Cleveland v. Calvert

• Decision Date: 04 January 1899
• Citation: 31 S.E. 871,54 S.C. 83
• Parties: CLEVELAND v. CALVERT et al.
• Court: South Carolina Supreme Court

31 S.E. 871

54 S.C. 83

CLEVELAND v. CALVERT et al.

Supreme Court of South Carolina

January 4, 1899

Application by Henry Cleveland for an injunction against Arch B. Calvert and others, constituting the city council of the city of Spartanburg. Refused and dismissed.

Ralph K. Casson, for petitioner.

Bomar & Simpson, for respondents.

JONES J.

This is an application in the original jurisdiction of this court for an injunction to restrain the city council of Spartanburg from issuing $50,000 of bonds for sewerage purposes. The city council claim authority to issue said bonds under a special act for that purpose, approved December 24, 1890 (20 St. at Large, p. 976), entitled "An act to authorize the city council of Spartanburg to ordain the necessary ordinances for the establishment, construction and maintenance of a system of sewerage in the city of Spartanburg and to issue bonds for the purpose of the establishment construction and maintenance of such system." By this act the city council were authorized to issue $50,000 of 6 per cent. coupon bonds, or so much thereof as, in their judgment, may be necessary, provided a majority of the qualified electors of said city shall vote in favor of such issue at an election held for that purpose, upon the petition of one-third of the real estate owners of said city.

1. Petitioner contends that this act is void, and all proceedings thereunder illegal, because the same was repealed and nullified by section 13 of article 2 of the constitution of 1895, and laws subsequently passed in pursuance thereof prescribing different qualifications for electors than those which existed at the time of the passage of the said special act, and prescribing as a condition precedent to the holding of an election for the purpose of issuing bonds a petition from a majority of the freeholders of said city as shown by its tax books. It appears from the return of respondents, to which petitioner demurs, and thereby admits it to be true that on August 23, 1897, a petition for an election on the question of issuing such bonds was filed with the city council, and that it was ascertained and determined by the city council that the petition was signed by more than a majority of the freeholders of the city of Spartanburg. It further appears that a large majority of those who voted at the election voted in favor of issuing said bonds, and that those who voted were qualified electors under the constitution of 1895. The effect of the new constitution and acts pursuant thereto is not to wholly nullify the said special act, but merely to nullify so much of said act as is inconsistent with the new constitution; or, rather, the special act must be read as if amended so as to prescribe for electors thereunder the qualifications required under the new constitution, and to require a petition by a majority of the freeholders, instead of one-third. As these conditions were admittedly complied with, the proceedings were not void. McWhirter v. Town of Newberry, 47 S.C. 418, 25 S.E. 216.

2. It appears that the city council contemplate the issue of 5 per cent. instead of 6 per cent coupon bonds. Petitioner claims that the city council have no power to so do, because the petition and other proceedings preliminary to the election upon the question of issuing bonds and of proceedings in relation thereto contemplated and provided for 6 per cent bonds only. The act of 1890 permitted and authorized the issue of $50,000 of 6 per cent. coupon bonds, or so much thereof as in their judgment may be necessary. The act of March 9, 1896 (22 St. at Large, p. 88), entitled "An act to authorize special elections in any incorporated city or town of this state for the purpose of issuing bonds for corporate purposes," in section 2 provided that, "should a majority of those voting in said election vote in favor of said bond issue, then the municipal authorities of said city or town shall be authorized to issue said bonds which shall be of such denomination and run for such length of time and bear such rate of interest, not exceeding seven per centum per annum, as the said municipal authorities shall prescribe." It is therefore clearly within the power of the city council, if it is found, in their judgment, advisable so to do, to...