Ellison v. Cass
| Decision Date | 04 September 1962 |
| Docket Number | No. 17959,17959 |
| Citation | 241 S.C. 96,127 S.E.2d 206 |
| Court | South Carolina Supreme Court |
| Parties | John A. ELLISON, Appellant, v. J. Kenneth CASS, The Mayor of the City of Greenville, Robert W. Hunter, Sam F. Floyd, Dr. Thomas Brockman, Dr. Thomas Parker, Gus Smith and Mrs. J. Alden Simpson, The City Council of the City of Greenville et al., Respondents. |
Price & Poag, Greenville, for appellant.
W. H. Arnold, Leatherwood, Walker, Todd & Mann, Greenville, for respondents.
In August 1958 the appellant, John A. Ellison, and one W. H. B. Simpson applied to the City Council of the City of Greenville for a permit for the purpose of constructing a motor vehicle parking building which would overhang the sidewalks of West McBee Avenue, a street within the State Highway System, and Laurens Street in the City of Greenville. Litigation thereabout ensued, and in the case of Sloan v. City of Greenville, 235 S.C. 277, 111 S.E.2d 573, 76 A.L.R.2d 888, this court remanded the cause for the issuance of a permanent injunction, which was issued by the Honorable J. Robert Martin, Jr. on December 21, 1959, enjoining the City of Greenville from issuing the permit in question. Pending the appeal in that case from an order of the circuit court denying an injunction, Messrs. Ellison and Simpson had continued the construction of the proposed building.
The 1960 General Assembly passed legislation which authorized cities within a certain population to construct or authorize the construction of parking buildings which would overhang the public streets. The legislation was vetoed by the Governor as special legislation, among other reasons, in that the population bracket of the cities was limited only to the City of Greenville.
In 1961 legislation was introduced and passed in both the House and Senate the title of which reads 'An Act To Authorize The Governing Body Of Any Municipality To Construct Or Permit The Construction Of Certain Motor Vehicle Parking Facilities Which Encroach Upon Or Project Over A Public Sidewalk In Shopping Districts.' This Act, No. 329, was approved by the Governor on May 23, 1961, 52 St. at Large, p. 553.
Thereafter, Messrs. Simpson and Ellison applied to the City of Greenville for a permit to complete the construction of the proposed overhangs for their parking building.
On June 9, 1961 the City Council granted the application on condition that it not be in violation of the aforesaid order of Judge Martin.
This action was commenced by the appellant for the purpose of having the court determine whether or not the respondents would be in violation of the aforesaid order in issuing the permit. The respondents answered alleging that the 1961 Act of the General Assembly was unconstitutional.
Judge Martin by Order filed August 21, 1961, held that said Act was unconstitutional under the provisions of Article IV, Sec. 2, and the Fourteenth Amendment of the Constitution of the United States of America, and Article I, Sec. 5 and Article III, Sec. 34 (IX) of the Constitution of the State of South Carolina, and that since the Act was unconstitutional there was no change of condition which would allow the City to grant the permit application sought by Messrs. Simpson and Ellison. This appeal is from Judge Martin's order.
The 1961 Act reads as follows:
In submitting the cause to Judge Martin, the parties filed a number of stipulations as to the facts involved, Stipulation IV reading as follows:
'That the parking facility for which permit is sought from the City of Greenville is the only parking facility constructed or in the process of construction which encroached on a road or street in the State Highway System at the time of the passage of this Act.'
In Sloan v. City of Greenville, supra, this court stated the issue as follows:
'The question for determination upon this appeal is whether the City of Greenville, which holds title to the streets in question, in trust, for the public for street purposes onlyHas the authority to permit the area above such streets to be used for private purposes.'
The decision therein was to the effect that the city did not have such authority. The issue here is not whether the city has the authority, but whether the grant of authority by the legislature is constitutional.
It is, of course, elementary that the acts of the legislature are presumed to be constitutional, and that this court should not declare an act unconstitutional unless it is clearly so beyond a reasonable doubt.
It is, however, implicit in both the State and Federal Constitutions that legislation may not be discriminatory; that it must give equal protection to all; and that special legislation granting special benefits to private individuals, as contrasted with the public at large, is not permissible. City...
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...there was a general statute providing for such appointments. McElveen v. Stokes, 240 S.C. 1, 124 S.E.2d 592. The case of Ellison v. Cass, 241 S.C. 96, 127 S.E.2d 206, involved an attempt by the City of Greenville to allow the construction by private individuals of a motor vehicle parking bu......
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...provision of the Constitution. Cox v. Bates, 237 S.C. 198, 116 S.E.2d 828; McElveen v. Stokes, 240 S.C. 1, 124 S.E.2d 592; Ellison v. Cass, 241 S.C. 96, 127 S.E.2d 206. It must be conceded that the State, through the exercise of its legislative or administrative function, has the power to l......
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...granting special benefits to private individuals, as contrasted with the public at large, is not permissible'. Ellison v. Cass, 241 S.C. 96, 127 S.E.2d 206 (1962) However, not all special or local legislation is prohibited by Article III, Section 34 of the Constitution; special laws are pro......
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...wrongs is essential to equality before the law." (Italics ours.) See Jack v. State, 183 Okl. 375, 82 P.2d 1033 (1937); Ellison v. Cass, 241 S.C. 96, 127 S.E.2d 206 (1962). The plaintiff argues, however, that in the instant case chapter 248 does nothing more than waive the limitation of the ......