Mckiever v. City Of Sumter, (No. 12081.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtSTABLER
Citation135 S.E. 60
PartiesMcKIEVER et al. v. CITY OF SUMTER et al.
Docket Number(No. 12081.)
Decision Date13 October 1926

135 S.E. 60

McKIEVER et al.
v.
CITY OF SUMTER et al.

(No. 12081.)

Supreme Court of South Carolina.

Oct. 13, 1926.


[135 S.E. 61]

Appeal from Common Pleas Circuit Court of Sumter County; John S. Wilson, Judge.

Suit by J. W. McKiever and others against the City of Sumter and others, consolidated with a controversy without action between the City of Sumter and the Yadkin River Power Company. From a decree enjoining the city from making an intended conveyance and granting a franchise, the City and others appeal. Judgment reversed, injunction dissolved, petition dismissed, and judgment given City on the controversy without action, and case remanded, with instructions.

The following are the exceptions:

"I. That his honor, the presiding judge, erred, it is respectfully submitted, in holding that the city of Sumter, acting through its council, had not the authority and power to grant the franchise and make the conveyance referred to in the pleadings herein, for the reason that such power and authority were delegated to and vested in the said city council by the Act of the General Assembly of March 14, 1925 (Statutes 1925, p. 155), and the election and proceedings had and done under the authority thereof.

"II. That his honor, the presiding judge, erred, it is respectfully submitted, in not holding and finding that the said Act of March 14, 1925, was a constitutional enactment as against the attack based upon the ground that the body of the act related to more than one subject which was not expressed in its title, for the reason that the body of the said act did not relate to more than one subject, and for the further reason that the title to said act fairly expressed its subject and object.

"III. That his honor, the presiding judge, erred, it is respectfully submitted, in not holding that the Act of March 14, 1925, was constitutional, as against an attack based upon the ground that it constituted special legislation in violation of the Constitution of South Carolina, for the reason that the said statute is a valid enactment, and does not constitute special legislation, and should have been upheld on this ground.

"IV. That his honor, the presiding judge, erred, it is respectfully submitted, in not holding and finding that, in submitting the proposed sale of the electric light and power plant and ice plant to the people of Sumter, the city council thereof fully complied with the terms of the said Act of March 14, 1925, as against the attack based upon the ground that the notice of said election did not state in substance the terms of the offer, the said error being that the said notice of election did state in substance the terms of the offer in question and did constitute a full and legal compliance with the said statute.

"V. That his honor, the presiding judge, erred, it is respectfully submitted, in not finding and holding that any insufficiency which might have existed in the notice of election amounted to a mere irregularity, not affecting the result, and did not vitiate the election, for the reason that, it appearing that the electorate of the city of Sumter were fully informed as to the terms of the offer and that the result of the election was not affected by the alleged insufficiency in the notice thereof, and that there is no allegation or claim that any one was misled or not fully informed as to the terms of sale, his honor should have held that the alleged failure to comply strictly with the terms of the statute was a mere technicality, not affecting the result of the election, and not vitiating the election itself.

"VI. That his honor erred, it is respectfully submitted, in holding that the city council of the city of Sumter was without authority to grant a franchise to the purchaser of said property without a petition praying that the same be done, signed by two-thirds of the electors of the said city, said error being that the Act of March 14, 1925, fully authorized city council to make such a grant in connection with the sale of the property.

"VII. That his honor erred, it is respectfully submitted, in not holding and finding that the Act of March 14, 1925, authorized the city council of the city of Sumter, upon the approval of a proposed sale by a majority of the electors, in connection therewith, to grant a franchise for the use of the streets and public places of said city for the furnishing of electric power to the people thereof, for the reason that the said Act of March 14, 1925, expressly and by plain intendment did confer such authority upon said city council without the filing of any petition on the subject.

"VIII. That his honor erred in not holding and finding that the provisions of the act of 1912 (Code, § 4715) could have no effect in considering whether or not the city council had power and authority to grant the proposed franchise; said error being that the act of 1912, in so far as it refers to granting franchises for public utilities, is so inconsistent, contradictory, and indefinite in its terms as to be without reasonable meaning, and therefore null and void.

"IX. If it should be held that, before the city council could grant a franchise for the use of the streets in connection with said sale, it was necessary to have a petition filed under section 4715 of the Code of Laws, 1922, then his honor should have further held that city council was authorized and empowered to grant said franchise, for the reason that the petitions filed were signed by more than two-thirds of the qualified electors of the city of Sumter, and a majority of the

[135 S.E. 62]

petitioners were in favor of the granting of such franchise, and his honor erred in not so holding.

"X. That his honor erred, it is respectfully submitted, in not decreeing that the city of Sumter was entitled to specific performance by the Yadkin River Power Company of the contract between the city of Sumter and said company, dated September 23, 1925, for the reason that it appeared that the city of Sumter had duly carried out its part of said contract and was duly authorized and empowered to make the conveyance and grant the franchise referred to in the pleadings herein."

Lee & Moise and A. S. Harby, all of Sumter, and Geo. E. Dargan, of Darlington, for appellants.

D. W. Robinson, of Columbia, and L. D. Jennings, H. C. Haynsworth, H. D. Moise, M. W. Seabrook, Geo. D. Shore, Jr., and A. S. Merrimon, all of Sumter, for respondents.

STABLER, J. This appeal is taken from an order of his honor, Judge Wilson, granting a permanent injunction against the city of Sumter and its council, and denying relief to the said city as against the Yadkin River Power Company, one of the defendants.

It is necessary to give a brief history of the controversy involved in order that the proceedings had by the parties to this suit may be understood.

The city of Sumter has for several years owned its electric power and lighting plant and ice plant, but decided to make sale of this property as allowed under an act of the Legislature of 1925. On September 23, 1925. the Yadkin River Power Company, a North Carolina corporation, made an offer to the city to purchase the property; this offer being made in the form of a contract, and conditioned upon the result of an election to be held on the question of the proposed sale. Among other things, the contract provided that the power company should pay to the city $625,000 cash for the property; that it should construct and operate a hydroelectric transmission line into the city, and should furnish the city and its people with electric power and lights, and, for that purpose, should be granted a 60-year nonexclusive franchise.

In order to determine the will of the people on this question, an election was held, after notice, on November 17, 1925. At this election 349 votes were cast in favor of the sale and 303 against it. Pursuant to this election, the city, in accordance with the contract, prepared a conveyance of the property and the franchise and tendered same to the power company, which, however, refused to accept and pay for same, on the ground that it doubted the power and authority of the city council to make the conveyance and to grant the franchise.

This action is a consolidation of two proceedings: On the 16th day of December, 1925, an action was commenced by the re spondents, as taxpayers and qualified electors of the city, to enjoin the city and its council from making the conveyance and granting the franchise. A controversy without action was instituted between the city of Sumter and the Yadkin River Power Company, on December 18, 1925, whereby it was sought to be determined by a decree of the court whether or not the city council had the power and authority to make the conveyance and to grant the franchise. By agreement of counsel, the two proceedings were, in effect, consolidated, and were heard by Judge Wilson on January 5, 1926. Judge Wilson, by his order, decreed:

"This cause comes on before me for hearing at my chambers at Manning, S. C, under the stipulation of all parties hereto filed in the record. After hearing argument, and it appearing to the court that the city of Sumter, acting through its council, has not the authority or power to grant the franchise, and make the conveyance referred to in the pleadings, it is ordered, adjudged, and decreed that the temporary restraining order herein be and is hereby made permanent. It is further ordered, adjudged, and decreed that, inasmuch as the conveyance and franchise tendered the Yadkin River Power Company by the city of Sumter were unauthorized, the city of Sumter is not entitled to any relief as against Yadkin River Power Company."

From this decree the city of Sumter, and its council appeal to this court by a number of exceptions which will be reported. We shall not consider these exceptions seriatim, but shall discuss by topics the questions which they raise.

In 1925, the state Legislature passed the following act, which was approved by the Governor on...

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23 practice notes
  • Clarke v. South Carolina Pub. Serv. Auth., No. 14137.
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1935
    ...288, 135 S. E. 153, 163. See, also, Means v. Highway Department, 146 S. C. 19, 143 S. E. 360; McKiever v. City of Sumter, 137 S. C. 266, 135 S. E. 60." This objection is clearly untenable and the same is overruled. II. It is also contended that the Act is unconstitutional in permitting......
  • State Ex Rel. Richards v. Moorer, (No. 12746.)
    • United States
    • United States State Supreme Court of South Carolina
    • October 12, 1929
    ...that the unconstitutionality of an act must be shown beyond a reasonable doubt. McKiever et al. v. City of Sumter et al., 137 S. C. 266, 135 S. E. 60; Poulnot v. Cantwell, 129 S. C. 171, 123 S. E. 653; Battle v. Willcox, 128 S. C. 500, 122 S. E. 516; San-tee Mills v. Query, 122 S. C. 158, 1......
  • Wingfield v. South Carolina Tax Comm'n, (No. 12499.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 25, 1928
    ...that the unconstitutionality of an act must be shown beyond a reasonable doubt. McKiever et al v. City of Sumter et al., 137 S. C. 266, 135 S. E. 60; Poulnot v. Cantwell, 129 S. C. 171, 123 S. E. 653; Battle v. Willcox, 128 S. C. 500, 122 S. E. 516; Santee Mills v. Query, 122 S. C. 158, 115......
  • Miles Laboratories v. Seignious, No. 981.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 15, 1939
    ...Furman v. Willimon, 106 S.C. 159, 90 S.E. 700; Robinson v. City of Columbia, 116 S.C. 193, 107 S.E. 476; McKiever v. Sumter, 137 S.C. 266, 135 S.E. 60; Briggs v. Greenville County, 137 S.C. 288, 135 S.E. 153; State ex rel. Farr v. Moorer, 152 S.C. 455, 150 S.E. 269; Alley v. Daniel, 153 S.C......
  • Request a trial to view additional results
23 cases
  • Clarke v. South Carolina Pub. Serv. Auth., No. 14137.
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1935
    ...288, 135 S. E. 153, 163. See, also, Means v. Highway Department, 146 S. C. 19, 143 S. E. 360; McKiever v. City of Sumter, 137 S. C. 266, 135 S. E. 60." This objection is clearly untenable and the same is overruled. II. It is also contended that the Act is unconstitutional in permitting......
  • State Ex Rel. Richards v. Moorer, (No. 12746.)
    • United States
    • United States State Supreme Court of South Carolina
    • October 12, 1929
    ...that the unconstitutionality of an act must be shown beyond a reasonable doubt. McKiever et al. v. City of Sumter et al., 137 S. C. 266, 135 S. E. 60; Poulnot v. Cantwell, 129 S. C. 171, 123 S. E. 653; Battle v. Willcox, 128 S. C. 500, 122 S. E. 516; San-tee Mills v. Query, 122 S. C. 158, 1......
  • Wingfield v. South Carolina Tax Comm'n, (No. 12499.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 25, 1928
    ...that the unconstitutionality of an act must be shown beyond a reasonable doubt. McKiever et al v. City of Sumter et al., 137 S. C. 266, 135 S. E. 60; Poulnot v. Cantwell, 129 S. C. 171, 123 S. E. 653; Battle v. Willcox, 128 S. C. 500, 122 S. E. 516; Santee Mills v. Query, 122 S. C. 158, 115......
  • Miles Laboratories v. Seignious, No. 981.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 15, 1939
    ...Furman v. Willimon, 106 S.C. 159, 90 S.E. 700; Robinson v. City of Columbia, 116 S.C. 193, 107 S.E. 476; McKiever v. Sumter, 137 S.C. 266, 135 S.E. 60; Briggs v. Greenville County, 137 S.C. 288, 135 S.E. 153; State ex rel. Farr v. Moorer, 152 S.C. 455, 150 S.E. 269; Alley v. Daniel, 153 S.C......
  • Request a trial to view additional results

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