Dalton v. Town Council of Mt. Pleasant

• Decision Date: 07 February 1963
• Docket Number: No. 18024,18024
• Citation: 241 S.C. 546,129 S.E.2d 523
• Court: South Carolina Supreme Court
• Parties: Jean W. DALTON, Respondent, v. TOWN COUNCIL OF MT. PLEASANT, Francis F. Coleman, Mayor of the Town of Mt. Pleasant, O. Frank Thornton, Secretary of State, and Stoney O. Hartin, Henry Tecklenburg, and J. Oswald Freeman, the County Commissioners of Elections, Defendants, Thomas O. Byrd et al., Intervenors-Defendants, and J. C. Long and The Beach Company, Intervenors-Amici Curiae, of whom Town Council of Mt. Pleasant, G. McGrath Darby, Jr., as successor in office to Francis F. Coleman as Mayor of the Town of Mt. Pleasant, J. C. Long and The Beach Co., are, Appellants.

Page 523

129 S.E.2d 523

241 S.C. 546

Jean W. DALTON, Respondent, v. TOWN COUNCIL OF MT. PLEASANT, Francis F. Coleman, Mayor of

the Town of Mt. Pleasant, O. Frank Thornton, Secretary of

State, and Stoney O. Hartin, Henry Tecklenburg, and J.

Oswald Freeman, the County Commissioners of Elections, Defendants,

Thomas O. Byrd et al., Intervenors-Defendants, and

J. C. Long and The Beach Company, Intervenors-Amici Curiae,

of whom Town Council of Mt. Pleasant, G. McGrath Darby, Jr.,

as successor in office to Francis F. Coleman as Mayor of the

Town of Mt. Pleasant, J. C. Long and The Beach Co., are, Appellants.

No. 18024.

Supreme Court of South Carolina.

Feb. 7, 1963.

Thomas P. Stoney, Huger Sinkler, J. C. Long, W. Turner Logan, Charleston, for appellants.

Edward D. Buckley, J. Kenneth Rentiers, Charleston, for respondent.

BRAILSFORD, Justice.

This action, commenced May 15, 1955, attacked the validity of the annexation, following an election held March 15, 1955, of certain territory to the municipality of Mt. Pleasant. The complaint charged that the petition for the election was not signed by a majority of the freeholders of the area to be annexed, as required by Section 47-14, Code of Laws, 1952, and that a majority of the qualified persons voting cast their ballots against annexation. Since the issue here will turn on the first ground, we will not again refer to the second. The Master for Charleston County filed his report on February 2, 1960. (The last reference had been held June 29, 1956.) He found that the annexation should be declared invalid because the petition for the election was signed by only 214 of the 456 freeholders of the area affected. The defendants excepted to the report, claiming that 23 additional freeholders should have been counted as having signed the petition. The plaintiff also excepted, claiming that the master erred in determining the total number of freeholders as of the date the 1954 auditor's books were closed, and in not taking into account those who became freeholders between that date and February 17, 1955, when the petition was certified by the Town Council as having been signed by a majority of the freeholders of the affected area. While the report was before the circuit judge on these exceptions, he allowed 18 of the 23 persons who had not been counted as signers of the petition to intervene in behalf of annexation, and he allowed others interested in the annexation to be heard as amici curiae. After hearing additional testimony and arguments on the issues raised by the exceptions and on additional objections to the report raised by the amici curiae, the circuit judge filed a decree on August 22, 1961. (The record does not disclose when the arguments before the circuit judge were completed.) He disposed of the exceptions to the report by holding that Sections 47-12, 47-14, Code of Laws, 1952, require that an annexation petition be signed by a majority of those who are freeholders of the area affected on the date this fact is certified to the county commissioners of elections by city or town council (here February 17, 1955) and by holding that the petition was signed by less than a majority of those who were freeholders on that date, even if the 23 names contended for by defendants should be counted. Thus, the circuit judge affirmed the master's finding of fact that less than the required majority of freeholders signed the petition, although he reached this conclusion on different premises. He also affirmed the master's legal conclusion that such deficiency in the petition invalidated the election and the annexation. The defendants, joined by the amici curiae, appealed. By appropriate exceptions, they challenge the premises on which the master and circuit judge, respectively, concluded that less than a majority of freeholders signed the petition. However, the exceptions do not challenge the legal conclusion that under the facts of this case such deficiency of signatures on the annexation petition is fatal to the validity of the annexation. Hence, our inquiry in this phase of the case is limited to whether the record supports the finding below that the petition was not signed by a majority of the freeholders. We reach what we regard as the controlling issue quickly by assuming, as contended by appellants, that 228 freeholder signatures to the petition would have constituted a majority. The master found that there were only 214. The appellants contend that an additional 23 should have been included, a total of more than the required number. We now refer to the facts relating to these 23 electors.

On January 17, 1955, three separate petitions were filed with Town Council of Mt. Pleasant. Each described a different area and asked for an election on the question of its annexation to Mt. Pleasant. These petitions were signed, respectively, by 23, 75 and 39 persons, or a total of 137. Town Council determined that each petition was signed by a majority of the freeholders of the area described therein, and certified this fact to the County Commissioners of Elections. Under the terms of the applicable statutes (Section 47-12, et seq., recently summarized by this Court in Hollingsworth v. The City of Greenville, S.C., 128 S.E.2d 704, filed December 10, 1962.) this action would have resulted in three separate elections to determine the question of annexation of each area. However, within a few days Town Council became interested in annexing a larger area, which included the three areas described in the petitions of January 17 and was more than double their combined size. The petition in question here, which accurately described the area proposed to be annexed, was circulated and filed with Town Council on or before February 17, 1955. At a special meeting on that date, the actions previously taken with respect to the petitions of January 17 were rescinded, and Town Council certified that a majority of the freeholders of the area proposed to be annexed had petitioned for an election.

The master found that of the 137 signatures on the three petitions of January 17, 31 were not duplicated on the petition of February 17. Of these, he found that 8 were not freeholders. Appellants contend that the remaining 23 should be counted as signers of the petition which resulted in the election of March 15 and the annexation of the area described.

The statutory requirement is a petition signed 'by a majority of the freeholders of the territory which it is proposed to annex, accompanied by an adequate description thereof, praying that an election be...