Greenville may, at its option, assess only a portion of the cost against abutting property owner, itself paying the remainder."

The act ratifying the last-mentioned amendment was passed and became law on February 11, 1929 (36 St. at Large, p. 39), but the enabling act was signed by the Governor March 25, 1930 (36 St. at Large, p. 1179), and became law on that date.

The enabling act just mentioned followed almost precisely the 1929 amendment, and it is not necessary therefore to set it out in full at this point.

The mortgage which the plaintiff is now seeking to foreclose is dated June 8, 1929, and was properly placed on the records of Greenville county three days later.

The appellants strenuously contend that the city has no lien for two main reasons, to wit, that the act of 1930 repealed the act of 1911, and again that there is no constitutional authority for the creation of a lien by the act of 1911, and none in the later amendment of 1929.

With this view I do not agree. The act of 1930 simply repeals all acts and parts of acts inconsistent with its provisions. The question then arises, Is the creation and retention of the lien in the 1911 act at variance or in conflict with any of the provisions of the act of 1930? With this question in mind I have examined and studied them both, and I must answer in the negative. A provision so important in an act of the Legislature as this is should not be held to be repealed by a subsequent act unless the clear intention of the Legislature to do so appears.

It seems to me that, in order to construe the act of 1930, and ascertain the intention of the Legislature, we must study, not only the constitutional amendment of 1929, but also the amendment of 1911, and the act passed the same year, commonly called the enabling act. This I have done, and my conclusion is, after considerable study, that the intention as manifested in the provisions of the 1930 act was to retain the lien for the city, but that the abutting property has a lien on it for the full amount of the improvements, with some exceptions noted in the act. There are, of course, other differences in the act which I do not think affect the question at issue.

As to the contention that the city has no lien because the constitution did not confer that power on the Legislature, my view is that all powers not parted with by the people of the state by constitutional provision are still retained by them, and may be exercised by them through the General Assembly of the state. That which is prohibited by the Constitution cannot be authorized by the Legislature but, if not prohibited by the Constitution, then, generally speaking, the Legislature may authorize it. See 3 A. & E. Ency. L. p. 689. The exact point now under discussion has never been passed upon by our Supreme Court, and it also appears never before to have been doubted that the Legislature has the power to create a lien, and also to fix the priority of liens. Even taxes were never a lien until made so by legislative enactment. See Charleston...