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June 5, 1956


The opinion of the court was delivered by: Stukes, Chief Justice.

June 5, 1956.

Under the recited authority of Section 7546 of the Code of 1942, as amended, the city council of Florence on July 1, 1950, adopted an ordinance whereby a Civil Service Commission was established in the city, conformable to the cited statute, with jurisdiction over the police and fire departments of the city. The statute is now codified as sections 47-721 to 47-740, both inclusive, of the Code of 1952. Sub-section 7546(11) of the Code of 1942, which appears in substance as section 47-740 of the Code of 1952, follows:

"It is not intended by this section to repeal any existing laws as they may affect municipalities of this State, but to extend and enlarge the powers of such municipalities as may fall within the population limitations of this section, and as may elect to create such civil service commission by appropriate ordinance."

On December 8, 1955, council enacted an ordinance whereby the civil service ordinance of 1950 was expressly repealed.

Two members of the Civil Service Commission, whose terms of office had not expired, commenced this action against the city, and joined as defendants the chiefs of the police and fire departments, for declaratory judgment of invalidity of the repealing ordinance and for injunction of any act of the city under the authority of it.

It was alleged in the complaint: that the chiefs of the police and fire departments were made defendants individually and as representatives of the employees of the city; the establishment of the Civil Service Commission was in the exercise of an executive, not legislative, power of city council; there is no statutory authority for the repeal of the ordinance establishing the commission; the plaintiffs have a vested right in and to their statutory terms of office; and the attempted abolition of the commission affects the contractual rights of the employees of the city, whereby the attempted repeal of the ordinance of 1950 is void.

In the answer of the city it was claimed that it was authorized by its charter to establish the Civil Service Commission, and the statute is merely permissory; and the legal conclusions contained in the complaint with respect to the repealing ordinance were denied.

The defendant chief of the police department answered, cross-complained and alleged, inter alia: that the purpose of the attempted repeal of the ordinance was to discharge him from employment; the repealing ordinance violates the State and Federal constitutions in that it impairs contracts and deprives of property without due process of law; and that the answering defendant and other employees of the police department are entitled to performance by the city of their respective contracts of employment, which was demanded.

The city answered the cross-complaint of the defendant chief of police, denied that his employment was induced by the 1950 ordinance and asserted that it is not binding upon the present council; and further generally denied the other allegations of the cross-complaint.

The foregoing is a scant summary of the pleadings but is sufficient for discussion and decision of the controlling issue presented by the appeal. The record does not contain any answer of the defendant chief of the fire department.

The controversy was heard by the lower court upon the pleadings, without evidence, and it was held that the attempted repeal of the ordinance whereby the civil service commission was established was invalid. It was concluded that the city could not have under its charter established the Civil Service Commission which the ordinance of 1950 did; the latter is solely referable to the statute which has been cited. It was reasoned that the creative power which gave rise to the commission lay in the statute and that the ordinance of 1950 was an exercise of the council's executive, rather than legislative, function. Conceding that under the statute the adoption of the civil service system was optional with the city, thereafter all of the provisions of the statute became mandatory upon the city and there being no provision in the statute for repeal of the adopting ordinance, it could not be repealed by council. The court expressly declined to decide, quoting from the order, "the question of contractual rights as presented by the cross-complaint of the defendant Julian A. Price (which) does not have to be answered in view of what has been decided. * * *"

The authority of Hardy v. Reamer, 84 S.C. 487, 66 S.E. 678, was relied upon by the court for its result. In that case, under Act No. 567 of 1902, 23 Stat. 1050, the City of Columbia was authorized to establish a Board of Police Commissioners, which was done by ordinance. Afterward it was attempted to repeal the latter. The repeal was held to be invalid because the commission was created by the statute, without any right in the city to abolish; and the Commissioners were said to be officers of the State, which is not contended here with respect to the members of the civil service commission.

The Act of 1902 contained no such provisions as appear in sub-section 7546 (11) of the Code of 1942, which is quoted above. By it the legislature clearly expressed its intention not to impinge upon any law theretofore affecting municipalities, and, on the contrary, intended, quoting from the statute, "to extend and enlarge the powers of such municipalities." Absent constitutional or statutory inhibition, among the powers of a municipality which existed before enactment of the statute was the power to repeal, by proper ordinance, any prior ordinance. In the early case of City Council of Charleston v. Wentworth Street Baptist Church, 1850, 4 Strob. 306, it was said, quoting: "It is plain (that) the power which enacted an ordinance may repeal it, unless the rights or privileges it conferred might be claimed in the nature of contract."

The rule is similarly and more fully stated by McQuillin, Municipal Corporations, 3rd Ed., Volume 6, Sec. 21-10: "Specific grant of power to repeal ordinances, however, ordinarily is not necessary since it is the general rule that power to enact ordinances implies power, unless otherwise provided in the grant, to repeal them. It is patently obvious that the effectiveness of any legislative body would be entirely destroyed if the power to amend or repeal its legislative acts were taken away from it." The following is also quoted from the cited section of McQuillin: "The power of repeal extends, generally speaking, to all ordinances. Indeed, a municipal corporation cannot abridge its own legislative powers by the passage of irrevocable ordinances. The members of its legislative body are trustees for the public, and the nature and limited tenure of their office impress the ordinances enacted by them with liability to change. One council may not by an ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government. Accordingly, in the absence of a valid provision to the contrary, a municipal council or assembly, having the power to legislate on, or exercise discretionary or regulatory authority over, any given subject may exercise that power at will by enacting or repealing an ordinance in relation to ...

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