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RUTLAND ET AL. v. CITY OF SPARTANBURG

November 20, 1956

L. H. RUTLAND ET AL., APPELLANTS,
v.
CITY OF SPARTANBURG ET AL., RESPONDENTS.



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

November 20, 1956.

Pursuant to the procedure prescribed in Title 47, Chapter 1, Article 2 of the 1952 Code, relating to the extension of the corporate limits of cities and towns, a petition of freeholders in the Park Hills-Airport area, adjoining the City of Spartanburg, praying that the said city extend its corporate limits to include that area, was filed with the city council on June 15, 1955; and on June 28, 1955, a special election on the question was held. Thereafter, the commissioners of election having certified that the election had resulted in favor of the annexation, the city council on July 14, 1955, adopted a resolution declaring the said Park Hills-Airport area a part of the City of Spartanburg.

Appellant's exceptions charge that the lower court erred in not holding the election invalid, because:

1. The city council did not, before certifying to the commissioners of election that a majority of the freeholders in the Park Hills-Airport area had signed the petition for annexation, find the names and number of all freeholders in that area and the names and number of those who had signed the petition. (Exceptions 1 and 2.)

2. There had been held, within two months prior to the election, an election on the question of annexing substantially the same area, which former election had resulted adversely to the proposed annexation. (Exceptions 3, 4, 5 and 6.)

3. The ballots were not numbered. (Exceptions 7 and 8.)

4. The commissioners of election had found as a fact that the ballot box had been opened during the hours of balloting. (Exception 9.)

5. The admitted irregularities were such as would have affected the result of the election, in that the total of the contested ballots and the illegal ballots exceeded the number of votes by which the election carried. (Exceptions 10, 11, 12 and 13.)

The first of these contentions will not be considered, because it was not made in the lower court. State v. Burnett, Jr., 226 S.C. 421, 85 S.E.2d 744; State v. Alexander, S.C. 95 S.E.2d 160; State v. Bolin, S.C. 95 S.E.2d 163. The record before us shows that at the first reference before the Master plaintiff's counsel stated that they were abandoning "any contentions concerning the inadequacy of the petition on which the annexation election was called" and "any contentions concerning the inadequacy of a majority of the freeholders having signed the petition". The Master's report contains the following, to which no exception was taken:

"The plaintiffs, in their original complaint, not only contended that the petition requesting the election did not contain a majority of the freeholders within the territory, but also contended that there were certain election irregularities committed during the conduct of the election on June 28, 1955. At the hearing, however, the plaintiffs, through their counsel, abandoned any contentions except those concerning the alleged election irregularities on the day of the election and the subsequent decision of the county election commission in counting certain ballots".

Apart from the fact that appellants' second contention appears, from the portion of the Master's report just quoted, to be now untenable, we find no merit in it, for the following reasons:

1. There appears to be no statute limiting the number of annexation elections that may be held relating to the same area, or prescribing a period that must elapse between two such elections;

2. There was no allegation in the complaint that to hold the election in question within two months after the ...


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