Greenville County Fair Ass'n v. Christenberry

• Decision Date: 08 December 1941
• Docket Number: 15338.
• Citation: 17 S.E.2d 857,198 S.C. 338
• Parties: GREENVILLE COUNTY FAIR ASS'N, Inc., v. CHRISTENBERRY et al.
• Court: South Carolina Supreme Court

17 S.E.2d 857

198 S.C. 338

GREENVILLE COUNTY FAIR ASS'N, Inc., v. CHRISTENBERRY et al.

No. 15338.

Supreme Court of South Carolina

December 8, 1941

Benjamin A. Bolt and W. B. McGowan, both of Greenville, for appellant.

Wilton H. Earle, of Greenville, for respondent.

STUKES Justice.

Section 1-A of Act No. 197, approved April 27, 1935, 39 Stat. 266 contains a provision as follows: "That any carnival exhibiting annually in Greenville County under the auspices of the Greenville County Fair Association, Incorporated during the actual showing of said County Fair, shall be exempt from paying any license imposed upon carnivals by the said County of Greenville."

The Fair Association commenced its action against the Clerk of Court and Sheriff of the County on November 1, 1940, alleging that in accord with custom a carnival was exhibiting in conjunction with the current Fair and its freedom from license fees was guaranteed by the Association and demand had been made by the defendants for a fee of $25 for each day of exhibition, in default of the payment of which the defendants threatened to close the carnival and prosecute the Association, and prayed for an injunction restraining the defendants from such action. Their answer and return set up Section 6327, of the 1932 Code, and further alleged, among other things, that the respective attorneys for the parties had entered into a stipulation whereby the controversy should be determined by the Court and if the latter should hold that the license was due, the plaintiff would pay, and that the written agreement thereabout had been filed with the Clerk of Court.

His Honor, the County Judge, thereafter heard the matter testimony and arguments, including that of the defendants that the Act of 1935 is unconstitutional because in violation of subdivision 9 of Section 34, Article 3 of the Constitution of 1895, that is that it was a special law where a general law can be made applicable, and therefore invalid.

After the conclusion of the testimony and arguments, the Court recites "on the same day or the day thereafter" defendants' counsel, the county attorney, handed to the Court a letter from the President of the Fair Association addressed to the Sheriff under date of October 31, reading as follows: "With reference to the license tax of $150.00 for the privilege of operating the carnival in connection with the showing of the Greenville County Fair, you are advised that our attorney has had an agreement with Mr. Wilton H. Earle, County Attorney, that the question of the constitutionality of the Act of 1935 exempting any carnival exhibiting annually under the auspices of Greenville County Fair Association during the annual showing of the county fair is to be determined by the Court in a suit to be brought, and should the Court decide that the statute as amended is invalid the Greenville County Fair Association agrees to pay to you, as Sheriff, the amount of $150.00 as license."

By order settling the case for appeal the trial Judge stated that immediately upon the filing of the letter with him he notified plaintiff's counsel that it looked to him as if the Association had waived its right to question the propriety of respondents' attack upon the constitutionality of the Act of 1935, and despite the Court's several references to the matter in conversation with counsel no motion was made to reopen the case, although it was said to him in these conversations that such should be done so that testimony might be introduced by plaintiff in an effort to show that it was not intended by the letter to waive any rights; and that the Court only after considerable delay passed a final order.

The latter was to the effect that the Act of 1935 is unconstitutional on the ground stated, but that the defendant officers could not have made the attack (citing Spartanburg County v. Miller, 135 S.C. 348, 132 S.E. 673, and State ex rel. Fooshe v. Burley, 80 S.C. 127, 61 S.E. 255, 16 L.R.A.,N.S., 266) but for the letter which his Honor construed as an express waiver of the right to raise the question that the defendants were not permitted to challenge the constitutionality of the Act; and his order concluded with an injunction upon the plaintiff to pay the amount of the license fees.

Plaintiff appealed upon exceptions which properly raise the questions which we think are conclusive of the controversy, to wit, whether the defendant county officers can be heard in this action to attack the constitutionality of the Act and, if not, whether the letter quoted above is effective as a waiver on the part of the plaintiff of such legal position.

Respondents' counsel submits a sustaining ground, to wit, that the trial Court should have held that respondents' offices are of such nature as to require them to raise the question of the constitutionality of the Act on which appellant relies to exempt it from the payment of the license. This is overruled in view of what will be said.

We pass over as unnecessary to decide the contention of appellant that it was improper for the trial Court to consider the quoted letter for it was not in evidence or otherwise a part of the record when the case was closed; and we agree with the lower Court that the respondents were not authorized to question the constitutionality of the exempting Act of the Legislature. To the authorities there cited (in parentheses above) may be added the decision of this Court rendered by Chief Justice McIver in Ex parte...