Dick v. Scarborough
Dick v. Scarborough
Opinion of the Court
The opinion of the Court was delivered by
In this proceeding, the city council of the city of Sumter asks- for a writ of mandamus to compel the commissioners of public works to sell certain municipal bonds, aggregating in amount one hundred and sixteen thousand ($116,000) dollars, turned over to them by the city council, and to use the proceeds in the purchase, under an .option held by the city, of the water works now owned and operated by the Sumter Water Power Company. The answer admits all the facts set out in the petition, but alleges that “The bonds are invalid, unsaleable and void, because, (a) The bonds were issued for the purchase of water works already constructed, and under the statute a city in South Carolina has no power to purchase water works already constructed, (b) Because the question voted upon in the election was as follows: ‘Shall the city of Sumter purchase the property and right of the Sumter Water Power Company and issue bonds in payment thereof in such amount as may be necessary?’ ‘Yes.’” The negative ballots, it is alleged, were in precisely the same words, “No” being substituted for “Yes.” “Whereas, it is respectfully submitted, that the definite amount of bonds to> be issued should also have been submitted to the voters voting in said election.”
*152 This article of the Constitution expressly conferring the power to> issue bonds for the purchase of “water works systems” * * * “upon a majority vote of the electors,” necessarily implies the power of the municipality to hold an election to ascertain the will of the majority, though possibly this might have been defeated by the failure of the General Assembly to provide election machinery.
Sec. 7, art. VIII., contains this provision: “Sec. 7. No1 city or town in this State shall hereafter incur any bonded debt which, including existing bonded indebtedness, shall exceed eight per centum' of the assessed value of the taxable property therein, and no such debt shall be created without submitting the question as to the creation thereof to the qualified electors of such city or town, as provided in this Constitution for such special elections; and unless, a majority of such electors voting on the question shall be in favor of creating such further bonded debt, none shall be created.”
The provision for “such special elections” here referred ■ to is found in sec. 13, of art. II., which is as follows: “Sec. 13. In authorizing a special election in any incorporated city or town in this State for the purpose of bonding the same, the General Assembly shall prescribe as a condition precedent to the holding of said election a petition from' a majority of the freeholders of said city or town, as shown by its tax books, and at such elections all electors of such city or town who are duly qualified for voting under section 12 of this article, and who have paid all taxes, State, county and municipal, for the.previous year, shall be allowed to vote; and the vote of the majority of those voting in said election shall be necessary to authorize the issue of said' bonds.”
In pursuance of these articles of the Constitution, the General Assembly enacted a general law on the subject (Civil Code, sec. 2008), providing for elections to be held, “in accordance with the laws of force governing municipal elections,” and prescribing as a condition precedent to1 the holding of the election, the filing of the petition described in the Constitution. Either by inadvertence or design, how *153 ever, this statute while providing for the issuance of bonds, sanctioned by an election, for the construction of water works, omits all reference to bonds for the purchase of water works. The case, therefore stands thus: The Constitution conferred upon municipalities the right to acquire by construction or purchase, water works systems-, and to issue bonds therefor, under the sanction of an election.' In enacting the general -law for holding such elections, it was not within the power of the General Assembly to so limit the use of the election machinery provided as to deny one of these constitutional rights while giving opportunity for the exercise of the other, which w-as linked with it and stood on precisely the same footing. When the machinery is- provided- and the pre-requisites- of the election are laid down by the General Assembly under the mandate of the Constitution, all rights to which they were intended by the Constitution to give effect may be exercised under them, whether expressly mentioned in the statute or not.
It is true, power to hold an election to authorize the issuance of bonds to purchase water works is not given in this statute by use of the word purchase, but “establishing” municipal water works may be accomplished by purchase as well as by construction. Establishing water works obviously here means the acquirement and inauguration of a system of *154 water works, as a municipal enterprise and as municipal property by either construction or purchase. Besides, the words, “or any other corporate purpose,” used in this statute, manifestly includes the purchase of water works a corporate municipal purpose authorized by the Constitution.
It is, therefore, ordered and adjudged, that a writ of mandamus do issue, requiring the commissioners of public works of the city of Sumter to sell the bonds turned over to them by the city of Sumter and make the purchase of the water works, sanctioned by the election hereinbefore referred to.
Reference
- Full Case Name
- Dick v. Scarborough.
- Cited By
- 7 cases
- Status
- Published
- Syllabus
- 1. Constitution — Cotes and Towns — Elections.—Where the Constitution confers on municipalities several powers to be exercised upon majority vote of the citizens, the Legislature in providing for such election cannot limit the use of the election machinery to deny one of these constitutional rights while giving opportunity for the exercise of the other. 2. Cities and Towns — Water Works. — Civil Code 1902, sec. 2021, construed to confer on municipalities the power to vote bonds for fur-chase of water works plant. 3. Ibid. — -Municipal Bonds — Election Ballots. — Any form of ballot connected with previous notice which gives the voter full knowledge of the issue involved is sufficient in a municipal election upon issuing bonds.