Farrow v. City Council of Charleston

• Decision Date: 05 April 1933
• Docket Number: 13615.
• Citation: 168 S.E. 852,169 S.C. 373
• Parties: FARROW v. CITY COUNCIL OF CHARLESTON.
• Court: South Carolina Supreme Court

168 S.E. 852

169 S.C. 373

FARROW v. CITY COUNCIL OF CHARLESTON.

No. 13615.

Supreme Court of South Carolina

April 5, 1933

Appeal from Common Pleas Circuit Court of Charleston County; William H. Grimball, Judge.

Action by John B. Farrow against the City Council of Charleston, a municipal corporation organized and existing under the laws of the state of South Carolina. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded, with direction.

J Waties Waring, of Charleston, for appellant.

H. L Erckmann, of Charleston, for respondent.

BLEASE Chief Justice.

Section 3 of Act No. 695, approved March 10, 1922 (32 Stats. 1346) relating to the levying and assessment upon abutting property in the city of Charleston for the purpose of paying for permanent improvements of streets, sidewalks, etc., is as follows: "That the assessments so laid shall constitute a lien upon the property so assessed from the date the assessment roll is filed with City Treasurer until paid, coordinate with the lien for City Taxes and payment thereof may be enforced as the payment of city taxes is enforced: Provided, That such assessments be entered in a book kept by City Treasurer to be entitled 'Assessment Liens,' giving a description of the property and the amount of the assessment and the time or times of payment, and such other data as City Council may direct; upon default in the payment of any installment or deferred portion of any assessment, or upon default in the payment of any interest thereon as the same shall become due, then the whole assessment, with interest, shall immediately become due and collectible as city taxes, in case City Council shall, by ordinance, so provide, with such penalties and costs as are now provided, for delinquent city taxes."

Section 4 of that act authorizes the city council of Charleston to regulate by ordinance certain matters and details with reference to the paving assessments.

The city ordinance on the subject, so far as the same is involved in this particular action, is as follows:

"Payment of paving assessments shall be enforced as is payment of city taxes and shall be subject to same penalties for delinquency.

" City Treasurer to keep books entitled 'Assessment Liens.'--The City treasurer shall keep a book, entitled 'Assessment Liens,' in which shall be entered by streets and blocks in appropriate columns the following items: Number, Owner, Description of Property, Date of Assessment, Amount of Assessment, How Payable, Date of Payment, Entry of Satisfaction, Box and Package, Lien and Privilege. From the date on which the said statement of assessment is filed with the City Treasurer it shall act as a lien on each specific real property thereon assessed, as provided by law."

Pursuant to the constitutional and legislative authority and the ordinances of the city, the city council, in 1925, decided to pave certain streets, among them one known as Murray boulevard. On October 21, 1925, the assessment roll as to the paving was filed in the office of the city treasurer. Due notice of filing was given by the city treasurer, as required by law, and the assessments were confirmed by the city council on November 10, 1925.

For some reason or other, perhaps due to some litigation pending as to the paving of Murray boulevard, the assessment roll some time thereafter was withdrawn from the office of the city treasurer and carried to the office of the city engineer. There was no entry of the assessments made in the book of Assessment Liens.

At the time of the paving of Murray boulevard, Mrs. Lula T. Jenkins was the owner of real estate situated at the corner of that boulevard and Limehouse street. On October 25, 1927, Mrs. Jenkins and the respondent in this action, Mr. Farrow, entered into a contract, whereby Mrs. Jenkins was to sell, and the respondent was to purchase, the mentioned property, and in the contract it was stipulated that the seller would deliver a good title, free from paving assessments.

A reputable attorney of the Charleston bar, engaged by the respondent to examine the title to the property, inquired at the office of the city treasurer if there were unpaid paving liens on the property, and was given an answer in the negative. On that report, the attorney advised the respondent that the title was good, and the respondent proceeded to pay the purchase price of the property, around $50,000, and took warranty title thereto.

Later, the assessment roll was returned to the office of city treasurer, and in October, 1928, the city of Charleston claimed a lien on the property purchased from Mrs. Jenkins by the respondent for paving assessments in the sum of $1,614.49. The amount was paid by the respondent under protest. He demanded repayment of the sum from Mrs. Jenkins, who refused the demand.

The respondent brought this suit to recover from the city the amount of the paving assessments he paid.

A demurrer to the complaint, interposed by the city council, was overruled by his honor, Circuit Judge Grimball.

The cause was referred, by consent, to F. K. Myers, Esq., one of the masters in equity of Charleston county, under a general order of reference. He recommended the entry of judgment for the full amount of the payment made under protest, with interest thereon.

On exceptions by the appellant thereto, the master's report and the reasons for the conclusion he reached were approved by Judge Grimball, and, pursuant to his order, judgment against the appellant in favor of the respondent for the full amount demanded was entered up.

The appeal here is, of course, from the order of Judge Grimball, but, since he only adopted the conclusions and reasoning of the master, the report of the latter is the real thing for our consideration.

The master was "of the opinion that under the provisions of the Statute the lien attached upon the filing of the roll in the Treasurer's office and was not affected by the subsequent withdrawal of the roll, however irregular. ***"

There was no exception by either of the parties to that holding of the master, and accordingly the question is not here involved; but we may say in passing that it appears to us the conclusion there announced was correct.

The general conclusion of the master in favor of the respondent was on the ground that the appellant, the city council, was "estopped by the conduct of its duly authorized officer in giving information to the plaintiff 'to the prejudice of one who in reliance upon it has changed his position in respect to the matter affected thereby."' And that holding of the master, approved by the circuit judge, is challenged in this court by the appellant.

On the authority of Padgett v. Cunningham, 156 S.C. 356, 153 S.E. 280, the able master, whose opinions are always highly esteemed in this court, properly held that, since the facts of the cause were undisputed, the question whether such facts support the equitable doctrine of estoppel, available in an action at law, is a question of law for the court. Accordingly, the appeal is entertained, although the action is one at law, where we are bound by the findings of fact of the master, approved by the circuit judge.

The important issue for our determination, in fact the one upon which the result of the cause must depend, relates to the authority of the city treasurer, by his acts and conduct, to bind the defendant, the city council, which, it appears, so far as the city of Charleston is concerned, is the municipal corporation of the city.

The master accepted as the important basis for his main conclusion the principle that, "A municipality can be estopped by the acts of its officers within the scope of their authority." He found as support for the announced principle certain language of 21 C.J. 1190, and some decisions of our court to which we hereinafter advert.

With the general principle, as declared by the master, we are in accord, but we are of the opinion that the undisputed facts of the case at bar put it beyond the scope of the announced rule.

In the same section of Corpus Juris (193 d), 21 C.J. 1191, et seq., there are more fully stated the proper legal principles applicable to this case, and they are supported in part, as the notes will show, by the decision of this court in the case of Carolina Nat. Bank v State, 60 S.C. 465, 38 S.E. 629, 85 Am. St. Rep. 865. There it is said: " On the other hand it is settled that the public, whether exercising its functions through a state or the federal government, or through a municipal corporation, county, town, township, or other governmental agency or instrumentality, cannot be estopped by unauthorized, illegal, or fraudulent acts, admissions, conduct, or statements on the part of their...