Mauldin v. City Council of Greenville

• Decision Date: 21 April 1890
• Citation: 11 S.E. 434,33 S.C. 1
• Parties: MAULDIN et al. v. CITY COUNCIL OF GREENVILLE.
• Court: South Carolina Supreme Court

11 S.E. 434

33 S.C. 1

MAULDIN et al. v. CITY COUNCIL OF GREENVILLE.

Supreme Court of South Carolina

April 21, 1890

Appeal from common pleas circuit court of Greenville county; HUDSON Judge.

Action by William Mauldin, William Wilkins, James A. Hoyt, Jacob W Cagle, and John Ferguson, to restrain the city council of the city of Greenville from purchasing and operating an electric light plant. There was decree for defendant, and plaintiffs appeal.

Wells & Orr, T. Q. & A. H. Donaldson, and Cothran, Ansel & Morgan for appellants.

Wm. A Williams and Perry Heyward, for respondent.

MCGOWAN J.

The plaintiffs, as citizens and tax-payers of the city of Greenville, instituted this proceeding to restrain the city council from purchasing and operating an electric light plant to light the streets and public buildings of the city, and from using the same for lighting private residences; and also to enjoin the council from issuing bonds of the corporation in payment therefor, upon the grounds substantially stated by the circuit judge, as follows: First. Because the city charter confers no authority on the council to purchase this machinery for the purpose of lighting the streets and public buildings. Second. Because the power of the city council to borrow money for the public use of the corporation has already been exhausted, and that to issue bonds to pay for this plant would be ultra vires. Third. Because 75 cents on the $100 of the assessed value of real and personal property of the corporation is the limit of taxation fixed by the charter, and this enterprise will necessarily force the council to exceed that limit, and thus increase the burden of the plaintiffs and all the tax-payers. Fourth. Because the purchase includes a costly engine and dynamos for producing incandescent lights for the interior of private residences and places of business, and there is no authority conferred on the council by the charter to purchase and operate an electric plant for this purpose. Such, briefly and substantially, are the grounds on which the plaintiffs ask relief by injunction.

The city council, the defendant, answered fully to the merits, admitting paragraphs 1 and 2 of the complaint, but denying each and every other allegation contained in it, not specially denied, admitted, or explained; making no objection, however, by plea or demurrer, as to the manner in which the action was brought, in the name alone of the plaintiffs as corporators and tax-payers. The plaintiffs offered in evidence the charter of the city; that an effort had been made to obtain additional powers, which failed; the contracts the city council had made in reference to the electric plant; the value of the taxable property of the city, its bonded indebtedness, etc.; that the incandescent lights were suitable for lighting the interior of private residences and places of business, but not for lighting the public streets, etc. The city council, the defendant, offered no testimony, but moved orally at the trial to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which motion was considered in connection with the argument on the merits; the circuit judge remarking, among other things, that he was not willing to depart from what he considered the practice and doctrine of our own courts. If the complaint states good ground for equitable relief, and the injury complained of is peculiar to none, but common to all, the citizens, then the action must be in the name of the state ex relatione the taxpayers, or in the name of the attorney general. The individual tax-payer, as such merely, can obtain a standing in court only by alleging and proving that the illegal act complained of will inflict damage special and peculiar to himself, etc. Held, that the complaint should be dismissed, for the reason that it did not state facts sufficient to constitute a cause of action. But nevertheless the judge proceeded to consider the case on its merits, and dismissed the complaint, also, on the ground that there was no right or equity in it.

From this decree the plaintiffs appeal to this court, upon the following grounds: "(1) Because his honor erred in holding that the complaint did not state facts sufficient to constitute a cause of action. (2) Because, if said complaint was demurrable at all, it was upon the ground that the plaintiffs had not legal capacity to sue, and the objection, not being taken by demurrer on that ground, was waived. (3) Because, in any event, the plaintiffs should have been allowed to amend by making the state a party on the relation of the attorney general. (4) Because his honor erred in holding that the city council of Greenville have authority, under the police powers conferred upon them by section 12 of their charter, to purchase an electric light plant for the purpose of lighting the streets and public buildings of the city. (5) Because his honor erred in holding that said city council, under the provisions of section 31 of their charter, have authority to issue bonds to the amount of $100,000, exclusive of the $88,000 of bonds heretofore issued in aid of railroads and graded schools. (6) Because the charter of said city having limited the amount of the annual tax to be levied on the real and personal property of the citizens to seventy-five cents on the hundred dollars, and it appearing, by uncontradicted evidence, that the income of the city is just about sufficient to meet the present expenses, his honor should have held that said council were without authority to levy and additional tax to meet the interest on any additional bonds, and that, therefore, they had no right to issue them. (7) Because it is respectfully submitted that his honor erred in holding that the said city council have the right to furnish lights to individuals and others for private purposes, thus using the people's money in speculation and trade. (8) Because it is manifest, from the proof, that one of the chief purposes of the defendant in purchasing the incandescent system of the electric light plant was not simply to light up the public buildings, but to furnish incandescent lights to private residences and places of business for compensation, for which there is no authority in the charter, and to that extent, at least, it is submitted, their contract with the Brush Electric Light Company was clearly ultra vires, and not binding on the city, and that his honor erred in not so holding. (9) Because, if the defendant is permitted to carry out its illegal contract, it will inevitably result in a large increase of the debt of the city, and a proportionate increase in the amount of taxes to be paid by the plaintiffs, and this fact, it is submitted, furnishes sufficient grounds for the relief sought by the plaintiffs, and his honor erred in not so holding," etc.

Exceptions 1, 2, and 3 make the point that it was error in the circuit judge to dismiss the complaint, upon verbal motion at the trial, on the ground that it did not state facts sufficient to constitute a cause of action, in that the plaintiffs had not legal capacity to sue in their own name, without inserting as plaintiff the state ex relations the complaining tax-payers. It will not be necessary to consider whether, as a matter of pleading, the defendant waived the objection, by answering to the merits, without making the objection either by answer or demurrer. In the view the court takes, the objection was purely formal, relating merely to the title of the case; for the plaintiffs might have brought their action according to the formula indicated. The state, in such case, never refuses the use of its name, which might have been added pro forma, by order of the court, at any stage of the proceeding. It is always desirable, when it can be done without a breach of principle or injury to others, that the controversies between parties should be decided on their merits alone.

In considering whether the plaintiffs, as tax-payers of the city of Greenville, had the right to bring this section in their own name for the benefit of themselves and other corporators without alleging special damage to themselves, it will be proper to keep clearly in view the nature, scope, and object of the action. It must not be overlooked that it is a proceeding in equity, by a number of tax-payers of an incorporated city, to prevent certain acts, by the municipal authorities, alleged to be beyond their authority under the charter, to the injury of plaintiffs and all other tax-payers of the corporation, somewhat in the nature of a bill quia timet. Can it be that, in such case, a number of citizens, tax-payers of a city, cannot be heard against the corporate authorities in a court of equity asking for an injunction against the consummation of the contemplated wrongs, without alleging special damages to themselves individually? There is a certain relation in the nature of agency between the municipal authorities and all tax-payers of the corporation. It does not strike us that the doctrines as to nuisances and public wrongs of that character have any proper application to the case. We cannot agree that there is any analogy between this case and those of the class of South Carolina Steam-Boat Co. v. South Carolina Ry. Co., 30 S.C. 539, 9 S.E. Rep. 650. That was an action at law for damages, on account of the obstruction of a navigable river, which was a public nuisance to all the world. The parties were in all respects strangers to each other. Here the tax-paying citizens of Greenville are not the whole public, but comparatively a small part of it. They are not strangers to the municipality. They, and they alone, are affected by their acts. As to them this is more in the nature of "a private" than "public" ...