Hayward v. Clay

Decision Date29 March 1978
Docket NumberNo. 77-2028,77-2028
Citation573 F.2d 187
PartiesMarion HAYWARD, Delores Grant, Nancy Little, Lawrence M. Libater, J. Phillips Noble, Jr., and the City of Charleston, Appellees, 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 R. Miller, Alfred Williams, Commissioners of the North Charleston Public Service District, North Charleston Public Service District, and Branford Heape, Appellants. James B. EDWARDS, Governor of the State of South Carolina, G. P. Callison, Ruben L. Gray, Zilla Hinton, Sylvia A. McCullough, and Margaret Townsend, Members of the South Carolina Election Commission, Donald Infinger, Robert Lighthart, Jr., Solomon Morse, Jr., Helen Clawson, Curtis Inabinett, Members of the Charleston County Election Commission, Defendants, v. Joseph P. RILEY, Jr., Mayor of the City of Charleston, J. Rutledge Young, Jr., Jerome Kinloch, Daniel L. Richardson, Hilda Hutchinson Jefferson, Arthur W. Christopher, Brenda C. Scott, Robert I. Ford, George A. Z. Johnson, Jr., Mary R. Ader, James B. Moore, Jr., W. L. Stephens, Jr., and Henry E. Grimball, Members of the City Council of the City of Charleston, Third-Party Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

David G. Jennings, Charleston Heights, S. C. (Goodstein & Jennings, Charleston Heights, S. C., on brief), for appellants.

Armand Derfner, Charleston, S. C. (Epstein, McClain & Derfner, William B. Regan, Corp. Counsel, Robert N. Rosen, Asst. Corp. Counsel, Charleston, S. C., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BUTZNER and HALL, Circuit Judges.

BUTZNER, Circuit Judge:

The questions for decision are whether a South Carolina statute conditioning the holding of an annexation election upon a majority vote by the freeholders in the area to be annexed violates the fourteenth amendment to the United States Constitution, and whether the challenged portions of the statute are severable from the remainder. The district court found the challenged provisions unconstitutional and severable. We affirm.


As one of several methods of annexation, the South Carolina Code provides that proceedings may be initiated by a petition signed by 15 percent of the freeholders in the area seeking to be annexed. S.C.Code § 5-3-160 (1976). 1 Upon certification of this petition by the governing council of the annexing municipality, a majority of the freeholders in the area proposed for annexation must, "(a)s a prerequisite to the annexation election . . . ," approve the change in a referendum. S.C.Code § 5-3-170 (1976). An effective annexation proceeding also requires approval by the registered voters in both the territory to be annexed and the annexing municipality. The freeholder referendum may precede or accompany the annexation election. In the latter instance, two voting boxes are maintained at the polling places in the area to be annexed; freeholders alone vote in one, and all registered voters, including freeholders, vote in the other. S.C.Code § 5-3-180 (1976). 2

A freeholders' referendum and an annexation election were held simultaneously to determine whether the Garden Kiawah area should be annexed to the City of Charleston. The registered voters in the city and Garden Kiawah approved the annexation, but the freeholders of Garden Kiawah defeated it. The City of Charleston and voters from the city and Garden Kiawah (city) promptly filed suit against county officials and others (county), challenging the constitutionality of the freeholder referendum. Since all other statutory requirements for annexation had been fulfilled, the city sought an order validating the annexation.

On cross motions for summary judgment, the district court ruled that the freeholder referendum violated the equal protection clause of the fourteenth amendment. It held that annexation was a matter of the most pervasive public interest and that South Carolina promoted no compelling state interest by establishing a freeholder referendum that burdened the general franchise granted to South Carolina registered voters on annexation questions. The court also found that the portions of the statute referring to the freeholders' referendum were severable, that the remainder could stand intact, and that the annexation had been legally accomplished.


In Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), the Supreme Court held that a restriction of the vote in school district elections to owners and lessees of taxable realty and to parents and custodians of children enrolled in the public schools violated the equal protection clause of the fourteenth amendment. Limitations of the franchise to property taxpayers in municipal bond elections were struck down on the same grounds in Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), and Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). In Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975), the Court declared unconstitutional a Texas statute allowing only those otherwise qualified voters who had registered taxable property to vote in municipal bond elections. In that case, 421 U.S. at 297, 95 S.Ct. at 1643, the Court summarized its holdings:

The basic principle expressed in these cases (Kramer, Cipriano, and Phoenix) is that as long as the election in question is not one of special interest, any classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the district or State can demonstrate that the classification serves a compelling state interest.

The county argues that the referendum, even when held simultaneously with an election, is not part of the election. It points out that the statute makes the freeholders' referendum a condition precedent to the actual election and that, consequently, the referendum does not burden the franchise in that election. While the referendum in form may be a condition precedent to the actual election, in effect it grants to some individuals who are identified on the basis of ownership of realty the right to nullify a vote for annexation by the electorate at large. Although the mechanics of the Texas "dual box election procedure" declared unconstitutional in Hill differ from South Carolina's, the wrongful grant of power to property owners is the same. The statutes of both states create property-based classifications of voters in an election of general interest and empower those with property to override the votes of those without. It is this restriction of the effective franchise to a property owning class not the mechanics of accomplishing the restrictions that offends the equal protection clause. See Hill v. Stone, 421 U.S. at 298, 95 S.Ct. 1637.

The county also relies on Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907), which upheld a state annexation statute against a variety of constitutional challenges and characterized the state's power over municipal corporations as nearly absolute. But subsequent decisions have shown that the exercise of this power must conform to the Constitution, at least where voting is concerned. See Lockport v. Citizens for Community Action, 430 U.S. 259, 264-68, 97 S.Ct. 1047, 51 L.Ed.2d 313 (1977); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); cf. Perkins v. Matthews, 400 U.S. 379, 388-90, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). Of course, South Carolina need not grant anyone the right to vote on annexation; similarly, the plaintiffs in Hill, Kramer, Phoenix, and Cipriano could assert no federal constitutional right to vote on the matters at issue in those cases. But once the right to vote is established, the equal protection clause...

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