Wagener v. Smith, 16630
| Decision Date | 26 May 1952 |
| Docket Number | No. 16630,16630 |
| Citation | 71 S.E.2d 1,221 S.C. 438 |
| Court | South Carolina Supreme Court |
| Parties | WAGENER et al. v. SMITH et al. |
William H. Grimball, Jr., Lester E. Stringer, Charleston, for appellant.
Hammond C. Bowman, Sinkler, Gibbs & Simons, Charleston, for respondent.
We have before us the unusual situation of two units of government attacking the validity of the corporate existence of each other. The clash was almost inevitable since the two municipal corporations are coextensive in area and are undertaking to exercise substantially the same powers and to discharge the same functions. The corporate authorities of the township of Folly Island contend that the charter issued by the Secretary of State to the town of Folly Beach is invalid, while the governing body of the latter asserts that the act creating the township government of Folly Island is unconstitutional.
Folly Island, located near Charleston, is one of the so-called barrier islands between the mainland and Atlantic Ocean. It is long but narrow and comprises, according to the United States Department of Commerce, an area of 2.7 square miles. There are about 675 year round residents.
In 1936 the General Assembly established a township form of government for Folly Island. Act June 1, 1936, 39 St. at L. 1694. A board of township commissioners was created which was empowered to 'enact ordinances and regulations pertinent to the health and general welfare of the island and its inhabitants', to appoint policemen and other officers to enforce the ordinances and regulations adopted, and to impose, for the purpose of supporting said government, a tax of not exceeding 2% on all taxable property located on the island and provide for the collection thereof. The court below held, which is not challenged by the parties, that the powers vested in the commissioners 'are, to all intents and purposes, similar to those devolved upon the town councils of incorporated towns having a population of less than 1000 inhabitants.'
The act above mentioned was subsequently amended in various particulars not pertinent to this controversy. See Section 4077-7, 1942 Code, and Act April 24, No. 196 of the 1943 Acts of the General Assembly, 43 St. at Large, p. 293.
On March 22, 1951, in accordance with the procedure prescribed by Act No. 725 of the 1948 Acts of the General Assembly, Act April 8, 1948, 45 St. at L. 1821, relating to the incorporation of towns of not less than 100 and not more than 1000 inhabitants, the required petition for the incorporation of the proposed town of Folly Beach, to consist of the area known as Folly Island, was filed with the Secretary of State, who thereafter commissioned four residents of said island to provide for the election and to appoint three managers. An election was duly held on March 8, 1951, which resulted in a vote of 166 to 20 in favor of incorporation. After some controversy as to whether a majority of the electors of said island had voted in favor of the creation of said town as required by Article 8, Section 2 of the Constitution, a certificate of incorporation was finally issued by the Secretary of State.
The parties to this action seek a determination of the following questions, which will be hereinafter discussed in the order stated:
1. 'Is it possible, under the Constitution and statutes of South Carolina, to incorporate, as an incorporated town of less than 1,000, an area extending more than one mile from the center thereof?'
2.
3. 'Is the Act which purports to establish the Township of Folly Island a valid enactment under the Constitution of South Carolina?'
4. 'Was there obtained, in the proceedings taken in connection with the incorporation of the Town of Folly Beach, the consent of the majority of the electors residing within the area entitled to vote therein?'
Under the general law relating to the incorporation of towns having not less than 100 nor more than 1000 inhabitants, 45 St. at L. 1821, it is provided: 'That the corporate limits of towns of less than one thousand (1000) inhabitants, incorporated under the provisions of this Act shall not extend further than one mile from the center thereof.' This statute was amended in 1950, Act May 6, 1950, 46 St. at L. 2169, by adding the following: 'Provided, Further, that the citizens of any island within the territorial limits of this State may have such island incorporated under the provisions of this Act and the above proviso relative to the corporate limits not extending further than one (1) mile from the center of the Town shall not apply to the incorporation of any such island.'
The contention is made that the 1950 amendment 'attempts to grant powers to certain municipal corporations of a given class, not possessed of by other municipal corporations in the same class, in violation of Article 8, Section 1 of the Constitution of South Carolina', which reads as follows:
The one mile radius provision in the general law has the effect of limiting the area of the class of towns under consideration to approximately 3.14 square miles. While Folly Island has an area less than the foregoing limitation, its length extends far beyond one mile from the center. Unless, therefore, the 1950 amendment is upheld, the charter issued to the town of Folly Beach is invalid. We think the court below properly sustained the constitutionality of this amendment.
Under the general law towns and cities are classified on the basis of population. We do not think that the act of 1950 undertakes to make a different classification. An island incorporated thereunder is still classified as a town of less than 1000 inhabitants and, as such, is covered by all of the provisions applicable to municipalities of that class. The effect of the 1950 amendment is merely to permit islands to be incorporated as towns in accordance with their natural geographical boundaries. It does not change the system of government or the powers and privileges granted to all towns having a population of less than 1000. Except for this legislation it would not be practical for the inhabitants of a number of islands in this State to incorporate.
The 1950 amendment is not a special law but general in its application to all islands. There are substantial grounds for exempting them from the requirement that the radius should not exceed one mile. The limit of judicial inquiry in a matter of this kind 37 Am.Jur., Municipal Corporations, Section 101.
Our conclusion as to the validity of the 1950 amendment is supported by the case of Pacific American Fisheries v. Whatcom County, 69 Wash. 291, 124 P. 905. Also, see Forde v. Owens, Mayor, 160 S.C. 168, 158 S.E. 147. The situation here is quite different from that presented in Thomas v. Macklen, 186 S.C. 290, 195 S.E. 539, 543, where the court held unconstitutional an act providing for incorporation of 'resort communities', which undertook to fix a method for the appointment of a town council wholly different from that provided under the general law. The court said that this statute authorized for Myrtle Beach 'a permanent and comprehensive system of municipal government not only essentially different from that established for the remainder of the state by the general statutes, but directly at variance with it.'
The next question is whether, in view of the statute establishing a township government for Folly Island, a town may thereafter be established under the general law coextensive in area with that of the township government? The court below answered this question in the negative. It was stated 'that until the act establishing the township is repealed, it is not possible to incorporate the area as an incorporated town.' Otherwise, the court said:
We are in full accord with the well settled principle that 'there cannot be at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdiction, and privileges.' Dillon, Municipal Corporations, (5th Ed.), Vol. I, Sec. 354, page 616...
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