Berry v. Milliken

• Citation: 109 S.E.2d 354,234 S.C. 518
• Decision Date: 11 June 1959
• Docket Number: No. 17545,17545
• Parties: C. S. BERRY and A. J. White, for the benefit of themselves and other similarly situated taxpayers of Spartanburg and Greenville Counties, Petitioners, v. Roger MILLIKEN, L. A. Odom, S. J. Workman, Hugh Aiken, W. T. Adams and John Ratterree, individually and as Commissioners of the Greenville-Spartanburg Airport District, and the Greenville-Spartanburg Airport District, a body corporate, Respondents.
• Court: United States State Supreme Court of South Carolina

Page 354

109 S.E.2d 354

234 S.C. 518

C. S. BERRY and A. J. White, for the benefit of themselves and other similarly situated taxpayers of Spartanburg and Greenville Counties, Petitioners, v. Roger MILLIKEN, L. A. Odom, S. J. Workman, Hugh Aiken, W. T Adams and John Ratterree, individually and as Commissioners of the Greenville-Spartanburg Airport District, and the Greenville-Spartanburg Airport District, a body corporate Respondents.

No. 17545.

Supreme Court of South Carolina.

June 11, 1959.

Rufus M. Ward, Spartanburg, Ray R. Williams, Greenville, for petitioners.

Kerr & Evins, Spartanburg, Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for respondent.

OXNER, Justice.

In this action, which we permitted to be brought in the original jurisdiction of this Court, the parties seek a determination of the validity of Act No. 99 of the 1959 Acts of the General Assembly, 51 St. at L. p. 101, creating the Greenville-Spartanburg Airport District and if found to be valid, the restrictions applicable to any bonded indebtedness which may be incurred.

The Act creates a political subdivision to be known as 'The Greenville-Spartanburg Airport District', extending over the entire area embraced by the counties of Greenville and Sprantburg, for the purpose of establishing and maintaining an airport and air navigation facilities to serve the people of the district and the public generally. The corporate powers and duties are to be exercised by a Commission appointed by the Governor. For the purpose of defraying the cost of constructing and establishing such airport facility, the Commission is authorized to issue general obligation bonds in an amount not exceeding six million dollars, or such lesser amount as might be required after giving regard to any State or Federal funds that might be received for this purpose. Said bonds, together with interest thereon, are to be paid by an ad valorem tax on all property in the district to be annually levied by the Comptroller General, collected by the County Treasurers of Greenville and Spartanburg Counties and paid by them to the State Treasurer, who is required to set said taxes apart in a special fund and apply them to the payment of said bonded indebtedness. The Commission is also authorized to issue notes or bonds payable solely from the revenue derived from any facilities in its charge for the purpose of improving and maintaining said airport.

The first contention made by petitioners is that the Act is special legislation of the sort prohibited by Section 34 of Article III of the Constitution. They say the 'Uniform Airports Act' enacted in 1937, 40 St. at L. 466, now comprising with amendments, Sections 2-101 through 2-120 of the 1952 Code, is applicable and shows that the subject is reasonably susceptible of general treatment. It is of interest to note that the General Assembly has subsequently made special rpovisions with reference to airports in various counties, thus indicating the opinion of the Legislature that a general act could not apply to all situations in this field of legislation. The Uniform Airports Act authorizes municipalities, counties or other political subdivisions, separately or jointly, to establish and maintain airports but provides that no county shall exercise the authority thereby conferred coutside of its geographical limits except in an adjoining county and this only jointly with such adjoining county'. In its enactment here the General Assembly determined that it would not be feasible for the airport under consideration to be operated jointly by Spartanburg and Greenville Counties and that it would be necessary to create an airport district embracing this area with powers more comprehensive than those contained in the general act. The territory involved constitutes the most thickly populated and most highly industrialized part of South Carolina. It can readily be seen that an airport of this size might require treatment different from one in a smaller county. The determination of the question as to whether a general law can be made applicable in a particular situation is, in the ultimate analysis, a decision for this Court as the final arbiter of the meaning of the State Constitution. We had occasion recently in Mills Mill v. Hawkins, 232 S.C. 515, 103 S.E.2d 14, to review our decisions upholding the validity of legislation creating special purpose districts. It is clear from these authorities that the Act under consideration does not violate the inhibition against a special law where a general law can be made applicable.

It is next contended that the General Assembly may not create a special airport district and empower it to issue general obligation bonds.

It is well settled under a long line of decisions originating in the Court's holding in 1915 in the case of Illard v. Melton, 103 S.C. 10, 87 S.E. 421, 428, and including the relatively recent decision of Ashmore v. Greater Greenville Sewer District, 211 S.C. 77, 44 S.E.2d 88, 173 A.L.R. 397, that the Legislature is empowered to carve out a district from a territory of the State for the accomplishment of some public purpose. Circuit Judge Mendal Smith, in writing the majority opinion for the en banc Court, quoted approvingly in the Lillard case from Dillon on Municipal Corporations as follows:

'It must now be conceded that the great weight of authority denies in toto the existence, in the absence of special constitutional provisions, of any inherent right of local self-government which is beyond legislative control. The Supreme Court of the United States has declared that a 'municipal corporation, in the exercise of all its duties, including those most strictly local or internal, is but a department of the state. The Legislature may give it (political units) all the powers such a being is capable of receiving, making it a miniature state within its locality; or it may strip it of every power, leaving it a corporation in name only; and in may create and recreate these changes as often as it chooses, or it may itself exercise directly within the locality any or all the powers usually committed to a municipality. * * *"

And as noted in our decision in the Ashmore case, the express references to 'other subdivisions' in Article X, § 6 of the Constitution indicate that no attempt was made in the present South Carolina Constitution to restrict the plenary power of the Legislature in so far as the creation of special purpose districts were concerned. We held in Evatte v. Cass, 217 S.C. 62, 59 S.E.2d 638, that the expenditure of public funds for the establishment, improvement, and maintenance of an airport subserves a public purpose. It thus follows that the creation by the Legislature of a special purpose district for the purpose of establishing and maintaining a public airport is a lawful exercise by the General Assembly of its plenary power to create special purpose districts.

But petitioners earnestly urge that the 1945 amendment to Section 6, Article X of the Constitution, which permits counties and townships to levy a tax or issue bonds for the construction and maintenance of an airport, by implication forbids a special district from levying a tax or issuing bonds for that purpose.

It was held in Gentry v. Taylor, 192 S.C. 145, 5 S.E.2d 857, and Parrott v. Gourdin, 205 S.Ct. 364, 32 S.E.2d 14, that a county was not authorized to levy a tax or issue bonds for the establishment of an airport because this was not among the purposes enumerated in Section 6, Article X of the Constitution for which a county may be authorized to levy taxes. Subsequently in 1945 this section was amended by proviing 'that the General Assembly shall have power to authorize a county or township to levy a tax or issue bonds for the purposes of construction and maintenance of an airport or the construction and maintenance of landing strips.' It is argued that the necessary implication from this amendment is that only the governmental units therein named may levy a tax for the construction or maintenance of an airport. We concluded otherwise in Evatte v. Cass, supra, 217 S.C. 62, 59 S.E.2d 638. It was there noted that the restrictions imposed by Section 6 of Article X relate solely to counties and townships, and did not restrict the power of the General Assembly to permit incorporated municipalities to expend public funds for airport facilities. Since the district here created is not in the category of a county or a township, it follows that Section 6 of Article X does not limit the purposes for which it may issue bonds and levy taxes.

The next two questions are so intertwined that they will be considered together. They are: (1) Is the Greenville-Spartanburg Airport District a political division or subdivision of the State within the contemplation of Section 5 of Article X of the Constitution? (2) Would obligations incurred by said district constitute bonded indebtedness within the meaning of said section? We think Ashmore v. Greater Grennville Sewer District, supra, 211 S.C. 77, 44 S.E.2d 88, 173 A.L.R. 397, requires an affirmative answer to both questions. It was there held that a special district created to construct and operate a public auditorium was subject to the limitations prescribed by this Section, and that taxes levied for this purpose were not assessments but general taxes.

The three cases cited by respondents to sustain their contention that the taxes levied under this Act constitute in reality assessments for benefits conferred upon property in the district, are distinguishable. The first, Jackson v. Breeland, 103 S.C. 184, 88 S.E. 128, involved a drainage district. The assessments imposed by that district were specifically authorized by Article I of the amendments to the Constitution found on Page 349 of Volume 7 of the 1952 Code. On this basis the Court held that such a district was not a political subdivision within the meaning of Section 5 of Article X, and bonds issued by...