Carter v. City of Greenville

• Decision Date: 13 February 1935
• Docket Number: 14002.
• Citation: 178 S.E. 508,175 S.C. 130
• Parties: CARTER et al. v. CITY OF GREENVILLE et al.
• Court: South Carolina Supreme Court

178 S.E. 508

175 S.C. 130

CARTER et al. v. CITY OF GREENVILLE et al.

No. 14002.

Supreme Court of South Carolina

February 13, 1935

Appeal from Common Pleas Circuit Court of Greenville County; G Dewey Oxner, Judge.

Complaint for injunction by W. W. Carter and others, individually, as residents and taxpayers of the City of Greenville, and on behalf of all other residents and taxpayers of the City against the City of Greenville and others. From orders refusing an injunction pendente lite and a permanent injunction and dismissing the complaint, plaintiffs appeal.

Affirmed.

The order of Judge Oxner follows:

By this action plaintiffs, as residents and taxpayers of the city of Greenville, seek to permanently enjoin the city of Greenville, its mayor and council, from carrying out a proposed scheme whereby the city would acquire the present post office property in Greenville for a city hall, the United States would acquire certain vacant property on East Washington street, known as the Ware property, for a new post office and courthouse site, and the owners of the Ware property would acquire the present city hall property and the sum of $15,000 from the city of Greenville.

This action was commenced on May 23, 1934, by service of summons and complaint, and on the same day a rule was issued against the defendants requiring them to show cause why a temporary restraining order should not be issued. Thereafter the plaintiffs served an amended complaint, and the cause came on to be heard on the return and answer of the defendants on June 9, 1934.

There is no dispute between the parties as to the facts of the case. By their return and answer the defendants admitted and set out in detail just what is proposed to be done, and assert their right to do so. So that the only question presented for decision is whether, on the admitted facts, an injunction pendente lite should issue.

The substantial admitted facts of the case are these: In 1873 the city of Greenville purchased the present city hall site receiving fee-simple deed. In 1879 the present city hall building, a two-story structure, was erected thereon. In 1915 it was conveyed away, but was reacquired a few months thereafter by a fee-simple deed. The building has been used as a city hall since its erection, although in 1930, according to the United States census for that year, the population of the city of Greenville was 29,154, or five times that of the city in 1879 when the city hall was erected, and the municipal functions of the city have grown correspondingly. As a result, the city hall property is, and has been for a number of years, inadequate for the needs of the city government, and certain city officials and agencies-the mayor, the water commission, the public library-have been forced to find accommodations elsewhere in privately owned property, for which rent is being paid. The present building cannot be expanded, nor can it be adequately repaired, and it is not deemed advisable that the city incur the large indebtedness necessary for the erection of a new building commensurate with its needs, even if the funds could be made available. On the other hand, the condition of the present building is such as to make its continued use impractical and undesirable, if not dangerous.

Faced with this situation, the city of Greenville, through its council, has evolved a plan whereby the agencies of the city may be adequately accommodated, without, however, the necessity of an expenditure of a prohibitive sum of money. The plan, as outlined, is briefly as follows: The federal authorities contemplate the erection of a new post office and courthouse building in the city of Greenville, and the city authorities have been given to understand that the authorities consider the Ware property well adapted to this purpose. The present federal building is well built, is in an excellent state of repair, is fireproof, and is equipped with a number of fireproof and burglarproof vaults. It is entirely adequate to house the public library, the waterworks, the health and engineering departments, as well as the city's official and clerical forces. Agreements concerning the respective properties have been obtained, and, if the transfers of property contemplated therein are made, the federal authorities will erect a post office and courthouse building on the Ware property, the present city hall property will be passed to the present owners of the Ware property, and the present post office property will pass to the city of Greenville.

It appears from appraisals made by competent persons and attached to the return and answer that the post office property is worth approximately $200,000 more than the city hall property, and it further appears that rents now being paid private interests for quarters occupied by municipal agencies, which have been forced to find accommodations outside the present city hall property, would in three years equal the total amount of money which will be needed under the proposed plan for the city to acquire the present post office property.

On these facts two major questions of law arise:

(1) Does the city of Greenville have the power under section 7431, Code of 1932, to carry out its part of the proposed scheme, as authorized by resolution of city council?

(2) If not, has the city the power under the common law, in the absence of a special act?

In considering those questions, it should be pointed out that the court is not concerned with the advisability of the proposed change in the location of the city hall. This is a matter which rests solely within the discretion of city council, and, in the absence of illegality, fraud, or clear abuse of their authority, their discretion governs, and, having exercised it by adopting the resolution and approving the present scheme, the court is bound thereby. Stone v. City Council of Greenville, 113 S.C. 407, 102 S.E. 755; Green v. City of Rock Hill, 149 S.C. 234, at pages 262, 263, 147 S.E. 346.

1. The act of the Legislature which now appears in the Code of 1932 as section 7431 was enacted in 1901 (Act Feb. 19, 1901 (St. at Large, p. 652, § 11), and is as follows: "§ 7431. Corporate Powers.-The corporate name of every city or town incorporated under this article shall be 'the city (or town) of ......,' and by such corporate name said city or town may sue and be sued, plead and be impleaded in any court of law or equity in this State, and may purchase, hold, enjoy and possess, for the use of said city or town in perpetuity or for the term of years any estate, either real or personal, or mixed, and sell, alien and convey the same at will. The said city or town shall have and keep a common seal, which shall be affixed to all ordinances passed by the mayor and the aldermen thereof."

The charter of the city of Greenville was granted in 1907, and the powers conferred under the above statute became a part of the charter provisions of the city.

Counsel for the plaintiffs admit that under its charter the city of Greenville possesses the powers conferred by section 7431, but denies that that section confers power to acquire property save for the use of the city, and it is said that the city is not acquiring the Ware property for the use of the city, but purely for trading purposes. The meaning of the word use, as it appears in the statute, would seem to be identical with the word benefit. Of course, all property owned by the city is held in a fiduciary capacity for the use or benefit of its citizens and residents, but it does not necessarily have to be used by the city. It might be held for years as vacant property without being actually devoted to any particular purpose. There is no suggestion in the statute that it does not apply to property devoted to governmental purposes. Indeed, by an unbroken line of decisions in this state, the doctrine is established that all property of municipalities is held in a fiduciary capacity for the benefit of its citizens, and the distinction recognized by some jurisdictions between private and governmental functions of municipalities is not recognized. Irvine v. Town of Greenwood, 89 S.C. 511, 72 S.E. 228, 36 L. R. A. (N. S.) 363; Farrow v. City Council of City of Charleston, 169 S.C. 373, 168 S.E. 852, 87 A. L. R. 981; Looper v. City of Easley, 172 S.C. 11, 172 S.E. 705; Green v. City of Rock Hill, supra; Haesloop v. City Council of Charleston, 123 S.C. 272, 115 S.E. 596, 602.

It follows, therefore, that the statute in question must relate to all property held by the municipality, and the powers granted by the statute must include the right to dispose of the present city hall property.

Furthermore, the substance of the proposed transaction should be regarded rather than the form. Interpreting the city's proposal to the United States as requiring that the city must take title to the Ware property and then convey it to the United States, both deeds would be delivered at the same time, and the city would be nothing more than a mere conduit of title. The substantial thing under the proposed scheme is that the United States acquires the Ware property, the city acquires the post office property, and the owners of the Ware property acquire the present city hall property.

In addition, it is argued for the city, and not without reason, that there is nothing in the city's proposal or its option on the Ware property which prevents it from having that property conveyed by its owners directly to the United States. See Mathews v. Darby, 165 Ga. 509, 141 S.E. 304.

It is concluded, therefore, that the city has the power under section 7431, and the resolution...