Lucas v. Barringer

• Decision Date: 24 May 1922
• Docket Number: 10889.
• Citation: 112 S.E. 746,120 S.C. 68
• Parties: LUCAS v. BARRINGER, MAYOR, ET AL.
• Court: South Carolina Supreme Court

112 S.E. 746

120 S.C. 68

LUCAS v. BARRINGER, MAYOR, ET AL.

No. 10889.

Supreme Court of South Carolina

May 24, 1922

Appeal from Common Pleas Circuit Court of Florence County; S.W. G Shipp, Judge.

Suits for injunction by Edward H. Lucas against W. R. Barringer Mayor, and others. From an order that injunction be refused and complaints dismissed, plaintiff appeals. Affirmed.

The following is the decree of the trial court:

By agreement of counsel the three above-entitled causes were consolidated and heard by me. Each complaint was by the same taxpayer and freeholder against the mayor and city council of Florence praying for an injunction restraining the issuance of bonds of the city of Florence, one of said issues being for $100,000, the proceeds to be used for the purpose of improving and extending the waterworks and sewerage system in said city; another of said issues being for $125,000, for the purpose of paying off and liquidating all outstanding open indebtedness due by said city; and the third of said issues being for $350,000, for the purpose of building, repairing and improving streets and sidewalks in said city.

The grounds for injunction as set out in each complaint affecting all of said issues were that the issuance would be unconstitutional and illegal, in that:

(1) The petitions filed with city council asking that the elections be held were not signed by a majority of the freeholders in said city as shown by its tax books.

(2) That in the introduction, passage, and adoption of the resolutions or ordinances calling the election, declaring the result thereof and authorizing the issuance of the bonds, and in the publishing of the notice of election, and in the opening and closing of city books of registration for the elections, the mandatory requirements of the charter of the city of Florence were not complied with, and as in and by said charter it was provided that any debt or liability incurred by the city of Florence in violation of the provisions of the charter should be void, that said failure to comply therewith makes said bonds void.

(3) That the said issues of bonds (each of them) will exceed the constitutional limitation of indebtedness based on the assessed value of the taxable property in the city of Florence in violation of the provisions of article 8, § 7 and article 10, § 5, of the Constitution.

(4) That under the acts of the General Assembly authorizing the issuance of the bonds it was provided that city council should sell said bonds after at least three full weeks' advertisement of said sale, but that the sales of said bonds have been made without such advertisement in pursuance of said acts.

(5) In the complaint on the issue of $100,000 of waterworks and sewerage system extension bonds there was the additional ground of unconstitutionality and illegality that the question of the issuance for the two purposes was submitted as one proposition, and thereby the voters were deprived of the privilege of voting for or against each separate purpose.

(6) In the complaint on the issue of $350,000 street improvement bonds there was the additional ground of illegality that the act authorizing the issuance of said bonds and the ordinances of city council adopted immediately following the election fixed the maturity at 30 years, whereas city council is about to issue said bonds with serial maturities, the maturity of $5,000 of said bonds being one year from their date.

The defendants deny that the issuance of said bonds will be unconstitutional and illegal, and allege that all irregularities, if any, in the proceedings of city council relating to said issues were cured by validating acts of the General Assembly approved February 17, 1922; that the issuance of each issue of bonds respectively for the purposes submitted to the electors were authorized by acts of the General Assembly passed at the 1919 session (Acts March 8, 1919, March 10, 1919, March 8, 1919 [31 St. at Large, pp. 532, 534, 537]), and approved by the Governor, the power to increase the rate of interest from 5 per cent. to 6 per cent., and issue bonds with serial maturities, if desired, having been authorized by the act approved March 11th, 1920 (31 St. at Large, p. 1489); that the limitations of bonded indebtedness of the city of Florence for the purposes for which these bonds are issued was removed from the provisions of article 8, § 7, and article 10, § 5, by amendment to those sections ratified by the act approved March 10, 1919, or that, if for any reason said amendment was not effective, under the amendment to the same sections ratified by the act approved February 16, 1915 (Act Feb. 16, 1915 [29 St. at Large, p. 87]), such limitations were removed; that the sale of the bonds had been made after three weeks' advertisement, inasmuch as the sale had been so advertised, and, no par bid having been received on the opening of bids thereunder, a sale was not made until such par bid was received; and that the sale has now been made for par and accrued interest.

These cases were referred to H. A. Brunson, judge of probate, acting master for Florence county, to take and report the testimony, and the testimony taken before him with exhibits is now before me.

1. Mr. McTaggart, present clerk of city council, produced the three original petitions of freeholders asking for the respective elections, and testified that Mr. Malloy, former clerk of council, a Miss Cottingham, and himself had carefully checked over the names of the freeholders as appeared on the city tax books with the signatures on the petitions for the $100,000 waterworks and sewerage bonds and the $125,000 funding bonds, and as a result of such checking they ascertained that the petitions had each been signed by more than a majority of the freeholders; that practically all of the signatures on the petitions were familiar to some one of them, and in that way he knew that such signatures were the genuine signatures of the persons purporting to sign the same; that he personally had checked in the same way the signatures on the petition for $350,000 street improvement bonds, and that the petition was signed by more than a majority of the freeholders; that most of the signatures were familiar to him, and in that way he knew that such signatures were genuine.

In addition to this the resolutions of city council ordering the elections recite that such petitions contain the names of a majority of the freeholders.

If the bonds had already been sold and were in the hands of holders for value, I would not have considered any testimony other than the declaration of city council that the names on the petitions constituted a majority of freeholders in the city of Florence as appears by the tax books, for certainly a purchaser of bonds of a municipality or other political subdivision in this state has a right to rely on the truth of a declaration of fact which is peculiarly within their knowledge, made by the authorities in such municipality or political subdivision, and as against the holder for value of such bonds the truth thereof cannot be attacked; otherwise the question of fact as to whether a petition did contain the requisite number of signatures, and whether the same were genuine, would be open to attack during the whole life of the bonds. The declaration of city council as to such holders for value is conclusive and incontrovertible. I can find no decision of our Supreme Court on the question as to what is necessary to preclude an attack upon the number or genuineness of the signatures to a petition asking for an election, and, as it is a question of great concern in the validity of bond issues, if possible, some expression of opinion on this point should be obtained from the Supreme Court of this state. But, as the bonds in question have not yet passed into the hands of purchasers for value, I find as a fact from the testimony of the clerk of city council that each of the petitions were signed by more than a majority of the freeholders of the city of Florence, and that allegation of plaintiff to the contrary is without foundation.

2. The original ordinances or resolutions adopted in the calling of the elections, declaring the result and authorizing the issuance of the bonds, and also the original minute books of city council containing the proceedings of council in reference thereto, were in evidence, and also proof that the city books of registration for said elections were not opened and closed within the time prescribed by law, and that the notices of the election were not published for the length of time required by the charter. The charter of the city of Florence as amended by the act approved February 25, 1921 (Acts 1921, p. 599), was produced and my attention called to the requirements therein contained for the passage and adoption of resolutions and ordinances, and especially to the provision in section 15 thereof that any debt or liability incurred in violation of the provisions of this section shall be void. There was also in evidence certified copies (with the full and proper certificate of Secretary of State attached thereto) of three acts of the General Assembly each approved February 17, 1922, validating the elections respectively, together with all the proceedings, acts, and doings had with reference to such elections and with reference to the issuance of said bonds, and the same were validated, ratified, and declared legal in all respects, and any bonds issued or to be issued by the city of Florence in pursuance of said elections were declared to be valid and legal in all respects as incontestable obligations of the said city of Florence. An examination of the minutes of city council showed irregularities and violations of the provisions of the charter...