Distin v. Bolding

• Decision Date: 17 July 1962
• Docket Number: No. 17943,17943
• Citation: 240 S.C. 545,126 S.E.2d 649
• Court: South Carolina Supreme Court
• Parties: Robert G. DISTIN, individually and as a representative of other taxpayers and homeowners in Jackson-Gills Creek Public Service District, Appellants, v. R. A. BOLDING, R. C. Johnson, J. R. Powell, Fred D. Townsend, Robert A. Webert and C. Laney Talbert, individually and as Commissioners of Jackson-Gills Creek Public Service District; Jackson-Gills Creek Public Service District, and Daniel R. McLeod, Attorney General of South Carolina, Respondents.

Page 649

126 S.E.2d 649

240 S.C. 545

Robert G. DISTIN, individually and as a representative of other taxpayers and homeowners in Jackson-Gills Creek Public Service District, Appellants, v. R. A. BOLDING, R. C. Johnson, J. R. Powell, Fred D Townsend, Robert A. Webert and C. Laney Talbert individually and as Commissioners of Jackson-Gills Creek Public Service District; Jackson-Gills Creek Public Service District, and Daniel R. McLeod, Attorney General of South Carolina, Respondents.

No. 17943.

Supreme Court of South Carolina.

July 17, 1962.

Rogers & McDonald, Columbia, for appellants.

Sinkler, Gibbs & Simons, Charleston, Irvine F. Belser, Jr., Columbia, for respondents.

MOSS, Justice.

This action is one under the 'Uniform Declaratory Judgments Act', Section 10-2001 et seq., 1952 Code of Laws. The purpose of the action is to determine the constitutionality of certain provisions of Act No. 1114, of the Acts of 1960, 51 Stats. 2803, as subsequently amended by an Act of the General Assembly, approved March 30, 1962. By this Act the General Assembly created Jackson-Gills Creek Public Service District in Richland County, hereinafter referred to as the District. In so doing, it constituted a large area of Richland County into a special purpose district whose function is to construct and operate sewage disposal facilities. The area is thickly populated and at the present time has no public sewer system. It is conceded that a great need therefor exists.

The estimated cost of constructing the sewer system is $3,000,000.00. To provide the funds for such construction the District proposes to issue General Obligation Bonds, which the Act authorized, if the election required therein were held and resulted favorably. The election has been held and did result favorably. The Act also empowers the District to impose charges for the use of the sewer system and the plan to be placed into effect contemplates a schedule of charges designed not only to provide sufficient moneys for operation and maintenance of the system, but also to provide funds to be used to meet a portion of the debt service to result from the issuance of the bonds. The Act empowers the District to additionally secure its authorized General Obligation Bonds with a pledge of the net revenues derived from the operation of its sewage disposal facilities. While the District will covenant to effect the levy and collection of sufficient taxes to meet the payment of the principal and interest of its General Obligation Bonds as they fall due, it is believed that sufficient net revenues will be derived from the operation of the sewage disposal facilities to result in a substantial reduction of the ad valorem tax levy otherwise to be imposed. In order to insure sufficient customers and adequate revenues the Act empowers the District's governing agency to adopt regulations requiring all those to whom the sewer system will be available to effect connections thereto and to use the same.

The plan here is in many ways similar to that recently upheld by this Court in the case of Ruggles et al. v. Padgett et al., S.C., 126 S.E.2d 553. There are however differences which require consideration. In the Ruggles case, the Hanahan Public Service District proposed to make a charge for sewer services generally similar to the charges to be imposed by the District in the instant case. However, the Hanahan Public Service District had arranged for the collection of its sewer charges through a contractual arrangement with the Charleston Water Works Commission. By this arrangement the Charleston Water Works Commission undertook to bill its water customers in the District for the water service furnished by it and for the sewer service furnished by the District by means of a combined bill with a provision that unless the bill was paid in full, water service would be discontinued. Here the District cannot enter into a similar contractual arrangement for the reason that there is no single agency operating a water works system throughout the District. Portions of the District are served by public systems but other portions are served by private water companies and some dwellings have individual wells. Therefore, the plan put into effect by the Hanahan District, and approved by this Court in the Reggles case, would not be feasible here. The District here proposes to make its charge for sewer service a lien upon the property served in the manner provided by the Act and after the hearing prescribed by the 1962 amendatory legislation.

The exceptions of the appellants raise the following questions which are disposed of in the order here stated: (1) May the General Assembly delegate, through the means of a special Act, police powers to the District Commission enabling it to adopt mandatory regulations requiring all persons within the District owning property to connect that property to, and use the public sewer system of the District? (2) Has the General Assembly the power to authorize the District Commission to impose a special charge or assessment upon property owners in the District utilizing the public sewer system which will constitute a lien upon their property? (3) Does the statute as amended by the 1962 Act of the General Assembly provide for adequate public hearings prior to the imposition of the assessment for sewer service?

In the Ruggles case, we held that the General Assembly might, through the means of special legislation, delegate police powers to the Hanahan Public Service District enabling its Commission to adopt mandatory regulations requiring connection to and use of the District sewer system. The arguments advanced here that such special legislation is proscribed by paragraph 9, Section 34, Article III, of the South Carolina Constitution are similar to those unsuccessfully advanced in the Ruggles case. This question must be decided adversely to the appellants' contention on the authority of the Ruggles case and for the reasons set forth in that opinion.

In the Ruggles case we held that the charge to be imposed by the Hanahan District was not an assessment for the reason that no lien would attach to the property utilizing the sewer facilities. That holding was predicated upon decisions of this Court in the cases of Evans et al. v. Beattie et al., 137 S.C. 496, 135 S.E. 538; Briggs v. Greenville County et al., 137 S.C. 288, 135 S.E. 153; and Rutledge v. Greater Greenville Sewer District, 139 S.C. 188, 137 S.E. 597. On that basis we held that no hearing need be provided the property owner preliminary to the imposition of the charge. Here, however, the charge if not paid is to become a lien against the property affected and the challenge is made that, in the absence of specific constitutional authorization, the General Assembly may not impose or delegate power to impose the assessment against the affected property. It is also contended that the provisions of the 1962 amendatory legislation prescribing the method for the holding of the hearings prior to the imposition of the assessments are not adequate. This twofold attack raises the second and third questions previously set forth.

The right of the General Assembly to authorize the District Commission to impose a special assessment upon property utilizing the public sewer system has three aspects. First, there is involved the question of whether, in the absence of specific constitutional authorization therefor, the General Assembly has the power to impose the assessment because of the supposed benefit conferred. Secondly, there is a question as to whether such assessment must not be uniform, that is to say in proportion to the assessed value of the property to be assessed. Finally, there is involved the right of the Legislature to make provisions for such assessment through the means of a special act.

It is the general rule that the legislative branches of state governments have the inherent power to make provisions for assessing of real property for benefits conferred. 17A Am.Jur., Drains and Sewers, Section 62, at page 485; 48 Am.Jur., Special or Local Assessments, Sections 8, 11 and 12, at pages 571-573.

However, it is contended that South Carolina is an exception to the general rule. It is specifically contended that the decisions of this Court in the cases of Mauldin v. City Council of Greenville, 53 S.C. 285, 31 S.E. 252, 43 L.R.A. 101; Stehmeyer v. City Council of Charleston, 53 S.C. 259, 31 S.E. 322; and Jackson v. Breeland et al., 103 S.C. 184, 88 S.E. 128, establish the rule in South Carolina that special assessments against property for supposed benefits may not be imposed by the General Assembly either directly, or indirectly, by means of delegating that power to subordinate governmental agencies, without specific constitutional authorization therefor. It was held by this Court in the Mauldin case that a statute authorizing incorporated cities to levy assessments to provide for a portion of the cost of laying sidewalks was 'opposed to our present (1895) Constitution.' Later that year, the Court in the Stehmeyer case, following its holding in the Mauldin case, refused to uphold a statute which permitted the City of Charleston to levy front foot assessments for the purpose of raising moneys to meet the cost of installing a public water works system. In the Jackson case, the Court, by obiter dicta, implied that the validity of a drainage assessment depended upon a constitutional amendment which specifically authorized the assessment.

We agree with the appellants that the Legislature has observed the ruling of the Supreme Court in the Mauldin case insofar as street assessments are concerned and has provided, through appropriate proposing resolutions, constitutional amendments which specifically authorize...