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HARLEY ET AL. v. CITY OF SPARTANBURG

January 28, 1957

GEORGE A. HARLEY ET AL., APPELLANTS,
v.
CITY OF SPARTANBURG ET AL., RESPONDENTS.



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

January 28, 1957.

This case involves the validity of certain proceedings wherein it was sought to annex to the City of Spartanburg an adjacent area known as Duncan Park.

Pursuant to the procedure prescribed in Title 47, Chapter I, Article 2 of the 1952 Code, relating to the extension of the corporate limits of cities and towns, a petition was filed by certain freeholders in the area proposed to be annexed, the boundaries of which were adequately described, asking that said territory be annexed to the City of Spartanburg. The petition was considered at a meeting of the City Council held on April 4, 1955. After hearing the testimony of Mrs. Ernie White, a clerk who had spent several months compiling a list of the freeholders in Duncan Park and checking same against the petition filed, and the testimony of one of the residents of Duncan Park who had also spent considerable time working on the list of freeholders, the Council found that the petition was signed by a majority of the freeholders in the area proposed to be annexed. A resolution certifying that fact to the County Commissioners of Elections was then adopted.

This action was brought on July 16, 1955, by certain residents and freeholders of the Duncan Park area, on behalf of themselves and all others similarly situated, for the purpose of having the annexation declared invalid and enjoining the City and its officials from exercising authority or control over the said area. It was alleged in the complaint that the members of the City Council undertook to determine whether a majority of the freeholders had signed the petition for annexation "when they knew or should have known that they had never compiled a correct list or determined the number of freeholders in the said area", that the finding of the City Council "was based on mistake, ignorance and lack of proper investigation"; and that the petition had not been signed by a majority of the freeholders in the area proposed to be annexed.

The defendants demurred to the complaint. This demurrer was overruled in an order filed on August 17, 1955, and the case referred to the Master of Spartanburg County to take the testimony and report to the court his findings of fact and conclusions of law. Extended references were held by the Master in September, 1955. On December 20, 1955, he filed an excellent report in which he found that the petition presented to the City Council was signed by a majority of the freeholders in the area proposed to be annexed and that the annexation was valid. On exceptions by plaintiffs to this report, the case was heard by the presiding Judge of the Seventh Circuit in January, 1956. An order was filed by him on February 29, 1956, sustaining the report of the Master and dismissing the action. From this order, the plaintiffs have appealed.

We find it unnecessary, as did the Master and Circuit Judge, to pass upon the question as to whether the finding of the City Council that a majority of the freeholders in Duncan Park had signed the petition for annexation is conclusive. As a sustaining ground, respondents urge that such a finding is conclusive in the absence of abuse of discretion or fraud, neither of which they say is charged in the complaint. We shall assume that appellants were at liberty to show that the certificate made by the City Council to the County Commissioners of Elections was erroneous.

The first attack made upon the annexation proceedings is that the City Council failed to determine the total number of freeholders in the area proposed to be annexed and the exact number who had signed the petition. It is argued that Council should have "tabulated and counted" and also specifically set out in its minutes the total number of freeholders and the number who had signed the petition. Appellants say that the finding made in the resolution adopted by Council is a general conclusion and insufficient.

The statute, Section 47-14 of the 1952 Code, imposes the duty upon the city or town council to determine whether the petition "has been signed by a majority of the freeholders within the territory proposed to be annexed." It does not undertake to specify the method to be used in making such determination. Much is necessarily left to the discretion of the council. 29 C.J.S., Election, § 70, p. 94. We think the City Council of Spartanburg did all that was reasonably possible to correctly ascertain the number of freeholders in the Duncan Park area. A clerk in the office of the Council worked diligently several months on this undertaking. She carefully examined the records in the offices of the auditor, the register of meson conveyance and the probate judge and in addition spent considerable time on the ground making inquiries. She was also assisted by a number of residents familiar with the property owners in the area. After the list of freeholders was compiled, it was carefully compared with the names signed to the petition. After hearing the testimony, Council concluded that a majority of the freeholders had signed the petition. This conclusion necessarily involved a determination of the total number of freeholders and the number who had signed the petition. We know of no rule requiring that the totals be inserted in the minutes or in the certificate made to the commissioners of election, although it might be a good practice to do so.

We now reach the principal question in the case, namely, whether the petition for annexation was in fact signed by a majority of the freeholders in the area proposed to be annexed. Testimony upon this question consumed six full days before the Master, during which disputes arose as to whether certain lots were within or without the area and as to the ownership of various lots at the time the petition was filed. In several instances during the reference names were added, later removed and finally restored. There was also quite a disagreement as to the proper definition of a freeholder. Appellants contended that this term included remainder men, those owning equitable estates and those having easements across some of the lots. Numerous deeds, trust instruments and wills were introduced in evidence which the court was asked to construe. There was also some discussion as to whether those owning tax exempt property should be included. The calculations made by the respective parties as to the total number of freeholders and those signing the petition would change almost from day to day.

Counsel for appellants themselves seem to have had great difficulty in determining the total number of freeholders in the area proposed to be annexed. Their calculations have varied from time to time since the commencement of the action. In their complaint they alleged that they had made a "thorough" check and were informed and believed that there were "792 or more freeholders owning property within the area sought to be annexed." In Exception 35 to the report of the Master they said that he should have found that there was a total of 752 freeholders. In exception 22 on this appeal they say "that according to the law and the evidence in the case there are a total of 743 freeholders." In their brief they list a total of 736 freeholders.

There is a similar conflict in their positions at various times as to the number of freeholders who signed the petition. The Master found that the petition was signed by 368 freeholders. Exception 12 to the report of the Master is as follows: "The Master erred in holding and finding that there were 368 valid freeholders that signed the petition for the annexation of the Duncan Park area, the error being that there were only 364 valid signers." Exception 23 on this appeal reads: "The Court erred in sustaining the Master's report that there are 368 valid freeholders on the petition presented to city council, the error being that there are only 358 names left unstricken on the petition." Exception 39 on this appeal is as follows: "The Court erred in holding that there are 368 valid freeholders on the petition, the error being that there are only 343 valid freeholders on the petition presented to city council." Appellants say in their brief that there were only 355 valid signatures on the petition.

On this appeal it must be assumed that the petition for annexation contained the names of at least 364 freeholders. A concession by appellants to this effect in the Circuit Court is implicit in Exception 12 to the report of the Master. The Circuit Judge was, therefore, not required to examine the record for the purpose of determining whether less than 364 freeholders signed the petition, and appellants will not be permitted here to assert that there were fewer than that number. It is well settled that we cannot consider on appeal issues not presented to the Court below.

It follows that the burden is on appellants to show that there were at least 728 freeholders in the area proposed to be annexed. They set out in their brief the names of 736 persons who they claim constitute the freeholders within the Duncan Park area. This would certainly seem to be the present extent of their claim. After carefully considering ...


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