Park v. Greenwood County

• Decision Date: 31 October 1934
• Docket Number: 13931.
• Parties: PARK v. GREENWOOD COUNTY et al.
• Court: South Carolina Supreme Court

176 S.E. 870

174 S.C. 35

PARK v. GREENWOOD COUNTY et al.

No. 13931.

Supreme Court of South Carolina

October 31, 1934

Original action by Dr. R. H. Park, in his own right as a citizen and taxpayer of Greenwood County and in behalf of other persons similarly situated, against Greenwood County and others for an injunction.

Injunction refused, and complaint dismissed.

D. A G. Ouzts, of Greenwood, for plaintiff.

R. F Davis and W. H. Nicholson, both of Greenwood and Robinson & Robinson, of Columbia, for defendants.

STABLER Justice.

It appears that Greenwood county has made application to the Public Works Administration, under the provisions of the Revenue Bond Act of May 8, 1933 (38 Stat. at Large, p. 411) as amended, for a loan to be used in the erection of a hydroelectric plant at "Buzzard Roost" on the Saluda river; the electrical energy generated to be sold by the county to cities, towns, corporations, and individuals within and without its territorial limits. This action was brought by the plaintiff, a citizen and taxpayer of the county, to enjoin the defendants from erecting and operating such plant, and from issuing bonds to pay for the development.

After this proceeding was instituted, the Duke Power Company and the Southern Utilities Company filed a petition asking to be allowed to interplead. While denying their right to do so, the court granted them permission to participate in the argument of the case before it. No brief, however, has been filed on their behalf.

We group the issues made by the pleadings as follows:

(1) May the Legislature permit or authorize a county to construct and operate a hydroelectric plant for the uses referred to above?

(2) Do the revenue bonds issued, or here sought to be issued, pursuant to the Act of May 8, 1933, constitute debts within the limitations of section 7 of article 8 and sections 5 and 6 of article 10 of the Constitution?

(3) Does the proposed ordinance, submitted as an exhibit to the pleadings, comply with the provisions of the Act of May 8, 1933?

In considering the first question, it should be kept in mind, as stated in Fripp v. Coburn, 101 S.C. 312, 85 S.E. 774, that "the Constitution of the state is a restraint of power, and the Legislature may enact any law not prohibited thereby."

In the recent case of Heslep v. State Highway Department, 171 S.C. 186, 171 S.E. 913, 915, the opinion was closed with this observation, pertinent here: "It has always been, and is now, the law that the General Assembly may enact any act it desires to pass, if such legislation is not expressly prohibited by the Constitution of this state, or the Constitution of the United States. We find nothing in either of the Constitutions which prohibited the enactment of the law attacked in this case."

Turning to the Constitution, we find that counties, by section 9 of article 7 are made bodies politic and corporate. There is nothing in the entire article which can in any way be interpreted as a restriction of the right of the Legislature to authorize a county to build and operate a hydroelectric plant. The fact that the Constitution provides for the creation of a county does not take away from the General Assembly the right to prescribe its powers. In 1 Cooley's Constitutional Limitations 393, we find the following: "The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, does not deprive the legislature of the State of that general control over their citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether in the legislative discretion, and substitute those which are different. The rights and franchises of such a corporation, being granted for the purposes of government, can never become such vested rights as against the State that they cannot be taken away; nor does the charter constitute a contract in the sense of the constitutional provision which prohibits the obligation of contracts being violated. * * * Restraints on the legislative power of control must be found in the Constitution of the State, or they must rest alone in the legislative discretion."

Battle v. Willcox, 128 S.C. 500, 122 S.E. 516, 518, was an action brought by taxpayers against Marion county and the members of a commission, in which it was claimed that the proposed erection of a hospital was unconstitutional. In dismissing the complaint, the court had this to say with regard to townships: "But under our Constitution the only delimitation upon the corporate purpose of a township as a subordinate governmental agency is that embraced in the limitation as to territory. As a subdivision of the county, erected into a body corporate for governmental purposes, the corporate purpose of the township is to carry into effect the principle of local self-government, to the extent the Legislature may authorize, by performing such functions and promoting such objects of local public interest as are of immediate concern to the people within the territorial limits of the particular township. To that end the Constitution (section 11, art. 7) vests the General Assembly with discretionary power to 'provide such system of township government as it shall think proper in any and all the counties,' and further expressly declares in that connection that it 'may make special provision for municipal government.' The power of the General Assembly to make 'special provision' for the discharge by a township 'in any county' of such particular governmental function or functions as it may think proper to commit to such township is, we think, not open to serious question. See Grocery Co. v. Burnet, 61 S.C. 213, 39 S.E. 381, 58 L. R. A. 687; Carroll v. York, 109 S.C. 1, 95 S.E. 121; Askew v. Smith, 126 S.C. 159, 119 S.E. 378. The corporate purpose of the township, therefore, is to discharge such governmental functions as may be committed to it by the General Assembly in an effort to promote the prosperity, safety, convenience, health, and common good of its inhabitants . See Brown v. County of Hertford, 100 N.C. 92, 5 S.E. 178. It follows that, if the erection and maintenance of a hospital is a function of that character, the power conferred by the General Assembly upon Reaves township was a power granted for a corporate purpose."

It would seem clear, and we so hold, that if a township, a subdivision of a county created under the same constitutional article, is given these broad powers, certainly a county, embracing several townships, may be granted similar powers by the General Assembly.

It is argued, however, that section 5 of article 8 of the Constitution, which specifically allows cities and towns, with the approval of their qualified electors, to maintain electrical plants, implies that counties should not have that power. We do not agree with this contention. It seems to us that the real purpose of section 5 of article 8 was to bring the exercise of this power by cities and towns into line with the other provisions of the Constitution requiring the approval of acts of the city by its qualified electors. See sections 2, 7, and 8 of article 8.

In Lillard v. Melton, 103 S.C. 10, 87 S.E. 421, 426, the court declared: ""An examination of the instrument (Constitution) as a whole will disclose that only in 12 instances did its framers expressly provide for a referendum to the qualified electors. In their consideration of the subject of finance and taxation, the limitations and safeguards which their wisdom deemed necessary to be embodied in the organic law of the state, they denied the power to increase the public debt of the state (section 11, article 10), and of a city or town to incur any bonded debt, except upon a submission of the question to the qualified electors. Yet no such restriction can be found in the instrument with regard to an issue of bonds by a county. Is not this omission significant?"

It may be observed that, while counties and cities are, for many purposes, treated together as municipal corporations, there are essential differences between the two, in that the governing boards of cities are given legislative powers, such as power to levy a tax, whereas the control of counties in tax matters and other important matters is still left with the General Assembly. For that reason the framers of the Constitution restrained the powers of a city council to incur indebtedness and the like, which was not considered necessary to protect the taxpayers of a county.

We conclude, upon consideration, that the right given to cities and towns to establish and operate lighting plants by the provision of the Constitution pointed out does not affect in any way the power of the Legislature to confer similar rights upon counties, which are...