Mauldin v. City Council of Greenville

• Decision Date: 23 January 1895
• Citation: 20 S.E. 842,42 S.C. 293
• Parties: MAULDIN v. CITY COUNCIL OF GREENVILLE.
• Court: South Carolina Supreme Court

20 S.E. 842

42 S.C. 293

MAULDIN v. CITY COUNCIL OF GREENVILLE.

Supreme Court of South Carolina

January 23, 1895

Appeal from common pleas circuit court of Greenville county; J. J Norton, Judge.

Action by William L. Mauldin against the city council of Greenville. There was a judgment for plaintiff, and defendants appeal. Reversed in part. Jos. A. McCullough, for appellants.

Earle & Mooney, for respondent.

POPE J.

This action in the court of common pleas for Greenville county had for its object a perpetual injunction against the city council of Greenville, restraining them from any assessment of the property of the plaintiff and other citizens of said city who owned land abutting on Main street, beginning at Ready river, and thence up to a point on said Main Street where it is crossed by North street, to pay for two-thirds of the cost of paving the roadway and sidewalk of such street. The basis of the demand for such relief was--First, that the act of the general assembly which empowered said city council to make an assessment of the property of those citizens for the cost of the paving of Main street and its sidewalks, so that such citizens should pay two-thirds of the cost of such improvements (said assessment of such two-thirds to be computed against such property holders pro rata, according to the frontage of their property on said street, respectively) was unconstitutional; and, second, because such city of Greenville made such assessment without giving the citizens affected thereby any opportunity to contest such assessment so made. The defendants denied that such legislation was unconstitutional, and then, in case the court should hold it unconstitutional, claimed that the plaintiff was estopped by his conduct in not opposing its enactment by the legislature and afterwards by his conduct in not opposing the active steps of the defendants to execute such law. The circuit court, after a hearing of the cause, confined to the complaint and answer, issued the injunction prayed for; and from this decree, therefore, the defendants have appealed. The grounds of appeal, etc., will appear in the report.

If the act of the general assembly authorizing the defendant to make this assessment is unconstitutional, no other question raised by the appeal may be said to fairly arise upon the record of the case, and therefore necessary to be considered and decided. The act in question may be found on page 1372, 20 St. at Large, and its text is as follows: "An act to provide for the grading and paving of the streets, public ways and alleys of the city of Greenville.

"Section 1. Be it enacted by the senate and house of representatives of the state of South Carolina, now met and sitting in general assembly and by the authority of the same, that the mayor and alderman of the city of Greenville, shall have power and authority, and it is hereby made their duty, to grade, pave, macadamize and otherwise improve for travel and drainage the streets, public ways, and alleys of said city or such of them as they may deem advisable, and to construct side walks and to pave the same and put down crossings, curbings, drains, side drains, and cross drains, such as may be necessary in their judgment to carry out the provisions of this act.

"Sec. 2. In order to more effectually carry out the authority hereby delegated, the said mayor and aldermen shall have power to assess one-third of the costs of such grading, paving, macadamizing and improving said streets, public ways, and alleys of said city both as to sidewalks and roadways upon the abutting property owners on each side of said streets, public ways, and alleys, so that said property in the aggregate shall pay two-thirds of the said costs, and the said city the remaining one-third. Said assessments to be paid by said property holders pro rate according to the frontage of the property on said streets, public ways and alleys, respectively, and the money arising from such assessments shall be applied to the payment of interest on and as a sinking fund to redeem the same under such regulations as said mayor and aldermen may by ordinance prescribe.

"Sec. 3. The assessment provided for in section 2 of this act shall be collected as other taxes in said city are collected and in such installments as the said mayor and aldermen shall by ordinance prescribe.

"Sec. 4. Whenever the said mayor and aldermen shall determine to improve any street, public way or alley as hereinbefore provided, they shall cause the same to be carefully surveyed, and the proposed grade definitely established, and ascertain as accurately as possible the cost of the contemplated improvement, and shall also cause the frontage of each piece of property fronting on said street, public way or alley to be determined and fixed so that the assessment on each property holder may be easily ascertained.

"Sec. 5. To obtain the means of carrying out the provisions of this act on the part of the city the said mayor and aldermen may issue and negotiate bonds of said city under the provisions of section 31 of the charter of said city.

"Sec. 6. The said mayor and aldermen shall have power and authority by ordinance to provide the details necessary and requisite for carrying out the provisions of this act."

Approved December 22, A. D. 1891.

Just now, greater particularity is not needful, to bring the issue of the constitutionality of this act before the court, than to say that the defendants have passed the ordinances required by this act, and made the assessments therein contemplated, upon the plaintiff, as one of the property owners whose property abutted on the front of Main street, in said city, for one-third of such cost.

The first question that presents itself here is, what power of legislation has the general assembly of this state? It may savor of extreme care, but it is eminently proper that this court should declare its recognition of responsibility in undertaking to pass upon the rights, duties, and powers of a co-ordinate branch of the state government. We are not unmindful that in the bill of rights, incorporated in--as a part of--our constitution, section 26 distinctly provides: "In the government of the commonwealth, the legislative, executive and judicial powers of the government shall be forever separate and distinct from each other. ***" Yet it is made the duty of this tribunal to decide when either of the other two has exceeded the grant of power under the constitution and laws, when such a question is fairly involved in an action or special proceeding between parties litigant; but any decision which denies efficacy to an act passed by the legislature, for the want of constitutional power, is only made after an allowance by us of all presumptions in favor of the rightfulness of such exercise, which are required to be overcome, clearly and certainly, by him who assails such constitutional power.

Our state constitution, as the grant of its power to the general assembly, in section 1 of article 2, is in these words: "The legislative power of this state shall be vested in two distinct branches, the one to be styled the 'Senate' and the other the 'House of Representatives' and both together the 'General Assembly of the State of South Carolina."' We may announce as the result of our considerations, fortified by decisions both before and after the adoption of this, our present constitution, that by the use of the language here quoted the people, in convention assembled, clothed the general assembly with the whole legislative power capable of being exercised within our borders, subject only to such restrictions upon and regulation of such power as are embraced in the constitution itself, or that of the United States. State v. Mayor, etc., of City of Charleston, 10 Rich. Law, 501; State v. Hayne, 4 S. C. 420; Pelzer v. Campbell, 15 S.C. 592; Ex parte Lynch, 16 S.C. 33; Utsey v. Railroad Co., 38 S.C. 399, 17 S.E. 141; and other cases since decided. As before remarked, all presumptions are solved in favor of the constitutionality of an act of the legislature, and it devolves upon one who assails it to point out, certainly and clearly, where it is unconstitutional. This has been undertaken by the respondent in the case at bar, and the duty is now devolved upon this court to pass upon these several propositions.

A municipal corporation, in this state, can only exercise power with which it is clothed by the general assembly. State v. Town of Maysville, 12 S.C. 76. And, as we have before seen, the general assembly is only able to vest such municipal corporation with powers within the restrictions contained in our own state constitution and that of the United States. The power of taxation may be given to a municipal corporation, but such power, when exercised by such municipal corporation, must not only be exerted according to the charter thereof, but also within the limits of the constitution of the state.

Among the powers of the corporation of the city of Greenville is the control of its streets, ways, etc.; and, within certain well-defined restrictions, such municipality may tax the property within its territorial limits to improve and keep in repair such streets, ways, sidewalks, etc. The respondent concedes the constitutionality of the act of the general assembly which clothes the city of Greenville with the right by taxation, to raise the funds necessary to pay for one-third of the cost of the proposed improvements to the roadway and the sidewalks of the city of Greenville; but he goes further, and insists that the whole of such cost should be paid from general taxation in said city. It is too late in the day to question, in our courts, that highways (and public streets in our cities and towns are highways) belong to...