Mills Mill v. Hawkins

• Decision Date: 19 June 1957
• Docket Number: No. 17312,17312
• Citation: 103 S.E.2d 14,232 S.C. 515
• Court: South Carolina Supreme Court
• Parties: MILLS MILL, Draper Corporation and The Powell Knitting Company, Appellants, v. Ernest E. HAWKINS et al., Individually and Constituting the Una Water District Commission, Respondents, and SPARTANBURG CONCRETE COMPANY, Inc., Appellant, v. Ernest E. HAWKINS et al., Individually and Constituting the Una Water District Commission, Respondents.

Page 14

103 S.E.2d 14

232 S.C. 515

MILLS MILL, Draper Corporation and The Powell Knitting

Company, Appellants, v. Ernest E. HAWKINS et al., Individually and Constituting the

Una Water District Commission, Respondents, and SPARTANBURG CONCRETE COMPANY, Inc., Appellant, v. Ernest E. HAWKINS et al., Individually and Constituting the

Una Water District Commission, Respondents.

No. 17312.

Supreme Court of South Carolina.

June 19, 1957.

Perrin & Perrin, Means & Browne, J. Davis Kerr, Butler & Chapman, Spartanburg, for appellants.

Odom, Bostick & Nolen, Poliakoff & Poliakoff, Johnson & Johnson, Spartanburg, for respondents.

Sinkler, Gibbs & Simons, Charleston, amicus curiae.

OXNER, Justice.

This is an appeal from an order of the Circuit Court upholding the constitutionality of Act No. 582 of the 1955 Acts of the General Assembly, 49 Stat. at Large, p. 1400. Appellants attack this Act upon the grounds (1) that it is special legislation in contravention of Article III, Section 34, Subdivision IX of our Constitution, and (2) that it deprives them of their property without due process of law and denies them the equal protection of the laws, in violation of both the State and Federal Constitutions. Const. art. 1, § 5; U.S.Const. Amend. 14.

The Act in controversy creates a public corporation to be known as 'Una Water District', embracing a certain area in Spartanburg County Adjacent to the City of Spartanburg, for the purpose of having said territory served by publicly operated water and sewer systems. The corporate authorities of the district were further empowered to make provision for the collection and dispositon of garbage. In the preamble to this Act it was recited that the General Assembly had found that the area involved had become populated to the extent that these facilities were 'necessary and desirable for the health and welfare of the inhabitants thereof.'

It is contended that there was in effect at the time of the passage of the foregoing Act a general law on the subject enacted in 1934. Appellants argue that Act No. 734 of the Acts of 1934, 38 Stat. at Large 1292, now comprising Sections 59-601 through 59-625 of the 1952 Code, was clearly applicable and that there was no sound reason for special legislation.

The terms of both Acts are accurately set out in the dissenting opinion of Mr. Justice LEGGE and need not be repeated. The major differences may be briefly stated as follows:

(1) The Act of 1955 creates a public service district. The Act of 1934, which is a general law, authorizes the formation of such a district upon a petition signed by a certain number of landowners in the proposed district followed by a favorable vote of the qualified voters. Stated differently, the landowners and qualified voters were given no voice in the formation of the Una Water District, while they are in the formation of a district under the general law.

(2) The 1934 Act authorized the establishment of a district 'for the purpose of supplying lights, and/or water and/or providing fire protection and/or providing a sewerage collection system and/or sewerage treatment plant or plants to that portion of any county in this State which is not included in any incorporated village or city.' The collection of garbage is not included. The facilities covered by the 1955 Act are garbage, water and sewerage.

(3) The governing body of the Una Water District is appointed by the Governor upon the recommendation of a majority of the legislative delegation of Spartanburg County, while under the general Act the commissioners are elected by the qualified voters.

(4) Under the 1934 Act the rates must be fixed at a public hearing had after due notice. This is not required under the 1955 Act.

(5) Under the 1955 Act the commissioners are authorized to make regulations compelling the residents of the district to use water and sewer facilities. There is no such authority in the 1934 Act.

We might add that under neither act can general obligation bonds be issued without a fqavorable vote of the qualified electors.

One of the most important fields for the exercise of the police power is the protection of public health. Unsanitary conditions within any locality are a matter of vital concern not only to those residing therein but frequently to those in adjacent areas. It was primarily for the protection of the public health that the 1934 Act authorized the formation of water and sewer districts. It will be noted that the creation of such a district was not made mandatory by this legislation. Necessarily reserved by the General Assembly was the inherent power to itself create a public corporation providing these facilities if the public health required. The exercise of this power does not depend upon the will of the landowners and residents of the area involved. When in a proper case they fail to act, the situation may be corrected by special legislation. It would be difficult in a general law to lay down with any degree of exactness the conditions which in every case would necessitate mandatory action by the State. There are too many varying factors involved.

In the area embraced within the Una Water District, the General Assembly, after due investigation, has found that the health of the inhabitants thereof requires that there be installed publicly operated water and sewer systems and that the corporate authorities of the district should be further empowered to make provision for the collection and disposition of garbage. While these findings are not conclusive, they are entitled to great respect. The testimony taken in this case falls far short of showing that these legislative conclusions are wholly unsupported. The Circuit Judge stated in his decree:

'In weighing the evidence in this case, this Court finds that this legislative finding of fact (that it is necessary for the inhabitants from a health and welfare standpoint to have publicly operated water and sewer systems), has not been rebutted. Plaintiffs' case fails to carry the burden to proof on this point. The defendants on the other hand fortified their position by having two sanitation employees of the Spartanburg County Health Department testify that a health survey had been made in the area as late as 1954, at which time every fifth house in the area was checked. They found an undesirable health menace prevalent throughout and stated that the area had caused the Health Department more concern than any other in Spartanburg County. The testimony indicates that there are numerous surface privies in the area, sometimes accommodating several families. There are also some septic tanks. Surface privies were definitely contaminating the wells in the area, most of which were shallow. Living organisms and gasoline were found in the wells and three or more families sometimes used one well. Unquestionably there is a definite need for water, sewer and garbage facilities in the area and this Court so finds.'

It appears from the record that sometime prior to the passage of the legislation now under attack, a proceeding was instituted under the Act of 1929 creating the Spartanburg Metropolitan District, 36 Stat. at Large 992, as amended, for the purpose of creating as a water and sewer subdistrict the identifical area which was incorporated in the Una District. It was contemplated in this proceeding issuing general obligation bonds in the amount of $500,000. This proposal was opposed by the present appellants and the proceeding is still pending. Meanwhile, the Act of 1955 was passed.

Before a subdistrict can be formed under the 1929 Act, it is necessary that a petition be filed by one-third of the freeholders in the proposed subdistrict followed by a majority favorable vote of the qualified electors.

Evidently the General Assembly concluded that a water and sewer district covering this area would not be formed either under the 1929 Act or that of 1934 by voluntary action on the part of the freeholders and qualified electors or that the creation of same would be considerably delayed, and for the protection of the public health immediate State action was necessary. The apparent apathy on the part of some in this area doubtless led to the provision in the 1955 Act authorizing the commissioners to compel the residents to use water and sewer facilities. We do not think that the effort to remove the unsanitary conditions prevailing in this territory by special legislation was obnoxious to Article III, Section 34, Subdivision IX of the Constitution. Under the circumstances, there was no general law applicable.

The foregoing conclusion is fully sustained by numerous decisions of this Court relating to special purpose districts. In fact, some of them go much further than it is necessary for us to go in the instant case, for here we are concerned with public health. Some of the special purpose districts which have been upheld were concerned primarily with mere conveniences or other matters not so vital to the public welfare.

In Rutledge v. Greater Greenville Sewer District, 139 S.C. 188, 137 S.E. 597, 598, the Court sustained the validity of a special act creating the 'Greater Greenville sewer district', embracing the territory known as 'Greenville school district' and 'Parker school district.' Alley v. Daniel, 153 S.C. 217, 150 S.E. 691, upheld a special act establishing a sewer district in Spartanburg County to be known as 'Spartanburg Metropolitan District.' In Floyd v. Parker Water & Sewer Sub-District, 203 S.C. 276, 17 S.E.2d 223, this Court upheld a special act empowering the Parker Water and Sewer Sub-District, which was a special purpose district and a part of the Greater Greenville Sewer District, to issue bonds for the purpose of extending and enlarging water lines throughout the district, installing fire hydrants, establishing a fire protection system, extending the sewer lines, and instituting a system of garbage disposal. Fire protection and garbage disposal were...