Carolina Division
| Decision Date | 06 May 1949 |
| Docket Number | 16213. |
| Citation | 53 S.E.2d 330,214 S.C. 485 |
| Parties | CITY OF ORANGEBURG v. SOUTHERN RY.--CAROLINA DIVISION et al. |
| Court | South Carolina Supreme Court |
Sims & Sims, Orangeburg, for appellant.
Frank G. Tompkins, Columbia, Moss & Moss, Orangeburg, for respondents.
The City of Orangeburg brought this action against Southern Railway--Carolina Division and the other defendant railroad companies, for the foreclosure of a paving assessment lien for street improvements abutting the right-of-way of the defendant along South Boulevard. The sole issue presented by the appeal is whether the lien of the city had expired before the action was instituted. The Special Referee to whom the case was referred, found that the lien had terminated, and recommended that the action be dismissed. Upon exceptions being taken to the Circuit Court, the Referee's finding was confirmed in all respects and made the judgment of the court.
The above action, which was commenced on January 14, 1941, was preceded by a similar suit instituted by the City of Orangeburg against the Southern Railway Company in the Court of Common Pleas for the foreclosure of the identical lien against the same property involved in this action, arising out of the same street improvement. This antecedent case was removed by the Southern Railway Company to the United States District Court. The removal was opposed by the City on the ground that Southern Railway--Carolina Division, the owner of the property affected by the lien, was not a party to the proceeding. The District Court, however, assumed jurisdiction of the controversy and on appeal its decision was upheld by the United States Circuit Court of Appeals. That court held that the issue presented, involving the validity of the paving lien, could be decided in the absence of Southern Railway--Carolina Division (134 F.2d 890). Following this decision, the District Court heard the parties on the identical question involved in the present appeal, and rendered a decision adverse to the defendants, in which it was held that the paving lien of the city had not expired (55 F.Supp. 167). An appeal to the United States Circuit Court of Appeals resulted in a reversal of the District Court and a dismissal of the action. The Supreme Court of the United States denied a petition for a writ of certiorari.
When this litigation ended in the Federal courts the Southern Railway upon filing its petition in the Court of Common Pleas, was permitted to intervene in the instant case and set up the defense, along with that of Southern Railway--Carolina Division, relating specifically to the question of whether or not the paving lien had expired. Thereafter, as already stated, the Circuit Court affirmed the findings of the Special Referee, held that the City had lost its lien, and dismissed the action.
The facts bearing upon the issue are not in dispute. The question as to whether the paving lien is barred by lapse of time must be determined from a construction of the laws and ordinances governing such assessment.
The applicable ordinance was adopted by the City Council of Orangeburg on July 12, 1918, pursuant to the authority contained in Article X, Section 16 of the Constitution of South Carolina, and Act No. 345 of the General Assembly of the state, Act March 11, 1915, 29 Stat. at Large, Page 586. The constitutional provision empowered the General Assembly to authorize the corporate authorities of the City of Orangeburg to levy assessments upon abutting property for the purpose of paying for permanent improvements on streets upon certain conditions, which are set forth in the constitutional amendment.
Section 1 of the ordinance adopted in pursuance of these enactments provides, inter alia, that an assessment be levied upon any property in the city immediately upon the commencement of permanent improvements upon abutting streets, and that the assessment against the property owner shall be paid in the following manner: 'Each owner of the property so assessed may within thirty days after the completion and acceptance by City Council of such improvement immediately abutting the property of such owner, pay into the city Treasury the full amount of said assessment, or shall have the right * * * in case of the improvement of streets to have such assessment divided into ten equal payments; the first installment thereof shall be due thirty days after the date of the completion and acceptance by City Council of such improvement immediately abutting his property, and the remaining installments shall be due in equal amounts, due respectively in one, two, three, four, five, six, seven eight and nine years from the date of the first installment with interest on such installments, from the date of the first installment, at the rate of six per cent per annum, payable annually until paid in full, provided that such owner in either of such cases shall have the right at any time to anticipate any or all of such installments.'
Section 2 of the ordinance provides:
The petition of the abutting owners of the property on which the assessment in this suit was levied, was filed April 10, 1925. On July 20, 1925, the Southern Railway Company in the action in the Federal Court involving the same question, served notice on the city that it objected to the paving, regarded the assessment as invalid, and refused to pay it. Thereafter the pavement was laid and accepted by the city by entry in the assessment book on December 16, 1926. Consequently, under Section 2 of the ordinance the lien of the assessment upon the abutting property came into being on that day and continued 'until five years after the date provided for the final payment, unless sooner paid.'
Section 2 of the ordinance provides: each owner of assessed property may within thirty days after the completion and acceptance of the improvement pay the full amount of the assessment, or shall have the right to have it divided into ten equal payments, the first to be due thirty days after the completion and acceptance of the improvement, and the remaining nine installments to be due in equal amounts annually. In this case, the thirty days after the completion and acceptance of the work expired on January 15, 1927, and the due date of the last payment under the installment plan was January 15, 1936. The question for decision, therefore, is whether the five year period, during which the lien is kept alive by Section 2 of the ordinance, runs from January 15, 1927 or from January 15, 1936. If the period runs from the earlier date, the present suit, which was filed January 14, 1941, was brought too late.
By agreement of counsel, the opinion rendered by the United States District Court, 55 F.Supp. 167, adverse to the defendants, and the decision of the United States Circuit Court of Appeals, 4 Cir., 145 F.2d 725, reversing the District Court, are incorporated in the record in this case. And of course both of these Federal decisions were before the Court of Common Pleas. In reaching their opposite conclusions, the United States District Court and the United States Circuit Court of Appeals construed and applied the pertinent decisions of the Supreme Court of this state.
The District Judge construing the Orangeburg ordinance in the light of the South Carolina decisions, held that although the Southern Railway Company had failed to exercise the option to pay the assessment in installments, the date from which the five year period began to run was the date for the tenth and last payment under the installment plan. In reaching this conclusion the District Court largely relied, as does the City, on the case of Town of Cheraw v. Turnage, 184 S.C. 76, 191 S.E. 831. In overruling the District Court, the United States Circuit Court of Appeals stated : ...
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