Town of Forest Acres v. Seigler, 16782

• Decision Date: 28 September 1953
• Docket Number: No. 16782,16782
• Citation: 77 S.E.2d 900,224 S.C. 166
• Court: South Carolina Supreme Court
• Parties: TOWN OF FOREST ACRES et al. v. SEIGLER et al.

Page 900

77 S.E.2d 900

224 S.C. 166

TOWN OF FOREST ACRES et al. v. SEIGLER et al.

No. 16782.

Supreme Court of South Carolina.

Sept. 28, 1953.

Charles F. Cooper, Columbia, for appellants.

Belser & Belser, Columbia, for respondents.

OXNER, Justice.

The question presented by this appeal is whether under the statutes of this state, a portion of one municipality may be annexed to another without submitting the question of said detachment to the voters of the municipality whose area is to be reduced.

The towns of Forest Acres and Forest Lake, both small municipal corporations, are adjacent. A petition was filed by a majority of the freeholders of an area consisting of a portion of the town of Forest Acres and some contiguous territory not within the corporate limits of any municipality, asking that an election be ordered on the question of whether such area should be annexed to the town of Forest Lake. After due notice, the question of annexation was submitted to both the qualified electors of the town of Forest Lake and those of the area proposed to be annexed at an election held on April 22, 1952, and resulted favorably to annexation. The question was not submitted to the voters of the town of Forest Acres as a whole.

This action was brought by the town of Forest Acres and others for the purpose of having the purported annexation declared invalid. It is stated in the circuit decree that the case was submitted to the Court below upon 'the single controlling issue of whether or not a town can legally and validly annex a portion of the territory within the municipal limits of an adjacent validly organized and functioning town, thereby reducing the second town's limits, merely by following the procedure prescribed by Sections 7230 (as amended by Act No. 806 of the 1948 Acts, 45 Stats. at Large 1974) and 7231 of the 1942 Code providing for extension of the corporate limits of municipalities, and without compliance with the requirements of Section 7232 of the 1942 Code prescribing the procedure for reduction of the corporate limits of a city or town.'

The Court below held the annexation invalid on the ground that there had been no compliance with Section 7232. The correctness of this conclusion is challenged on this appeal. Defendants, appellants here, contend that Sections 7230 and 7231 of the 1942 Code authorize the annexation not only of unincorporated areas but also of any portion of the territory of an adjacent municipality, by submitting the question to the voters of the area to be annexed and those of the municipality to be enlarged, and that where a portion of a municipality is annexed, it is not necessary to submit the question to all the voters of the municipality whose area is to be detached. Not raised in the Court below but urged on this appeal is the further contention that any doubt as to the soundness of the foregoing construction was removed by the change in phraseology of Section 7231 made in the Code of 1952, which it is claimed 'clarified' the meaning of Section 7231 so as to clearly authorize the annexation of a portion of a municipality. We shall first determine the question before us under the provisions of the 1942 Code and shall later consider what effect should be given to certain change in phraseology made in the statutory law by the 1952 Code.

Section 7230 authorizes a town to extend its corporate limits. As amended by Act No. 806 of the Acts of 1948, 45 St. at L. 1974, the procedure fixed is substantially as follows: A petition must first be submitted to the town council by a majority of of the freeholders of the territory which it is proposed to annex, asking that an election be ordered to determine whether such territory shall be included in said town. An election, of which there must be due notice, is then held both within the corporate limits of the municipality and within the territory proposed to be annexed. The votes cast at such election within the municipality and those within the territory proposed to be annexed are required to be counted separately and the results declared separately. If a majority of the votes cast in each instance shall be in favor of the annexation, the town council shall then declare the annexed territory a part of said town.

Section 7231 reads:

'Whenever it is proposed to extend the corporate limits of any city or town in this State so as to include any adjacent territory under the provisions of section 7230, whether the said adjacent territory be in whole or in part in incorporated municipality, it shall be lawful for said city or town and such adjacent territory to stipulate and agree upon terms of consolidation, and such stipulations shall become a binding contract upon the city or town when enlarged: provided, that such stipulations shall be printed in full, or fully identified by reference to some easily accessible publication thereof in full, on a majority of the affirmative votes cast at the election held under the requirements of the preceding section, both in the city or town seeking enlargement and in the territory or portion of territory so included as a result of such election.'

Section 7231(1) is as follows:

'Any town or city may reduce its corporate limits in the following manner: Whenever a petition is presented to the town council signed by a majority of the resident freeholders of said town asking for a reduction of the corporate limits of said town, then said council shall order an election after not less than ten days' public advertisement; such advertisement shall describe the territory that is proposed to be cut off. At such election, should a majority of the qualified electors vote in favor of the release of the territory, then said council shall issue an ordinance declaring the territory no longer a portion of said town, and shall so notify the secretary of state, furnishing him at the same time with the new boundaries of said town.'

Before proceeding to construe the foregoing sections, we shall pass upon respondents' contention that there is a typographical error in the clause of Section 7231, reading 'whether the said adjacent territory be in whole or in part in incorporated municipality'. (Italics ours.) In the original act this was worded, 'whether the said adjacent territory be in whole or in part an incorporated municipality.' (Italics ours.) The phraseology of the original act is correctly set out in 27 St., page 22. Thereafter, however, a typographical error was apparently made in incorporating this clause in the 1912 Code, the word 'an' being changed to 'in'. The error has been perpetuated in the subsequent codes. In respondents' brief it is stated that appellants admitted in the lower court that the foregoing clause in Section 7231 should be corrected so as to read in accordance with the original act. There is no specific denial of this statement by appellants. Be that as it may, the error is apparent and we think can, and should be, corrected.

Where the meaning of a provision in the Code is plain and unambiguous, it has been held that the Court cannot recur to the original statute for the purpose of ascertaining its meaning, Independence Insurance Co. v. Independent Life & Accident Insurance Co., 218 S.C. 22, 61 S.E.2d 399, but in case of doubt and ambiguity, resort may be had to the act from which the provision was derived. Faust v. Bonnett, 110 S.C. 435, 96 S.E. 489; Palmetto Lumber Co. v. Southern Railway, 154 S.C. 129, 151 S.E. 279; 50 Am.Jur., Statutes, Section 446. Indeed, we have not hesitated to correct obvious clerical mistakes, both in statutes and in the code, when necessary to give effect to the intention of the Legislature. A number of cases to this effect are reviewed in Ashley v. Ware Shoals Mfg. Co., 210 S.C. 273, 42 S.E.2d 390. In the Ashley case, the word 'usual' appearing in a section of the 1942 Code was construed to mean 'unusual', the phraseology used in the original act. We had occasion to apply this principle in the recent case of Arkwright Mills v. Murph, 219 S.C. 438, 65 S.E.2d 665.

We shall now undertake to determine whether under Sections 7230 and 7231, as corrected in the manner above stated, the annexation in controversy could be made without submitting to the voters of the town of Forest Acres the question of whether a portion of that town should be detached.

Our Constitution imposes no restriction on the legislature with reference to extending the corporate limits of municipalities. Whitmire v. Cass, Mayor, 213 S.C. 230, 49 S.E.2d 1. In the absence of such constitutional inhibition, the legislature has plenary power over municipalities, including the right to regulate the manner in which the boundaries of such governmental units may be extended or diminished. McQuillin, Municipal Corporations, 3rd Ed., Vol. 2, Sections 7.10 and 7.24. 'Unless forbidden by organic law the legislature is not limited with respect to the character of territory that may be embraced within municipal boundaries.' Id., Section 7.18.

While legislature may by express statutory enactment confer power upon a municipality to annex all or part of another municipality adjacent to it, in absence of legislative enactment authorizing annexation of adjacent municipal territory in direct terms, it is generally held that a municipality does not have authority to extend its limits into organized areas. State ex rel. Village of Fridley v. City of Columbia Heights, Minn., 53 N.W.2d 831, 832. In that case it was held that the power to annex all or part of another adjacent municipality cannot be implied from the statutory power conferred on municipalities to annex 'adjacent or contiguous platted territory.' In Kirkpatrick v. State, 5 Kan. 673, it was held that a statute authorizing a municipal corporation to annex territory adjacent to its limits, does not authorize the annexation of organized territory, unorganized territory only being intended. In Village of North Fargo v. City of Fargo, 49 N.Dak. 597, ...