Little v. Town of Conway

• Decision Date: 02 November 1933
• Docket Number: 13710.
• Citation: 171 S.E. 447,171 S.C. 27
• Parties: LITTLE et al. v. TOWN OF CONWAY et al.
• Court: South Carolina Supreme Court

171 S.E. 447

171 S.C. 27

LITTLE et al. v. TOWN OF CONWAY et al.

No. 13710.

Supreme Court of South Carolina

November 2, 1933

Original petition by H. P. Little and others for injunction against the Town of Conway and others.

Petition denied.

W. K Suggs, of Conway, for plaintiffs.

M. A Wright and F. G. Burroughs, both of Conway, for defendants.

BONHAM Justice.

This is an action in the original jurisdiction of this court, brought by H. P. Little in his own behalf and that of others similarly situated for the purpose of enjoining C. H. Snider as clerk and treasurer of the town of Conway, from mingling with the general funds of the town more than one half of the sums of money hereafter to be paid the town under the reimbursement agreement with the state highway department, and from disbursing the remaining half of said funds other than to plaintiff and others interested with him in this action, and similarly situated.

The matter was heard on an agreed statement from which it appears that the plaintiff and others interested with him in this proceeding are citizens of the town of Conway and are the owners of property abutting on State Highways Nos. 38 and 40 within the corporate limits of the town upon which properties assessments were made by the town for the purpose of paving the streets above named and now embraced in the state highway system under the provisions of the act of the General Assembly commonly called the Reimbursement Act. The provisions of this act, applicable to this case, are now included in the Code of 1932 in sections 5928 and 5931. The town of Conway, acting upon authority granted by legislative act, issued bonds of the town for paving streets and avenues of the town, and thereafter issued assessments against abutting property owners for part payment of the costs of such paving. The town paid one half of the costs of paving the streets and the abutting property owners the other half, apportioned one-fourth to those on one side and one-fourth to those on the other side of the streets paved.

The state highway department, after the passage of the reimbursement statute, paved parts of the Streets Nos. 38 and 40 within the town of Conway which had not been paved by the town, and in 1930 entered into a contract with the town to reimburse it to the extent of $29,293.24 for funds it had expended in paving these two streets, now included in the state highway system. Of this sum $10,985.04 has been paid the town and mingled by it with its general funds. It is to prevent a similar use of the sum remaining due under this agreement of reimbursement which plaintiff seeks to prevent by this action. The town resists the application for injunction on the grounds that this court has no power to issue the writ of injunction, that the municipal council has authority to determine the use of funds received under reimbursement agreement, and that its discretion has been properly exercised in using such funds for legitimate municipal purposes.

The questions propounded for the determination of the court are these:

(a) Has the court jurisdiction to grant the relief sought?

(b) Are the assessed owners of property abutting on State Highways Nos. 38 and 40 entitled to share to the extent of one-half in the funds received by the Town of Conway under the reimbursement agreement with the state highway department?

(c) If question (b) should be answered in the affirmative, what are the relative rights in the fund of past, present, and future owners where the property has changed hands since the assessment was levied, or may change hands before the completion of payments by the state highway department under the reimbursement agreement?

It would seem that there should be no dispute over the proposition suggested by the first question.

Section 4 of article 5 of the Constitution of 1895 provides that: "The Supreme Court shall have power to issue writs or orders of injunction, mandamus," etc.

This section has been construed in numerous cases where the power of the court to grant the processes enumerated in the quoted article has been recognized. Indeed, the defendants' counsel has not argued this question.

The second question (b) propounded presents the most serious matter for consideration. It is earnestly argued that the abutting property owners are entitled to share with the town the funds which are paid to the town by the state highway department under the agreement for reimbursement made between them. No specific authority for such disposition of the funds is cited. The argument is based upon the doctrine of equity and good conscience. In such proceedings, however, the court is bound by the law, by the language of the act which authorizes the agreement, and the payment by the highway department. The applicable provisions of law are contained in the second subdivision of section 5928 of volume 3 of the Code of 1932: "Reimbursement for Hard-Surface Construction in Towns of 2500 or Less.--The State Highway Department is hereby authorized and directed to reimburse any town or municipality of a population of twenty-five hundred or less for the appraised value of the hard-surface construction of any street where said construction was done by any said town or municipality prior to the first of January, 1925, and where said street is now a part of a State Highway authorized to be hard-surfaced under the provisions of §§ 5926-5933. The reimbursement for...