Evans v. Beattie

• Decision Date: 18 October 1926
• Docket Number: 12084.
• Citation: 135 S.E. 538,137 S.C. 496
• Parties: EVANS et al. v. BEATTIE, Comptroller General et al.
• Court: South Carolina Supreme Court

135 S.E. 538

137 S.C. 496

EVANS et al. v. BEATTIE, Comptroller General et al.

No. 12084.

Supreme Court of South Carolina

October 18, 1926

Original proceeding by M. T. Evans and others against A. J. Beattie Comptroller General, and others to enjoin the respondents from carrying out any of the provisions of the Coastal Highway Act. Petition dismissed.

McColl & Stevenson, of Bennetsville, for petitioners.

Willcox & Hardee, of Florence, for respondents.

COTHRAN J.

This is an application by certain taxpayers, residents of the county of Florence, in the original jurisdiction of this court, to enjoin the respondents, the comptroller general and state treasurer, the chief highway commissioner, the state highway commission, and the board of coastal highway commissioners (appointed under the act), from carrying out any of the provisions of the act approved March 12, 1926, commonly known as the "Coastal Highway Act" (34 Stat. 1492) particularly, to enjoin them from using for the purposes described in the act any of the gasoline tax or automobile license tax collected pursuant to the act approved March 21 1924 (33 Stat. 1193), commonly known as the "Pay-As-You-Go" Act, from levying any tax upon the property of the petitioners, and from issuing any bonds of the coastal highway district or of the counties embraced in that district, pursuant to the terms of the Coastal Highway Act. It is also sought to have this court declare invalid the Coastal Highway Act and certain provisions of the Pay-As-You-Go Act.

Upon presentation of the petition, his honor, Associate Justice Blease, of this court, issued an order requiring the respondents to show cause to this court, on June 14, 1926, why the injunction prayed for should not be issued. The respondents have made written return to this order, in which they admit the allegations of fact contained in the petition and deny certain conclusions of law set forth therein. The matter is now before us for decision upon the petition and return and upon exceedingly full and illuminating briefs of counsel, which demonstrate the fact that this is not a "friendly suit" to insure the validation of the Coastal Highway Act, but a genuine and earnest contest over the provisions of that act; as counsel for the petitioners very aptly describe the situation:

"Here the citizen's claim of fundamental right under government, is to be weighed against the claim of lawful community enterprise and development. The grave issue ought to compel care and dignity in presentation as the only fitting aid to true and just judgment."

In that spirit we approach the discussion and decision of the many points involved.

The act under review is closely connected with the act of 1924, the "Pay-As-You-Go" Act, a brief reference to which may be made. That act establishes a state highway system, consisting of certain highways in each county of the state, described therein, and provides that these highways shall be constructed and maintained by the state highway department by means of funds provided by the act, consisting of the automobile license tax, three-fifths of the five-cent gasoline tax, and all federal aid moneys. The statute directs the state highway department to construct the highways designated in the statute as hard-surface roads, at an average cost not exceeding $30,000 per mile in any one year, provides that no county shall have constructed two hard-surface cross county roads until every other county in the state has one hard-surface road across the county, and declares that the construction of the roads designated in the statute shall be carried on simultaneously in each judicial circuit. The act also provides for reimbursing counties on account of hard-surface roads constructed by the counties before the passage of the act. Furthermore, it authorizes the state highway commission to enter into an agreement with any county or counties whereby the county or counties will be permitted to construct any of the state highways, and the state highway commission will agree to reimburse or repay the county or counties in the manner provided by the third section of the act for reimbursement to counties for roads constructed before the passage of the act. Connecting up certain highways provided for by the act in the counties of Dillon, Marion, Florence, Williamsburg, Berkeley, Charleston, Colleton, Beaufort, and Jasper, there is a continuous highway, extending from the North Carolina line, the border of Dillon county, to the Georgia line, the border of Beaufort county, at the Savannah river bridge. Considered as a continuous line, this highway is a part of a national highway extending from Canada to Southern Florida, the portion in South Carolina being referred to as the "coastal highway."

Under the act of 1924 (33 Stat. 1193), amended by act of 1925 (34 Stat. 51), two alternative plans were authorized for the construction of the highways designated therein: (1) By the state highway commission, by means of funds provided by the act, consisting of the automobile license tax, three-fifths of the five-cent gasoline tax (Act of 1925, p. 56, § 11), and all federal aid moneys, within a period to be determined by the commission, and which has been estimated at 18 years, beginning January 1, 1924; (2) By the several counties, by permission of the state highway commission, and under a reimbursement agreement with the commission by which the value to the state of such construction shall be refunded to the county out of the funds made available by the act, in equal annual installments, during the estimated period of construction.

It is provided in the act:

"That no agreement for the reimbursement shall be made which shall necessitate the payment to said county or counties of a sum annually greater than said county or counties would receive if said hard-surfaced roads had not been constructed."

Prior to or during the session of the General Assembly in January, 1926, several of the counties through which this continuous line, called the coastal highway, extended, conceived the idea of establishing a highway district, composed of the 10 counties affected, for the purpose of accomplishing the immediate construction of the continuous highway by a method substantially the same as the reimbursement plan set forth in the act of 1924 (referred to above as the second alternative plan under that act), rather than await the slower process of construction by the state highway commission, under the first plan above referred to, in the act of 1924. Four of the counties affected, however, declined to co-operate with the other six counties in the movement suggested; Marion, Berkeley, Charleston, and Hampton preferring to proceed independently under the act of 1924, leaving it to the state highway commission to proceed upon the first plan above outlined or to the several counties under the second plan, the reimbursement plan, or to independent legislative action affecting one or more of them.

At the session of 1926 (34 Stat. at Large, p. 1449), an act was passed creating a highway district, known as the middle coastal highway district, composed of the counties of Charleston and Berkeley, for the purpose of constructing those portions of the continuous line, the coastal highway, as were located in those two counties, upon a plan exactly the same as is provided in the Coastal Highway Act, hereinafter considered. Marion county, which is traversed by about 11 miles of the coastal highway as stated, also declined to co-operate with the other six counties, and, no legislation has been passed affecting it, leaving it free to act under one or the other of the alternative plans provided in the act of 1924. Hampton county, which is traversed by about 12 miles of the coastal highway as stated, also declined to co-operate with the other six counties, and no legislation has been passed affecting it. The portion of the coastal highway located in Hampton county is not one of the highways defined in the act of 1924, and its construction is left to future legislation.

It may be assumed that, unless prevented by adverse judicial action, the lines in Charleston and Berkeley counties will be constructed in the near future under the Middle Coastal Highway Act, and that the line in Marion county will in time be constructed under one or the other of the alternative plans provided in the act of 1924. The line in Hampton county will await legislative action. The six counties, Dillon, Florence, Williamsburg, Colleton, Jasper, and Beaufort, left without the co-operation of the other four counties, Marion, Berkeley, Charleston, and Hampton, procured the passage of an act, at the session of 1926, known as the Coastal Highway Act (34 Stat. 1492), which is the act under attack in this proceeding. It contains the following provisions:

(1) The territory embraced within the six counties named above is constituted a highway district and political subdivision of the state, and the inhabitants thereof are constituted a body politic and corporate, under the name of the coastal highway district, and may sue and be sued .

(2) The powers and duties of the corporation are devolved upon a "board of coastal highway commissioners," composed of six members, appointed by the Governor, one for each of the several counties composing the district, and whose term of office "shall end when their duties under this act shall have been fully performed."

(3) The coastal highway district (hereinafter called for convenience, the "district"), and the state highway commission (hereinafter called for convenience, the "commission"), are "authorized and directed" to enter into an agreement whereby:

(a) The district shall agree to advance to the commission the moneys necessary to construct the

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