De Treville v. Groover
| Decision Date | 17 May 1951 |
| Docket Number | No. 16504,16504 |
| Citation | 65 S.E.2d 232,219 S.C. 313 |
| Parties | DE TREVILLE et al. v. GROOVER, Mayor, et al. |
| Court | South Carolina Supreme Court |
Irvine F. Belser, Townsend Belser and Walter J. Bristow, Jr., all of Columbia, for appellant.
Cooper & Gary and D. McK. Winter, all of Columbia, for respondent.
This action was brought in the County Court of Richland County by William DeTreville and others against the Mayor and Councilmen of the Town of Forest Acres to enjoin the enforcement of the following ordinance which was enacted by the Town on March 7, 1950:
The same relief is sought in two other cases commenced in the County Court for Richland County entitled Forest Land Company v. Groover and Heinitish v. Town of Forest Acres. The three cases have been appealed to this Court. S.C., 65 S.E.2d 242; S.C., 65 S.E.2d 243. They were heard together on oral argument and all issues involved will be discussed in this opinion. For convenience, the three actions will hereinafter be referred to as the DeTreville case, the Forest Land Company case and the Heinitsh case. In order to understand the numerous questions before this Court, it will be necessary to separately review the pleadings, motions and orders in each action.
This action was commenced on April 29, 1950. The plaintiffs are residents of the Town of Forest Acres. They allege in their complaint that for a long period of time they have been obtaining water from a district created under an act of the General Assembly, which is the only satisfactory source from which they could obtain same; that the Town has not been, and is not now, in a position to provide this essential service; that the enforcement of said ordinance would deprive them of water and result in the taking of their property without due process of law; and that the ordinance is 'illegal, null and void and in derogation of the statutory and other laws of this state'. On this complaint, which was verified, the County Judge issued a temporary restraining order and required the defendants to show cause before him on May 10, 1950, why they should not be enjoined during the pendency of the action from enforcing the terms of said ordinance.
The defendants moved to dismiss the action upon the ground that the complaint failed to state facts sufficient to constitute a cause of action. They also filed a return and demurrer in which, after challenging the jurisdiction of the Court upon the ground that the amount involved exceeded its jurisdiction, it was alleged that the Town of Forest Acres was incorporated in 1935 and four or five years later established a waterworks system which has always been, and is now, able to furnish water to its residents; that said system has a present value of $75,000, against which there is indebtedness outstanding of approximately $10,000 secured by the revenues of said water system; that no franchise has ever been granted by said Town to any water district or water company to operate within its limits; that any agency supplying plaintiffs with water is being illegally operated; and that the Town had full authority to pass the ordinance in controversy and to prevent others from selling water in competition with its municipally controlled water system.
At the hearing held on May 10, 1950, the Forest Acres Extension Water District and Sub-district F of the Greater Columbia Water and Sewerage District appeared and moved that they be made parties plaintiff to the action. This motion was granted and a decision on the issuance of an injunction pendente lite was postponed.
On May 15, 1950, pursuant to the above order, a complaint was filed by the Forest Acres Extention Water District in which, after adopting the allegations of the plaintiff's complaint and joining in the prayer thereof, it was alleged that the Forest Acres Extension Water District was a duly organized public water district; that it had constructed with the consent and acquiescence of the local authorities a water main through the Town of Forest Acres, to which there had been extensions and connections for supplying water to residents in and adjacent to the area designated as Forest Acres; and that the Town, having sanctioned and acquiesced in the construction of said water lines, is now estopped from objecting to the use of said lines for the purpose of selling water in the areas above mentioned. It was further alleged that said water lines had been leased to Sub-district F of the Greater Columbia District. As a further defense it was alleged that the majority of the electors had not approved the incorporation of the Town of Forest Acres and, therefore, the Town had not been legally incorporated.
Sub-district F of the Greater Columbia District, a water and sewerage district created by Act No. 654 of the 1949 Acts of the General Assembly, 46 St. at L. 1577, duly filed a complaint in accordance with the permission granted by the Court on May 10th. After adopting the allegations of the complaint filed by DeTreville and others and joining in the prayer thereof, it alleged that by lease or assignment it was in possession of and now operating a water distribution system serving a portion of the Town of Forest Acres and certain adjacent territory; that the lines used by it had been laid with the premission and acquiescence of the local authorities for the purpose of distributing water in the area served; that the Town was estopped from objecting to said lines being used to sell and distribute water, particularly as to those homes where said water service had already been installed; and that its facilities were the only ones available to furnish water to certain residents of the Town of Forest Acres. This plaintiff further alleged that it was specifically authorized by statute to serve a portion of the Town of Forest Acres and that the Town was without authority to pass any ordinance in conflict with the powers granted by the legislature. An attack was also made in this complaint upon the validity of the corporate existence of the Town.
At a hearing held before the County Judge on June 10, 1950, there was introduced in evidence from the office of the Clerk of Court for Richland County Judgment Roll No. 31347 relating to the creation of the Forest Acres Extension Water District. This record shows that said district was duly established during the fall of 1947 in accordance with Chapter 163-F of the 1942 Code, Sections 8555-131 to 8555-140, inclusive. It is provided by this statute that no district formed thereunder shall embrace any part of an incorporated village or city.
At the above hearing there was also offered in evidence from the office of the Clerk of Court Judgment Roll No. 28183 showing certain proceedings had during 1942 in the County Court for Richland County in the case of Groover v. Town of Forest Acres. It appears from this record that in 1941 the Town of Forest Acres agreed for the General Land Company to connect with its water line for the purpose of serving certain property owners within the Town and in an adjacent area known as Forest Acres Extension. An action was thereafter brought for the purpose of enjoining the Town of Forest Acres from selling water except through its own meters and service connections and from selling water for use outside the Town. It seems that this proceeding resulted in a consent decree under the terms of which the contract between the Town and the General Land Company was cancelled and the General Land Company agreed to install, or have installed, an independent water distribution system to serve Forest Acres Extension, but until this could be done the Town agreed to continue supplying water to this area.
There was also introduced in evidence at the above hearing a plat showing the location of the water lines in the Town of Forest Acres.
Upon the foregoing evidence and the verified pleadings, the County Judge, on June 22, 1950, issued an order restraining the Town from enforcing the terms of the ordinance in controversy during the pendency of said action, upon the plaintiffs' filing bond in the sum of $500. The case is here on appeal by the Town from said order.
This action was brought by the Forest Land Company, a South Carolina corporation, against the Mayor and Councilmen of the Town of Forest Acres to restrain the defendants from enforcing the ordinance heretofore mentioned upon the ground that said ordinance is unconstitutional. The summons and complaint, together with a rule to...
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...it is not the function of the courts to pass upon the wisdom or expediency of municipal ordinances or regulations.' De Treville v. Groover, 219 S.C. 313, 65 S.E.2d 232, 240. A case of contrary result, cited by appellants, is Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689, where t......
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