Bellamy v. Johnson

• Court: South Carolina Supreme Court
• Writing for the Court: S. Watson Dawes, Ocean Beach Drive, John C. Thompson, Conway; STUKES
• Citation: Bellamy v. Johnson, 107 S.E.2d 33, 234 S.C. 172 (S.C. 1959)
• Decision Date: 16 February 1959
• Docket Number: No. 17504,17504
• Parties: H. P. BELLAMY et al., Appellants, v. Gurley JOHNSON, Mayor, et al., Respondents.

Page 33

107 S.E.2d 33

234 S.C. 172

H. P. BELLAMY et al., Appellants, v. Gurley JOHNSON, Mayor, et al., Respondents.

No. 17504.

Supreme Court of South Carolina.

Feb. 16, 1959.

H. T. Abbott, Conway, for appellants.

S. Watson Dawes, Ocean Beach Drive, John C. Thompson, Conway, J. M. Long, Jr., Myrtle Beach, for respondents.

STUKES, Chief Justice.

This is an appeal from a judgment which upheld proceedings for the annexation of adjoining territory to the municipality of Ocean Drive Beach in Horry County. Sec. 47-11 et seq., Code of 1952. The former incorporated area consists of about one and one-half square miles while the area proposed to be annexed is about three and one-half square miles, much of it farm land and much undeveloped. The required election resulted favorably in both the municipality and in the area proposed to be annexed.

There are many questions on appeal, one being the contention that the annexation is unnecessary, unreasonable and without benefit and, therefore, invalid. We cannot so hold upon the evidence which was adduced. It is rare that a court will intervene upon the stated ground. 62 C.J.S. Municipal Corporations § 64 b, p. 171 et seq.; 37 Am.Jur. 646, Municipal Corporations, Sec. 29; Annotation, 64 A.L.R. 1335; Harrell v. City of Columbia, 216 S.C. 346, 58 S.E.2d 91.

Appellants also contend that an insufficient number of freeholders signed the petition and that there were other irregularities in the proceedings. We deem it unnecessary to consider these contentions because there was another irregularity, to which we shall advert, which we think should be held to have voided the election; and the long lapse of time (almost three years) pending the litigation has rendered the proceedings stale. They will have to be commenced and completed again if the annexation is to be legally accomplished, and will doubtless be done with more care.

The fatal irregularity to which we have referred is that upon the ballot used in the election there appeared the following:

'Stipulation

'It is hereby stipulated and agreed by and between the Town of Ocean Drive Beach and the above described territory that if the above described territory is included in the Town of Ocean Drive Beach that the Town of Ocean Drive Beach shall pass an Ordinance exempting all parcels of undeveloped real estate in excess of ten (10) acres owned by any person or persons from taxation until such property is developed or divided into lots.'

The record does not contain any history or explanation of the foregoing; none of the testimony relates to it. Only the order of the County Commissioners of Elections and the specimen ballot, which were exhibits, contain it. It was said in the decree of the lower court that the basis of it was Act No. 886 of the General Assembly of 1956, 49 Stat. 2140, which follows: 'The governing body of the Town of Ocean Drive Beach in Horry County may by ordinance exempt from municipal taxation any property, the exemption of which is not prohibited by the Constitution of this State.' Although alleged in the answer, there is no evidence that the 'governing body' ever took any implemental action, so we need not examine the validity of such, if it was taken, and we express no opinion thereabout. It is axiomatic that decision upon the constitutionality of legislative action will be avoided if it is unnecessary to the disposition of the case at hand; and here it is not necessary to the issue presented because, on the trial record which is before us, the stipulation was simply an empty promise.

Under the stated circumstances the ballot was misleading, to say the least. It was unfairly calculated to induce favorable votes by freeholders who were residents in the area proposed to be annexed.

A similar situation arose in Beck v. City of Cincinnati, 1955, 162 Ohio St. 473, 124 N.E.2d 120. There the election was upon a proposed tax levy and there was the following statement on the ballot: 'If levy passes, there will be no city income tax in 1955 or 1956.' It was held to have invalidated the election. We quote...