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The opinion of the Court was delivered by
Mr. Chief Justice Blease.
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It appears to the Court that the conclusions of E. Inman, Esq, master in equity for Greenville County, in this cause were correct. His report will be reported, and is adopted as the opinion of this Court.
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The judgment of this Court is that the decree of the Circuit Judge, appealed from, be, and the same is hereby, reversed, and the cause remanded to the Court of Common Pleas of Greenville County for such further action as shall be necessary to carry out the conclusions of the master.
Messrs. Justices StabeEr and Boni-iam concur.
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Case posture Posture Before RICE, J., Greenville, December, 1930. Reversed and remanded.Suit by Anna M. Beatty against Mattie Florine Wittekamp and others. From a decree for plaintiff, the City of Greenville appeals.
The Judge's decree and master's report directed to be reported follow:
JUDGE'S DECREE
The above-stated causes is an ordinary action for the foreclosure of a mortgage, on a certain lot of land in the City of Greenville. The city was made a party because it claimed a first lien on the lot in question due it as a result of assessments levied to pay the cost of one-half of some paving done on the streets and sidewalks on which the said lot abutted.
In its answer, the city set up its lien, claiming it to be a first lien, and also pleading estoppel against the plaintiff. The issues both of law and fact were submitted to the
master for said county, and at the fall, 1931, term of Court for the County of Greenville the matters involved came before me on exceptions to the report of the master.
The main points in the case are: (1) Do the assessments levied by the city constitute a lien on the land in question? (2) Is such lien, if any, superior in rank to that of a mortgage already on the property at the time the city's lien became effective? (3) Is the plaintiff estopped from denying that the city has a first lien on the lot covered by the mortgage?
In his report the master sustains all of the contentions of the city and decides all of above-mentioned points in its favor. These findings of the master are all vigorously assailed by the attorneys for the plaintiff, and also by several other attorneys who have been allowed to file arguments by reason of the fact that each of them have clients who are in a situation similar to that of the mortgagee in this case.
It seems to me that it is now well settled in this state that, without statutory authority, assessments such as that now in question would be no lien on the lot now under consideration. This was the ruling in the second case of Mauldin v. City of Greenville , 53 S.C. 293 , 31 S.E., 252 , 43 L.R.A., 101, 69 Am. St. Rep., 855. Soon after the said ruling the city took steps to have the Constitution amended, and this was done, and the same amendment now appears as Article 10, § 14. I omitted to state above that the Supreme Court held, in the Mauldin case , that an assessment such as that in question was an undue burden on the property owners, and therefore was unconstitutional. The amendment cured this defect. The amendment was effective in 1911, and the enabling Act was passed by the Legislature the same year.
The amendment merely states that certain cities named in such amendment, among them the City of Greenville, may be authorized by the General Assembly to levy an assessment on abutting property owners for the purpose of
paying for permanent improvements on streets and sidewalks immediately abutting such property, the city to pay for one-half the cost and the property owners the other half, and further providing that, before this can be done, a petition signed by not less than two-thirds of the property owners affected must be filed with the city council. However, no lien is provided in the amendment.
Those portions of the Act of Feb. 17, 1911 (27 St. at Large, 23, 24, §§ 1, 3) pertinent to our inquiries are as follows:
Section 1. Be it enacted by the General Assembly of the State of South Carolina, That the Cities of Columbia and Greenville and the town of Manning are authorized to provide by ordinance for the payment of the cost of the permanent improvement of their streets and sidewalks, by laying upon the owners of property immediately abutting on the streets and sidewalks so improved an assessment in proportion to the frontage only of such property on said streets or sidewalks, or parts thereof, so improved, of not exceeding in the aggregate one-half of the cost of such improvements: Provided , That no assessment shall be so laid upon the abutting property owners until such improvements have been ordered pursuant to such ordinance upon the written consent, signed and filed with the Clerk of Council, of two-thirds in number of the owners of the property abutting upon the street, sidewalk, or part of either proposed to be improved, and provision made for the payment out of the city or town treasury of not less than one-half of the costs of such improvement. 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.
Sec. 3. That the assessments so laid shall constitute a lien upon the property so assessed, and payment thereof may be enforced as are the payment of city or town taxes: Provided , Such assessments be entered in a book kept by
the city or town clerk, to be entitled 'Assessment Liens,' stating the name of the owner, the location of the property and the amount of the assessment and the time or times of payment: And provided, further , That such lien shall continue from the date of entry on such book until the expiration of five years from the date when final payment is due and payable, unless sooner paid.
Under the provisions of the above Act the city proceeded, until in 1929 it decided to adopt the Oklahoma Plan, which casts upon the owners of the property abutting upon the portions of the street or sidewalk desired to be improved the entire cost of same. But, in order to do this, another amendment to the Constitution was necessary, and this was had in 1929, and appears in the present Constitution as a proviso to the amendment of 1911, as follows:
Provided, further , That the City of Greenville may be authorized, upon the written consent of the owners of two-thirds (2/3) of the frontage of the property abutting upon the street, roadway, alleyway, sidewalk or part of either, proposed to be improved, to levy an assessment upon the abutting property for the entire cost of such improvements, including lateral pipe lines; the corporate authorities, however, to pay the cost of improving the intersection of any such streets, roadways, alleyways or sidewalks: Provided, further , That said City of Greenville may be authorized and empowered without the necessity of an election to issue improvement certificates or bonds in an amount not exceeding the aggregate amount of the cost of such improvements, pledging the assessments as security therefor, and such certificates or bonds shall not be deemed a part of the bonded indebtedness within the meaning of the constitutional limitation: Provided, further , Said City of Greenville may, at its option, assess only a portion of the cost against abutting property owner, itself paying the remainder.
The Act ratifying the last-mentioned amendment was passed and became law on February 11, 1929 (36 St. at
Large, 39), but the enabling Act was signed by the Governor March 25, 1930 (36 St. at Large, 1179), and became law on that date.
The enabling Act just mentioned followed almost precisely the 1929 amendment, and it is not necessary therefore to set it out in full at this point.
The mortgage which the plaintiff is now seeking to foreclose is dated June 8, 1929, and was properly placed on the records of Greenville County three days later.
The appellants strenuously contend that the city has no lien for two main reasons, to wit, that the Act of 1930 repealed the Act of 1911, and again that there is no constitutional authority for the creation of a lien by the Act of 1911, and none in the later amendment of 1929.
With this view I do not agree. The Act of 1930 simply repeals all Acts and parts of Acts inconsistent with its provisions. The question then arises, Is the creation and retention of the lien in the 1911 Act at variance or in conflict with any of the provisions of the Act of 1930? With this question in mind I have examined and studied them both, and I must answer in the negative. A provision so important in an Act of the Legislature as this is should not be held to be repealed by a subsequent Act unless the clear intention of the Legislature to do so appears.
It seems to me that, in order to construe the Act of 1930, and ascertain the intention of the Legislature, we must study, not only the constitutional amendment of 1929, but also the amendment of 1911, and the Act passed the same year, commonly called the enabling Act. This I have done, and my conclusion is, after considerable study, that the intention as manifested in the provisions of the 1930 Act was to retain the lien for the city, but that the abutting property has a lien on it for the full amount of the improvements, with some exceptions noted in the Act. There are, of course, other differences in the Act which I do not think affect the question at issue.
As to the contention that the city has no lien because the constitution did not confer that power on the Legislature, my view is that all powers not parted with by the people of the state by constitutional provision are still retained by them, and may be exercised by them through the General Assembly of the state. That which is prohibited by the Constitution cannot be authorized by the Legislature, but, if not prohibited by the Constitution, then, generally speaking, the Legislature may authorize it. See 3 A. E. Ency. L., 689. The exact point now under discussion has never been passed upon by our Supreme Court, and it also appears never before to have been doubted that the Legislature has the power to create a lien, and also to fix the priority of liens. Even taxes were never a lien until made so by legislative enactment. See Charleston Heights case , 138 S.C. 187 , 136 S.E., 393 , and authorities there cited. This ground of appeal is therefore overruled.
The most difficult point in this case is as to whether or not the amendment of 1929 is self-executing. The master holds that it is, and this conclusion of law is powerfully attacked by the appellants. If the master is correct, then the lien of the city is prior in point of time to that of the plaintiff, and must be paid first, and the reverse is true if the master is in error. This situation arises because the enabling Act did not become law until some ten months after the execution and record of the mortgage.
The general presumption of law is that all constitutional provisions are self-executing, and are to be interpreted as such rather than as requiring further legislation, for the reason that, unless such were done, it would be in the power of the Legislature to practically nullify a fundamental of legislation. 6 R.C.L., 58; Black on Interpretation of Laws, 21. Brice v. McDow et al. , 116 S.C. 329 , 108 S.E., 84 , 87 . Quoted with approval in Chick Springs Water Co. v. Hwy. Dept. , 159 S.C. 481 , 157 S.E., 842 .
On the other hand:
A self executing provision is one which supplies the rule or means by which the right given may be enforced or protected, or by which a duty enjoined may be performed. 8 Cyc., 753.
The question in such cases is always one of intention
(italics added) and to determine the intent the general rule is that Courts will consider the language used, the objects to be accomplished by the provision, and the surrounding circumstances. 8 Cyc., 753.
Constitutional provision which is complete in itself needs no further legislation to put it in force, but is self-executing. Davis v. Burke , 179 U.S. 399 , 21 S.Ct., 210 , 45 L.Ed., 249 .
The test then is as to whether or not the provision is complete in itself. This requirement was fully met in the provision in McColl v. Marlboro School District , 143 S.C. 120 , 141 S.E., 265 , but in that case the language used was expressly authorized, and there could not be difference of opinion as to what was meant. The language of the amendment of 1929, now under discussion, is may be authorized, and this appears to me to clearly imply permission to the Legislature to confer the authority, and is not the conferring of authority on the city. There is no authority conferred on the city in the amendment either directly or by necessary implication when the language used is considered, and this must have been the view of the General Assembly, because in 1930, the enabling Act was passed which conferred the authority to do those things covered by the amendment. Of course, this view of the Legislature is not controlling, but it certainly is entitled to some weight.
The city contends that under the amendment, when the owners of two-thirds of the frontage to be affected signed their consent in writing for the work to be done under the terms and conditions of the amendment, then authority was conferred to proceed. In other words, the property owners , and not the Legislature, were to confer the necessary
authority. This I take to be the import of the respondent's argument on this point. I do not agree with this view. Of course, the consent of the property owners was made a condition precedent to the exercise of any authority given by the Legislature, but it could have no further effect.
This view is strengthened when we consider a proviso in the same amendment dealing with the matters of certificates or bonds to be issued by the city, and there the language is, may be authorized and empowered, with no qualifying words whatever attached, and it will hardly be contended that the amendment is self-executing in a part thereof while an Act of the Legislature will be required to make the remaining part of the amendment effective. In such case the amendment would certainly not be complete in itself.
There are other reasons which I have in mind, but I think the above is sufficient. The exceptions to the findings and rulings of the master on this point must be sustained.
The city further contends, and the master has so found, that it has a first lien on the lot of land covered by the mortgage. On this point it seems to me sufficient to state that, if the Legislature had so intended, it would have so stated in the Act of 1911. Without legislative authority for it, there certainly was no lien. Even taxes were never a lien until made so by Act of the General Assembly. See Charleston Heights case, supra , and authorities there cited. There is no doubt of the power of the Legislature not only to create the lien but to have it made a first lien if it had seen fit, but this it did not do.
While the Legislature has made taxes a first lien, assessments are not taxes. Wesley M.E. Church v. City of Columbia , 105 S.C. 303 , 89 S.E., 641 . The exceptions on this point are sustained. In addition to above authority, see, also, Dillon on Municipal Corporations (5th Ed.), § 1420; 41 Corpus Juris, 523.
The city further contends, and the master has so found, that the plaintiff is estopped from claiming that the lien
of her mortgage is superior in rank to that of the city, because the owner of the property petitioned the city to do the work, that she is estopped, and therefore the holder of the mortgage is also estopped. I agree with the master that the owner is estopped, but I do not agree with him that this applies to the plaintiff. According to such evidence as I find in the record, the owner did not petition the council until about July 23, 1929, and the mortgage of the plaintiff was recorded about June 11 of same year. The mortgage then had been in existence some forty days before the owner signed her consent for the paving to be done. No act of the owner of the lot in question could affect the lien of the mortgage unless the owner of the mortgage agreed thereto, and of this there is no evidence in the record. The fact that the present owner of the mortgage is an assignee can have no bearing on the question, as she has the same rights in relation to the mortgage as the original owner thereof.
The exception questioning this ruling of the master is therefore sustained.
It is therefore ordered, adjudged, and decreed that, except as hereinabove modified, the report of the master is confirmed and made the order and judgment of this Court. And it is further ordered that the mortgage sued upon be foreclosed, the property covered thereby be sold by the master on the first Monday in October, or some subsequent convenient salesday thereafter, to the highest bidder for cash, after due and legal advertisement of such sale, and that out of the proceeds of such sale, after paying all legal costs and expenses, the amount due on said mortgage be first paid out of the proceeds and next such amount as may be due on the assessment lien of the City of Greenville; in the event that such proceeds be sufficient for the purpose indicated; and, if not sufficient, then to be applied as herein directed as far as they may go.
The property to be sold subject to the lien of the Mechanics' Building Loan Association which now covers the property.
So ordered.
MASTER'S REPORT
On its face, this is the usual and ordinary complaint in foreclosure, but, the City of Greenville being a party defendant and having laid pavement abutting the property, the plaintiff alleged in Paragraph 7 that, if said defendant claimed an interest or lien, its lien was junior and inferior to plaintiff's mortgage. The city answered that it had a lien, and that it was superior to that of plaintiff, and the fight was on. The questions thus raised for determination are not readily disposed of, but require much study and research to reach a proper conclusion. In such study and research care is necessary to observe dividing lines and to preserve the peculiarities distinguishing this from ordinary cases in taxation.
It appears that, prior to the Constitution of 1895, Greenville had ventured into the practice of paving its streets and sidewalks and assessing the abutting property for all or part of the cost. It was halted in that endeavor by the case of Mauldin v. City , 42 S.C. 293 , 20 S.E., 842 , 27 L.R.A., 284, 46 Am. St. Rep., 723, and the second time it went to the Supreme Court ( Mauldin v. City , 53 S.C. 285 , 31 S.E., 252 , 255 , 43 L.R.A., 101, 69 Am. St. Rep., 855) that species of taxation was prohibited, because up to that time no constitutional authority had been enacted. Mr. Justice Pope, in concluding the opinion of the Court in the last of the above cases, remarks: In Mauldin v. City Council of Greenville , 42 S.C. 293 , 20 S.E., 842
[27 L.R.A., 284, 46 Am. St. Rep., 723], this Court announced that this state had repudiated, and still continues to repudiate, the doctrine of supposed benefit to owners of lots of land abutting on public streets, in levying taxes; and we are now satisfied that such former decision, where it upheld
held assessments made upon owners of lots abutting on streets where improved sidewalks and drains are constructed, was wrong, and should be reversed, as opposed to our present constitution. The above quotation at length, is to point to the fact that prior to the constitutional provisions hereinafter referred to, there was no authority for such assessment, emphasizing throughout that such was a tax with every characteristic of a tax, but not warranted by law.
The facts are not in dispute, but, in order to better grasp the issues, I will set forth the history of the case, and then indicate my conclusions, and express myself without regard to a separate statement of law and fact.
As before stated, before the constitutional authority had been granted Greenville laid pavement and assessed the abutting property for costs. The Mauldin cases ended that sort of procedure.
In 1911, as if to meet the decision in the Mauldin cases , the Constitution of 1895, Art. 10, § 14, was amended, as follows: The General Assembly may authorize the corporate authorities of the Cities of Greenville, Spartanburg and Columbia, and the town of Manning, to levy an assessment upon abutting property for the purpose of paying for permanent improvements on streets and sidewalks immediately abutting such property: Provided , That said improvements be ordered only upon the written consent of two-thirds of the owners of the property abutting upon the street, sidewalk or part of either proposed to be improved, and upon condition that said corporate authorities shall pay at least one-half of the costs of such improvements.
The foregoing amendment was ratified in February, 1911 (Act Feb. 3, 1911 [27 St. at Large, 225]), and at the same session an Act was passed carrying out the provisions of the amendment and setting up the machinery for its operation, and Section 3 of that Act (Acts 1911, 24, and Section 4506, Vol. 3, Code 1922) is as follows:
That the assessments so laid shall constitute a lien upon the property so assessed, and payment thereof may be enforced as are the payment of city or town taxes: Provided , Such assessments be entered in a book kept by the city or town clerk, to be entitled 'Assessment Liens,' stating the name of the owner, the location of the property and the amount of the assessment and the time or times of payment: And provided, further , That such lien shall continue from the date of entry on such book until the expiration of five years from the date when final payment is due and payable, unless sooner paid.
Thereupon the City of Greenville again entered upon paving its streets and sidewalks, assessing the abutting owners for one-half the cost. The Constitution was again amended in 1929 (see Acts 1929 [36 St. at Large, 39]) as follows: Provided, further , That the City of Greenville may be authorized, upon the written consent of the owners of two-thirds (2/3) of the frontage of the property abutting upon the street, roadway, alleyway, sidewalk or part of either, proposed to be improved, to levy an assessment upon the abutting property for the entire cost of such improvements, including lateral pipe lines; the corporate authorities, however, to pay the cost of improving the intersection of any such streets, roadways, alleyways or sidewalks: Provided, further , That said City of Greenville may be authorized and empowered without the necessity of an election to issue improvement certificates or bonds in an amount not exceeding the aggregate amount of the cost of such improvements, pledging the assessments as security therefor, and such certificates or bonds shall not be deemed a part of the bonded indebtedness within the meaning of the constitutional limitation: Provided, further , Said City of Greenville may, at its option, assess only a portion of the cost against abutting property owner, itself paying the remainder
In June, 1929, after the foregoing amendment was of
effect, the mortgage sought herein to be foreclosed was executed.
The Act of March 25, 1930 (36 St. at Large, 1179), follows the language of the constitutional amendment. The city passed an ordinance in harmony with the amendment and statutes, and declared a lien next in priority to taxes.
The position of the plaintiff is that the Act of 1930, supra , did not provide for any lien for paving assessments; that, even if there was a lien, it was junior to her mortgage, because the mortgage was executed in June, 1929.
The position of the city is:
That the amendment of the Constitution in 1911, followed by the enabling Act of the same session, in which a lien was created and the machinery set up for carrying into effect, was authority for the laying an assessment for one-half the cost. That a lien thereupon covered the abutting land.
That the constitutional amendment in that case was inoperative until the General Assembly passed an Act. That the constitutional amendment of 1929 did not amend the Act of 1911 only in so far as it was inconsistent therewith, and that Section 3 of that Act is still of force and effect.
That the amendment of 1929, so far as the amendment of 1911 is concerned, changed it in but two particulars:
It authorized the city upon the signature of the owners representing two-thirds of the frontage, to go ahead, lay the pavement and assessment, and collect the total cost, whereas the one of 1911 only required the signature of two-thirds of the owners, and then the city must pay half the cost. That the amendment of 1929 is a part and parcel of the amendment of 1911, and the Act of 1911 serves both amendments. That any provision of the Act of 1911, inconsistent with the amendment of 1929 operates as an amendment of the Act, the remainder of the Act remaining of force; that is, by it, the city has a lien for the amount of the assessment laid. That it has not only a lien, but
that its lien is superior to that of the plaintiff That on the facts of the case, under the laws of the state and ordinances of the city, plaintiff is estopped.
It is agreed that the mortgage of the plaintiff constitutes a lien. The dispute is as to its rank. It is agreed that the amendment and Act of 1911 created a lien, and the contention is, even so, and if operative now, the lien for an assessment laid after the execution of a mortgage would be a junior lien.
I hold that the amendment of 1929 authorized the city to pave its streets at a total cost to the abutting land without the necessity of the enabling Act of 1930. McColl v. Marlboro , 143 S.C. 124 , 141 S.E., 265 .
The language of the amendment of 1911 is, The General Assembly may authorize the corporate authorities * * * to levy an assessment upon abutting property * * * abutting upon the street * * * proposed to be improved, etc.
That of 1929 is, That the City of Greenville may be authorized, upon the written consent, etc.
The primary authority in the matter of assessment is in the amendment of 1911 and the Act of 1911. Sullivan v. City of Charleston , 123 S.C. 91 , 116 S.E., 104 .
But, if I am wrong about that, still the city has a lien. The amendment of 1929 operated as an amendment of 1911 and the enabling Act of that year, and left intact the machinery contained in the Act of 1911, which is of force today. That Act specifically declared a lien, and all of its other provisions are of force. Cleveland v. Spartanburg , 54 S.C. 83 , 31 S.E., 871 ; Brice v. McDow , 116 S.C. 324 , 108 S.E., 84 .
The cases in this and other jurisdictions uphold paving assessments upon the theory (if not of fact) that the abutting property is enhanced in value to the extent of the cost of the improvements. The mortgagee has a lien, but the owner retains the title — the primary estate —
what inures to the benefit of the owner and adds to his value must necessarily in the same ratio increase the security and enhance the value of the lien. The reasoning is that an assessment lien does not extend to any divisible interest, but it is the land impressed separate and apart from any personal interest, whether matured, or like that of a mortgagee. I think there would be no question raised as to the lien on the land in the absence of a mortgage. The owner cannot create a lien superior to his own title. Besides, the lien for the assessment is created by the sovereign power which can create a lien superior to every private interest in the land. The assessment lien gets its priority because of the source of its imposition, and the procedure by which it becomes a charge on the land is a proceeding in rem. Like taxes, it is collectible without a summons to Court, and I might ask wherein is there any other lien enforceable in such summary way? That the statute makes no special provision for a superior lien is not the test. As before said, it proceeds against the land itself without regard to personal interests or contracts. Weatherly v. Medlin , 141 S.C. 302 , 139 S.E., 633 .
The city having been paving its streets, assessing abutting property for its costs, and the various constitutional and statutory provisions being public laws of the State, for more than twenty years, its authority being a part of its organic law, the authority being a continuous one and all streets expected to be so improved, a power to be enforced at any time, and the law complied with by ordinances of the city, then all persons dealing with property on the streets are bound to take notice of these things. Merchants' Planters' Bank v. Brigman , 106 S.C. 367 , 91 S.E., 332 , L.R.A., 1917-E, 925, and other authorities in this and other jurisdictions.
I therefore recommend that the land described in the complaint be sold and the proceeds applied to the costs and expenses of this action and sale, then so much as may be necessary to pay the paving assessments amounting, as of this
date, to $..... and interest until paid at the rate of 6 per cent. per annum; then so much as may be necessary to pay off plaintiff's mortgage debt and the remainder as directed by the Court. Source: CourtListener
