Martin v. Saye

• Decision Date: 26 September 1928
• Docket Number: 12500.
• Citation: 145 S.E. 186,147 S.C. 433
• Parties: MARTIN et al. v. SAYE et al. ANDERSON v. SAME.
• Court: South Carolina Supreme Court

145 S.E. 186

147 S.C. 433

MARTIN et al. v. SAYE et al.

ANDERSON v. SAME.

No. 12500.

Supreme Court of South Carolina

September 26, 1928

Original actions by George W. Martin and others, and by J. W Anderson, against J. H. Saye and others, members of the York County Permanent Road Commission, and another. Permanent injunction granted.

Dunlap & Dunlap and Spencer & White, all of Rock Hill, for petitioners.

Marion & Finley and John R. Hart, all of York, for respondents.

STABLER J.

At its 1923 session, the Legislature passed an act (33 Stat. 881) providing for the issuance and sale of coupon bonds by York county, not in excess of $2,000,000 for permanent highway improvements in that county, and creating a permanent road commission (hereinafter referred to as the commission) to have charge of the carrying out of the provisions of the act. Among the highways directed to be hard-surfaced were the following:

"From York through Tirzah, Newport, Ebenezer, Rock Hill, *** through Fort Mill to the North Carolina line. From the North Carolina line between Gastonia and Clover, through Clover, Filbert, York, McConnellsville to the Chester County line. *** From Cherokee County line through Smyrna, Hickory Grove, Sharon to York."

In the fall of that year, the question of the issuance and sale of bonds, as provided for by the act, was duly submitted to and approved by the voters of York county, and thereafter bonds were sold in the sum of $1,000,0000, and the commission expended this amount in the hard-surfacing of roads named in the act.

In 1924, the Legislature passed an act (33 Stat. 1193) known as the Pay-As-You-Go Act, providing for a state-wide connected system of hard-surface, top soil, and other dependable types of public roads, to be constructed by the state of South Carolina, and to be known as the state highway system. By the provisions of this act, the roads designated by the act of 1923 to be paved in York county were made a part of this system. The highways above enumerated were thus therein designated and described:

"From York easterly on route No. 5 by way of Tirzah, Newport and Old Point to Rock Hill. From Cherokee County line near Smyrna easterly on route No. 5 to York. From Chester County line near Lowrysville northerly on route No. 16 by way of McConnells, Guthriesville, York, Filbert, and Clover to the North Carolina state line near Bowling Green."

Because of constitutional limitations, it was found that the whole amount of bonds authorized by the 1923 act could not be issued, so later, in 1926, an amendment to the Constitution was adopted removing the limitations and thereby permitting the issuance and sale of the additional bonds.

In 1926 the Legislature passed a general reimbursement act (34 Stat. 1001), providing for the construction of highways in the state highway system pursuant to reimbursement agreements between the state highway department and the counties and road districts of the state and for the issuance of bonds for that purpose. It also provided that if the actual cost of the work in the construction of such highways should be less than the amount estimated, the proceeds of such bonds not used to pay such cost should be placed in a special fund by the county treasurer and applied solely to the payment of the principal of bonds as such principal became due.

York county was exempted from the provisions of this act; but in 1927 a special act was passed (35 Stat. 1081), which, in part, brought York county within its terms. By the provisions of section 1 of the 1927 act, a reimbursement agreement that had been entered into between York county and the state highway department, whereby York county had agreed to advance $1,000,000 to the state highway commission for the construction of state highways in that county and the highway commission had agreed to reimburse the county for moneys so advanced, was validated and confirmed. The 1927 act also authorized and provided for the issuance and sale of $1,000,000 of bonds, and pledged the full faith, credit, and taxing power of York county for the punctual payment of same, principal and interest. The act further provided that any premium received on the sale of the bonds, together with interest received from banks or depositories on the $1,000,000 pending its expenditures, should first be applied to the payment of certain expenses enumerated therein, and that any part of the premium not so used, together with accrued interest paid by the purchaser of the securities, should be applied to the payment of interest on the bonds. It was also provided that the reimbursement agreement should be carried out in accordance with the provisions of section 3 of the 1926 act, but that the bonds for the raising of the money to be advanced should be issued pursuant to the 1927 act.

The commission, acting under the 1927 statute, issued and sold bonds in the sum of $1,000,000, and, pursuant to the reimbursement agreement, turned over that amount to the state highway department, to be used to complete the roads in the state highway system designated by the act of 1924 to be built and hard-surfaced in York county. The premium realized from the sale of the bonds amounted to $35,900 and the accrued interest paid by the purchasers of bonds to about $10,000. This money, under the terms of the act, was placed in the hands of the county treasurer, to be used by the commission for the purposes named therein. The treasurer also received, at various times, interest apparently aggregating about $20,000 from banks in which the $1,000,000 was deposited pending its expenditure by the state highway commission. The aggregate sum expended at various times for different items of expense enumerated in the act of 1927 amounted to about $20,000, and there was thus left in the hands of the treasurer, as it appears, subject to the warrants of the commission, about $45,000.

With this status prevailing, the Legislature in 1928 passed an act (35 Stat. 2048), amendatory to the act of 1927, providing that all unexpended balances in, or thereafter coming into, the hands of the county treasurer of York county from any source connected with the $1,000,000 bond issue might be used by the commission for any purpose connected with hard-surface roads in the county.

It appears that the state highway department has about completed the construction of the roads to be built by it in York county under the act of 1924, including the highways on routes 5 and 16 extending to the corporate limits of the town of York. But between the paved highways on these routes, terminating at the corporate limits of the town, and its paved streets are segments of unpaved roads or streets amounting to, in the aggregate, about 2 1/10 miles. After the passage of the 1928 act, and after the town authorities of York had declined to pave these segments of roads or streets within its borders, the commission declared its intention to do so and, under its construction of the act, to use the balance of premium and accrued interest for that purpose.

These proceedings were then instituted by the petitioners in the original jurisdiction of the court for permanent injunctive relief. One action is brought by taxpayers of the county and the other by a bondholder. The cases involve similar points of law and were heard together; and the court in one opinion will dispose of the questions raised in both cases.

The first of these questions, considered in logical order, is whether or not the commission is authorized by law to hard-surface the segments of roads or streets within the corporate limits of the town of York? Being a creature of statute, the commission may exercise only such authority and powers as are given it by statute. The act creating it, that of 1923, expressly states that the commission "shall have charge of the carrying out of the provisions of this act." The main purpose of the act, as shown by its terms, was to provide for the issuance and sale by York county of coupon bonds, not in excess of $2,000,000, "in such amounts and at such times as the commission may determine" in its judgment, the proceeds to be used for the hard-surfacing in York county by the commission of certain specifically named and described highways "from," "to," or "through" certain points or places named in the act, in the doing of which authority was granted the commission to "relocate the roadbeds along the said highways, with due regard to distance and grade."

In the matter of condemnation and acquiring rights of way, but in no other respect, the commission was vested with the same authority and power possessed by county boards of commissioners. As to matters of detail, the commission was directed to build the specified highways by contract with independent contractors, to advertise for bids, and to let the contracts to the lowest responsible bidders, with the right to reject any or all bids. These provisions of the act vested in the commission whatever power and authority it had or may possess in the hard-surfacing of the roads named.

A careful study of the act does not disclose that the Legislature vested, or intended to vest, the commission with the power it now seeks to exercise. The fact that the act does not prohibit the commission from doing certain things furnishes no argument that it is, therefore, as contended by the respondents, permitted to do them. As already pointed out, the powers of the commission are derived from no source other than the statute itself. There is absolutely nothing in the act from which the authority claimed by the commission may be even inferred, unless it should be concluded that the use of the words "through *** York," with respect to the construction of the highway from the Chester county line to the North...