State ex rel. Condon v. City of Columbia, 25065.

• Decision Date: 14 February 2000
• Docket Number: No. 25065.,25065.
• Citation: 528 S.E.2d 408,339 S.C. 8
• Court: South Carolina Supreme Court
• Parties: STATE of South Carolina, ex rel. Charles M. CONDON as attorney general of South Carolina, Appellant, v. CITY OF COLUMBIA, Respondent.

339 S.C. 8

528 S.E.2d 408

STATE of South Carolina, ex rel. Charles M. CONDON as attorney general of South Carolina, Appellant, v. CITY OF COLUMBIA, Respondent.

No. 25065.

Supreme Court of South Carolina.

Heard November 3, 1999.

Decided February 14, 2000.

Attorney General Charles M. Condon, Senior Assistant Attorney General Nathan Kaminski, Jr., Assistant Attorney General Christie Newman Barrett, all of Columbia, and S. Jahue Moore of Kirkland Wilson Moore Allen & Taylor, West Columbia, for appellant.

James S. Meggs of Columbia, for respondent.

WALLER, Justice:

Appellant (the State) brought a lawsuit against respondent (City) in 1996, challenging a 1989 "strip" or "shoestring" annexation that led to the annexation of portions of Lexington County. A circuit judge granted City's summary judgment motion and dismissed the case without addressing the legitimacy of the strip annexation. Thus, that issue is not before us.¹ The State appeals. We affirm in part and reverse in part.

FACTS

City purchased and annexed a strip of land about five feet wide and one mile long from Richtex Corporation in December 1989. The strip begins at the northern right-of-way of Interstate 20 at the Broad River and runs north, sometimes underwater, along the eastern bank of the river. City, asserting the strip of land established contiguity, annexed about 400 acres of land owned by Columbia Bible College (now Columbia International University), located north of City's limits.

The university property created contiguity with 2,829 acres of state-owned property. At the urging of City's mayor, the State Budget and Control Board agreed to request annexation of the state-owned property. City annexed the property in December 1989. City then annexed adjoining commercial properties in the Irmo and St. Andrews areas of Lexington County, including Columbiana Center mall near Irmo.

After questions about the validity of the strip annexation arose in early 1990, the State Budget and Control Board filed a notice of intention to contest it and brought a declaratory judgment action challenging it shortly thereafter. On appeal, we held that the State lacked standing to challenge the strip annexation in a declaratory judgment action because it did not own the five-foot strip. However, we remanded the case for the State to amend its complaint as necessary to challenge the annexation of state-owned property. State by State Budget and Control Board v. City of Columbia, 308 S.C. 487, 419 S.E.2d 229 (1992). Following remand, all parties agreed in August 1992 to a voluntary dismissal of the case with prejudice.

In 1996, the State stepped up to the plate again. The State brought a lawsuit attacking the use of the strip method of annexation in quo warranto and declaratory judgment actions. The State further claimed the annexation was unlawful because the property description in the 1989 annexation ordinance omitted the Interstate 20 right-of-way, creating a gap in the five-foot strip of land that destroyed contiguity. Those claims are the same ones the State alleged in its complaint in 1990.

The circuit judge granted summary judgment to City on several grounds, but we need address only two. The judge ruled the State's 1996 lawsuit is barred because (1) the State lacks standing to bring the actions under the circumstances of this case and (2) the lawsuit is not timely under the statute of limitations contained in S.C.Code Ann. § 5-3-270 (1976). The judge did not rule on the merits of the State's claims, finding those raised genuine issues of material fact that would make summary judgment improper if the State were able to pursue the case.

ISSUES

1.Did the circuit judge err in ruling the State does not have standing to bring a quo warranto action challenging a municipality's annexation of property the State does not own?

2.If the State has standing to bring a quo warranto action, did the circuit judge err in ruling that the statute of limitations contained in S.C.Code Ann. § 5-3-270 (1976) bars the State's lawsuit?

STANDARD OF REVIEW

This case raises two novel questions of law. We are free to decide these questions of law with no particular deference to the lower court. See S.C. Const. art. V, §§ 5 and 9; S.C.Code Ann. §§ 14-3-320 and -330 (1976 & Supp.1999); S.C.Code Ann. § 14-8-200 (Supp.1999) (granting Supreme Court and Court of Appeals the jurisdiction to correct errors of law in both law and equity actions); I'On v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000).

DISCUSSION

1. QUO WARRANTO ACTION

The State argues the circuit judge erred in ruling it did not have standing to bring a quo warranto action challenging a municipality's annexation of property the State does not own. We agree.

When located within an annexed area, the State as a property owner, an individual property owner, or a registered qualified elector has sufficient standing to challenge an annexation. A party may ask the court to declare his or her statutory or proprietary rights affected by the annexation in a declaratory judgment action. State by State Budget and Control Board, supra; Dalton v. Town Council of Mt. Pleasant, 241 S.C. 546, 129 S.E.2d 523 (1963)

; cases cited in footnote 1; 1 Antieau on Local Government Law § 3 .10[4] (2d ed.1999); 2A McQuillin Municipal Corporations § 7.43 (3d. ed.1996). The issue before us today is whether the State, when acting in the public interest, may bring a quo warranto action challenging the annexation of property it does not own.

A quo warranto action is rooted in the common law writ designed to test whether a person exercising power is legally entitled to do so. It is an ancient prerogative right through which the state acts to protect itself and the good of the public generally, and may be used to test the legality of exercise of powers by municipal corporations. 74 C.J.S. Quo Warranto §§ 1-2 (1951); Black's Law Dictionary 1256-57 (1990). The attorney general may bring quo warranto actions in the name of the State. See S.C.Code Ann. §§ 15-63-10 to-210 (1976).

We hold that the State, provided it is acting in the public interest, has standing to bring a quo warranto action challenging the annexation of property it does not own. See Central Realty Corp. v. Allison, 218 S.C. 435, 449, 63 S.E.2d 153, 159 (1951)

(under appropriate circumstances, validity of municipal ordinances may be tested by certiorari, declaratory judgment proceedings, habeas corpus, injunction, mandamus, prohibition, and quo warranto); State v. City Council of Charleston, 8 S.C.L. (1 Mill Const.) 36 (1817) (concluding attorney general may bring quo warranto action against City of Charleston on behalf of the State); 1 Antieau on Local Government Law § 3.10[2] (validity of municipal annexation may be attacked by state, which usually does so by quo warranto action, absent statute providing otherwise); 17 McQuillin Municipal Corporations § 50.10 (3d ed.1993) (same); 65 Am.Jur.2d Quo Warranto § 48 (1972) (same); 74 C.J.S. Quo Warranto §§ 26-27 (attorney general usually may bring quo warranto action on behalf of state). In fact, some courts have reasoned that a quo warranto action brought by the state is a desirable or required method of challenging an annexation in order to avoid numerous individual suits. State ex rel. Earhart v. City of Bristol, 970 S.W.2d 948, 952 (Tenn.1998); Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 437 (Tex.1991).

We assume, without deciding, that the State was acting in the public interest in bringing the 1996 action to determine the validity of the unusual strip annexation. It is not necessary to decide that issue because we find the matter discussed below dispositive. Accordingly, we reverse the circuit judge's ruling that the State lacks standing to bring a quo warranto action.

2. ANNEXATION STATUTE OF LIMITATIONS

S.C.Code Ann. § 5-3-270 (1976) provides:

When the limits of a city or town shall be ordered extended no contest thereabout shall be allowed unless the person interested therein shall, within sixty days after the result has been published or declared, file with both the clerk of the city or town and with the clerk of court of the county in which the city or town is situate, a notice of his intention to contest such extension, nor unless, within ninety days from the time the result has been published or declared an action shall be begun and the original summons and complaint filed with the clerk of court of the county in which the city or town is situate.

We hold that the ninety-day deadline is the statute of limitations that usually applies in annexation matters because a more specific statute of limitations prevails over any general one. See State v. Life Ins. Co. of Georgia, 254 S.C. 286, 175 S.E.2d 203 (1970)

(court will apply a more specific statute of limitations instead of a general one; thus, State's lawsuit to recover back taxes was governed by specific ten-year limitations period for tax matters, not ordinary six-year limitations period); cf. Atlas Food Systems and Servs., Inc. v. Crane, 319 S.C. 556, 462 S.E.2d 858 (1995) (general rule of statutory construction is that a specific statutory provision prevails over a more general one).

The critical question in this case, however, is whether section 5-3-270 applies when the State is the party challenging an annexation proceeding. We conclude that it does, and consequently affirm the circuit judge's ruling that the State's 1996 lawsuit is barred as untimely because it was not filed within the ninety-day deadline. We will address three arguments in which the State contends the circuit judge erred in applying section 5-3-270 to it in this case.²

A. NULLUM TEMPUS DOCTRINE

The State contends a quo warranto action generally is not barred by any statute of limitations, relying on the common law doctrine of nullum tempus occurrit regi ("time does not run against the king"). Under the nullum tempus doctrine, statutes of limitation do not run against the...