McKiever v. City of Sumter
Decision Date | 13 October 1926 |
Docket Number | 12081. |
Citation | 135 S.E. 60,137 S.C. 266 |
Parties | McKIEVER et al. v. CITY OF SUMTER et al. |
Court | South Carolina Supreme Court |
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:
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.
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 of $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 respondents, 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:
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...
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