G. Curtis Martin Inv. Trust v. Clay, 21222
| Decision Date | 07 May 1980 |
| Docket Number | No. 21222,21222 |
| Citation | 266 S.E.2d 82,274 S.C. 608 |
| Parties | G. CURTIS MARTIN INVESTMENT TRUST and R. Gordon Darby, Respondents, v. Cecil D. CLAY, Henry E. Hollinshead, Clifton D. Green, Jr., Malcolm C. Hursey, Hiram C. Adams, James H. Lee, Sr., Charles M. Lanford, Mary N. Miller, andAlfred Williams, Constituting the Membership of the North Charleston SewerDistrict,Appellants. |
| Court | South Carolina Supreme Court |
David G. Jennings, Charleston, for appellants.
Lawrence E. Richter, Jr., Mount Pleasant, for respondents.
The appellants, Commissioners of the North Charleston Sewer District, appeal from an order granting respondent's 1 motion for summary judgment. The circuit judge found that the appellants had unlawfully declined to process respondent's application for sewer service and, based upon this finding, ordered the appellants to perform all acts necessary to grant the respondent the service requested. The order appealed from is affirmed in part and modified in accordance with the views herein expressed.
The North Charleston Sewer District, a body politic and corporate with perpetual secession created by Act 1768, Statutes at Large of South Carolina (1972), on or about July 1, 1976 contracted through its commissioners with Aiken Land Company, Buckner Land Corporation, Northwoods Estates Utilities, Inc., and T. L. Bonner to transfer the privately owned sewer system known as Northwoods Estates Utilities, Inc. from the latter entities and individual to the District.
The critical part of the transfer, and the source of contention in this litigation, is a portion of the agreement which reserves unto Bonner, the former principal owner, the power to approve or disapprove for connection to the system any project other than a single family dwelling and small commercial establishments of a defined class. Specifically, Bonner has the say as to whether any other commercial establishment, townhouses, apartments or condominiums may tap-on to the Northwoods system until such time as the District connects the system with the District's main line. 2 The sewerage system in question, although owned, operated and maintained by the District, is a self-contained unit, served by its own lagoon and does not at present flow into the regional sewage treatment facilities of the District.
G. Curtis Martin, the original petitioner in this action, requested service for three hundred apartment units and tendered payment to the District for the prescribed tap-on fee. The service is available only from the sewer system formerly known as Northwoods, as tap-on by the apartment units to the regional facilities is not possible at this time. At the time of application, the system had the capacity to service the apartment units. The District, pursuant to the contract, notified Bonner of Martin's request. Bonner informed the District that he did not approve the tap-on. The District then instructed Martin that he could not tap-on since he had failed to get Bonner's approval.
Martin filed this action seeking a Writ of Mandamus to require the District to take all necessary steps to grant Martin access to the system in question. The District answered, denying Martin the right to a mandamus and raised the affirmative defense of the terms of the contract.
A motion for summary judgment was filed and the parties have stipulated the essential facts involved in this controversy. The court had before it no dispute as to material evidentiary facts or the conclusions or inferences to be drawn therefrom. South Carolina Farm Bureau v. Scott, 262 S.E.2d 739 (S.C.1980). This appeal is concerned not with the procedure followed but rather with the conclusion of law reached. The issue before the court below, and this court on appeal, is whether the portion of the agreement between the District and Bonner whereby Bonner was granted the right to approve or disapprove large uses of the sewer system transferred is legally enforceable and binding on the District.
The circuit court judge found the delegation of power to Bonner unlawful and against public policy. We agree. In addition, he ruled that the agreement as a whole stands, with only the offending provision to fall. The District was ordered to perform all acts necessary to grant Martin the sewer service requested. This is not proper. The order should have required the District to act upon the merits of the application according to the authority delegated to it. Federal Land Bank of Columbia v. State Highway Department of South Carolina, 172 S.C. 207, 173 S.E. 635 (1934); Atlantic Coast Line R. Co. v. Caughman, 89 S.C. 472, 72 S.E. 18 (1911); State ex rel. Abbeville County v. McMillan, 52 S.C. 60, 29 S.E. 540 (1898).
The situation in this case is intolerable. Here,...
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...determining whether it complies with the Johnston Building Code and without regard to the Resolution. See, Curtis Martin Investment Trust v. Clay, 274 S.C. 608, 266 S.E.2d 82 (1980) (remedy for unconstitutional denial of sewer connection permit is to order the appropriate District authority......
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