Mauldin v. City Council of Greenville

• Decision Date: 29 September 1898
• Parties: MAULDIN et al. v. CITY COUNCIL OF GREENVILLE.
• Court: South Carolina Supreme Court

31 S.E. 252

53 S.C. 285

MAULDIN et al. v. CITY COUNCIL OF GREENVILLE.

Supreme Court of South Carolina

September 29, 1898

Appeal from common pleas circuit court of Greenville county; R. C Watts, Judge.

Action by William L. Mauldin and others against the city council of Greenville. Judgment for plaintiffs. Defendant appeals. Affirmed.

J. A McCullough, for appellant.

Mooney & Patterson and Haynsworth & Parker, for respondents.

POPE J.

This action was begun in the court of common pleas for Greenville county on the 1st day of September, 1896, to obtain a perpetual injunction restraining the defendant, the city council of Greenville, from levying and collecting an assessment of two thirds of the cost for laying a sidewalk on each side of Main street from Reedy river to North street from those owners of real estate which abutted on said Main street within the limits above stated, on the ground that the act of the legislature of this state approved in the year 1891 (see 20 St. at Large, p. 1372) was unconstitutional, on the several grounds set up in the complaint. The answer denied that the act in question was unconstitutional, or that there was any failure on the part of the city council that rendered the assessment null and void, or that the plaintiff could controvert the constitutionality of the act in question by reason of the fact that as to him the judgment of this court, as found in the case of Mauldin v. City Council of Greenville, 42 S.C. 293, 20 S.E. 842, affirming its constitutionality, was res adjudicata. The cause came on to be heard before his honor, Judge Watts, through exceptions to the report of Master Verner; and by Judge Watts' decree it was held that the defendant should be enjoined and restrained from levying the assessments against the plaintiff and other property owners on Main street for two-thirds of the cost of improvements to the sidewalks and drains. From this decree the defendant now appeals, on 18 exceptions.

There have been two hearings had before this court. On the first when the argument was finished in this court an order was passed directing a reargument, with leave to counsel to question "the correctness of the former decision in this case, as reported in 42 S.C. 293, 20 S.E. 842, so far as it holds that the city council has power to assess the property of any taxpayer to pay the 'cost of the improvements to the sidewalks and drains fronting their respective lands."' 29 S.E. 812. The appellant relies upon the police power to sustain the constitutionality of the assessments made by the city council of Greenville against the plaintiffs for the cost of the sidewalks and drains recently improved by the city council of Greenville, and paid for by said city council out of the general funds of the municipality. Quite recently, in the two cases of Cornelia Real-Estate Co. v. City Council of Charleston and Stehmeyer v. Same, 30 S.E. ___, this court has, with great patience, endeavored to show that the police power, where the public health, the public morals, and the public safety are concerned, operates directly upon the persons and property of the citizen, so as to require that such person or property shall not prove injurious to other citizens; and then, also, such police power is made to operate upon persons and property where the citizen is not at fault, but to further a public purpose; and when, to accomplish the furtherance of a public purpose, the property is taken from the citizen or citizens by taxation or the right of eminent domain, that in such cases the right to tax or the right of eminent domain must be exerted in accordance with the provisions of the constitution adopted in the year 1895, which are therein ordained to regulate taxation or the right of eminent domain. The grounds for these conclusions of this court on the police power need not be reproduced here, inasmuch, as before remarked, as this court has so recently embodied its conclusions on this subject in the two cases just quoted.

But, independently of the exercise of the police power, the appellant, the city council of Greenville, seeks on two other grounds to sustain the assessment of these lot owners for the cost of improvement of the sidewalks and drains in front of their property, respectively: First, it is insisted that this question is res adjudicata as to W. L. Mauldin; and, second, that such an assessment is perfectly consistent with the provisions of our present constitution. Let us examine these positions in their order.

Is the decision of the case of Mauldin v. City Council of Greenville, 42 S.C. 293, 20 S.E. 842, controlling, as res adjudicata of the question now presented by the case at bar? We uphold the doctrine of res adjudicata as it is presented in Hart v. Bates, 17 S.C. 35, namely "The doctrine of res adjudicata is very far-reaching and effective. It is founded on principles of the wisest policy, because the peace and order of society require that a matter that is once litigated should not again be drawn in question between the same parties, or those claiming through them. But, whilst it is important to maintain the principle in all its integrity, it is not less important that it should be clearly defined, and kept within its proper limits. All agree as to its utility and necessity, but there has been a difference of opinion as to its proviso limits, and its application in particular cases. As we understand it, the rule established in the Duchess of Kingston's Case, is: 'First, that the judgment of a court of competent jurisdiction, directly on the point, is, as a plea in bar, or as evidence, conclusive between the same parties upon the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which comes collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.' 2 Smith, Lead. Cas. 424, and notes. It seems, therefore, to make out the defense at least three things are necessary: The parties must be the same, or their privies; the subject-matter must be the same; and the precise point must have been ruled." We may remark at the beginning that the present action was commenced by W. L. Mauldin for himself and such others in like plight with himself who would elect to come into this suit, and that, by a consent order passed in the case at bar, Theron Earle, James McPherson, W. C. Gobson, and others did come in under such invitation. Each of these parties hold their property separately from each other, and are not privies of W. L. Mauldin. So, therefore, it would seem that even if W. L. Mauldin was bound by the former judgment, under the doctrine of res adjudicata, his co-plaintiffs are not...