Hite v. Town of West Columbia

• Decision Date: 13 August 1951
• Docket Number: No. 16531,16531
• Citation: 220 S.C. 59,66 S.E.2d 427
• Court: South Carolina Supreme Court
• Parties: HITE et al. v. TOWN OF WEST COLUMBIA et al.

Page 427

66 S.E.2d 427

220 S.C. 59

HITE et al. v. TOWN OF WEST COLUMBIA et al.

No. 16531.

Supreme Court of South Carolina.

Aug. 13, 1951.

Winter & Winter, Columbia, for appellants.

Jack D. Hall, Batesburg, Blease Ellison, Lexington, Robinson, Robinson & Dreher, Columbia, for respondents.

FISHBURNE, Justice.

The plaintiffs are appealing from the judgment of the circuit court sustaining a demurrer to their complaint in a suit questioning the validity of the annexation to The Town of West Columbia of an area adjacent thereto.

The complaint as amended, alleges, in substance, (a) that the Town Council of West Columbia, acting on a petition for annexation signed by less than a majority of the freeholders in the area described, ordered an annexation electidon; (b) that this election was held on April 27, 1950, and the result in favor of annexation was declared and published the same day; (c) that all of the proceedings relating to the election and the annexation were accomplished by accident, mistake and fraud, and are therefore void because of the inadequacy of the annexation petition; (d) that no notice of intention to contest the annexation was given within sixty days of the publication of the result of the election, nor at any time prior to the institution of this suit; (e) that this suit was commenced on October 7, 1950, more than five months after the publication of the election results on April 27, 1950.

The defendants demurred on the ground that no cause of action is stated in the complaint, in that it not only failed to allege compliance with the provisions of the Acts of 1946, Page 1376, 1946, Supp. to the Code, Sec. 7232-1, Page 266, but specifically alleged non-compliance. The defendants take the position that compliance with this Act is a prerequisite to the institution of the suit, and the circuit court so held.

The plaintiffs, who have appealed, make no contest of the election, the result of which was published, or of the form of any procedure taken by the town council, or the election commissioners. They contend that the election was held without a petition containing the signatures of a majority of the freeholders in the area to be annexed, and that without such petition no jurisdiction was acquired, and therefore no authority to act, and all action taken in the matter was void.

It is not disputed that Section 7230 of the 1942 Code, as amended by Act No. 806 of the Acts of 1948, 45 St. at Large, Page 1974 provides as a condition precedent to an annexation election, that there shall be submitted to the city or town council, a petition by a majority of the freeholders of the territory proposed to be annexed, praying that an election be held.

Appellants, in their brief, appear to assume as a fact that the petition filed with the town council did not contain the signatures of a majority of the freeholders of the area proposed to be annexed. They cite the cases of Lancaster v. Town Council of Brookland, 160 S.C. 150, 158 S.E. 233, and Harrell v. City of Columbia, 216 S.C. 346, 58 S.E.2d 91, as sustaining their position. But the foregoing cases were tried upon the merits. The question of whether or not the petition was actually signed by a majority of the freeholders, was heard and decided only after references had been held and testimony taken. Nor was any issue made concerning the failure to comply with statutory limitations.

The facts in the present case present a different situation. This cause is now before us upon a demurrer to the complaint; and the facts alleged in the complaint in so far as the inadequacy of the number of signers to the petition is concerned, are admitted by the demurrer for the sole purpose of determining whether the complaint states a cause of action. Such admissions are not evidence, and do not dispense with proof in trial on the merits. Kirk v. Douglas, 190 S.C. 495, 3 S.E.2d 536; Flowers v. Price, 190 S.C. 392, 3 S.E.2d 38.

The primary question presented by the appeal is whether freeholders in an area annexed by a municipality may contest the validity of the annexation upon the ground that less than a majority of the freeholders signed the election petition, without complying with the provisions of Code Section 7232-1, Acts 1946, Page 1376. This statute reads as follows: 'Time contest or bring action on extension of municipal limits.--In all instances when the limits of a city or town shall be ordered extended, no contest thereabout shall be allowed unless the person, or persons, interested therein shall, within sixty (60) days after the result has been published or declared, file with both the clerk of the city or town, and with the clerk of court of the county in which said city or town is situate, a notice of his, or their, intention to contest said extension; and, unless, within ninety (90) days from the time the result has been published, or declared, an action shall be begun and the original summons and complaint filed with the clerk of court of the county in which said city or town is situate.'

It is admitted by appellants that no protest was...