Tovey v. City of Charleston

• Citation: 237 S.C. 475,117 S.E.2d 872
• Decision Date: 10 January 1961
• Docket Number: No. 17733,17733
• Parties: Robert S. TOVEY et al., in their own behalf and others similarly situated, Appellants, v. CITY OF CHARLESTON, City Council of Charleston, and J. Palmer Gaillard, Mayor of the City of Charleston, Respondents. Milton F. NELSON et al., in their own behalf and others similarly situated, Appellants, v. CITY OF CHARLESTON, City Council of Charleston, and J. Palmer Gaillard, Mayor of the City of Charleston, Respondents.
• Court: United States State Supreme Court of South Carolina

Page 872

117 S.E.2d 872

237 S.C. 475

Robert S. TOVEY et al., in their own behalf and others

similarly situated, Appellants, v. CITY OF CHARLESTON, City Council of Charleston, and J.

Palmer Gaillard, Mayor of the City of Charleston,

Respondents.

Milton F. NELSON et al., in their own behalf and others

similarly situated, Appellants, v. CITY OF CHARLESTON, City Council of Charleston, and J.

Palmer Gaillard, Mayor of the City of Charleston,

Respondents.

No. 17733.

Supreme Court of South Carolina.

Jan. 10, 1961.

Paul H. Lee, Jr., Charleston, for appellants.

Morris D. Rosen, Henry B. Smythe, J., Kenneth Rentiers, Charleston, for respondents.

OXNER, Justice.

This litigation stems from an effort to extend the corporate limits of Charleston, the State's oldest and most historic city. There has been no change in its boundaries since 1849.

It was sought to annex certain areas designated as 'A', 'B', 'C', 'D', 'E' and 'F', all of which are within St. Andrews Public Service District. A petition was duly submitted to the City Council of Charleston by a majority of the freeholders of each area asking that an election be ordered on the question of annexing such area. A special election was held on May 9, 1960 in which the qualified electors of the City of Charleston and the qualified electors of each area voted on the question of whether such area should be annexed. To extend the corporate limits of a municipality, it is necessary under the statute that 'a majority of the votes cast by the qualified electors of the municipality and of the territory proposed to be annexed, each aggregated separately,' be in favor of the annexation. Section 47-17 of the 1952 Code. Although not disclosed by the record, it was stated in oral argument that the elections in areas 'B', 'D', 'E' and 'F' resulted unfavorably to annexation. The vote as to areas 'A' and 'C' was favorable. Thereafter on May 16, 1960, these two areas were declared by the City Council of Charleston to be a part of said municipality. Due notice was given of an intention to contest each annexation. Thereafter on August 8, 1960 an action was brought by certain qualified electors and taxpayers of area 'A', seeking to have the annexation of said territory declared null, void and of no effect and to enjoin the City Council of Charleston from exercising any authority with respect thereto. On the same day a similar action was brought by certain qualified electors and taxpayers of area 'C'. The two cases were consolidated and heard by the resident Judge of the Ninth Circuit on August 24, 1960. In an order filed on September 3, 1960, he held that each of these areas was properly annexed to the City of Charleston and dismissed the complaints. This appeal followed.

In their first ground of attack upon the validity of the annexation, appellants contend that the St. Andrews Public Service District is a municipal corporation, and that therefore no part of it may be attached to another municipality without submitting the question to all the voters in the district. We have held that under our statutes governing extension and reduction of corporate limits, a portion of one municipality may not be annexed to another without submitting the question of said detachment to the voters of the municipality whose area is to be reduced. Town of Forest Acres v. Seigler, 224 S.C. 166, 77 S.E.2d 900; Town of Forest Acres v. Town of Forest Lake, 226 S.C. 349, 85 S.E.2d 192. It is conceded that the question of annexation was submitted to the voters of only those portions of St. Andrews Public Service District that were proposed to be annexed; that it was not submitted to the voters of the entire district; and that the corporate authorities of said district were never consulted. Therefore, the answer to the question presented depends upon whether this district is a municipal corporation within the contemplation of our annexation statute. It was created by Act No. 443 of the 1949 Acts of the General Assembly, 46 Stat. at Large 1015, and empowered to operate water and sanitary sewer systems, furnish fire protection facilities and provide garbage collection and disposal within the territory embraced in the district. It was authorized to make service charges for some of these facilities. Other funds necessary to carry out its corporate purposes and functions were to be raised by an annual levy on all property in the district. Certain other duties and functions were given the district but the foregoing are sufficient to show its general nature and purpose.

The term 'municipal corporation' ordinarily applies only to incorporated cities, towns and villages having subordinate and local powers of legislation. As stated in 1 Dillon, Municipal Corporations, 4th Edition, Section 19: 'A municipal corporation, in its strict and proper sense, is the body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purpose of local government thereof.' However, at times the term is used in a broader sense to include every corporation formed for governmental purposes so as to embrace counties, townships, school districts and other governmental subdivisions of the State. Gaud v. Walker, 214 S.C. 451, 53 S.E.2d 316.

It is true, as appellants argue, that special districts created for the purpose of furnishing water, sewerage, garbage collection, fire protection and other similar facilities, functions usually performed by incorporated towns and cities, have been referred to in some of our cases as municipal corporations with limited functions and have been held to be municipal corporations within the meaning of certain sections of our Constitution. Rutledge v. Greater Greenville Sewer District, 139 S.C. 188, 137 S.E. 597; Floyd v. Parker Water and Sewer Sub-district, 203 S.C. 276, 17 S.E.2d 223; Sanders v. Greater Greenville Sewer District, 211 S.C. 141, 44 S.E.2d 185; Mills Mill v. Hawkins, 232 S.C. 515, 103 S.E.2d 14. But it does not follow that such special purpose districts are to be regarded as municipal corporations in the primary sense of the term so as to bring them within all of our statutes and constitutional provisions pertaining to incorporated towns and cities.

Turning now to our statute relating to the extension or reduction of the corporate limits of a municipality, Sections 47-11 to 47-24, inclusive, of the 1952 Code, it seems quite clear that this statute applies only to incorporated cities and towns. Section 47-11 reads: 'Any city or town council may extend the corporate limits of such city or town in the manner set forth in this article.' It is expressly stated in Section 47-24: 'The word 'municipality' as used in this article shall be construed to mean any incorporated city or town located within this State.' Section 47-23 provides that 'whenever a petition is presented to a city or town council' by a majority for the freeholders residing therein asking for a reduction of the corporate limits, an election shall be ordered and if a majority of the qualified electors vote in favor of the release of the territory, 'then the council shall issue an ordinance declaring the territory no longer a portion of the city or town.' Clearly 'city or town council' referred to in this statute means the corporate authorities of an incorporated town or city.

It is further contended that even if this district is not a municipal corporation within the meaning of our annexation statute, it is corporate territory organized under an act of the General Assembly whose area cannot be reduced nor its boundaries changed by annexing a part of it to an adjacent city or town. We have no statute or constitutional provision prohibiting a city from annexing territory lying within a governmental subdivision organized for a special purpose and we have found no decision holding that such territory may not be annexed. Town of Forest Acres v. Seigler, supra, 224 S.C. 166, 77 S.E.2d 900, cited by appellants, is not apposite for it was there sought to annex a portion of a municipality. In Wagener v. Smith, 221 S.C. 438, 71 S.E.2d 1, we held that the fact that the Legislature had established a township form of government for a certain area with powers similar to those devolved upon towns of similar size did not prevent the inhabitants of said area from thereafter incorporating same as a town under the general law. It would seem that under this decision the establishment of a special purpose district would not prevent an adjacent city from later annexing a part thereof. In some areas of the State there are overlapping special purpose districts. Some of them extend into incorporated towns and cities. Most of our large municipalities are surrounded by such districts. It has never been suggested that this would prevent such municipalities from extending their corporate limits.

In State ex rel. East Lenoir Sanitary Dist. v. City of Lenoir, 249 N.C. 96, 105 S.E.2d 411, the Supreme Court, of North Carolina held that the City of Lenoir was authorized to extend its bondaries so as to include a portion of the area of a sanitary district. In Annexation to the City of Anchorage, etc., 15 Alaska 67, 128 F.Supp. 717, it was held that the extension of the corporate limits of a municipality is not prohibited merely because the area sought to be annexed constitutes a part of the territory organized as a public utility district. Also, see Farifax County v. City of Alexandria, 193 Va. 82, 68 S.E.2d 101.

It is next contended that the annexation should be declared null and void because the City initiated and partly financed the circulation of the petition by the freeholders asking that an election be held on the question of annexation. We find nothing in the...