Thomas v. Macklen

• Decision Date: 02 March 1938
• Docket Number: 14625.
• Citation: 195 S.E. 539,186 S.C. 290
• Parties: THOMAS v. MACKLEN et al.
• Court: South Carolina Supreme Court

195 S.E. 539

186 S.C. 290

THOMAS v. MACKLEN et al.

No. 14625.

Supreme Court of South Carolina

March 2, 1938

Appeal from Common Pleas Circuit Court of Horry County; Philip H Stoll, Judge.

Suit by Jno. P. Thomas, Jr., against J. C. Macklen and others individually and as a committee for the incorporation of a municipality at what is known as Myrtle Beach, and others, to enjoin the incorporation and organization of Myrtle Beach. From a judgment for defendants, plaintiff appeals.

Affirmed.

Thomas Lumpkin & Cain, of Columbia, for appellant.

C. B Thomas, E. J. Sherwood, G. Lloyd Ford, and L. D. Causey, all of Conway, for respondents.

FISHBURNE Justice.

This appeal brings up for review the constitutionality of an act of the General Assembly, approved on April 23, 1937, providing for a plan whereby so-called "resort communities" within the bounds of the State may be incorporated as municipal corporations. Acts 1937, p. 309.

Inasmuch as the questions presented deal solely with the unique provisions of this act, which the respondents assert is antagonistic to various provisions of the Constitution of this state, and to which frequent reference must be made, we deem it desirable to quote it somewhat fully.

It is entitled, "An Act to Provide for the Creation of Municipal Corporations at Resort Communities in South Carolina."

"Section 1. * * * That the term 'resort community' as hereinafter used is defined as an area of not less than one square mile, devoted primarily to resort purposes, having a population of not less than three hundred inhabitants, and as to which area the non-resident freeholders shall exceed in number the resident electors and no part of which area shall be included within the limits of a regularly incorporated municipality.

'Non-resident freeholder' is defined as one having legal residence without the resort community but within the State and vested with title to real estate within the resort community."

Section 2 provides for the filing of a petition with the Secretary of State, which shall conform to the requirements of section 1, and the issuance of a commission by the Secretary of State, empowering the commissioners to procure the registration of electors within the proposed corporate limits, and to advertise an election to determine whether incorporation will be accepted under the act.

Section 3 provides for the advertisement of the election.

"§ 4. * * * At the election referred to in Section 2, non-resident freeholders who are qualified electors at their places of residence shall be entitled to vote, upon their production of proof that they are qualified to vote at their places of residence. Non-resident freeholders shall be privileged, if they desire, to file with the managers of election the proof of their qualification in advance of the election and to vote in said election in the manner in which absentee voting is permitted by law in primary elections insofar as the same may be applicable. The commissioners are charged with the duty of making all necessary provisions for furnishing such ballots as may be requested by those so desiring to vote and making all necessary arrangements to receive and tabulate such votes. The managers of elections shall tabulate and report separately the result of the votes cast by resident electors and nonresident freeholders."

Section 5 provides for a return to be made of the election to the Secretary of State by the commissioners.

Section 6 provides that the name of the municipality shall be that name which received the highest number of votes cast at the election.

"§ 7. * * * If the election is favorable to incorporation, as soon as practicable after the return has been filed with the Secretary of State, the Governor, by and with the advice and consent of the Senate, shall appoint five (5) persons, three (3) of whom shall be registered electors within the area and two (2) of whom shall be non-resident freeholders thereof, which persons shall be known as the Town or City Council. From those so appointed, one shall be chosen by the appointees as Mayor. Upon the appointment of the Town or City Council and the subsequent choice of Mayor, the Secretary of State shall issue a certificate of incorporation of said town under this Act, whereupon it shall have all the powers, privileges and immunities and be subject to all the liabilities and limitations of towns and cities having a similar resident population, except as in this Act provided. The three registered electors to be appointed as aforesaid may be nominated in a primary held in accordance with the law relating to primary elections, and such nomination shall be deemed a recommendation to the Governor; and this provision shall be applicable to the successors of such initial appointees.

§ 8. * * * The initial appointments by the Governor shall be, as to registered electors, for terms of one, three and five years, respectively, and, as to non-resident freeholders, for terms of two and four years, respectively. Thereafter, the term of each member of the Council shall be for a period of five years and until his successor is appointed and qualified. The term of Mayor, as Mayor, shall be for one year. Appointments shall be made so as to preserve the proportionate representation of resident electors to non-resident freeholders as above indicated. In case vacancy shall occur by death, resignation, removal from office, disqualification or otherwise, appointment to fill the unexpired term shall be made by the Governor, by and with the advice and consent of the Senate, the appointee designated between sessions of the General Assembly to serve as defactor officer until such time as the appointment shall be confirmed or rejected.

§ 9. * * * The provisions for absentee voting as set forth above shall apply at any and all general or special elections held by the municipality.

§ 10. * * * The sections and provisions of this Act are separable and are not matters of mutual essential inducement, and it is intended to confer the whole or any part of the powers herein provided for, and if any of the sections or provisions or parts thereof are for any reason illegal, it is intended that the remaining sections and provisions or parts thereof, shall remain in full force and effect. In the event, but only in the event, of judicial determination that the provisions herein made for representation of non-resident freeholders upon the Town or City Council is illegal, then all of the members of said Council shall be appointed as above provided from registered electors within the area.

§ 11. All Acts or parts of Acts inconsistent herewith are hereby repealed to the extent of such inconsistency.

§ 12. This Act shall take effect immediately upon its approval by the Governor."

Under the provisions of this act, an election was held, looking toward the incorporation of an area known as Myrtle Beach, situated on the Atlantic Coast of South Carolina. At this election, participated in by nonresident freeholders and by local registered electors, the proposed incorporation was defeated. Thereafter, upon petition duly filed with the Secretary of State, a commission was issued to the first named defendants herein, looking toward the incorporation of Myrtle Beach under the general municipal incorporation laws of the state, and to this end an election was advertised to be held on August 25, 1937.

Before this election could be held, however, the plaintiff, a nonresident freeholder of Myrtle Beach, brought this action for the purpose of enjoining the defendants from taking any further steps thereabout, upon the ground that Myrtle Beach is such a "resort community" as comes within the meaning and intent of section 1 of the act, it being argued: That the act which we have quoted supersedes and repeals the general municipal incorporation law of South Carolina insofar as "resort communities" are concerned, and that such communities as come within the definition of section 1 must incorporate under the act, or not incorporate at all.

Upon the verified complaint of the plaintiff, his honor, Judge P. H. Stoll, issued a rule requiring the defendants to show cause why they should not be enjoined from proceeding with the incorporation and organization of Myrtle Beach under the general law, and copies of this order, together with copies of the complaint, were duly served upon the defendants. The defendant W. P. Blackwell, as Secretary of State filed a formal return. The other named defendants filed a return, raising the constitutional questions which form the subject of this appeal.

The matter was heard by Judge Stoll on August 23, 1937, at which time he adjudged the returns of the defendants sufficient, declared the act unconstitutional in its entirety, and refused the restraining order. From his decree the plaintiff appeals to this court.

The facts in our opinion show that Myrtle Beach comes within the provisions of the act, in that there are, apparently, 401 nonresident South Carolina freeholders who own property within the area sought to be incorporated, as against 178 local registered electors whose names appeared on the registration book when the books were closed prior to the first election herein referred to-thus showing a clear numerical preponderance in favor of the nonresident freeholders.

It likewise appears that the local resident population of Myrtle Beach, within the area proposed to be incorporated, numbers more than 1000.

The lower court, among other things, held sections 4, 7, and 8 of the act unconstitutional, insofar as they confer upon nonresident freeholders of the proposed incorporated town the right to vote and to hold office therein. Able counsel for the appellant frankly concede the correctness of this...