Dick v. Scarborough

• Decision Date: 20 December 1905
• Citation: 53 S.E. 86,73 S.C. 150
• Parties: DICK et al. v. SCARBOROUGH et al.
• Court: South Carolina Supreme Court

53 S.E. 86

73 S.C. 150

DICK et al. v. SCARBOROUGH et al.

Supreme Court of South Carolina

December 20, 1905

Petition of George W. Dick and others for a writ of mandamus to R. Lee Scarborough and others. Writ granted.

WOODS J.

In this proceeding, the city council of the city of Sumter asks for a writ of mandamus to compel the commissioners of public works to sell certain municipal bonds, aggregating in amount $116,000, turned over to them by the city council, and to use the proceeds in the purchase, under an option held by the city, of the waterworks now owned and operated by the Sumter Water Power Company. The answer admits all the facts set out in the petition, but alleges that "the bonds are invalid, unsalable, and void, because: (a) The bonds were issued for the purchase of waterworks already constructed and under the statute a city in South Carolina has no power to purchase waterworks already constructed. (b) Because the question voted upon in the election was as follows 'Shall the city of Sumter purchase the property and right of the Sumter Water Power Company and issue bonds in payment thereof in such amount as may be necessary? Yes.' The negative ballots, it is alleged, were in precisely the same words; 'No' being substituted for 'Yes.' Whereas, it is respectfully submitted that the definite amount of bonds to be issued should also have been submitted to the voters voting in said election."

1. The first objection to the validity of the election raises a serious question of constitutional and statutory construction. It is provided by section 5, art. 8, of the Constitution: "Sec. 5. Cities and towns may acquire, by construction or purchase, and may operate water works systems and plants for furnishing lights, and may furnish water and lights to individuals, firms and private corporations for reasonable compensation: Provided, that no such construction or purchase shall be made except upon a majority vote of the electors in said cities or towns who are entitled to vote on the bonded indebtedness of said cities or towns." This article of the Constitution, expressly conferring the power to issue bonds for the purchase of "water works systems *** upon a majority vote of the electors," necessarily implies the power of the municipality to hold an election to ascertain the will of the majority, though possibly this might have been defeated by the failure of the General Assembly to provide election machinery. Section 7, art. 8, contains this provision "Sec. 7. No city or town in this state shall hereafter incur any bonded debt which, including existing bonded indebtedness, shall exceed eight per centum of the assessed value of the taxable property therein, and no such debt shall be created without submitting the question as to the creation thereof to the qualified electors of such city or town, as provided in this Constitution for such special elections; and unless a majority of such electors voting on the question shall be in favor of creating such further bonded debt, none shall be created." The provision for "such special elections" here referred to is found in section 13, art 2, which is as follows: "Sec. 13. In authorizing a special election in any incorporated city or town in this state for the purpose of bonding the same, the General Assembly shall...