Caldwell v. McMillan

• Decision Date: 24 September 1953
• Docket Number: No. 16780,16780
• Citation: 224 S.C. 150,77 S.E.2d 798
• Court: South Carolina Supreme Court
• Parties: CALDWELL et al. v. McMILLAN et al.

Page 798

77 S.E.2d 798

224 S.C. 150

CALDWELL et al. v. McMILLAN et al.

No. 16780.

Supreme Court of South Carolina.

Sept. 24, 1953.

Winter & Winter, Columbia, for appellants.

Atty. Gen. T. C. Callison, Asst. Atty. Gen. James S. Verner, for respondents.

TAYLOR, Justice.

This action was commenced in the Court of Common Pleas for Richland County by owners and operators of cafeterias, restaurants and eating places in and near the City of Columbia and members of The South Carolina Restaurant Owners Association on behalf of themselves as such and as citizens and taxpayers seeking to enjoin the respondents from constructing and equipping or operating a cafeteria in the new State Highway Department Building.

His Honor, Judge Moss, who heard the matter, issued his order, dated May 31, 1952, refusing the relief sought and appellants now come to this Court upon exceptions which according to their brief state sixteen questions, as follows:

'1. Does Act. No. 1065, page 2672, Acts of 1950, give the Highway Department authority to build space and furnish equipment for and to have operated, a cafeteria or public eating place in the new Highway Department Administration Building?

'2. Does the proviso in the General State Appropriation Bill for 1951-1952, Section 68 of Act No. 718, Acts of 1952, legally cure the defect and give such authority?

'3. Does this put the State in the restaurant business, in unfair competition with plaintiffs, and deny them equal protection of law in violation of Art. 1, Sec. 5 Const., S.C.1895 and the Fourteenth Amendment to the Constitution of the United States?

'4. Does the use of funds for such purpose constitute an unlawful diversion of public funds in violation of Art. 1, Sec. 5, of the Constitution of S.C. and the Fourteenth Amendment of the United States Constitution in that it amounts to taking of property without due process of law? Is it likewise in violation of Art. 1, Sec. 17 of the S.C. Constitution?

'5. Is the establishment of a cafeteria a 'proper facility' for conducting the affairs of the State Highway Department in Columbia?

'(b) Is the establishment of such place for 'State officials and employees' a proper facility of said department?

'6. If the Statute in question does give authority to erect and maintain such restaurant or cafeteria is that purpose expressed in the title of the act or is it germane thereto as required by Art. III, Sec. 17 of the State Constitution?

'7. Is the proviso in question, found in Sec. 68 of Act 718 of 1952 (pages 1731-1842) in violation of the State Constitution, Art. III, Sec. 17, in that it is not expressed in the titl of the act or germane thereto?

'8. Did the Circuit Judge err in finding there is a necessity for such cafeteria?

'9. Did the Circuit Judge err in holding the cafeteria and public eating places in Columbia are so crowded they cannot properly serve State employees?

'10. Is the question of benefit from or necessity for such eating place legally a question of expert opinion?

'11. Is the furnishing of school lunches for underprivileged children a criterion for establishment of such eating place?

'12. Is the fact that a few private business places provide eating places such a criterion?

'13. Is the establishment of such a cafeteria for white people only, in a government building, where both white and colored people are employed, conducive to proper relations between the races and is this a matter of public concern, which the Circuit Judge erred in overlooking?

'14. Would the plan of leasing space and equipment, to be operated under rules and regulations of the Highway Department, legalize the operation and prevent its being subsidized, or unfair competition?

'15. Did the Circuit Judge err in holding the proposed cafeteria may be operated for public patronage, rather than restricting it to use of officials and employees of the Highway Department?

'16. Is the establishment of a public eating place for a department of the State Government, and operation thereof, under control of such department, a distinct step toward Socialistic Paternalism, contrary to the public policy of South Carolina?'

The pertinent portion of the title of Act 1065, 46 St. at Large, p. 2672, Acts of 1950, appears as follows: 'An Act to Authorize The State Highway Commission To Construct A State Office Building Or Buildings In The City Of Columbia And To Negotiate A Loan From The State Sinking Fund Commission To Finance Same.' And the pertinent portion of Section 1 of this Act reads:

'The State Highway Commission is hereby authorized and directed to erect a building or buildings in the City of Columbia for the state headquarters of the State Highway Department and/or State Highway Commission, which building, or buildings, shall be adequate for present and anticipated future needs of the said commission and department for office space and other proper facilities in the City of Columbia for conducting the affairs of the department.'

Plans were prepared and work started on constructing the building and equipping a place for a cafeteria when this action was commenced on January 18, 1952. While pending, the 1952 Appropriation Bill was adopted by the General Assembly, known as Act No. 718, R. 744, which contained the following proviso:

'Provided, Further, That the State Highway Department is hereby authorized to provide room space and facilities in the new State Highway Department Administrative building in Columbia for serving meals to State employees and officials, and to lease such space on competitive bids to a qualified restaurateur for operation on such terms and conditions as may be advantageous to the State to provide its employees and officials affected with reasonable inbuilding eating accommodations comparable with those offered in modern office buildings by private enterprises.' 47 St. at Large, p. 1828, § 68.

The 1950 Act provided for the construction of the building for its present and future needs, for office space and other proper facilities. We, therefore, must consider whether or not the operation of a cafeteria by the Highway Department for the benefit of its employees is a proper facility within in the terms of the Act. The word 'facility' means: 'A thing that promotes the ease of any action, operation, transaction, or course of conduct; advantage; opportunity; * * *.' Webster's New International Dictionary. It could hardly be argued that under this definition the Highway Department would be denied the authority to equip the building with furniture, supplies, elevators, air conditioning, modern lighting, and various machines and equipment as aids to efficiently handling the department's business. Many improvements which in the past were considered luxuries have now come to be considered necessities.

In determining whether or not under the Acts appellants would be denied equal protection under the law and their property taken withoutdue process of law in that the State will be in the restaurant business in unfair competition and that public funds will thereby be diverted to private purposes, we are called upon to determine whether or not the phrase 'public purpose' might encompass such operation. A great many things are now considered to be of public concern which in the past were considered private, such as housing, schools, health programs, school lunches, retirement and pension plans, annual and sick leave for employees, workmen's compensation insurance for public employees have all been held to be within the scope of legislation for the public welfare.

'In general, a public purpose has for its objective the promotion of the public health, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within a given political division, so that whatever is necessary for the preservation of the public health and safety is a public purpose, and if an object is beneficial to the inhabitants and directly connected a public purpose; it will be considered a public purpose; but in order to sustain a public purpose the advantage accruing to the public must be direct, not merely indirect or remote. * * *

'What constitutes a public purpose depends in part on the time or age, place, objects to be obtained, modus operandi, economics involved, and countless other attendant circumstances, and customs and usages may properly be considered, but, while recognizing the influence of customs and usages already established, the courts also recognize that customs and usages may change so that a purpose which was formerly conceded to be private may now be public; and therefore the novelty of a purpose does not render it the less a public purpose.' 73 C.J.S., Public, p. 277-278. See Lay v. State Rural Electrification Authority, 182 S.C. 32, 188 S.E. 368.

The Legislature, approximately two years after the passage of the first Act, passed the 1952 Amendment which stages clearly the intended purpose of the legislation and the question of whether or not an act is for a public purpose is primarily one for determination by the legislative body rather than the Courts and the Courts will not interfere unless it appears that the legislative body was clearly wrong. The findings of the Legislature in this repect are not conclusive, however, but entitled to much weight at the hands of this Court. Park v. Greenwood County, 174 S.C. 35, 176...