Opinion
13185
June 23, 1931.
Before MAULDIN, J., Greenville. May, 1930. Modified and affirmed.
Action by the Town of West Greenville against C.E. Jones and others, members of the State Highway Commission et al., for mandamus. From an order granting writ, defendants appeal.
The complaint, as amended, demurrer, return, and answer, and the order of his Honor, Judge Mauldin, and appellants' exceptions were as follows:
COMPLAINTThe complaint of the plaintiff respectfully shows:
(1) That the Town of West Greenville, plaintiff herein, is a municipal corporation, organized and existing under and by virtue of the laws of the State of South Carolina, having a population of less than twenty-five hundred people; that the defendants, C.E. Jones, C.P. Moorer, D.W. Gaston, E.S. Booth, J.W. McKay, W.P. Hamrick, John T. Stevens, C.O. Hearon, W.R. McCuen, John P. Grace, H.C. Summers, J.L. Wheeler, W.A. Floyd and W. Fred Lightsey, constitute the State Highway Commission of South Carolina; that defendant Ben M. Sawyer, is chief highway commissioner of South Carolina; that defendant State Highway Department is a branch of the State Highway Commission of South Carolina, for which the State Highway Commission is responsible; that all of the above defendants, who are individuals, reside at various places in South Carolina, excepting the defendant, W.A. Boyd, who is a resident of Greenville County, said State.
(2) That plaintiff, about the year 1918, for value received, entered into a contract with the Southern Railway Company, which had its main line of railway through said town, allowing said railway to change certain streets in said Town of West Greenville, and to raise the grade of said railroad, and to recompense the plaintiff therefor said Southern Railway Company paved for the plaintiff a street through said town, which is an extension of Pendleton Street, of the City of Greenville, and about one mile in length. In accordance with said contract, said Southern Railway, acting for plaintiff, paid for said pavement the approximate sum of $22,000.00, the appraised value at this time being approximately $15,000.00, as plaintiff is informed and believes.
(3) Under an Act of the General Assembly of this State, approved March 4, 1929, the defendants are directed to reimburse any municipality of this State, having a population of less than twenty-five hundred inhabitants, for the appraised value of the hard-surface construction of any street, which was done by the municipality prior to January 1, 1925, where said street is now a part of the state highway, authorized under the provisions of an Act of 1924. Plaintiff alleges that said pavement, referred to in this complaint, comes within the terms of said Act, inasmuch as said construction was done prior to January 1, 1925, on a street, which is now a part of the state highway, authorized under the Act referred to. Plaintiff further alleges that the defendants herein, composing the State Highway Department of this State, owe plaintiff as reimbursement for the paving of said street the sum of $15,000.00; that plaintiff has made demand on said defendants for same, which demand has been refused.
Wherefore plaintiff prays judgment against defendants as follows:
(a) That an order be issued by this Court, compelling defendants, composing the State Highway Commission, and the State Highway Department of South Carolina, to pay it the sum of $15,000.00, the amount due plaintiff;
(b) For such other relief as may be just and equitable;
(c) And for costs.
NOTICE TO AMEND COMPLAINTTo the Defendants Above Named:
You will please take notice that at the call of this case we will move the presiding Judge for an amendment to the complaint, as follows:
Amend Paragraph 2 of the complaint by inserting at the end of same, as a continuation of Paragraph 2, the following:
"A copy of the ordinance of the Town of West Greenville, ratified May 12th, 1916, recorded R.M.C. office, Greenville County, Volume 32, page 397, with reference to the pavement mentioned herein, is attached hereto, marked Exhibit `A'."
"WILTON H. EARLE, "BOWEN BRYSON,
" Attorneys for Plaintiff.
"June 3, 1930."
DEMURRERThe defendants herein demur to the complaint of the plaintiff upon the ground that the same does not state facts sufficient to constitute a cause of action, in that:
I. That the State Highway Department is a department of the State government, and an action against said Department is, in fact, an action against the State, and no action can be maintained against the State or one of its departments or governmental agencies without express legislative sanction therefor in conformity with the Constitution of the State, and this Court is without jurisdiction to hear and determine the alleged cause of action stated in the complaint, for the reason that there is no statute authorizing such suit against these defendants.
II. That this Court has no jurisdiction or authority to mandamus the state of South Carolina.
III. That it does not appear upon the face of the complaint that the appraised value of the pavement described in the complaint has been ascertained according to law, or that any person or persons have been authorized or directed to make such appraisement.
IV. That it appears upon the face of the complaint that the plaintiff did not pave the section of road in question, and does not come within the terms of the Act approved March 4, 1929.
V. That it appears upon the face of the complaint that the section of road mentioned in the complaint "is an extension of Pendleton Street of the city of Greenville," and therefore the plaintiff in this action is not entitled to relief prayed for.
Wherefore, defendants pray that the complaint be dismissed, that they have their costs and disbursements, and such other and further relief as may be just.
RETURN AND ANSWERThe defendants herein, reserving the right to insist on the demurrer, by way of return to the rule issued by the Honorable T.J. Mauldin, presiding Judge, and dated May 28, 1930, and by way of answer to the complaint, respectfully show to the Court:
I. That they admit so much of Paragraph 1 of the complaint as alleges the names of the members of the state highway commission of South Carolina, and the name of the chief highway commissioner of South Carolina, and that the individuals reside in the State of South Carolina; and alleged on information and belief that the defendant W.A. Floyd also is a resident of the State of South Carolina; that they have no information sufficient to form a belief as to the truth of the allegation relative to the town of West Greenville, and specifically deny each and every other allegation of said Paragraph 1 of the complaint.
II. That the plaintiff herein did not construct the section of road described in the complaint, and that the said section of road "is an extension of Pendleton Street of the City of Greenville," and therefore the plaintiff in this action is not entitled to be reimbursed for the paving thereof under the Act mentioned in the complaint; that defendants are informed and believe that the appraised value of the pavement has not been ascertained in accordance with law, which is a necessary prerequisite to any reimbursement agreement under said Act.
III. That this is an action against the State of South Carolina, and cannot be maintained, because there is no statute authorizing the same, and this Court is without jurisdiction or authority to mandamus the State of South Carolina.
IV. That the section of road was not paved by the plaintiff, as defendants are informed and believe, and does not come within the terms of the provisions of Act No. 219, at page 247, of the Acts of 1929.
V. That they specifically deny each and every material allegation of the complaint not herein specifically admitted.
Wherefore defendants pray that the complaint be dismissed, and that they have their costs and disbursements and such other and further relief as may be just.
ORDERThis case was heard by me this day on summons and complaint of the plaintiff, on which a rule to show cause was heretofore issued by me, and demurrer and answer of defendants. At the hearing, notice having previously been given, plaintiff asked to amend the complaint by setting forth a contract between the plaintiff and the Southern Railway Company in 1916; and also that the plaintiff be allowed to amend by setting forth that no appraisal of the pavement in question had been made according to law, and asking that the Court order such appraisement. I allowed said amendments. Notice was also given me to allow an amendment to the complaint by alleging the cost of the pavement to be $32,117.19, instead of the amount set forth in the complaint of approximately $22,000.00. I allowed this amendment.
The case was fully argued before me. Three main positions were taken by defendants: (1) That the action is against the State and no authority has been granted to sue same in this action; (2) that the pavement in question was not constructed by the Town of West Greenville, but was constructed and paid for by the Southern Railway Company, and therefore the Statute of 1929 is inapplicable; (3) that prior to the bringing of the action the Highway Department had not appraised the pavement in question, and this is a prerequisite to the action.
1. My opinion is that the Act of 1929, at page 247, the preamble reading "An Act to Provide for the Reimbursement by the State Highway Department for Hard Surface Construction in Certain Towns or Municipalities," gives complete authority to the filing of this action, and I so hold. The defendants are public officers, and what is required of them under the terms of this Act is a ministerial duty.
2. "My opinion is, and I so hold, that the Act of 1929, upon which the plaintiff is relying here, is broad enough to cover the pavement, for which reimbursement is asked by plaintiff; the language of said Act is, `Where said construction was done by any said town or municipality,' etc. I hold that, under the contract between the Southern Railway Company and the Town of West Greenville, introduced in evidence, one consideration for certain streets being closed in West Greenville was that the railway company would actually pay for the pavement in question. I hold that this was the same under this Act as if the Town of West Greenville actually placed the pavement and paid for same." This construction can be arrived at either by holding that the word "by" means the word "for," or it could be by interpolating in said Act, after the word "by" and before the word "any," the words "or for." The preamble of the Act sets forth that towns are to be reimbursed by the State Highway Department, and the Act itself sets forth towns of twenty-five hundred or less; it is conceded that West Greenville comes under the terms of the Act so far as population is concerned. I hold that the pavement in question in West Greenville comes under the terms of the Act of 1929; and I also find as a fact that the pavement in question is a part of the State Highway System of South Carolina, under the terms of the Act of 1929.
3. The most serious question is as to whether or not an appraisement has been made by the State Highway Department. Under an affidavit, in evidence before me, because of a ruling of the Attorney General, the State Highway Department clearly indicates that it does not intend to make an appraisement. Under the amendment, which has been allowed, I hold that the State Highway Department and the defendants in this case must, according to the law, make an appraisement of the pavement in dispute.
I find that all the material allegations of the complaint, as hereinbefore amended, are substantially true; the demurrer is hereby overruled, and the positions taken by the defendants in their answer are not sustained.
It is therefore, ordered and adjudged that the return to the rule to show cause be, and the same is hereby, deemed and held to be insufficient; and that the State Highway Department, and the defendants herein, do with all convenient speed proceed to appraise the pavement in question in the Town of West Greenville, according to law; and, after such appraisement has been made, to forthwith reimburse the plaintiff for such appraised value, as required by the Act of 1929, at page 247.
EXCEPTIONSI. That his Honor erred, it is respectfully submitted, in stating in the order that notice had been given to amend the complaint "by setting forth that no appraisal of the pavement in question had been made according to law, and asking that the Court order such appraisal"; whereas, in fact, no such notice had been given to defendants or their attorneys, or suggested until the oral argument of the case.
II. That his Honor erred, it is respectfully submitted, in ordering the State Highway Department to appraise the paving in question, when the complaint did not ask for it.
III. That his Honor erred, it is respectfully submitted, in ruling and holding that the Act approved March 4, 1929, authorizes a suit against the State Highway Department, which is, in fact, a suit against the State.
IV. That his Honor erred, it is respectfully submitted, in holding that all the defendants are public officers, and that what is required of them under the Act is a ministerial duty; whereas, he should have held that the State Highway Department is a department of the State government, and that this action could not be maintained against it.
V. That his Honor erred, it is respectfully submitted, in holding "My opinion is, and I so hold, that the Act of 1929, upon which the plaintiff is relying here, is broad enough to cover the pavement, for which reimbursement is asked by plaintiff; the language of said Act is `Where said construction was done by any said town or municipality,' etc. I hold that, under the contract between the Southern Railway Company and the Town of West Greenville, introduced in evidence, one consideration for certain streets being closed in West Greenville was that the railway company would actually pay for the pavement in question. I hold that this was the same under this Act as if the Town of West Greenville actually placed the pavement and paid for same"; whereas, he should have held that the Southern Railway Company paved the streets in question with its own funds, and that the Town of West Greenville had not expended anything therefor, and was not entitled to reimbursement.
VI. That his Honor erred, it is respectfully submitted, in ruling as follows: "I hold that the pavement in question in West Greenville comes under the terms of the Act of 1929"; whereas, he should have held that the said pavement did not come within the terms of the Act, and that the town was not entitled to reimbursement.
VII. That his Honor erred, it is respectfully submitted, in the following: "I also find as a fact that the pavement in question is a part of the State Highway System of South Carolina, under the terms of the Act of 1929"; whereas, he should have held that only one-half of the pavement in question was included in the State Highway System.
VIII. That his Honor erred, it is respectfully submitted, in overruling the demurrer filed by the defendants.
IX. That his Honor erred, it is respectfully submitted, in summarily dismissing the answer of the defendants and taking the allegations of the complaint as true, without requiring testimony in support thereof.
X. That his Honor erred, it is respectfully submitted, in granting mandamus against the State Highway Department, which is, in effect, a mandamus against the State of South Carolina requiring it to make appraisement and to make reimbursement to the plaintiff for the paving of said streets.
Messrs. John M. Daniel, Attorney General, Cordie Page and J. Ivey Humphrey, Assistants Attorney General, for appellants, cite: Case involves construction of Act of 1929: 36 Stat., 247. "Reimburse": 179 Pac., 899; 82 So., 498; 59 N.W., 755; 83 Pa., 257.
Messrs. Bowen Bryson and Wilton H. Earle, for respondent, cite: Motion to amend during trial in discretion of Court: Code Proc., 1922, Sec. 436; 127 S.C. 551; 121 S.E., 673; 68 S.C. 403; 47 S.E., 693. Defendants, public officials, subject to orders of Court: Code Proc., 1922, Sec. 377; 140 S.C. 48; 134 S.E., 527.
June 23, 1931. The opinion of the Court was delivered was
This action, by the Town of West Greenville, a municipal corporation of the State of South Carolina, commenced in the Court of Common Pleas for Greenville County, May, 1930, against the members of the State Highway Commission, the Chief Highway Commissioner, and the State Highway Department of South Carolina, is an action for a writ of mandamus, requiring the defendants to pay the plaintiff the cost for paving a certain street in the said town, which street, the plaintiff alleges, composes a part of the State Highway System. The plaintiff bases the action upon Act No. 219, approved March 4, 1929 (36 St. at Large, 247), and Act No. 731, approved March 21, 1924 (33 St. at Large, 1193). The matter came before his Honor, Judge T.J. Mauldin, on application for a rule, which his Honor granted, and, pursuant to the rule thus issued, the matter was heard before his Honor, Judge Mauldin, July, 1930, on the complaint and amendments allowed thereto, affidavits in support thereof, and demurrer, return, and answer filed by the defendants. Upon consideration, the trial Judge overruled the defendants' demurrer, adjudged the return insufficient, and issued a writ of mandamus, granting unto the plaintiff the relief sought. From the order issued by his Honor, Judge Mauldin, the defendants have appealed to this Court.
Under our view of the case, it is unnecessary to discuss the several exceptions presented by the appellants, but consider it sufficient to state that, in our opinion, the trial Judge reached a correct conclusion in the case, and, in the main, we agree with the order issued. See Volume 1, Code, 1922, § 377, Subdivision 2; Gregory v. McInnis, 140 S.C. 52, 134 S.E., 527; James v. State Board of Examiners of Public Accountants et al., 158 S.C. 491, 155 S.E., 830. There is, however, one matter we wish to mention. Appellants, in accordance with question raised by the exceptions, contend that only about one-half of the pavement in question is included in the State Highway System, and that therefore an affirmance of the order of the Circuit Judge would mean the requirement of the appellants to pay double the amount that they should be required to pay, in the event the town is entitled to reimbursement. The record is not very clear as to the description of the pavement included in the highway system, and, for that reason, we desire to state, by way of interpolation, that there was no intention on the part of the trial Judge to allow the plaintiff reimbursement for any pavement not in the highway system, and, if it should hereafter be made to appear that any portion of the pavement referred to in the pleadings in the case or in the order issued by his Honor, the trial Judge, is not in the highway system, the parties hereto shall have the right to correct such matter, and for that purpose may take such action as they may be advised.
With this interpolation and this modification, it is the judgment of this Court that the order appealed from be, and is hereby affirmed.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE JOHN I. COSGROVE concur.
MR. JUSTICE COTHRAN disqualified.