Haesloop v. City Council Of Charleston

• Decision Date: 11 January 1923
• Docket Number: (No. 11099.)
• Citation: 115 S.E. 596
• Court: South Carolina Supreme Court
• Parties: HAESLOOP v. CITY COUNCIL OF CHARLESTON.

115 S.E. 596

HAESLOOP

v.CITY COUNCIL OF CHARLESTON.

(No. 11099.)

Supreme Court of South Carolina.

Jan. 11, 1923.

Suit by F. J. Haesloop for an injunction to restrain the City Council of Charleston from conveying municipal property. Complaint dismissed.

Hagood, Rivers & Young, of Charleston, for plaintiff.

John I. Cosgrove, of Charleston, for defendant.

MARION, J. Action by a citizen and taxpayer of Charleston in the original jurisdiction of this court to enjoin the city council of Charleston from conveying upon certain terms a lot of land for use as a site for the erection of a tourist hotel in said city.

The cause was heard upon the verified pleadings, which raise the one question of whether the city council of Charleston can lawfully convey certain real estate owned by said city pursuant to the terms of the following resolution of council, duly adopted October 10, 1922:

"Whereas, G. L. Miller & Co., Inc., of Atlanta, Ga., have addressed a letter, dated October 3, 1922, to Hon. John P. Grace, mayor, which letter has been read and filed at this meeting of council, in which the said G. L. Miller & Co., Inc., have undertaken to finance the construction of a new hotel on a parcel of land now owned by the city, bounded on the east by King street extended, on the south by the Boulevard, and on the west by the property of Lawton and Williams, provided the city will convey this property to Mr. Edward J. Murphy, or a company which he may form, said conveyance to be free and clear without any reservation; and

"Whereas, it has long been desired that this property be used for hotel purposes so that the public generally might have the use of and enjoy the benefits of this magnificent site un-equaled anywhere for such a purpose; and

"Whereas, great and inestimable benefits will accrue to the city of Charleston by the donation of this site to a use which will bring strangers from all over the world to our doors:

"Resolved, that the mayor be, and he is hereby, authorized, empowered, and instructed to convey to Edward J. Murphy, or a company which he may form, all that lot of land now owned by the city of Charleston, situated at the foot of King street extended, 'bounded on the north by South Bay street, on the east by King street extended, on the south by the Boulevard, and on the west by the property of Lawton and Williams, ' in trust, nevertheless, for the following purposes and uses:

"That the said Edward J. Murphy, or a company which he may form, shall hold the said property for the construction, beginning within approximately 30 days of the signing of this deed, and completed within approximately 10 months from the starting of the work of building a modern tourist hotel, fireproof, and in every respect equal to the hotel plans for which were drawn by Messrs. G. Lloyd Preacher & Co., architects, of Atlanta, and filed with city council at this meeting, said plans, however, to be perfected in detail and made final by Messrs. G. Lloyd Preacher & Co., architects, of Atlanta, immediately upon the passage of this resolution: otherwise such conveyance to the said Edward J. Murphy, or a company which he may form, to be null and void, and said property to revert to the city of Charleston in fee simple, freed and discharged of all further trusts."

To the answer, setting out certain facts upon which the defendant relies to sustain the validity of the proposed conveyance, the plaintiff interposed an oral demurrer. The allegations of the answer thus admitted as to the matters of fact therein embraced are substantially as follows:

(1) That the charter of the city of Charleston, adopted in 1783, provides:

"Sec. 4. That the said intendant shall and may, as often as occasion shall require, summon the wardens to meet together in city council, any nine of whom to be a quorum, who, with the intendant, shall be known by the name of, and they are hereby declared to be, the city council of Charleston; and they and their successors, hereafter to be appointed, shall have a common seal and shall be capable in law to purchase, have, hold, receive, enjoy, possess and retain, to them and their successors, for the use of the city of Charleston in perpetuity or for any term of years any estate or estates, real or personal ** * and to sell, alien, exchange or lease the same or any part thereof as they shall think proper.

"Sec. 5. * * * Any vacant low-water lots fronting any of the streets, shall be vested in said city council and their successors, for the use and advantage of the said city, to be leased, sold, improved on, or otherwise disposed of, as to the said city council shall appear most conducive to the welfare and advantage of the said city, and the inhabitants thereof."

(2) That the lot of land proposed to be conveyed was formerly a low-water lot which was reclaimed several years ago, and which has since lain idle and has been of no material use to the city or its citizens either for pleasure or profit; that it has never produced any revenue and has never been in any way dedicated to or used for a public purpose; and that it has never been considered a portion of the public lands of the defendant used for the enjoyment or profit of its citizens, "but is owned and controlled by defendant exclusively in its private or proprietary capacity as opposed to its governmental capacity as a municipal corporation." (3) That the proposed conveyance is for a public purpose, to wit, the erection of a hotel, which is a quasi public institution of the nature of a public utility, established and maintained for the service of the public, required by law to furnish, within reasonable limitations, accommodation to the public generally, and subject to regulation by both the municipal and the state governments.

(4) That the proposed conveyance is not an unqualified donation, but is for a valuable consideration, in that it is conditioned upon the discharge by the grantee of the obligation to erect within approximately 10 months a modern fireproof tourist hotel, in accordance with prescribed plans and specifications, involving the expenditure of about $1,000, 000, whereby the city of Charleston, rich in historical interest and climatic advantages, will be provided with a suitable hostelry, now lacking, to accommodate the tourist travel annually visiting the South for recreation and pleasure; that thereby a recognized public need of the community will be fulfilled to the material benefit and financial advantage of the city and of its inhabitants; and that thereby, in any event, approximately $1,000, 000 will be added to the taxable values of the city from which there will be an annual financial return in ad ditional taxes to the city, county, and state inuring to the benefit of the plaintiff and all other taxpayers of the state and constituting an adequate consideration of direct financial value to the city sufficient to support the proposed grant.

1. It is contended by the plaintiff that the contemplated action of the city council is prohibited, directly or impliedly, by the terms of section 3i, art. 3, of the state Constitution of 1S05, providing that "lands belonging to or under the control of the state shall never be donated, directly or indirectly, to private corporations or individuals, or to railroad companies, " etc. Admittedly the state's fee-simple title in and to the real estate here in question was granted to and vested in the city council of Charleston by an act of August 13, 1S73 (7 Stat. 07), adopted by the duly constituted legislative body of the state. It has not been suggested that there were any such rights of navigation or of piscary, or other public rights, involved in the disposal of these low-water lots as would in any wise limit the state's absolute power of alienation. The legislature would seem to have been fully clothed with power to convey, as was done, the fee-simple title in this land to the city council of Charleston. If so, it is apparent that the real estate here involved is not, and was not at the time of the adoption of the Consitution of 1895, "lands belonging to or under the control of the state" within either the letter or the reasonable intendment of the language there employed. While all lands within the state's borders are at all times in a sense "under the control of the state" in its governmental capacity—that is, subject to regulation and appropriation in the legitimate exercise of its powers of police and of eminent domain—manifestly, we think, the reference in this constitutional provision is to public lands belonging to and controlled by the state in its capacity as sovereign proprietor. Had the land here involved been granted by the state to an individual, and subsequently conveyed to the city council, it would scarcely be contended that at the time of the adoption of the Constitution of 1895 it was land "belonging to or under the control of the state." Obviously, in the aspect of the matter here involved, the fact that the fee in the land was granted directly to the city council of Charleston can make no difference. At the time of the subsequent adoption of the Constitution, the state having divested itself of title by a valid legislative grant, this real estate could no more properly be characterized or claimed as "lands belonging to or under the control of the state" than any other land held by private owners, as all such lands are held, under original grant from the state.

Nor do we think there is controlling force in the suggestion that, by virtue of the municipal character of the grantee and of thestate's reserved control over the charters of municipal corporations, the lands of such public corporations, held in a proprietary capacity, fall by necessary implication within the constitutional designation of "lands * * * under the control of the state." As was said by this court. speaking through Mr. Justice McIver, in Re Malone's Estate, 21 S. C. 435, 448:

"While it is true that the state retains absolute...