Newton v. Hanlon

• Decision Date: 02 August 1966
• Docket Number: No. 18546,18546
• Citation: 248 S.C. 251,149 S.E.2d 606
• Court: South Carolina Supreme Court
• Parties: Charles E. NEWTON, Betty R. Pregnall, C. F. Myers, Jr., Rosina Marie Kennerty, Joan Snowden Kennerty and Joseph K. Harris, taxpayers and property owners of St. Andrews Parish, Charleston County, South Carolina, individually and representing all other persons similarly situate, Appellants, v. J. J. HANLON, Chairman, Henry A. Kennedy, Dr. C. T. Hamrick, Jr., W. C.Kennerty and Simpson M. Parker, constituting the St. Andrews Public ServiceCommission, and Daniel R. McLeod, Attorney General of the State of SouthCarolina, Respondents.

Page 606

149 S.E.2d 606

248 S.C. 251

Charles E. NEWTON, Betty R. Pregnall, C. F. Myers, Jr. Rosina Marie Kennerty, Joan Snowden Kennerty and Joseph K Harris, taxpayers and property owners of St. Andrews Parish Charleston County, South Carolina, individually and representing all other persons similarly situate, Appellants, v. J. J. HANLON, Chairman, Henry A. Kennedy, Dr. C. T. Hamrick Jr., W. C.Kennerty and Simpson M. Parker, constituting the St. Andrews Public ServiceCommission, and Daniel R. McLeod, Attorney General of the State of SouthCarolina, Respondents.

No. 18546.

Supreme Court of South Carolina.

Aug. 2, 1966.

Philip Garfinkle, Stanley Waldman, Nathaniel L. Barnwell, Jack P. Brickman, Harvey Spar, Jack White, Charleston, for appellants.

Daniel R. McLeod, Atty. Gen., Columbia, William Ackerman, Sinkler, Gibbs & Simons, Charleston, for respondents.

LIONEL K. LEGGE, Acting Associate Justice.

Act No. 535 of 1965 (54 Stat. at L. 1064) authorizes St. Andrews Public Service Commission, the governing body of St. Andrews Public Service District in Charleston County, to issue $5,000,000 of general obligation bonds of the district for the purpose of constructing improvements to and extensions of the district's present sewer system, provided the Commission agree that it will, to such extent as it shall deem fair and equitable, impose assessments against properties abutting on sewer laterals constructed from the proceeds of the bonds so issued, in aid of debt service of such bonds.

Act No. 397 of 1965 (54 Stat. at L. 718) is a general statute purporting to empower all special purpose districts exercising power to construct and operate sewer facilities: (a) to establish and enforce a schedule of charges for sewage collection service; (b) to contract with any public or private agency operating a water system for the collection of such charges; (c) to require all property to which sewer service is available to connect to the district's sewage collection facilities; (d) to make regulations with respect to the discharge of sewage and the use of privies, septic tanks and other types of sewage facilities; (e) to impose front foot assessments against properties abutting on sewage collection laterals; and (f) to make sewer service charges a lien against the property served.

The Commission proposes to issue $5,000,000 of bonds as authorized by Act No. 535, and to establish pursuant to the authority vested in it under Act No. 397 regulations to provide, by front foot assessments and otherwise, for debt service of said bonds and for maintenance and operation of the district's improved and extended sewer system.

In this action the plaintiffs, representing several categories of property owners in the district: (1) question the constitutionality of Act No. 397 insofar as it purports to authorize frontage assessments; and (2) seek to enjoin, as discriminatory, enforcement of the Commission's regulations before referred to. The Commission having answered, denying the charges of unconstitutionality and discrimination, and there being no factual dispute, the cause was heard on the pleadings before the Honorable Clarence E. Singletary, Judge of the Ninth Judicial Circuit, from whose decree holding the questioned Act constitutional and the challenged regulations valid the plaintiffs have appealed.

St. Andrews Public Service District is a body corporate and politic operating under authority of Act No. 443 of 1949 (46 Stat. at L. 1015) that created it, and amendments thereto. Among the powers thus vested in it is that of acquiring, constructing, maintaining and operating within its area sewer systems, including extensions of the system existing at the time of its creation. From time to time the district has acquired or constructed sewage collection and treatment facilities. For the most part the present facilities were constructed from the proceeds of sale of general obligation bonds, for the retirement of which an ad valorem tax has been, and is, assessed against all taxable properties within the district, including those of each of the appellants.

The district's present sewer collection lines serve only a small portion of its area and about twenty-five per cent of its residents. The Commission, after investigation, has determined that the public health of the district requires that its existing sewer system be improved and extended. Upon the recommendation of its engineers it now proposes to extend the sewer lines so that they will serve practically all residents of the district, and to construct sewage treatment and disposal plants so that raw sewage will no longer be dumped into the waters of Charleston harbor. The estimated cost of these extensions and improvements is approximately $5,000,000.00, exclusive of possible Federal aid.

The Commission's present plan for raising revenue for debt service of the proposed bonds and for maintenance and operation of the improved and extended system is as follows:

1. A district wide ad valorem tax levy of five mills;

2. A sewer service charge of Two Dollars ($2.00) per month against all properties making use of the existing or extended system; and

3. An assessment of Four Dollars ($4.00) per front foot, payable over a ten-year period, against properties abutting on the proposed sewer collection laterals.

The proceeds of the ad valorem levy are to be applied to debt service of bonds issued for construction and installation of trunk lines and treatment and disposal facilities. The proceeds of the frontage assessments are to be applied to debt service of bonds issued for construction and installation of the sewer collection laterals on which the assessed properties abut. The proceeds of the service charge will be used for maintenance and operation, and any surplus will be applied to debt service of outstanding bonds. The ad valorem levy, the frontage assessments, and the service charge will be liens against the properties to which they are applicable respectively.

The appellant Newton owns improved property now served by the district's existing sewage collection system. His property, therefore, will not be subject to the proposed front foot assessments but will be served by the sewage treatment and disposal facilities to be constructed from a portion of the proceeds of the bond issue.

The property of the appellant Pregnall is not now served by the district's existing sewage collection facilities. It will be on one of the proposed sewage collection lines; and she will be required to connect with it although her property is now adequately served by a septic tank which she has installed and which meets the requirements of the State and County health departments.

The appellant Myers owns undeveloped property not now served by any sewage collection facility, but which will abut on one of the proposed sewage collection lines. He has no plans to develop or build on this property at this time; and it is admitted for the purposes of this action that said property will come within the exemption provided in the Commission's proposed regulations for properties not being devoted to commercial or residential purposes or platted or otherwise developed at the time of the proposed frontage assessment.

The appellant Harris owns an unimproved vacant lot in a subdivision. It will abut on a proposed sewage collection line. He does not plan to build on this property in the foreseeable future; but since it has been platted as part of a residential subdivision it is admitted for the purposes of this action that it will not qualify for the exemption before mentioned.

The appellant Rosina Marie Kennerty owns improved property which is adequately served by a properly installed and operating septic tank, and which will not be on any proposed sewage collection line.

The appellant Joan Snowden Kennerty likewise owns improved property which will not be on any proposed sewage collection line, and which is presently served by a septic tank; but it is admitted that due to the nature of the soil this septic tank does not operate effectively, and that it constitutes a health menace.

Appellants contend that the provision in Act No. 397 authorizing the imposition of frontage assessments is arbitrary, constitutes a taking of their property without just compensation, and deprives them of their rights under the due process and equal protection clauses of the State and Federal Constitutions.

It has long been recognized that the legislature has inherent power to authorize assessment of property within a special taxing district for the purpose of defraying in whole or in part the cost of constructing local improvements. Evans v. Beattie, 137 S.C. 496, 135 S.E. 538; Rutledge v. Greater Greenville Sewer District, 139 S.C. 188, 137 S.E. 597; Distin v. Bolding, 240 S.C. 545, 126 S.E.2d 649. In Evans and Rutledge the challenged assessment was in the form of an ad valorem tax; in Distin it was a sewer service charge in addition to the ad valorem assessment. In our opinion the frontage assessment here challenged involves no different principle and presents no violation of the constitutional provisions which the appellants invoke. For, as pointed out in the circuit court's decree, the particular basis to be employed in apportioning a special assessment is a matter for determination by the legislature and is immune from attack on constitutional grounds unless it is palpably arbitrary. The general rule, as stated in 48 Am.Jur., Special or Local Assessments, Section 67, page 622, is that 'the front footage of property on a street on or in which a public improvement is constructed may be made the basis of apportionment of a special or local assessment to finance such improvement without constituting a taking of property for a public use without compensation, a deprivation of property without due process of law, or in any other respect a violation of the Fourteenth Amendment or of any other part of the Federal...