Whitmire v. Cass

• Decision Date: 05 August 1948
• Docket Number: 16119.
• Parties: WHITMIRE et al. v. CASS, Mayor, et al.
• Court: South Carolina Supreme Court

49 S.E.2d 1

213 S.C. 230

WHITMIRE et al. v. CASS, Mayor, et al.

No. 16119.

Supreme Court of South Carolina

August 5, 1948

C. S. Bowen, of Greenville, for appellants.

A. C. Mann, C. M. Gaffney, Jr., and Eugene Bryant all of Greenville, for respondents.

FISHBURNE Justice.

The appeal in this case questions the regularity and validity of an election whereby the corporate limits of the city of Greenville were extended by the annexation of an adjoining area to the North, known as Northgate. The appellants suing for the benefit of themselves and all others in like situation, seek the reversal of a decree of the circuit court of Greenville County which held the election to be valid.

Pursuant to a writ of certiorari, the respondents, the mayor and aldermen of the city of Greenville, filed with the county clerk all records and documents in their possession relating to the annexation election. In passing upon the issues presented, the resident circuit judge who heard the cause at chambers, had these records before him, together with certain oral testimony offered by appellants. It is now sought by the appellants to have the election declared null and void, and to obtain an injunction against the respondents, enjoining them from exercising any authority or jurisdiction over the territory of Northgate, and over the people therein.

The election in question was ordered after the receipt by the respondents of a petition therefor, containing the signatures of a majority of the freeholders of the Northgate area, as required by Code Section 7230. This petition was considered at a regular meeting of the city council of Greenville on December 9, 1947, and by due resolution the election was ordered to be held on December 30, 1947. The election was directed to be held on this date in accordance with the request contained in the petition signed by the freeholders in order that:

'(a) The area might be annexed to the city at the beginning of a calendar year, as the city of Greenville operates on the calendar year basis.

'(b) The necessity for prorating taxes, licenses, and other items of expense for 1948 would be made unnecessary.

'(c) So that the appropriation bill and other financial arrangements might be made by the Greenville city council at the beginning of the fiscal year.

'(d) So that there might be no question as to the qualifications of the electors residing in the city and in the Northgate Area with reference to the validity of county registration certificates issued subsequent to January 1, 1938.'

At the session of the city council held on the evening of December 30, 1947, the annexation election returns were duly canvassed. In the city of Greenville the vote was 127 for annexation and one against, and in Northgate the vote was 139 for annexation and 57 against. Therefore, the election was declared carried in favor of the annexation, and a resolution was offered and unanimously adopted annexing the Northgate area to the city of Greenville.

Appellants vigorously attack the validity of the election upon two grounds which charge non-compliance with essential constitutional and statutory requirements. The first issue raised involves the construction and application of Article VIII, Section 2 of the Constitution; and by the second it is maintained that no opportunity was given to the electors to register for the election between the calling of the election and the holding thereof.

We shall first consider the issue relating to the alleged failure to comply with the constitutional provision (Art VIII, Sec. 2). This section provides as follows:

'No city or town shall be organized without the consent of the majority of the electors residing and entitled by law to vote within the district proposed to be incorporated; such consent to be ascertained in the manner and under such regulations as may be prescribed by law.'

The complaint alleges that in the Northgate area 'there were approximately 400 persons over the age of 21 years, residents of said area for over two years, and likewise residents for the same period or longer of Greenville County and of the state of South Carolina, and of the voting precinct therein, with all 1946 Greenville County poll tax either paid or exempted by law therefrom, and duly registered with the Greenville County Board of Registration in 1938 or at some time since that date, but on or prior to the first week of November, 1947, and otherwise qualified to vote in said election. And in the city of Greenville there were approximately 3000 persons with like qualifications, further qualified with recent, good and valid city of Greenville registration certificates--being registered with said city--and with all past due city taxes paid, and in every other way qualified to vote in the said city in said election.'

It is argued that the constitutional provision above quoted applies to an annexation election, and consequently such election could not be carried or declared to be in favor of annexation unless a majority of all the electors in the city and in the proposed annexation area voted therefor. In support of this contention, appellants rely upon the case of Paris Mountain Water Co. v. City of Greenville, 110 S.C. 36, 96 S.E. 545, 549, wherein it is said: 'We find no provision in the Constitution which prescribes that a majority of all the electors, those voting and those not voting, shall be necessary to carry an election by the people save in one instance, and that refers to an election to determine if a town shall be incorporated. Article 8, § 2.'

Should the quoted provision of the Constitution be held applicable and controlling here, then it would necessarily follow that the annexation election failed to carry, because it is evident, taking the allegations of the complaint to be true, that a majority of all the qualified electors in the city of Greenville and in the Northgate territory, those voting and those not voting, did not vote for annexation. On the other hand it is clear that if we consider only the votes cast by the qualified electors who voted, then the election was decisively carried for annexation by a majority of those voting.

We agree with the position taken by the respondents, that the constitutional provision invoked has no application here. This section of the Constitution by its own specific language, relates to the original organization or incorporation of a municipality. As will be observed, the word 'organized,' used in the Constitution, is deemed to be synonymous with the word 'incorporated,' which appears in the excerpt we have quoted from the case of Paris Mountain Water Co. v. City of Greenville, supra. The word 'organize' in some of its forms is frequently used in the Constitution and laws of the state, and as so used has no doubtful or ambiguous meaning. To organize a certain territory into a municipal corporation is a very different thing from that of extending the limits of an incorporated city over new territory. It is manifest that an original incorporation is governed by the constitutional provision, and that subsequent annexations of adjoining areas to an organized city or town are not mentioned nor contemplated in Art. VIII, Sec. 2.

There are cogent reasons which impel the foregoing conclusion. By such annexation, the corporate existence and municipal autonomy of the city of Greenville remained unchanged. The annexation merely resulted in an increased area which merged into that of the city. The merger effected no new corporate entity, and the new territory when duly annexed, pursuant to law, automatically came under the control and jurisdiction of the city of Greenville for political and governmental purposes. There was no new organization or incorporation as designed by the constitutional provision.

The city of Greenville is a duly chartered municipality and has all powers conferred by the general laws of the state, which include the general power to extend its limits by following prescribed statutory regulations. When annexation is effected and an adjoining area, great or small, is taken in, it in no way affects the name of the municipality to which it is joined. Nor is the annexation followed by the election of new municipal officers nor the passage...