Opinion
14564
November 10, 1937.
In the original jurisdiction, April, 1937. Temporary injunction made permanent.
Action by Mrs. C.C. Cleveland in the original jurisdiction of the Supreme Court against the City of Spartanburg and others, wherein a temporary injunction was granted.
Report of W.C. Cothran, Special Referee, follows:
This is an action in the original jurisdiction of the Supreme Court to enjoin the defendants, their agents and servants, from selling certain property of the plaintiff on North Church Street, in the City of Spartanburg, to satisfy a paving assessment lien. Upon application made to the Chief Justice upon a verified complaint and affidavits, a rule was directed to the defendants and to each of them to make return and to show cause why the temporary restraining order should not be made permanent. Return to the rule was duly made, and, it appearing to be necessary that testimony should be taken, the case was referred as above stated.
The return of the defendants consisted first of an objection to the jurisdiction of the Court upon grounds stated and as answer to the complaint on the merits. The order of reference disposes of the jurisdictional objection, and that portion of the return needs no further consideration in this report. A demurrer was also filed as to the following defendants: city council of the City of Spartanburg; Ben Hill Brown, mayor; N.H. Hardy, A. N. Willis, L.T. Cothran, and G.C. Baber, commissioners; and T.K. Fletcher, city clerk and treasurer, which was not passed upon in the order of the Chief Justice, and, consequently, must be determined. The demurrer is based upon two grounds: First, that said defendants are not necessary or proper parties to the complete determination of the questions involved, and, second, that no cause of action is stated nor is any direct relief sought against them.
Section 404 of the Code under the heading of "Who May Be Defendants" provides that any person who is a necessary party to a complete determination or settlement of the questions involved may be made a party defendant. The case of Murray Drug Company v. Harris, 77 S.C. 410, 57 S.E., 1109, holds that it is discretionary with the trial Court as to the naming of parties defendant. The elimination of the named defendants leaves as defendants in the cause the City of Spartanburg and J.H. Rothrock, city tax collector. Since the city, through its council, authorized Rothrock, its tax collector, to sell the property of the plaintiff in order that the paving assessment be collected, and, since the suit is for the sole purpose of preventing this sale from being completed, I can see no necessity for additional parties. If the city and its tax collector be enjoined from selling the property for the purpose of collecting this amount from the plaintiff, it is difficult to imagine how the other defendants might do so. Nor does the complaint state any cause of action against them.
I would, therefore, recommend that the demurrer as to the named defendants be sustained and that the complaint be dismissed as to them.
The principal allegations of the complaint may be grouped under the headings set forth below, it appearing that much time, energy, and mental effort have been expended to prevent the collection of $137.76, made up of $83.69 as the amount of the assessment, $45.51 as interest, and $8.56 as costs. However, this suit is but one of many contesting the payment of the paving assessment, and the vast amount of work done on this case is, as a matter of fact, for the benefit of all. After the usual allegations as to corporate existence and occupations of the defendants, the plaintiff denies liability for the assessment upon the following general grounds:
(1) No valid assessment was ever levied.
(2) The claim of the city is barred by the 5-year life of the lien.
(3) The amount of the lien is confiscatory.
(4) The plaintiff is denied the right of equal protection of the law.
(5) The claim of the city of a lien is a cloud upon the title of the plaintiff.
Under the first ground, the plaintiff claims that no valid petition was signed by two-thirds of the number of property owners on the street; that no ordinance was passed by the city council pursuant to a petition ordering the paving; that no notice was given the former owner of the property before the assessment roll was ratified, thereby depriving her of her right to make objection to the paving and the placement of the lien.
A vigorous attack has been made upon the petition for paving upon the ground that it was not signed by two-thirds of the property owners as required by law, the plaintiff alleging that without the necessary signatures the petition was void ab initio and that no waiver might be claimed against that which was void. Quite a large portion of the testimony was directed to the point that the required number of property owners had not signed either the petition for paving or the so-called contracts for paving. In fact, the proof seems clear that the blueprint, as prepared by the city engineer, shows 94 pieces of property on this street and that 40 of the property owners did not sign. The records of the city show that the required number signed the petition and contracts. The difference in these counts arises from the contention that in some cases there were duplicate signatures, in other cases where the lot was owned jointly by two or more people each joint owner signed the petition, and, in other cases, that some signed who were not authorized to do so. Conceding, for the sake of the argument that this contention is true, it remains also true that the records of the city, whether right or wrong, showed the required number of signatures, and hence the petition was a most voidable and not void. However the plaintiff finds herself opposed to two insurmountable obstacles in refusing to pay the assessment upon the ground of the defective petition: The city ordinance and the decisions of the Supreme Court.
It will be borne in mind that in 1928 when this paving was authorized the property of the plaintiff upon which the lien is claimed was owned by Mrs. Nelson, now dead; also, that Mr. Boyd, the former clerk of the city, who had charge of the records, is also dead.
The ordinance of the city in effect at the time in question provided that when the assessment roll was prepared the clerk should give a newspaper notice that the roll was in his office and would remain there 1 week, during which time those interested might file exceptions and objections to the assessment. The testimony shows that notice of the assessment was duly mailed to the property owners. There is no direct proof that Mrs. Nelson received notice by mail, but there is no proof that she did not receive it, and with the admitted proof that notices were mailed to the property owners it is presumed that notice was mailed to her at the same time. The evidence tending to show that Mrs. Cleveland, the plaintiff, received no notice is totally irrelevant, as she was not a property owner and was not entitled to notice. There is no evidence that Mrs. Nelson made any objection to the paving or to the assessment during the week the roll was held in the clerk's office for that purpose, nor at any other time. The newspaper notice containing the provisions of the ordinance was duly published on April 16, 1928. It also showed that the assessment was approved by the council on February 6, 1928.
Having failed to make any objection to the paving or to the assessment, what would have been the status of Mrs. Nelson in regard to alleged irregularities in the proceedings had she been living? And what is the status of the plaintiff herein as the present owner of the property which formerly belonged to Mrs. Nelson? And just here it may be stated that the paving lien is one in rem, against the property, and not one in personam, against the owner. Cheraw v. Turnage, 184 S.C. 76, 191 S.E., 831, and cases therein cited. The plaintiff relies strongly upon the position that the city did not comply with the law and pass an ordinance directing the repairing of North Church Street. The ordinance of the city of March 24, 1913, provides that when the petition for paving is properly signed and filed with the clerk, the council shall, by ordinance, direct the improvement to be made. Evidently this was not done. The city council realized that something should be done, and, on February 6, 1928, passed a resolution accepting the report of the city engineer and authorizing the city treasurer to assess the various properties accordingly. The plaintiff claims that this resolution was not an ordinance, did not comply with the law, and, moreover, was not passed in time to give the owner notice of the lien. These objections appear to cover certain irregularities in the proceedings which could have been easily discovered by the property owner who was, of necessity, fully apprised of the repaving of the street upon which she lived and which, under the authorities hereinafter cited, hardly appear sufficient to render the lien of no legal force.
The answer to the foregoing questions appears to be definitely settled by the following cases:
In the case of Ballentine v. City of Columbia, 129 S.C. 410, 124 S.E., 643, 644, the objection was made that two-thirds of the property owners abutting the streets had not signed the petition for paving. The Court cited many decisions to sustain the following doctrine: "The authorities are ample that, under these circumstances, the abutting owner will be estopped from contesting the validity of the assessment, upon a ground which he was informed of, or of which, with reasonable diligence, he would have been."
In Platt v. City of Columbia, 131 S.C. 89, 126 S.E., 523, 525, it was shown that the petition did not contain the names of two-thirds of the abutting property owners, but that an ordinance had been adopted by the city council declaring that a sufficient number had signed. In disposing of this, the Court says: "The assessment upon the abutting property owner for a public improvement of this character is laid upon the valid theory of benefit to the property of the owner. One may not in good conscience stand silently by, see such an improvement made, reap the benefit, and then be permitted to escape payment of the reasonable `price' upon the ground that there was illegality in the proceedings of the governmental authorities, when he knew of such illegality, or, by the exercise of reasonable diligence, could have known of it in time to protest or take appropriate action in the Courts to restrain the prosecution of an unlawful undertaking on the part of the public authorities. In the situation of the plaintiff here we think the facts are susceptible of no other reasonable inference than that he knew of the alleged illegality, or by the exercise of reasonable diligence, could have ascertained it in ample time to call the defect to the attention of the city authorities, to enter an effective protest, or to take action in the Courts, not to restrain the levy or collection of a tax, but the prosecution to his injury of an unlawful public enterprise. The means of knowledge and the duty of using them are equivalent to knowledge ( Cordova v. Hood, 17 Wall., 1, 21 L.Ed., 587), and that in the plaintiff's situation he had the means of knowledge and owed the duty of using, we think, the facts leave no room for reasonable doubt."
In 132 S.C. 88, 129 S.E., 82, 84, the Ballentine case was again considered by the Supreme Court, the contention being made that all proceedings were void for the failure on the part of the city to order an election as required by law. In disposing of this case, the Court says:
"Even of appellant should be correct, which we do not concede, and the election should have been, but was not, held this is only an additional ground of illegality which appellant knew of or could have known of, and the defense of estoppel applies with equal force to this ground of objection. In Shepard v. Barron, 194 U.S. 553, 24 S.Ct., 737, 48 L.Ed., 1115, the Supreme Court of the United States says:
"`Provisions of a constitutional nature, intended for the protection of the property owner, may be waived by him, not only by an instrument in writing, upon a good consideration, signed by him, but also by a course of conduct which shows an intention to waive such provision, and where it would be unjust to others to permit it to be set up.'
"A landowner may waive or by his conduct estop himself from disputing his liability for an assessment upon his property, even where it has been held to be unconstitutional in respect to other landowners whose property was similarly situated. Pepper v. Philadelphia, 114 Pa., 96, 6 A., 899." (Italics added.)
Many authorities from other jurisdictions could be cited to sustain the position taken in the above cases, but it is hardly deemed advisable to prolong this report therewith. To those seeking further enlightenment on this subject reference is made to 9 A.L.R., page 737, for a most exhaustive annotation.
The second ground of objection, namely the life of the lien, will be discussed later in this report.
The third ground of objection, namely, that the amount of the paving assessment is confiscatory, is hardly worthy of consideration, in view of the fact that at the time the paving assessment of $83.69 was levied the plaintiff was the owner of a mortgage upon the property of approximately $5,000.00.
The fourth objection embracing the constitutional objection that the property of the plaintiff will be taken without due process of law, and that she is denied the equal protection of the law might, and probably would, be available in those jurisdictions which hold that a strict compliance with every provision of the statute is a prerequisite to a valid lien. Those jurisdictions do not recognize the South Carolina rule of waiver and estoppel. The South Carolina cases above cited are sufficient to show the absence of merit in this ground of objection.
The fifth ground claims a cloud upon the title of the property of the plaintiff. Every lien is a cloud upon the title to property, and a decision upon the main questions involved will either perpetuate or dispel the alleged cloud.
It is with genuine regret that I am forced to recommend a decision of this case in favor of the plaintiff, and thereby deny to the City of Spartanburg the right to collect this paving assessment, which, but for the leniency of the city in times of great depression, could and would have been collected without any measure of difficulty. My recommendation is based solely upon the life of the lien.
Under the law, the city was empowered to fix the method and terms of payment of those paving liens, ordinance of March 24, 1913, and, in doing so, it gave all of the advantage to the property owners. It said to the property owners that there was due so much as a paving assessment, but that the property owner might exercise either of two options looking to payment; the entire amount might be paid in 30 days or one-fifth might be paid in 30 days and the balance in equal yearly payments for 4 years, with 6 per cent. interest. This notice was given to the property owners on April 16, 1928. To this notice Mrs. Nelson made no reply, accepted neither option, and made no payment. It will be noted that the city did not reserve to itself the right to designate any manner of payment in case the property owners made no choice of the options offered. It did say, however, that in case of default the entire amount should be considered due and payable. The true situation, therefore, was that Mrs. Nelson, the then owner of the property, owed the city so much money for the paving costs, which amount was due in cash in 30 days or was due in 30 days plus 4 years if Mrs. Nelson elected that option of payment. Failing to make any payment within the 30-day period rendered the entire amount due, and a cause of action on the part of the city for the full amount immediately arose. Upon the accrual of the cause of action in favor of the city, the benefit of the life of the lien immediately arose on behalf of the property owners. The life of the lien was fixed at 5 years, and this time has expired, the cause of action having arisen in 1928 and the action having been commenced in 1936. The above dates also show that the statute of limitations also applied to the debt itself, more than 6 years having elapsed from the date the debt became due until the action to foreclose the lien was commenced.
Out of consideration for the property owners, the city authorities deferred commencing any legal steps just as long as they thought they could consistently do. They were advised to show all leniency possible to the property owners as the depression was at its worst and the city authorities had no desire to oppress any of the property owners. However, the city did not wish to lose its lien, and did begin its efforts to enforce the same within the statutory period as construed by several lawyers of ability who were consulted in regard thereto.
Further, in regard to the method of payment and the claim of the city that the installment plan was adopted, there is no proof whatever that the city ever took any steps to exercise the option or to apprize the owner that the method of installment payments has been chosen by it, if indeed it had the right to make a choice. The assessment ledger of the city showed the amount due by each property owner, and was printed in such manner as to show the amount of annual payments and interest due. Opposite the name of Mrs. Nelson on this book was the total amount, and nowhere on the ledger does it show that the city had divided the amount into annual payments. In fact, there is nothing to show in the testimony or by the records that the city claimed the amount to be due in installments prior to the year 1936, at which time the 5-year limitation on the lien had run. After the lien had run its course, the city did demand payment in 1936, with interest on each installment, but this was the first act on the part of the city claiming yearly payments, and the first notification the property owners received. An agreement to pay a debt which is admittedly due, by later installments, is a form of contract which must be entered into by mutual consent of the parties, and after they have agreed upon its terms. There is no proof of the creation of any such contractual relation between the parties hereto. The city occupies the anomalous position of forcing upon the property owner the contractual obligation to pay the amount in yearly payments, with interest, when the property owner declined to accept the proffered contract.
Quite an interesting discussion of the statute of limitations and the life of the lien is found in the case of Town of Cheraw v. Turnage, 184 S.C. 76, 191 S.E., 831. In that case the town, acting under the statute, fixed the mode of payment of the assessment in 10-year payments. The Act provides for the entire amount being due in case of default, and the defendant, having made no payment claimed that the entire debt was due after the first default and that the statute then commenced to run. The Circuit Judge denied this claim upon the ground that it was entirely optional with the city whether or not it would claim the entire amount as due or rely upon its ordinance fixing the 10-year payment plan. The decree of the Circuit Judge was both complimented and sustained by the Supreme Court. The distinction, which is readily observed, between that case and the one now under consideration, is that in the Cheraw case there was a definite method of payment, fixed by ordinance to be 10 years, while in the present case the ordinance gave to the property owners the choice of two methods of payment; no choice being reserved for the city. The acceleration provision of the statute was, therefore, denied in the Cheraw case, as the town could fall back on its 10-year payment plan. As the City of Spartanburg had no such ordinance to support a choice, the acceleration provision of the statute applies and the entire debt became due upon the first default.
The city contends that upon the failure of the property owner to avail herself of either one of the options for payment the city had the right to, and did, adopt the installment plan, and cites in support of this contention the case of Ellison v. Boyd, 130 S.C. 269, 125 S.E., 493, 494, 36 A.L.R., 855.
At first blush it would appear that there is some force in this position, but an analysis of the case will prove the contrary. In the first place, the parties in the Ellison case entered into a contract for the sale of real estate, whereas in the present case there was no contract whatsoever. As is said in the Ellison case, it "is one of alternative promises on the part of the defendant" to do one of two things, whereas in the present case the property owners promised nothing. 13 C.J., 630 is quoted with approval in the Ellison case as follows: "If the promisor has the right to do one of two things by a given day his right of election is lost if that day passes without his electing, and the right of election is in the party to whom the promise is to be performed."
But this statement of the law is based upon the conduct of a promisor, one who has promised to do one of two things.
The quotation from Choice v. Moseley, 1 Bailey, 136, 19 Am. Dec., 661, cited in the Ellison case as follows: "I take it that the rule is very clear, that when one contracts in the alternative to do one of two things by a given day, he has, until the day is passed, the right to elect which of them he will perform; but if he suffer the day to elapse without performing either, his contract is broken, and his right of election is lost," is entirely correct as it states the rule when one contracts in the alternative, to the effect that upon failure to elect within the required time the right of election is lost.
Mrs. Nelson never contracted to elect how she would make payment. She had the right to do so but was under no obligation to do so. After the expiration of 30 days her right of election was gone, and as before stated she was in default and the entire amount of the assessment was due.
The city ordinance provides that the lien shall continue "from the date of entry of the same on such assessment lien book until the expiration of five years from the date when the final payment is due and payable unless sooner paid." There is no difficulty encountered as to the date of entry of the lien on the assessment lien book, but the pivotal question arises not from the date of commencement of the lien but from the date of its ending. The ordinance says "five years from the date when the final payment is due." When was final payment due? If the payment became due in yearly payments then, unquestionably under the Cheraw case, the final payment was due in 4 years after the 28th day of May, 1928, and the lien continued for 5 years thereafter. The action to enforce the lien would, therefore, have been commenced in time. If, however, neither the city nor the property owner adopted the yearly payment plan, then the date of final payment was when the full amount became due, to wit, on the 7th day of March, 1928, and the 5-year life of the lien began on that date. The proof being that no yearly plan was ever adopted or agreed upon, it follows that the life of the lien was exhausted before the city made any effort to enforce it.
If I be correct in the conclusions and recommendations reached as above outlined, then the city will suffer for having shown consideration for one of its citizens, and the citizens will benefit by reason thereof, securing a very valuable improvement to property free of all expense, the expenses being borne by the city at large and by the other property owners on North Church Street. It will thus be readily observed with what reluctance this conclusion is forced upon me.
In case it should appear that any question of importance has not been mentioned in this report, I wish to say that all questions have been fully considered, and that my conclusion in regard to them would in nowise affect the final recommendations as herein made. It was not deemed advisable to prolong this report to an unreasonable length.
I therefore recommend that the temporary injunction heretofore granted in the foregoing case as to the City of Spartanburg and J.H. Rothrock be made permanent.
Messrs. DePass DePass, for plaintiff, cite: As to validity of paving petition: 44 C.J. 2389; 129 S.C. 410; 124 S.E., 643; 95 A.L.R., 139; 9 A.L.R., 590; 9 A.L.R., 623; 9 A.L.R., 627; 95 A.L.R., 117; 117 U.S. 683; 29 L.Ed., 1019; 42 L.Ed., 444; 116 S.E., 81; 126 S.E., 226. Necessity of ordinance authorizing improvements: 281 P., 385; 66 A.L.R., 1382; 44 C.J., 3006; 83 S.E., 910; 125 S.E., 380; 143 S.E., 119. Notice to property owner: Sec. 8902, Code 1932; 210 U.S. 373; 52 L.Ed., 1103; 70 L.Ed., 330; 44 C.J., 2407, 3050; 134 S.E., 162; 47 A.L.R., 233; 50 So., 411; 94 S.E., 249. Valid assessment: 191 S.C. 326; 172 S.E., 122; 139 S.E., 633; 171 S.C. 291; 172 S.E., 119; 44 C.J., 2473, 3400, 3398. Estoppel: 129 S.C. 410; 124 S.E., 643; 131 S.C. 89; 126 S.E., 523; 9 A.L.R., 590. Waiver: 170 S.C. 304; 170 S.E., 449; 114 S.C. 164; 103 S.E., 364; 98 N.W., 742; 9 A.L.R., 783; 54 N.W., 897; 28 S.W. 776; 133 N.W., 770; 9 A.L.R., 685; 155 S.E., 200; 94 S.E., 249. Proper parties: 32 C.J., 478; 44 C.J., 4520; 60 S.E., 569; 113 S.E., 72; 78 S.W. 1130. Payment by installments: 70 S.E., 950; 183 Pac., 276; 189 Pac., 512; 29 A.L.R., 1098; 135 N.W., 145; 96 Pac., 1.
Messrs. Odom Bostick and Esten C. Taylor, for defendant, cite: Waiver and estoppel: 167 S.C. 534; 166 S.E., 634; 78 S.W. 1130; 128 S.W. 104. Assessment: 141 S.C. 290; 139 S.E., 633; 171 S.C. 326; 172 S.E., 122; 171 S.C. 291; 172 S.E., 119. Construction of statute: 169 S.C. 314; 168 S.E., 722; 77 S.W. 137.
November 10, 1937. The opinion of the Court was delivered by
This action was instituted in the original jurisdiction of this Court, for the purpose of obtaining a permanent injunction enjoining the defendants, their agents and servants, from selling certain property of the plaintiff, abutting on North Church Street, in the City of Spartanburg, to satisfy a paving assessment lien. A temporary restraining order was issued, and upon returns having been filed in response to a rule to show cause why the temporary restraining order should not be made permanent, and, it appearing that testimony should be taken in the cause, the case was referred to W.C. Cothran, Esq., as Special Referee, to take the testimony and report it to this Court, with his conclusions of law and fact.
The testimony has been taken, and the report of the Special Referee has been filed. To this report exceptions have been taken to this Court by both the plaintiff and the defendants.
We agree with and adopt all the conclusions reached by the Special Referee in his report, which will be reported, and we refer to that report for the necessary statement of facts, to which we will make further reference.
The issue to which we shall direct our attention has to do with the duration of the lien of the City of Spartanburg with reference to the assessment against the abutting property of the plaintiff for permanent improvements in the City of Spartanburg. The plaintiff contends that the paving lien of the city has expired, and that it is without present right to foreclose its lien. The defendants uphold the opposite contention.
It is conceded that in this case the City of Spartanburg refers its authority to make the assessment in question to the Act of February 17, 1911 (Vol. 27, St. at Large, p. 557), and not Sections 7374 and 7376 of our 1932 Code, which controlled in the case of Town of Cheraw v. Turnage et al., 184 S.C. 76, 191 S.E., 831, 837.
The Act of 1911, which is applicable here, provides:
"Section 1. * * * Times and terms of payment and rates of interest on deferred payments of assessments by lot owners may be agreed upon as prescribed by ordinance."
"Section 3. * * * Such lien shall continue from the date of entry on such book [assessment lien] until the expiration of five years from the date when final payment is due and payable, unless sooner paid."
The general paving assessment ordinance of the City of Spartanburg, of March 24, 1913, provides: "Section 4. When said assessment roll has been ratified in the manner above prescribed, each owner of property so assessed may, within thirty days after such ratification, pay into the city treasury the full amount of said assessment, or shall have the right to have such assessment divided into five equal payments, the first installment thereof shall be due thirty days after the date of the ratification of the assessment roll by the City Council, and the remaining installments shall be due in equal amounts, due respectively in one, two, three, and four years from the date of the first installment, with interest on such installments at the rate of six per cent, per annum, payable annually from date until paid in full." (Italics added.)
It will be observed that the above statute provides that times and terms of payment and rates of interest on deferred payments may be agreed upon as prescribed by ordinance. The words, "as may be agreed upon," are absent from the enabling Act which was under discussion in the case of Town of Cheraw v. Turnage, supra.
Section 4 of the ordinance, which we have quoted, gives to the lot owner two options; either (a) to pay to the city within 30 days after such ratification (February 6, 1928) the full amount of the assessment, or, (b) the right to have such assessment divided into five equal payments, the first installment to be due 30 days after the date of the said ratification.
In construing the provisions of the Act and of the ordinance, we think section 6 of the ordinance has a pertinent bearing. It provides: "Owners of the property abutting improvements have acknowledged their indebtedness to the city by the payment in cash of one-fifth of the total assessment against their property, as required by law, and will accept from the City Council of Spartanburg, S.C. as provided by an Act of the Legislature of said State, the privilege of paying the amount still due in four equal annual installments, with interest at the rate of six per cent. per annum. (Italics added.)
Section 3 of the Act provides that such lien shall continue until the expiration of 5 years from the date when the final payment is due and payable unless sooner paid.
It will be noted that Section 6 of the ordinance interprets the Act as follows: "* * *, and will accept from the City Council of Spartanburg, S.C. as provided by the Act of the Legislature of said state," the "privilege" of paying in installments. The defendants complain that the Special Referee fell into serious error in making the statement in his report that "it (the City of Spartanburg) did say, however, that in case of default, the entire amount should be considered due and payable." We think it clear that this statement was made as a legal conclusion upon a construction of the ordinance, and that the Referee had no intention of making any direct quotation from the record. A reading of the statute and of the ordinance leaves no doubt but that the optional plan of installments is in force in the city of Spartanburg, and not what might be termed the acceleration clause method; there being no acceleration provision in the applicable statute.
By reference to the statute, it will be seen that the significant words are used, "may be agreed upon," and not the words "shall be." Nor does it contain the expression, "payments of assessments by such property owners shall be such as may be prescribed by ordinance," which we find (Code, § 7374) in the Cheraw case above referred to. The City of Spartanburg, under the enabling Act in this case, is given power to prescribe by ordinance times and terms of payment with reference to deferred installments, which the lot owner may or may not accept. In the absence of such acceptance, and there being no proof that the doctrine of estoppel applies here, it cannot be reasonably contended that the plaintiff exercised either option. She did not pay the whole amount within the 30-day period, nor within such period did she pay the one-fifth in cash which would have indicated her acceptance of the deferred payment plan.
It is argued on behalf of the city that the failure of the plaintiff to pay the whole amount of the assessment within 30 days is a substantive fact, evidencing her desire to take advantage of her right to pay in installments. The words "right to have" (Section 4 of the ordinance), with reference to installment payments, contemplate some positive action on the part of the property owner evidencing a choice of option. Nonaction on the part of the property owner does not indicate an election, nor does such inaction, under these circumstances, give to the city the right to make an election for the property owner. Under the ordinance, this right resided in the plaintiff, and it could be given vitality only when she chose to exercise it by complying with the ordinance provisions which conferred it. She did not do so. The ordinance laid no compulsion upon her to do so; nor does it give the city, in the absence of her agreement and compliance, the right to arbitrarily place her in the deferred payment class. Upon her failure to adopt the installment payment plan, which was optional with her, the whole amount of the assessment became payable within the 30-day period allowed. When she failed to pay it, the city's cause of action accrued.
Under the ordinance, the plaintiff could have adopted either course, but she did neither, and, in our opinion, the city's right of action accrued at the end of the 30-day period, and the life of the lien expired 5 years thereafter, to wit: in 1933.
Counsel for the city call our attention to this holding from the Cheraw case: "Accordingly, in the absence of the acceleration clause contained in the Act of 1919 above quoted, it could not be debatable that the limitation would be five years from the due date of the 1933 installment." And it is argued that this holding is applicable to the Spartanburg Act and ordinance. However, as heretofore pointed out, the two Acts are radically different, in that the Act of 1915 (Code, § 7374), which controlled the Cheraw case, provides that times and terms of payment, and rates of interest on deferred payments, "shall be such as may be prescribed by ordinance." No optional plan was provided for. And the Act of 1919 (Section 7376, Code) provides that, upon default in the payment of any installment, the total amount of the assessment should immediately become come due and collectible. The Spartanburg Act and ordinance contain no acceleration clause, but the Act does provide, as pointed out, with reference to deferred payments, that they may be agreed upon. These words are permissive and discretionary, and are not mandatory upon the city or the lot owner.
As was said in 44 C.J., 3420: "* * * Such provisions (the payment of assessments in installments) are generally construed to confer on a property owner an option to pay in installments, and not to require him to do so or to prevent him from paying the whole assessment at any time by paying the amount thereof and such interest as he is liable for, at the time of payment, under a proper construction of the statute. It is proper to attach just and reasonable conditions to the privilege of paying in installments, such as conditions that the owner shall give a bond, waive nonjurisdictional defects and informalities in the proceedings, and pay interest on the deferred installments; and the privilege is not available to the property owner unless he complies with the conditions, and exercises the option within the time prescribed * * *"
As the assessment for the repaving of North Church Street was ratified on February 6, 1928, and as the plaintiff did not pay the assessment in full nor adopt the deferred payment plan, the whole assessment became due and collectible on March 7, 1928. On that day a cause of action accrued in favor of the city, and the 5-year statutory lien commenced to run in favor of the plaintiff.
In our opinion, the plaintiff is entitled to a permanent injunction enjoining the City of Spartanburg, its agents and servants, from enforcing the pavement assessment lien and from selling her property.
The case of Mrs. Louise H. Blake, Appellant, v. City of Spartanburg et al., Respondents, S.C. 194 S.E., 124, the opinion in which is being filed at the same time that the opinion in the case at bar is being filed, involves substantially the same contested issues which appear in this case.
We have given careful consideration to all the exceptions, plaintiff's and defendants', and conclude that they should be overruled.
The report of the Special Referee is adopted as the opinion of this Court.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and BAKER concur.
MR. JUSTICE CARTER did not participate on account of illness.