Petition — Clay v. Hayward

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Supreme Court, U. S.

FILED

AUG3 0 1978

MICHAEL RODAK, JR., CLERK

Supreme Court of Che United States

October Term, 1975

vo 78-35 1

CECIL D. CLAY, HENRY E. HOLLINSHEAD, CLIFTON

D. GREEN, JR.. MALCOM C. HURSEY, HIRAM C.

ADAMS, JAMES HL LEE, SR., CHARLES M. LANFORD,

MARY R. MILLER, ALFRED WILLIAMS, Commissioners

of the North Charleston Public Service District; North

Charleston Public Service District, and BRANFORD

HEAPE, Petitioners,

LS.

MARION HAYWARD, DELORES GRANT, NANCY

LITTLE, LAWRENCE M. LIBATER, J. PHILLIPS

NOBLE, and the City of Charleston, —--_—~_ Respondents.

Petirion For Writ Or Crerriorarti

To THe Unrrep States Court Or ApPEALS

For THe Fourtu Circurr

David G. Jennings

GOODSTEIN & JENNINGS, P.A.

P. O. Box 7507

Charleston Hts., SC 29405

August , 1978

INDEX

EE ee 2

ES EEE IE 2

EE I 2

Constitutional and Statutory Provisions Involved ....... 2

EGG Rass seb eesescsessccepee 3

Argument in Favor of Granting Writ ................-- 4

eda we cee seeeecsesecce 4

EE EE 25

ee ea ssa wea evesecvses.s 37

Appendix A - Judgment, Opinion and Denial of Petition

for Rehearing of the United States Court of Appeals

ee ead ony sseescccses Al

Appendix B - Judgment and Opinions of the

eS Gras See veecescccce Bl

Appendix C - Full Text of Statutory Provisions ......... Cl

b

¥

:

TABLE OF AUTHORITIES

Cases: Page

Adams v. Citu of Colorado Springs. 308 F. Supp. 1397

a SE Sh da ea ocho hcckad bedaeic 15

Bramlette v. Stringer, 186 S.C. 134, 195 S. E. 257 (1937) .... 32

Cipriano v. City of Houma, 395 U.S.701 (1969) ....... 18, 22

Citizens Comm. to Oppose Annexation v. City of Lynchburg,

Seer Da. SO. VE. BUTE vis cn nwcsewccbidcoveses 15

Cothran v. West Dunklin Public Sch. Dist. No. 1-C,

TOSS. C.G, SOS. BSR (TRIB). ccc ccccvccccs 20, 21, 22, 32

Dean v. Timmerman, 234 S. C. 34, 106 S. E. 2d 665 (1959). . . 30

Doyle v. Municipal Commission of State of Minnesota,

340 F. Supp. 841 (D. Minn. 1972), aff'd 486

Pee ECU Sais WUE sc0d'sG ka kh oss pho E Coeds oncinn’ 15

Duncan v. Town of Blacksburg, Va. 364 F. Supp. 480

CG Ns Cn ee ae ca LUO te i eas oa 15

Electric Bond Share Co. v. SEC, 303 U.S. 418 (1938) ....... 28

Ellison v. Cass, 241 8.C. 96, 127 S. E. 2d 206 (1962) ...... 29, 30

Family Security Life Ins. Co. v. Daniel, 79 F. Supp. 62

ns EE Sa 14's Vk Sinsig bMS NOE RE US Keanna c 32

Gomillion v. Lightfoot, 364 U.S.339 (1960) 2... .. 0.06... 7,14

Gordon v. Executive Committee of the Democratic Party

City of Charleston, 335 F. Supp. 166 (D.S.C. 1971)........ 26

Harrell v. City of Columbia,

SIGS. C. 346, SBS.E. 200) (19G0) 0. bcc cece ccnses 7

Re | ar 18, 23

Hunterv. City of Pittsburgh, 207 U.S. 161 (1907) .... 7, 14, 23

Kramer v. Union Free School District No. 15, 395 U.S. 621

Rid. . Cae hee ee i ee eee ee. 214 18, 19

Lassiter v. Northampton Electric Board, 360 U.S. 45

PUES UUU Coe kUKdas hee Rheids RGRARKS back has Baud eS 5 6

Illinois Annotated Statutes,

Te 9687-2-8 .. 40k Wicislcincss see 10

A) at ee ee 11

Tithe 9667 -1-18 2.0 cncvnvcnsepwencecaneeietphssnnaaes ll

lowa Cod~* Annotated,

GPOD.T .. ccckincecctcudssésccauvawaneesseyaaneueen 14

Kentucky Revised Statutes,

GBD DOD... cn ccccvcscanseesedbeneseneheeeauann anes ll

BB) DOD... oo 0ssncocsiecteedhnnesenenninaanannenee 1]

COR. B4 2. nc nccnceccssenccseutsstueuneey Clee naeeEs 1]

000. GOD .. wc wcccccccccucsccenesuanesnuenenseennesmaE ll

Louisiana Code of Laws,

Tithe, BIG, occ scccncecseceepuaueneeatseaeeeeees 12

Tito Sh, G57R. ann nsec vcsdsvasenusssauwseeuunesevaee 12

Annotated Code of Maryland, 1957

Astiade SBA, $39 ... cscs nuvcevcesesuacewets enue 12, 13

Michigan Compiled Laws Annotated

GRITD .. pcaccccdsposs tpepwaneteusuenens nels se eesaas 13

Minnesota Statutes Annotated

BOD4.OB) 2... kcicdcccvectecetwnstueeeeneeews ane 13

$414.039 2. cccccvocscnnscnnssnseseeunae east sumbenns 13

Annotated Missouri Statutes

O71.GES .. cc cnnacensstnceesweueeneueeee paren eEe 14

General Statutues of North Carolina

GROBA.SE . ncccncncucvevcesucsceveuhannenreunennas 14

New Mexico Code of Laws,

ye Ey rr 13

§14-7-11 of. SB@. 0. cc vecccenesenssaaseeueneeeaeeeeren 13

$24-T-17 ....sccciccewscunucsisk shmmeneeen nnn 13

South Carolina Code Annotated, 1962, as amended

le) See ee 3, 9, 10, 35

FO rr 9, 35

647-18.] through 47-208 ....cccecesensensessans een 35

ec eal

Be:

Lee v. Clark, 224 S.C. 138, 77 S.E. 2d 485 (1953) ........... 31

Mclaughlin v. Florida, 379 U.S. 184 (1964) .. 0... cee 16

Murphy v. Kansas City Missouri, 347 F. Supp. 837

ee ee I ae orks Waa hans i vo CoN oe aaa es 15

Parker v. Bates, 2168. C.52, 56 S.E. 2d 723 (1949) 2.0.00... 33

Phoenix v. Kolodziejski, 399 U.S. 204 (1970) oo... eee. 18, 22

Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601

ND Pia Re weenie ae EON Eis baw hid ead op ha aw atest 28

Reagane. Farmers Loan& Trust Co., 154 U.S. 362 (1893) . 28

Salsbury v. Maryland, 346 U.S. 545 (1954) oo... cee eee 16

seoun b. Lemon, 413 U .§. B25 (10TS) 0. os vcccis cc dewetave 28

Thompsone. Whitley, 334 F. Supp. 480 (E.D.N.C. 1972)... 15

Townsend V. Richland County, 190 S. C. 270, 2S. E.

NS re ne awe sat as La ase aw enaben 30

U.S. 0. Jackson, SOUS. STO (1GGB) onc cc ccc ccc cccccce 27

Whitmire v. Cass, 2138. C. 230,498. BE. 2d 1 (1948) . 200.8 .. S

STATUTES

Code of Alabama, 1975

gps ee A SEE NS ey gE nd Seer eae l4

Arizona Revised Statutes,

ae ENA A FED SPS Ae en eee ane eee 1]

Arkansas Statutes, 1947, Annotated

RES SI ag Lop ERI, a re ae eer cee ae ae 12

ERE aaa i ING Sy Re i a 14

Florida Statutes Annotated,

ERTIES ee a a 14

Code of Georgia,

ISG Se Soci ag el a el he ee te EE 14

LENS Oe EE 2 arg ee, RR aed ce 6 Meee ll

DCS Wed ale Via ig tsb aleo wha he oe 4 © ore wee 3, 4, 17

RE y's Lad SARE eG bans or eve vceee bs 3, 4, 9, 17

od Re ee renee fs

Oo tigen Lee 3, 4, 17

RE ee igs ohh Ne ee aa ee 3, 4,9

MER a a OP ea Dene ac aang Renn is oo

S47-19.19 EGE Es ee OP ee RMN Ty RT +

South Carolina Code, 1932, as amended

NS ed ne ala at Cras wack ater ead 21, 33

I i ge a ae a aaa 20, 21, 33

United States Code

Tithe 42 U.S.C. 81983 ote te eb cate eta ee i te eae

et he ED ewer isa eiee caked ey keaese eens 2

Wyoming Statutues, 1977

ee es clini wate baa g 05 eM aS 14

CONSTIPUTIONAL PROVISIONS

Constitution of the United States

eR Fs ie Me ty ae wb oe 2

Constitution of South Carolina

pS BREE TEPER Pe a ere NE aie FRR I 8

SC IIR ee aa. Gn ig sae fw ial eae 20

eI RE ot ye ae a caw aed wae oe 20

DT ~ hee alla

> VSR ee

Supreme Court of Che United States

October Term, 1978

No

CECIL D. CLAY, HENRY E. HOLLINSHEAD, CLIFTON

D. GREEN, JR., MALCOM C. HURSEY, HIRAM C.

ADAMS, JAMES H. LEE, SR., CHARLES M. LANFORD,

MARY R. MILLER, ALFRED WILLIAMS, Commissioners

of the North Charleston Public Service District; North

Charleston Public Service District, and BRANFORD

HEAPE, Petitioners,

vs.

MARION HAYWARD, DELORES GRANT, NANCY

LITTLE, LAWRENCE M. LIBATER, J. PHILLIPS

NOBLE, and the City of Charleston, _____ Respondents.

PETITION For Writ Or CERTIORARI

To THe UNirep States Court Or APPEALS

For THE Fourtu Circuit

To the Honorable, the Chief Justice and Associate Justices of

the Supreme Court of the United States.

The Petitioners herein pray that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals for

the Fourth Circuit entered in the above entitled case on March

29, 1978.

b) Ceci. D. Cray, Er AL., Petirioners, v.

OPINIONS BELOW

The March 29, 1978 opinion of the Court of Appeals, whose

judgment is herein sought to be reviewed, is reported at 573 F.

2d 187 (1978) and is reprinted in the Appendix to the Petition in

Appendix A. A timely Petition for Rehearing and Suggestion

for Rehearing En Banc was denied on May 1, 1978, and is

reprinted in the Appendix to this Petition in Appendix A. The

prior opinions and judgment of the United States District Court

for the District of South Carolina are unreported and are

reprinted in the Appendix to this Petition as Appendix B.

JURISDICTION

The opinion and judgment of the United States Court of

Appeals for the Fourth Circuit (Appendix A) were entered on

March 29, 1978. A timely Petition for Rehearing was denied on

May 1, 1978. On July 19, 1978, Mr. Justice Brennan entered an

Order extending the time for the filing of this Petition to and

including August 31, 1978. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Equal Protection Clause of the Fourteenth

Amendment invalidates South Carolina annexation laws which

require the participation of freeholders in the qualification

steps preceeding an annexation election in which only

registered voters are eligible to vote.

2. Whether a Federal Court may determine that a portion of a

state statute deemed to be unconstitutional may be servered

from the whole without determining that severability is

consistent with the intent of the state legislative body.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Marion Hay Et Ax., ResPoNDENTS 3

The validity of the following sections of the Code of Laws of

South Carolina, 1962, as amended, are here involved.

§47-19.11; §47-19.12; §47-19.13; §47-19.14; §47-19.15: §47-

19.16; §47-19.19

The full text of these laws are set forth in Appendix C

hereto.

STATEMENT OF THE CASE

This is a case brought under 42 U.S. C. Section 1983,

challenging the constitutionality of the portion of the

annexation statutes of the State of South Carolina providing for

freeholder participation and approval as a condition precedent

to an annexation election in which only registered voters are

entitled to vote. On November 23, 1976, an election was held,

pursuant to Section 47-19.11 through Section 47-19.19 of the S.

C. Code Ann., to determine whether the Garden-Kiawah area

should be annexed into the City of Charleston. These sections

comprise one of several methods of annexation enacted into

law by the South Carolina General Assembly. This method of

annexation creates a several step procedure preceeding the

annexation election. The first requirement is that the City

Council must receive a petition signed by fifteen (15%) percent

of the freeholders in the area to be annexed and certify such

fact to the County Election Commission. Section 47-19.12

provides, as a further prerequisite to the election, that a

referendum must be held in which all freeholders in the area to

be annexed are entitled to participate. This is a substitute for

Section 47-12 which requires a petition signed by fifty (50%) per

cent of the freeholders in the area to be annexed and no

referendum, prior to the election among registered voters.

A majority of the freeholders participating in the referendum

must approve the annexation for this prerequisite to be

satisfied. The statute provides that the referendum may be held

Pe

4 Ceci. D. Cray, Et AL., Petrrioners, v.

prior to or simultaneously with the annexation election. If these

first two requirements are met, then the statute provides that an

annexation election may be held with the registered voters in

the annexing area voting in one box and the registered voters in

the area to be annexed voting in a second box. The votes in each

of these two boxes are recorded separately and the annexation

is approved, if a majority of the registered voters in each box

vote in favor of the annexation.

In this case, the City Council of Charleston received a

petition signed by at least fifteen (15%) per cent of the

freeholders in the Garden - Kiawah area and certified such fact

to the Charleston County Election Commission. In order to

save time and money, the Election Commission elected to hold

the referendum and election on the same day.

The results of the freeholder referendum were as follows:

YES: 91

NO: 105

The results in the annexation election were as follows:

City of Charleston Registered Voters

YES: 2979

NO: 1039

Garden - Kiawah Registered Voters

YES: 134

NO: 103

The Respondents filed their complaint on December 6, 1976,

alleging that the provisions allowing the freeholders to vote

constituted invidious discrimination and was thus

unconstitutional. The United States District Court for the

District of South Carolina, by order dated June 9, 1977,

declared Sections 47-19.11, 19.12, 19.13, 19.14, 19.15, 19.16, and

19.19 of the South Carolina Code to be unconstitutional insofar

—

Manion Hay Er At., ResPoNDENTS 5

as the sections provided for a separate freeholder referendum.

It further held that all portions of such sections which did not

refer to the separate freeholder referendum were severable

and should remain valid and intact. The court also held that the

“Garden-Kiawah” annexation was to be considered approved

and enjoined the Defendants from interfering with the

annexation. Summary Judgment was entered for the Plaintiffs

on June 17, 1977. On June 29, 1977, the Petitioners filed a

Motion in the District Court requesting an Order suspending

the injunction and a stay of the judgment during the pendancy

of the appeal. The District Court entered an order on July 25,

1977, denying the Petitioners’ Motion.

The United States Court of Appeals for the Fourth Circuit,

by decision dated March 29, 1978 and judgment entered on the

same day, affirmed the holding of the District Court as to

constitutionality and sev-rability. Chief Judge Haynsworth

dissented on the question of severability finding that

“{s]evering the property holder vote from the statute would

completely undermine the intended operation of the statutory

scheme.” On April 13, 1978, the petitioners filed a Petition for

Rehearing and Suggestion for Rehearing En Banc which was

denied on May 1, 1978,

ARGUMENT IN FAVOR OF GRANTING WRIT

1. WHETHER THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT INVALIDATES

SOUTH CAROLINA ANNEXATION LAWS WHICH

REQUIRE THE PARTICIPATION OF FREEHOLDERS IN

THE QUALIFICATION STEPS PRECEEDING AN

ANNEXATION ELECTION IN WHICH ONLY

REGISTERED VOTERS ARE ELIGIBLE TO VOTE.

The issue involved here is one of great importance to the

State of South Carolina and the political subdivisions thereof,

as well as many other states which, in one manner or another,

? ;

6 / Oecn D. Cray, Er At., Perrnoners, v.

have freehofder participation in the qualification steps prior to

annexation or annexation elections. The importance of the issue

is accentuated by its potential effect on the orderly growth

process of the municipalities and counties in the several states.

The decision by the Court of Appeals in this case has cast doubt

upon the entire scheme of freeholder involvment in the

annexation procedure because, in any scheme requiring

freeholder initiation and approval of the annexation process,

the freeholders have a potential veto power by refusing to act

in sufficient quantities. By making a final determination of this

issue, this Court will unquestionably and substantially affect

the relationship between the municipalities in many of the

states and the areas surrounding them as well as the continued

viability of the concept that a freeholder retains some

constitutionally protected rights with respect to the movement

of his property between political subdivisions.

The United States Supreme Court has been presented over

the last ten years with numerous controversies covering the

qualifications which various states have placed upon the

exercise of the franchise in state and local elections. As a

general rule, the states have“. .. broad powers to determine the

conditions under which the right of suffrage may be

exercised.” Lassiter v. Northampton Election Board, 360 U.S.

45,50 (1959).

This Court has long recognized that annexation and

municipal expansion are a matter whose regulation should be

left primarily to the states and their legislatures.

“Municipal corporations are political subdivisions of the

state, created as convenient agencies for exercising such of

the governmental powers of the state as may be entrusted

to them .... The number, nature, and duration of the

powers conferred upon these corporations and the

territory over which they shall be exercised rests in the

absolute discretion of the state .. . The State . . . at its

Marion Hay E} AL., ResPoNDENTS 7

pleasure, may . . . expand or contract the territorial area,

unite the whole or a part of it with another municipality,

repeal the charter and destroy the corporation. All this

may be done, conditionally or unconditionally, with or

without the consent of the citizens, or even against their

protest”. Hunter v. City of Pittsburgh, 207 U.S. 161, 178-

179,

In acknowledging the broad power of the individual states to

regulate their subdivisions and their territorial expansions, the

Supreme Court has nonetheless recognized that this power, no

less than other state powers, lies within the scope of relevant

limitations imposed by the United States Constitution.

Gomillion v. Lightfoot, 364 U.S. 339, 344345 (1960). Through

recognizing this limitation, the Court in Gomillion was careful

to point out “the breadth and importance of this aspect of the

state’s political power” (to establish, destroy or reorganize by

contraction or expansion its political subdivisions).

In Harrell v. City of Columbia, 216 S.C. 346, 58 S.E. 2d 91

(1950), the South Carolina Supreme Court entertained an

appeal attacking various aspects of an annexation election,

including the constitutionality of the annexation procedure

(Section 47-12). The Court stated:

It should be borne in mind in the consideration of all the

constitutional objections raised by this appeal that the law

is well settled that the annexation of territory to a

municipal corporation is a legislative function and not a

judicial one, and the following statement of the law

contained in 37 Am. Jr. 639 is well supported by the

authorities: ‘In the absence of constitutional limitations, it

is generally considered that the power of a state legislature

over the boundaries of the municipalities of the state is

absolute and that the legislature has power to extend the

boundaries of a municipal corporation, or to authorize

an extension of its boundaries, without the consent of the

S Cecu. D Cray, Er At., Petrrioners, v.

inhabitants of the territory annexed, or the municipality to

which it ; annexed, or even against their express protest.

58 S.E. 2d at p. 97 cf. Hollingsworth v. City of Greenville, 241

S.C. 378, 128 S.E. 2d 704 (1962): General Battery Corp. v. City

of Greer, 263 S. C. 533, 211 S. E. 2d 659 (1975); 62 C.J.S., Muni-

cipal Corporations, Section 41, 43, 43A; McQuillan on Munici-

pal Corporations, Section 7.16, n. 60.

Neither the United States Constitution nor the South

Carolina Constitution restrict the power of the legislature in

authorizing an annexation election. In fact, the South Carolina

Constitution, Article VIII, Section 8, indicates only that

The General Assembly shall provide by general law the

criteria and the procedures for the incorporation of new

municipalities and for the readjustment of municipal

boundaries and for the merger of incorporated

municipalities provided that any city or town shall be

organized with the consent of a majority of the electors

voting in such election who reside in and are entitled by

law to vote within the district proposed to be

incorporated. No local or special laws shall be enacted for

these purposes; provided, that the General Assembly may

vary such provisions among the alternative forms of

government.

The only restriction imposed by this section is the

requirement that incorporation of a municipality be consented

to by the vote of the electors residing in the proposed area to be

annexed. See also Whitmire v. Cass, 213 S.C. 230, 49S. E. 2d 1

(1948).

Pursuant to the authority granted to it to provide for

annexation elections, the South Carolina General Assembly has

enacted several procedures for municipal annexations. Each

annexation procedure is initiated by a petition of the

freeholders of the proposed area to be annexed. There are no

ct ELS A NETO”

re a el.

Marion Hay Er At., RESPONDENTS 9

statutory provisions for an annexation election to be initiated in

South Carolina by any person or group of people other than the

freeholders in the area to be annexed. Section 47-12 and 47-14

of the S. C. Code, 1962, as amended, provide for an annexation

election without a freeholder referendum to be held upon the

filing of a petition signed by a majority of the freeholders

requesting annexation of their property. Section 47-19.15

authorizes an annexation without an election or freeholder

referendum by petition of seventy-five (75%) percent of all of

the freeholders in the area to be annexed. Sections 47-19.12 and

47-19.13 authorize an annexation election to be held only after

the two freeholder prerequisites are satisfied. The first

prerequisite is that the City Council of the annexing

municipality must certify to the County Election Commission

that it has received a petition signed by fifteen (15%) per cent of

the freeholders in the area to be annexed to the City. The

second prerequisite to holding an election is the holding of a

referendum in which all the freeholders in the area to be

annexed are entitled to participate. The referendum may be

held prior to or simultaneously with the actual annexation

election. However, the approval of a majority of the

freeholders participating in the referendum is a condition

precedent to the holding of an annexation election, although

many municipalities often hold the referendum and election

simultaneously in an effort to save time and money. However,

it is important to note that the actual annexation election, once

the conditions precedent have been satisfied, involved only the

registered voters of the annexing area and the registered voters

of the area to be annexed, both of whom must approve the

annexation. If the proposal fails to receive a majority vote in

either of these groups of registered voters, the annexation will

not be approved.

If, as the lower Courts held, it is impermissible to allow a

freeholder’s referendum as a condition precedent to the

holding of an annexation election; it would stand to reason that

the accumulation of freeholder petitions as the very first step in

10 Crecen D. Cray, Er At., Perrrioners, v

the procedure should also be impermissible. The Respondents

cannot have it both ways. If freeholder involvment is

impermissible, there is no way that an annexation election can

be called in South Carolina, thereby invalidating this election.

The freeholder referendum is nothing more than an extension

of the freeholder petition requirement. The Court should note

that, in the annexation procedure created by Section 47-12

which requires a petition signed by a majority of the

freeholders in the area to be annexed prior to holding an

annexation, there is no freeholder referendum. In the sections

under question here, the freeholder referendum is merely a

part of the qualification procedure for an annexation election

and not a part of the election itself. It is simply a legislative

substitute for the 50% petition requirement.

As indicated above, the importance of a determination on

freeholder involvement in the annexation process extends far

beyond the boundaries of the State of South Carolina. No

fewer than twenty eight states, in addition to South Carolina,

have annexation laws that are similar to that struck down by the

lower courts in this case. Although some of these annexation

procedures provide also for a veto by the registered electors,

many do not and, in fact, eliminate the registered electors

entirely. A survey of the annexation laws of the several states

shows that a majority of the legislatures of the several states

have shown a concern for the interests of the property owner

and secured a place for the property holder in the annexation

procedure, usually, as in South Carolina, in the qualification

steps prior to annexation.

In Illinois, a petition for annexation, which triggers

municipal action or an election among the registered electors in

the area to be annexed,must be executed by a majority of the

owners of record of land in such territory and a majority of the

electors residing in the territory. Illinois Annotated Statutes,

Title 24, §7-1-2. For an area containing more than one square

mile in area and more than five hundred inhabitants, Illinois

provides for a petition signed by no less than one hundred (100)

ihe Bim a ere ht Be

= hese et ree

Fe

Marion Hay Er At., RESPONDENTS ll

electors and owners of record of more than fifty (50%) percent

of the territory to be annexed. This petition must be submitted

to the county circuit court which then orders an election among

the electors in the area to be annexed. §7-1-11. This is very

similar to the South Carolina procedure in that each requires

property owner approval prior to holding an annexation

election among the registered electors. §7-1-12 provides for the

annexation of property wholly bounded by two municipalities

into one of those municipalities solely by municipal ordinance

upon the petition of only a majority of the owners of record of

land.

In Kentucky, a first class city may annex unincorporated

territory solely by ordinance unless protested by seventy-five

(75%) percent of the freeholders of the territory to be annexed.

Kentucky Revised Statutes, §81.100. The registered electors

have no right of protest or participation. A second class city

may annex by ordinance unless protested by fifty (50%) percent

of the freeholders. §81.140. However, fourth class city may

annex territory unless a protest is filed by a majority of the

resident voters in the territory to be annexed. §81.220.

Additionalhy, in a county with both a second class city and

third class city, twenty-five (25%) percent of the freeholders of

the area annexed to a second class city may petition for an

election among the qualified voters, which requires a seventy-

five (75%) percent rejection to void the annexation. §81.145.

§9.471 of the Arizona Revised Statutes provides for the

annexation of territory into a city or town by ordinance upon

the petition of owners of not less than one-half in value of the

real and personal property that would be subject to taxation by

the city or town in the event of annexation. Here there is no

provision for any participation by the registered electors.

§69-904 of the Code of Georgia provides that a municipality

may annex territory by ordinance upon the petition of sixty

(60%) percent of the electors resident in the area and owners of

12 Ceci. D. Cay, Er At., PeTrnoners, v.

not less than sixty (60%) percent of the land area, by acreage,

included in such petition.

Arkansas provides for the annexation of property contiguous

to a city upon the petition to the county court of a majority of

the real estate owners in the area to be annexed. $19-301,

Arkansas Statutes, 1947, Annotated. The petition is then subject

to court and City Council approval.

Title 33, §151 of the Louisiana Revised Statutes provides for

an election on the question of annexation only upon the petition

of from one quarter to one half in number and value of owners

of the land to be annexed, the percentage depending upon the

population of the parish in which the land lies. A further

method of annexation (§172) provides that no ordinance

enlarging the boundaries of a municipality shall be vaiid unless

consented to in writing by a majority of the registered voters

and a majority in number of the resident property owners as

well as twenty-five (25%) percent in value of the property in the

area to be annexed. In Louisiana, as in the states listed above,

annexation is contingent upon the approval of a portion of the

property owners, and there is no action which can be taken by

the registered electors to overcome the veto effect of the lack

of approval by the requisite number of property owners.

Maryland allows for the initiation of annexation proceedings

by legislative body of the municipality but only with the

consent of at least twenty-five (25%) percent of the registered

electors and owners of at least twenty-five (25%) percent of the

assessed value of the property in the area to be annexed. The

proceeding may also be initiated by petition to the legislative

body, signed by the same percentage of registered voters and

property owners. There is provision for an election in the area

to be annexed but only after the resolution has been enacted

annexing the territory. As in the South Carolina statute declared

unconstitutional by the lower courts, the property owner

approval is one of the conditions precedent to the enactment of

Eaten SE

Marion Hay Er At., ResPpONDENTS 13

the annexation resolution, and consequently a condition

precedent to the election. Annotated Code of Maryland, 1957,

Article 23 A, §19.

Michigan Compiled Laws Annotated, §117.6 provides that

annexation proceedings may be initiated by the petition of

qualified electors who are also freeholders. Minnesota Statutes

Annotated, §414.031 allows for initiation of the annexation

proceeding by the petition of twenty (20%) percent of the

property owners or 100 property owners, whichever is less, in

the area to be annexed. There is no provision for an election

among the registered voters unless the petition has been

executed by less than a majority of the property owners.

§414.033 provides for annexation by ordinance upon the

petition of a majority of the property owners.

The New Mexico Statutes, 1953, §14-7-1 et seq provide stilla

different method of annexation. However,the freeholder

involvement is similar to a number of other states. The

annexation decision is made by a seven member arbitration

board made up of three members appointed by the annexing

municipality, three members elected from the area to be

annexed, and a seventh member selected by the other six. The

key feature to this method is that all seven members of the

arbitration board must be landowners. There is also a

boundary commission method of annexation (§14-7-11) which

must be initiated by the petition of a majority of the

landowners of the territory proposed to be annexed. The final

method of annexation is annexation by ordinance upon the

petition of the owners of a majority of the number of acres

contiguous to the city (§14-7-17).

In addition to the states referred to above, there are a number

of other states which have similar requirements for freeholder

participation and approval of the annexation process. These

states invariably require the freeholder approval either

simultaneously with certain registered elector participation or

14 Cran D. Cray, Et Av., PETITIONERS, v.

as a condition precedient to any elector involvment. A final

annexation method, which is common to many states and

which favors the freeholder to the total exclusion of the

registered voters, is the enactment of an annexation ordi-

nance by the annexing municipality upon the petition of

one hundred (100%) percent of the landowners in the area to be

annexed regardless of the number of registered electors

residing therein. Among the states which have adopted this

procedure are South Carolina (§47-19.5), Georgia (§69.901),

Florida (§171.044), Arkansas (§19-330), Iowa (§368.7),

Alabama (§11-42-21), Missouri (§71.012), North Carolina (§160

A-31) and Wyoming (§15-1-507).

This outline of annexation methods in a number of states is

not exhaustive and does not contain necessarily the only

annexation method in a particular state. However, the list is

illustrative of the pervasiveness of freeholder involvment in

the municipal annexation process in the United States. In all of

these methods the freeholders ave either involved to the total

exclusion of the electors or have an effective veto over elector

participation. All of these states continue to allow annexation

under these statutes which annexations might well be deemed

improper under the ruling of the Court of Appeals in this case.

Because of this and the need for stability in the annexation

process we feel that it is necessary for the court to act in this

matter to determine the permissible limits of freeholder

participation in the steps leading up to annexation or an

annexation election.

In assessing the constitutionality of the South Carolina

statutes pertaining to the attempted annexation of the Garden

Kiawah area by the City of Charleston, this Court should take

into consideration the principles expounded in the Hunter and

Gomillion decisions. Indeed, when called upon to pass upon

the validity of state annexation statutes and equal protection

objections thereto, the federal courts have, for the most part,

recognized the special nature of annexation and its peculiarly

6 et AAT Ha

Manion Hay Et AL., RESPONDENTS 15

state and local character. In Adams ns. Citu of Colorado

Springs, 308 F. Supp. 1397 (D. Colo. 1970), voters and pro-

perty owners in the unincorporated area, which was the

subject of annexation, challenged the constitutionality

of Colorado statutes which granted rights to vote on the

annexation issue to citizens in areas with less than two-thirds

contiguity with the city but denied same where the area to be

annexed had greater than two-thirds contiguity with the

annexing municipality. In denying the Plaintiff's claim that

such statutory qualifications resulted in an infringement of

their voting rights on equal protection grounds, the court held

that the provisions in question were a proper exercise by the

state of its “broad discretion in determining the procedures for

annexation by municipal corporations of unincorporated

territory”. This decision was affirmed by the United States

Supreme Court. 399 U.S. 901, (1970).

Challenges to state annexation election procedures have

been made in several other jurisdictions on the grounds that the

provisions in question resulted in the unconstitutional

disenfranchisement of citizens in the area to be annexed. In

each instance, as in Adams, the courts have taken the position

that the equal protection test should be applied rather than the

test used where the classification deals with a “fundamental

right” (voting). See: Murphy v. Kansas City, Missouri, 347 F.

Supp. 837 (W.D. Mo. 1972); Doyle v. Municipal Commission of

State of Minnesota, 340 F. Supp. 841 (D. Minn. 1972), aff'd 486

F. 2d 620 (8th Cir. 1972); Duncan v. Town of Blacksburg, Va.,

364 F. Supp. 643 (W. D. Va. 1973); Citizens Comm to Oppose

Annexation v. City of Lynchburg 400 F. Supp. 68 (W.D. Va

1975). Probably the clearest expression of this principle is

found in the case of Thompson v. Whitley, 334 F. Supp. 480

(E.D.N.C. 1972). Here, the Plaintiffs, residents of the annexed

area, brought an action challenging the constitutionality of the

North Carolina statutory election scheme which denied the

right to vote on annexation issues to residents in an area

adjoining a municipality of less than 5,000 residents while

16 Cecit D. Cray, Et AL., PETITIONERS, Vv.

granting said right to citizens residing contiguous to cities with

populations in excess of 5,000. The Plaintiffs claimed that these

procedures, were discriminatory .and_ resulted in an

unconstitutional denial of Fourteenth Amendment Equal

Protection. In discussing the Plaintiff's equal protection claim,

the court rejected Plaintiff's contention that it apply the stricter

equal protection standard applicable to classifications

affecting fundamental rights such as voting. Unlike the

fundamental right to vote in elections for local and national

officers and other elections relating to direct participation in

the political process, a right determined to be “fundamental”

by the U. S. Supreme Court, the right to vote in an annexation

referendum, the court determined, is not a fundamental right in

that it “does not relate except indirectly to participation in

representative government’. Accordingly, the court

determined that the proper test was not whether the statutory

scheme promoted a compelling state interest, but rather

whether the statutues resulted in classifications “without a

rational basis”, the traditional standard of equal protection

review. Further, in passing upon the Plaintiff's challenge to the

North Carolina annexation statutes, the Thompson court cited

the firmly established principles that the test for determining

whether a state statutory scheme violates equal protection is

“whether the classifications drawn . . . are reasonable in light of

its purpose . ..,” McLaughlin v. Florida, 379 U.S. 184, 85S. Ct.

282 (1964), and that usually “the presumption of reasonableness

is with the state. Salsbury v. Maryland, 346 U.S. 545, 74 S. Ct.

280 (1954). After reviewing the statutes being challenged and

classifications created therein, the court determined that,

although they lacked abstract symmetry and contained

theoretical inconsistencies, they nonetheless rested upon a

rational basis within the knowledge and experience of the

legislators.

Applying the foregoing considerations to the instant case,

Petitioners submit that the South Carolina annexation statutes

in issue, S.C. Code Section 47-19.12, 19.15, and 19.19, and

Marion Hay Et Ax., RESPONDENTS 17

portions of Sections 47-19.11, 19.12, 19.13, 19.14, and 19.16, are

not unconstitutional.

It must be pointed out that these provisions deny no one in

the proposed annexation area the right to vote. The cases

clearly show that the registered voters in the area to be annexed

have no constitutional right to vote on the annexation question

if the South Carolina General Assembly had been so minded.

Instead of being totally disenfranchised, the registered voters

of the area to be annexed were given the right to approve or

veto annexation as were the registered voters of the annexing

municipality. Under the South Carolina system, no one group

may unilaterally approve and effect annexation. Since the

registered voters in the area to be annexed have no

constitutional right to vote at all, it is very difficult to see where

they have had any constitutional rights infringed by the

inclusion of another group of voters in the qualification steps

prior to the annexation election.

The Respondents have attempted to describe these statutes

as giving the freeholders in the area to be annexed the right to

veto the annexation. This is an inaccurate interpretation of the

role of the freeholders because, as noted above, the freeholders

are only part of the qualification procedure and have no vote in

the annexation election. It so happens that the freeholders

referendum yielded a result that was opposed to the annexation

drive. Exactly the same result would have been reached in this

situation, if the proponents of annexation had been unable to

secure the signatures of fifteen (15%) per cent of the freeholders

in the area on the annexation petition. There is no other way to

initiate any annexation drive in South Carolina except through

the action of the freeholders. The City Council is unable to act

on annexation in any respect without some action by the

freeholders. If this Court should find that the provision for a

freeholder referendum as a prerequisite to an annexation

election is unconstitutional, then there can be no question but

that the freeholder petition prerequisite is also unconstitutional

18 Cecn. D. Ciay, Er Ax., PETITIONERS, V.

as giving the freeholders the right of veto, only requiring a

larger percentage of opposition. With these two steps declared

unconstitutional, the election must be voided as there would be

no mechanism in the law of South Carolina for initiating an

annexation election.

The Respondents submit that this case can be decided for the

Respondents, consistently with the line of cases decided by the

United States Supreme Court, which culminated with Hill v.

Stone, 421 U. S. 289 (1975). In 1969 and 1970 the Supreme Court

rendered three decisions holding invalid state laws which

selectively granted the right to vote on grounds that they

denied equal protection under the Fourteenth Amendment. In

Kramer vs. Union Free School District No. 15, 395 U. S. 621

(1969), the Court struck down a New York statute which

granted the right to vote in a local school board election only to

those who owned or leased taxable real property in the district

or were parents or custodians of children enrolled in the public

schools. At the same time the Court decided Cipriano v. City of

Houma 395 U. S. 701 (1969), which invalidated a Louisiana

statute permitting only property owners to vote on the question

of approving bonds that were to be financed exclusively from

the revenues of a municipal public utility. The third case was

Phoenix v. Kolodziejski, 399 U.S. 204 (1970), in which an

Arizona constitutional limitation of the franchise in general

obligations bond elections to persons who were qualified

electors and also real property taxpayers was held to be a

denial of equal protection. In Hill v. Stone, the Supreme Court

invalidated a law which required that a bond issue be approved

by a majority of those voting in the renderers (property

taxpayers) box and by a majority of all ballots cast by the

renderers and the registered voters who voted in a separate

box.

It is clear that the facts in this case bear no reasonable

resemblance to the facts of the Supreme Court cases cited. The

cases quoted earlier clearly show that annexation is a creature

ES RAE FT me ee

Marion Hay Et Ax., RESPONDENTS 19

of statute and that the states should be given broad discretion in

determining the ground rules for such elections. These

decisions have determined that the right to vote in an

annexation election is not a fundamental right, requiring a

showing of compelling state interest.

In determining whether or not there is a rational basis for the

statutory scheme of annexation in South Carolina, it is

necessary to look at the nature, extent and effect of an

annexation election. With the exception of the Kramer

decision, the cases cited by the Plaintiff deal with the issuance

of revenue and general obligation bonds which would benefit

the community as a whole. However, these types of votes bear

no relation to an annexation election. It is not unreasonable to

conclude that, in drafting the scheme for annexation, the South

Carolina General Assembly concluded that the effects of

annexation would fall not only upon the residents of the area

but also upon the property owners.

The property owners have a very genuine concern as to

whether their property is to be protected by the police from the

City of Charleston or the County of Charleston, whether their

property is to be protected by the fire department of the City

of Charleston or the North Charleston Public Service District,

whether their governing ordinances are to be enacted by the

City Council of Charleston or the Charleston County Council,

and whether or not their sanitation services are to be provided

by the City of Charleston or the North Charleston Public

Service District. Taxes are only one of the considerations in this

case whereas it was the predominant issue in the cases cited by

the Plaintiff. It is apparent that the property owners have a very

vital stake in this election and there is no rational‘basis for

denying them a role in the procedure.

In reviewing the earlier line of Supreme Court cases, there

can be no question but that the South Carolina annexation

procedure differs drastically froin all the prior procedures in

20 Creen D. Cray, Er At., Petrrioners, v.

that no group of voters is disenfranchised nor is any group of

voters treated unequally. The freeholders’ only role is in the

qualification procedure for the annexation election. Only the

registered voters in the annexing city and the area to be

annexed vote in the annexation election and each group has a

veto regardless of the size or distribution of the vote in the other

box. Neither group of registered voters is disenfranchised

because they have votes of equal weight in an annexation

election, and the freeholders have no vote at all. In essence, the

registered voters have the final voice and may pass or veto an

annexation regardless of any prior approval of the freeholders.

Theirs is the final say, after which the annexation is complete or

vetoed regardless of the total or percentage of freeholder

approval in the qualification steps.

In an earlier brief, the Respondents have cited Cothran v.

West Dunklin Public Sch. District No. 1-C, 1898. C. 85, 200S.E.

95 (1938) for the proposition that the South Carolina Supreme

Court had declared this freeholder involvement to be

unconstitutional. However, a review of the case and a look at

recent history shows the inaccuracy of that reliance. Firstly,

South Carolina municipalities have been annexing

surrounding territories pursuant to the procedure in question

here, including the freeholder involvement, during the thirty-

nine (39) year period between Cothran and the first decision in

this case. Secondly, Cothran was resolved solely upon a

interpretation of the term “elector” as found in Article 2,

Sections 3 and 4 of the Constitution of South Carolina. Section 3

provided that every male citizen over the age of 21 years,

possessing the qualifications required by the Constitution, shall

be an elector. Section 4 provided that an elector appearing to

vote must produce his certificate of registration and a tax

receipt showing the payment of all taxes thirty days before

such election.

The act in question in Cothran (Act No. 102, of the General

Assembly, approved March 13, 1933) provided that before one

Manion Hay Er At., Responpents 21

could vote in an election for school bonds in Greenville County,

he must show that he returned real or personal property for

taxation within the school district. It is interesting to note that

the act further provides that the election may not be held,

“except upon the written petition or request of at least a major-

ity of the resident electors, and a like proportion of the

resident freeholders of the age of twenty-one (21) years to

determine whether said bonds shall be issued or not.” 200 S.E.

at 95.

The Court in Cothran approved the participation of the

freeholders in the qualification procedure. The election was

held pursuant to Section 5359 of the 1932 Code of Laws rather

than Act No. 102. The litigation arose upon a complaint to

enjoin the issuance of the bonds because the question was not

submitted only to those electors who returned property for

taxation.

As regards Section 5359, the court held that

It appears from the petition, and the return of the

respondents to the rule to show cause... , that the election

on the question of issuing the bonds was regular in all

essential preliminaries, under Section 5359 of the Code of

1932.

Section 5359 of the Code of Laws for South Carolina, 1932,

provided, in part, as follows:

That the question of issuing the bonds authorized in this

section shall be first submitted to the qualified voters of

such school district at an election to be held upon the

written petition or request of at least one-third of the

resident electors and a like proportion of the freeholders

of the age of twenty-one years, to determine whether said

bonds shall be issued or not. (Emphasis added).

22 Cecn. D. Cray, Er At., Perrrioners, +

Cothran was directed only at freeholder involvment in the

election itself. It is clear that the South Carolina Supreme Court

found no prohibition on freeholder involvement at the

qualification stage.

This is identical to the situation involved in the Garden-

Kiawah annexation. As indicated,the freeholder does not and

has never, under the South Carolina annexation procedure,

voted in the annexation election. The freeholder merely

participates in the qualification procedure. The only question

presented to the freeholder is whether an annexation election

should be held. This is the same question presented to the

fifteen (15%) percent of the freeholders in the area to be

annexed who sign petitions. This smaller group has the same

veto power as the larger group of freeholders because there can

be no freeholder referendum without a petition signed by

fifteen (15%) percent of the freeholders.

The South Carolina General Assembly has done nothing

more than create a two-step qualification procedure prior to

the holding of an annexation election in which only registered

voters vote. We submit that the petition step cannot be

separated from the referendum step, as both are conditions

precedent to the holding of the annexation election. The final

voice as to approval or rejection of the annexation movements

lies with the only one group, the registered voters.

In addition there is no language in the Supreme Court cases

which show an intent to eliminate the property owner from the

voting process. In fact quite the opposite is true. In Cipriano the

Court noted that: “Of course these differences of opinion

cannot justify excluding either group (property taxpayers

voters and non-property owners voters) from the bond

election, when as in this case, both are substantially affected by

the utility operation”. 395 U.S. at p. 705. The Court made a

similar statement in Phoenix:

Marion Hay Er At., ResPONDENTS 23

The differences between the interests of property owners

and the interests of nonproperty owners are not

sufficiently substantial to justify excluding the latter from

the franchise. This is so for several reasons.

First, it is unquestioned that all residents of Phoenix,

property owners and nonproperty owners alike, have a

substantial interest in the public facilities and the services

available in the city and will be substantially affected by

the ultimate outcome of the bond election at issue in this

case. Presumptively, when all citizens are affected in

important ways by a governmental decision subject to a

referendum, the Constitution does not permit weighted

voting or the exclusion of otherwise qualified citizens

from the franchise. Arizona nevertheless excludes

nonproperty owners from participating in bond elections

and vests in the majority of individual property owners

voting in the election the power to approve or disapprove

facilities that the municipal government has determined

should be financed by issuing general obligation bonds.

Placing such power in property owners alone can be

justified only by some overriding interest of those owners

that the state is entitled to recognize.

399 U.S. at p. 209.

These cases indicate clearly that the Supreme Court has not

mandated the exclusion of freeholder voting but has refused to

allow a disfranchisement based on property or unequal voting

weight. The South Carolina statute has neither of these

difficulties. The Court has not found that freeholders have no

interest in these elections but has merely required that

nonfreeholders be treated equally. We submit that the South

Carolina annexation procedure raises a question of novel

impression which is not governed by the holding in Hill but

which can be decided in favor of the Petitioners consistently

with Hill and the line of cases beginning with Hunter vs. City of

24 Creu. D. Ciay, Er At, PeTrrioners, v.

Pittsburgh, 207 U.S. 161 (1907).

Not only did the General Assembly act reasonably in

allowing the freeholders in the area to be annexed to have a say

in the outcome, but we submit that this requirement was

included in the law to prevent the type activity used by the City

of Charleston in this election. The City initially divided the area

to be annexed into three areas (A, B & C). All three areas were

contiguous to one another and could have been included in one

area to be annexed. However, the city chose not to do so. Prior

to the election because of substantial allegations of fraud, the

City cancelled its attempt to annex Area C.

The evidence provided by the City shows clearly the

lopsided rejection of annexation in Section B. We submit that

the City intentionally drew the annexation lines in such a

manner as to include within Section A a very small number of

residents but a very large portion of the tax base and area of the

North Charleston Public Service District. The population of

the entire District is approximately 55,000 while the population

of Section A is approximately 2250 or four (4%) percent (figures

from Berkeley-Charleston-Dorchester Council of

Governments). In contrast to this is the fact that the entire

District covers 30.2 square miles while Section A covers

approximately 3 square miles or ten (10%) percent of the total

land area (figures from Berkeley-Charleston-Dorchester

Council of Governments). Finally, the assessed value of the real

property within the District is approximately Twenty-Nine

Million ($29,000,000.00) Dollars, while the assessed value of the

real property within Section A is estimated to be three million

($3,000,000.00) Dollars or Ten and 3/10 (10.3%) percent.

There can be no question but that the City has tried to draw

lines in such a way that a small group of citizens can provide

them with a windfall as far as their increased tax base is

concermed. Since almost all of the valuable taxable property in

Section A is commercial, the position of the City and the lower

ae re rrr = ee =

Manion Hay Er At... Kesronnents a

courts is that these commmercial property owners niust suffer

their fate silently and without the opportunity to voice thei:

position in the outcome.

We do not question the City’s right to draw the lines any way

that they see fit. However, there is no question but that the

freeholders have a substantial interest in annexation and there

can be no rational basis for disenfranchising them The South

Carolina General Assembly obviously saw their interest and

allowed them to participate in the annexation procedure. The

Respondents have offered no evidence that the classifications

created by these statutes, in the qualification steps, are

unreasonable and without rational basis. Accordingly, these

provisions, as mandated by the South Carolina Cenera!

Assembly. should be upheld. Jt must be remembered that the

freeholders only participate in the qualification procedures

and not in the annexation election. It is obvious that the South

Carolina Genera] Assembly devised the annexation system i

gueshon herein order to aid cities in annexing surrounding:

territory because of the burden that would be placed upon the

cuhes to obtain the signatures of more than fifty (SU%) percent of

the treeholders, as required by Section 47-12. Under both

procedures, the annexation election is conducted among oul

the registered voters of the annexing citw and the area to be

annexed and theirs is the ultimate and final decision. ‘Mhe

treeholders particxpate onhy im the qualification procedures

There as no basis for excluding them frow their particypation as

the lower courts heave done. They certaimly lave a stake om the

outcome which should not be ynuored

2. WHETHER A FEDERAL COURT MAY DETERMINE

THAT A PORTION OF A STATE STATUTE DEEMED PO

BE UNCONSTITUTIONAL MAY BE SEVERED FROM

THE WHOLE WITHOUT DETERMINING ‘THA’!

SEVERABILITY tS CONSISTENT WITH THE INTENT

OF THE STATE LECISLATIVE BODY.

™

26 Ceci. D. Cray, Er At., PETITIONERS, Vv.

The issue of severability presented herein is also one of great

importance not only to the State of South Carolina, but also to

the forty-nine other states. Legislatures and Courts have been

concerned for many years about the division of their authority

and each has jealously guarded their domain. A number of

cases have been decided by this Court and by local Courts,

interpreting South Carolina law outlining the specific criteria to

be used in determining whether or not a portion of a statute

may be separated from the whole. The District Court and the

Court of Appeals in this case decided the issue of severance ina

manner that is wholly inconsistent and in conflict with the

decisions of this Court and with the decisions of the Supreme

Court of South Carolina and clearly violative of the concept of

states’ rights upon which our entire system of constitutional

government is founded. The lower courts have in effect

drafted a new annexation law for the State of South Carolina in

a manner which is in total disagreement with the declared

intent and purpose of the South Carolina General Assembly in

enacting the original annexation laws. This question is of

extreme importance to the citizens of the State of South

Carolina as they have a right to be assured that legislation

which governs their lives and property will be enacted by their

duly elected representatives in the State Legislature and not by

the courts.

The various cases which have been decided on this issue

indicate that, before a court may sever a portion of a statute,

when some of the provisions of that statute have been declared

unconstitutional, the court must determine whether the

legislature intended the statute to be an integrated unit or

whether the legislature had forseen and intended the provisions

of the statute to be severable. The key and determining issue is

the intent of the legislature with respect to the statute in

question.

In Gordon v. Executive Committee of the Democratic Party

of City of Charleston, 335 F. Supp. 166 (D.S.C. 1971) the court

Marion Hay Et Ax., RESPONDENTS 27

allowed severability but specifically found that severability

was permissible because it was consistent with the legislative

purpose.

The real intent of the statute now under consideration was

to prevent a voter from participating in nominating

primaries of two parties in the same election. That

purpose is obvious from Section 400.70, which, unlike

Section 400.71 which merely provides the voter's oath,

proscribes specifically a voter’s participation in more than

one primary election, preliminary to the same general or

special election. That purpose can be sustained, without

giving effect to the concluding phrase in Section 400.71

which, as we have already observed, is unconstitutional.

Exercising its unconstitutional limitation, Section 400.71

would, by the terms of the oath thereby required, only

deny to the voter the right to participate in two primary

elections preliminary to the same general or special

election. When the statute is thus restricted within its

constitutional limits, it accords with the ruling of the City

Democratic Executive Committee, harmonized with

Section 400.79, and will not invalidate the challenged

voters from properly exercising their suffrage in the

primary election. The action of the election managers and

of the Executive Committee thus did not represent a

a from the statute, as restricted to its constitutional

imits.

335 F. Supp at 169.

This case involved a South Carolina statute which prohibited

a person from voting in one party’s primary election if that

person had voted in the primary election of another party

within the past year.

The case of U. S. vs. Jackson, 390 U.S.570 (1968), cites many

of the earlier cases which indicate that there is no presumption

28 Ceci. D. Cray, Et AL., PETITIONERS, v.

in favor of severability and that the Courts must look to the

legislative intent. The Jackson case involved a_ federal

kidnapping statute which contained an unconstitutional death

penalty provision. While thoroughly analyzing the history of

the kidnapping legislation, the court noted that, in order to

create a presumption of severability, an express statutory

provision was not necessary but that any presumption must

arise out of the legislative intent of the statute at issue.

In Pollock v. Farmers’ Loan & Trust Co. 158 U.S. 601 (1894),

the Supreme Court refused to employ severance in a taxing

scheme stating that, absent an analysis of the legislative intent,

there can be no presumption in favor of severability. In the case

of Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1893),

the Court allowed the severance of valid state regulatory

powers of railroads from unconstitutional penalty provisions,

after analyzing the legislative intent as follows:

It is not to be presumed that the legislature was legislating

for the mere sake of imposing penalities, but the penalties .

. were simply in aid of the main purpose of the statute.

154 U.S. at 396.

In Electric Bond Share Co. v. SEC, 303 U.S. 418 (1938), the

Court stated that ordinarily there is a presumption in favor

of inseparability but held that where there was a specific

provision in the statute calling for severance, “this provi-

sion reverses the presumption of inseparability.” 303 U.S. at

434.

In addition to these cases, there have been several recent

federal cases dealing with the issue. In Sloan v. Lemon, 413 U.

S. 825, (1973), the court struck down a Pennsylvania law which

aided parents who sent their children to private schools. The

act provided such aid to all parents sending their children to

private schools whether such schools were church related or

Marion Hay Er At., RESPONDENTS 29

not. Two parents, whose children attended nonsectarian

schools, on appeal, attempted to have the court sever aid to

parents with children in church related schools allowing those

parents sending their children to non-sectarian schools to

continue to receive aid. They argued that the Establishment of

Religion issue should strike down only that portion of the act

aiding parents of parochial school children. In rejecting this

argument, the court stated:

Although the Act contained a severability clause . . . it

could not be assumed that the legislature would have

passed the law to aid only those attending the relatively

few non-sectarian schools . .. The statute nowhere sets up

this suggested dichotomy between sectarian and non-

sectarian schools, and to approve such a distinction here

would be to create a program quite different from the one

the legislature actually adopted.

413 U. S. 834 (Emphasis Added).

This case clearly shows that the intent of the state legislature

will not only be analyzed but will also be strictly scrutinized

even to disregarding the legislature’s own statement of intent in

favor of severability. The courts should refuse to entertain any

idea of severance without first determining that to do so would

have been the intent of the legislature. There is no case which

supports the idea that a portion of a statute may be severed

without reference to the intent of the legislative body which

enacted the statute.

In addition to these federal cases which establish the test for

severing a portion of a statute, there are a number of South

Carolina cases which also evidence the requirement that the

legislative intent be examined prior to deciding whether

severance is permissible. In Ellison v. Cass 241 S. C. 96, 127 S.

E. 2d (1962), a state statute which authorized the construction

of private parking facilities over public sidewalks but

30 Cecit D. Cray, Et AL., PETITIONERS, v.

precluded construction over a roadway in the state highway

system was found unconstitutional insofar as it allowed

construction over the road. The Court rejected the argument

that, even though the provisions with respect to encroachment

over State Highways were unconstitutional, the remainder of

the act was severable. The court held that:

It is true that that which remains might be completely

independent of that which is rejected. However, before

we could... apply the rule of separability, the remainder

would have to meet the other test. Is it of such character

that we may fairly presume that the legislature would

have passed it independently of that which is in conflict

with the Constitution.

127 S. E. 2d at 209.

In making its finding, the court cited Dean v. Timmerman

234 S. C. 35, 106 S. E. 2d 665 (1959) which held:

The question as to whether portions of a statute, which are

constitutional, shall be upheld, while other divisible

portions are eliminated, is regarded as primarily one of

legislative intent.

106 S. E. 2d at 669.

The Ellison decision also cited the case of Townsend v.

Richland County, 190 S. C. 270, 2 S. E. 2d 777 (1939) which

held:

The rule is that where a part of a statute is constitutional, if

such part is so connected with the other parts as that they

mutually depend upon each other as conditions and

considerations for each other, so as to warrant the belief

that the legislature intended them as a whole, and if they

cannot be carried into effect, the legislature would not

Marion Hay Er At., RESPONDENTS 31

have passed the residue independently of that which is

void, the whole act is void.

2S. E. 2d at 781.

An additional South Carolina case which further illustrates

this point is Lee v. Clark 224 S. C. 138, 77 S. E. 2d 485 (1953)

which held unconstitutional a statute providing for a Board of

nine trustees of a particular school district, not less than three of

whom shall be women. The appellants attempted to sever a

portion of the statute, arguing that the primary purpose of the

act was to create a board of trustees of nine members, in lieu of

a board of five members as provided by the general state law,

and that the requirement that there be three women on the

board was a secondary consideration. In denying the

severance, the Court quoted the above passage from

Townsend and held that

We do not think under the foregoing text that the

unconstitutional part is separable. ‘To sustain appellant's

contention would be tantamount to materially amending

the act which, of course, we are not at liberty to do.

77 S. E. 2d at 490.

It is interesting to note that the court in Lee voided the

election even though the three women who were elected to the

Board received sufficient votes to be elected, had there been no

requirement covering women trustees. The court noted that:

In conclusion, it should be stated that the appellants who

are women received not only a majority of the votes cast

for women but the majority of all votes cast in said

election. But this fortuitous circumstance has no bearing

on the validity of the act under which they were elected.

77 S. E. 2d at 491.

32 Ceci. D. Cray Et AL., PETITIONERS, Vv.

Although there is no requirement that there be a severability

clause in the statute in question for a court to apply the

doctrine, the absence of such a clause, as in the annexation laws,

has been held to be of evidentiary value. In Family Security

Life Ins. Co. v. Daniel, 79 F. Supp. 62 (D.S.C. 1948), the South

Carolina District Court held that:

In view of the modern form of legislative drafting, the

omission of such a provision evidences clearly the

legislative intent that this statute must stand or fall as a

whole.

79 F. Supp. at 64.

A further South Carolina case which illustrates this doctrine

is Bramlette v. Stringer 186 S. C. 134, 195 S. E. 257 (1937) in

which the South Carolina Supreme Court considered a statute

which authorized Greenville County to borrow money for

highway construction but left the amount to be borrowed and

the use of the proceeds to the discretion of the county

legislative delegation. The Court found the pari of the statute

giving the legislative delegation executive type powers to be

unconstitutional but refused to sever that portion of the statute

which authorized the county to borrow money, although there

was no showing that the County Council could not adequately

supervise the program. It is clear from this decision that the

court felt that the intent of the legislature was to build roads at

the discretion of the county legislative delegation rather than to

merely build roads.

The Cothran case cited earlier has been cited for the

principal of severance. However, the facts of the case do not

lend themselves to such an interpretation. There the election

was submitted only to the qualified electors of the School

District and was carried by the votes of a majority of them. In

fact the court held that “the election on the question of issuing

the bonds was regular in all essential preliminaries under

Marion Hay Er Ax., RESPONDENTS 33

section 5359 of the Code of 1932”. 200 S. E. at 95. The

petitioners challenged the legality of the election because the

question was not submitted to only those electors as return real

or personal property for taxation as required by Act No. 102 of

the General Assembly, approved March 13, 1933. Both parties

conceded that if Act No. 102 was constitutional, the election

was null and void.

The Court did not sever a portion of the statute but declared

the entire act unconstitutional, as follows:

We are convinced that the provision of the Act of 1933,

supra, which limits the right of voting at an election in

Greenville County ... to those qualified electors who hav

returned real or personal property for taxation, violates

the provisions of the Constitution . .. and makes the Act

unconstitutional. 200 S.E. at 97. (Emphasis added).

The Court further held that Act No. 102 had no application to

the election held on September 19, 1938. That was the reason

for the court’s holding the election to be valid and the bonds

lawful rather than any issue of or reliance on severability.

The case of Parker v. Bates., 216 S. C. 52, 56S. E. 2d 723

(1949) is noteworthy in that the South Carolina Supreme Court

again reiterated the general principles of severability although

severance was allowed on a very narrow basis.

The statute in question in Parker involved the appropriation

of certain surplus funds to the counties of the state for seven

specifically enumerated types of hospital or health care

facilities. However, the Act contained an eighth clause which

read “(h) and/or for other public uses.” 56 S. E. 2d at p. 725.

The court specificially found that

The legislative purpose is not evident to make a blanket

grant in aid of the counties. .., and the appropriations here

34 Crecn. D. Cray, Er At., Petrrioners, Vv.

cannot fairly be taken to be such, but is one, as seen, for aid

of the counties in solution of the problem of public health.

Item (h) is foreign to the manifest purpose of the act and

for that reason invalid.

°o o v7

In the act before us the legislature set out to itemize, which

was done to include seven kindred specified uses or

purposes, but all of that careful handiwork would be

undone by sustention of the alternative, incongruous

appropriation for “other public uses.”

56 S. E. 2d at p. 728.

The court then held that Item (h) could be severed from the

Act, thereby allowing the remainder of the Act to stand. “The

legislature itself has separated the items which we hoid void

and, without it, the Act is entirely complete and capable of

being executed in accordance with the legislative intent.” 56S.

E. 2d at 730. This is precisely the standard which the

Respondents feel must be applied to the severance question on

the annexation statute or any other statute.

It should be noted that this was a 3-2 decision with a very

active dissent written by Mr. Justice Oxner who recited in

greater detail the law of South Carolina on the question of

severability. As did the majority, he wrote that “the ultimate

inquiry is the intent of the lawmakers.” 56S. E. 2d at p. 733. The

justices on each side of this decision did not disagree as to the

law on severability in South Carolina but disagreed as to the

legislative intent on the particular bill in question.

It is clear that the intent of the South Carolina General

Assembly, in creating annexation laws for the State of South

Carolina, was to give the freeholders a major voice in the issue

of annexation of their property. The legislature did not create

an annexation scheme which did not give a role to the

—— seem AEs

Marion Hay Er At., ResponpeNnts 35

freeholders in the area to be annexed. If the Court were to

eliminate the freeholders referendum and allow an annexation

election upon the petition of fifteen (15%) percen tof the

freeholders this would fly in the face of the specific intent of the

legislature as expressed in Section 47-12 and 47-14. These

sections allow an annexation election without a freeholder’s

referendum upon the petition of a majority of the freeholders

within the area to be annexed.

There is clearly no basis in the annexation legislation or the

legislative intent for severing the freeholder referendum and

allowing an election upon the petition of fifteen (15%) percent

of the freeholders. To eliminate the method of annexation that

was used in this case would not leave South Carolina without an

annexation law. There would remain several other methods of

annexation including the election held pursuant to the signature

of a majority of the freeholders in the area to be annexed

(Section 47-12 and 47-14) and the enactment of an ordinance by

the municipality after petition by at least seventy five (75%)

percent of the freeholders in the area to be annexed (Section 47-

19.5). This latter method requires neither referendum nor

election. Our law also provides for the annexation of property

when the entire area to be annexed belongs to either the county

or the municipality or when the entire area proposed to be

annexed belongs to a corporation or when the entire area

belongs to a school district or the State or Federal Government.

(Section 48-18.1 through 47-19.2). Therefore, it is clear that, if

the court were to invalidate the procedure in question here,

municipalities would be able to annex territory prior to the

enactment of new legislation, if any, by the legislature.

The essence of these statutes is to give the freeholder in the

area to be annexed some control over the movement of his

property from one jurisdiction to another. Our legislature has

the prerogative and has chosen not to make municipal

annexation an easy project. To sever the referendum

requirement from the fifteen (15%) percent freeholder petition

36 Cecnu. D. Cray, Er At., Petrrioners

method and allow an election only upon that percentage of

petitions would clearly frustrate the intent of the legislature.

This procedure is a unified one and the steps involved are

inseparable. The South Carolina General Assembly has

specifically considered the issue of calling for an annexation

election solely by freeholder petition without a freeholder

referendum and determined that such petitions should be

signed by a majority of the freeholders in the area to be

annexed not the fifteen (15%) percent called for by the lower

courts.

The South Carolina General Assembly has _ clearly

manifested its intent. Annexations elections initiated by

petition alone must be signed by a majority of the freeholders

in the area to be annexed not by merely fifteen (15%) percent of

the freeholders in the area to be annexed as ordered by the

lower courts. The lower courts, in this case, have gone further

than excising the unconstitutional portion of South Carolina's

annexation law. They have created a new procedure for calling

an annexation election. We submit that the lower courts’

presented no reasoning as to legislative intent because that

legislative intent is clear;and the lower court decisions are

contrary to the intent of the legislature in drafting the South

Carolina annexation laws and contrary to the criteria

established by this Court and the South Carolina Supreme

Court on a number of occasions. A review of the lower court

decisions herein will show that the District Court did not rely

on any case law or determination of legislative intent in

allowing severance. The majority of the Court of Appeals

panel upheld the District Court’s purported reliance upon two

cases which which the District Court did not in fact, rely upon.

The District Court relied upon no cases. Neither the District

Court nor the Court of Appeals has made or even hinted at a

determination of legislative intent. However, Judge

Haynsworth, in his dissent, discussed the question of legislative

intent in great detail and determined that severance was

improper and that a legal annexation was not effected by the

Mo me

Marion Hay, Er Au., Responpents 37

vote, leaving further annexation proceedings to be conducted

under any statute which might be enacted subsequently by the

South Carolina General Assembly.

CONCLUSION

This Petition raises issues of fundamental importance both to

the territorial annexation system of the states and their political

subdivisions,and to the citizens of the several states who rely on

their knowledge that they will be governed by laws created

and passed by their duly elected legislative bodies. Therefore,

it is submitted that the questions presented by this Petition are

so substantial that a Writ of Certiorari should be granted

Respectfully submitted,

David G. Jennings

GOODSTEIN & JENNINGS, P.A.

P. O. Box 7507

Charleston Hiés., South Carolina 29405

APPENDIX A

Judgment, Opinion and Denial of Petition for Rehearing of the

mm fe

United States Court of Appeals for the

Fourth Circuit

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-2028

MARION HAYWARD, DELORES GRANT, NANCY

LITTLE, LAWRENCE M. LIBATER, J. PHILLIPS

NOBLE, JR., and the City of Charleston, Appellees,

CECIL D. CLAY, HENRY E. HOLLINSHEAD, CLIFTON

D. GREEN, JR., MALCOLM C. HURSEY, HIRAM C.

ADAMS, JAMES H. LEE, SR., CHARLES M. LANFORD,

MARY R. MILLER, ALFRED WILLIAMS, Commissioners

of North Charleston Public Service District; North Charles-

ton Public Service District, and BRANFORD HEAPE,

Appellants,

and

JAMES B. EDWARDS, Governor of the State of South

Carolina: G. P. CALLISON, RUBEN L. GRAY, ZILLA

HINTON, SYLVIA A. McCULLOUGH, and MARGARET

TOWNSEND, Members of the South Carolina Election

Commission; DONALD INFINGER, ROBERT LIGHT-

HART, JR., SOLOMON MORSE, JR., HELEN CLAW-

SON, CURTIS INABINETT, Members of the Charleston

County Election Commission, Defendants,

= tials ok nein

—s er ees

tt ai

=

-b-

eto di P. RILEY, JR., Mayor of the City of Charleston,

anc

J. RUTLEDGE YOUNG, JR.. JEROME KINLOC

DANIEL L. RICHARDSON bee BUiCseNcon

JEFFERSON, ARTHUR W. CHRISTOPHER, BRENDA

C. SCOTT, ROBERT I. FORD, GEORGE A. 7. JOHN-

SON, JR., MARY R. ADER, JAMES B. MOORE. JR.

W. L. STEPHENS, JR., and HENRY E. GRIMBALL.

Members of the City Council of the City of Charleston,

Third Party Defendants.

Appeal from the United States District Court for the District

of South Carolina, Charleston Division. Robert W. Hemphill,

Argued January 9, 1978 Decided March 29, 1978

Before HAYNSWORTH, Chief Judge, and BUTZNER and

HALL, Circuit Judges.

David G. Jennings (Goodstein & Jennings on brief) for appel-

lants; Armand Derfner (Epstein, McClain & Derfner; William

B. Regan, Corporation Counsel, City of Charleston; Robert N.

Rosen, Assistant Corporation Counsel, City of Charleston on

brief) for appellees.

ae

}

'

;

;

k|

:

APPENDIX Al

BUTZNER, Circuit Judge:

The questions for decision are whether a South Carolina

statute conditioning the holding of an annexation election upon

a majority vote by the freeholders in the area to be annexed

violates the fourteenth amendment to the United States

Constitution, and whether the challenged portions of the

statute are severable from the remainder. The district court

found the challenged provisions unconstitutional and

severable. We affirm.

I

As one of several methods of annexation, the South Carolina

Code provides that proceedings may be initiated by a petition

signed by 15 percent of the freeholders in the area seeking to be

annexed. S. C. Code §5-3-160 (1976).! Upon certification of this

petition by the governing council of the annexing municipality,

a majority of the freeholders in the area proposed for

annexation must, “[a]s a prerequisite to the annexation election

.., approve the change in a referendum. S. C. Code §5-3-170

(1976). An effective annexation proceeding also requires

approval by the registered voters in both the territory to be

annexed and the annexing municipality. The freeholder

referendum may precede or accompany the annexation

election. In the latter instance, two voting boxes are maintained

at the polling places in the area to be annexed; freeholders

alone vote in one, and all registered voters, including

freeholders, vote in the other. S. C. Code §5-3-180 (1976).?

' In the 1962 Code, which was in effect when this action arose, these

sections were numbered S. C. Code §§47-19.11 through 19.19 (1962).

2 Section 5-3-240 of the South Carolina Code, in defining a freeholder,

includes corporations and tenants. At oral argument we were told that

the law has been construed to allow a freeholder a vote for each piece

of property he owns.

A2 APPENDIX

A freeholders’ referendum and an annexation election were

held simultaneously to determine whether the Garden Kiawah

area should be annexed to the City of Charleston. The

registered voters in the city and Garden Kiawah approved the

annexation, but the freeholders of Garden Kiawah defeated it.

The City of Charleston and voters from the city and Garden

Kiawah (city) promptly filed suit against county officials and

others (county), challenging the constitutionality of the

freeholder referendum. Since all other statutory requirements

for annexation had been fulfilled, the city sought an order

validating the annexation.

On cross motions for summary judgment, the district court

ruled that the freeholder referendum violated the equal

protection clause of the fourteenth amendment. It held that

annexation was a matter of the most pervasive public interest

and that South Carolina promoted no compelling state interest

by establishing a freeholder referendum that burdened the

general franchise granted to South Carolina registered voters

on annexation questions. The court also found that the portions

of the freeholders’ referendum were severable, that the

remainder could stand intact, and that the annexation had been

legally accomplished.

II

In Kramer v. Union Free School District, 395 U.S. 621 (1969),

the Supreme Court held that a restriction of the vote in school

district elections to owners and lessees of taxable realty and to

parents and custodians of children enrolled in the public

schools violated the equal protection clause of the fourteenth

amendment. Limitations of the franchise to property taxpayers

in municipal bond elections were struck down on the same

grounds in Cipriano v. City of Houma, 395 U.S. 701 (1969), and

Phoenix v. Kolodziejski, 399 U.S. 204 (1970). In Hill v. Stone,

421 U.S. 289 (1975), the Court declared unconstitutional a

Texas statute allowing only those otherwise qualified voters

|

APPENDIX A3

who had registered taxable property to vote in municipal bond

elections. In that case, 421 U.S. at 297, the Court summarized its

holdings:

The basic principle expressed in these cases [Kramer,

Cipriano, and Phoenix] is that as long as the election in

question is not one of special interest, any classification

restricting the franchise on grounds other than residence,

age, and citizenship cannot stand unless the district or

State can demonstrate that the classification serves a

compelling state interest.

The county argues that the referendum, even when held

simultaneously with an election, is not part of the election. It

points out that the statute makes the freeholders’ referendum a

condition precedent to the actual election and _ that,

consequently, the referendum does not burden the franchise in

that election. While the referendum in form may be a condition

precedent to the actual election, in effect it grants to some

individuals — who are identified on the basis of ownership of

realty — the right to nullify a vote for annexation by the

electorate at large. Although the mechanics of the Texas “dual

box election procedure” declared unconstitutional in Hill differ

from South Carolina’s, the wrongful grant of power to

property owners is the same. The statutes of both states create

property-based classifications of voters in an election of

general interest and empower those with property to override

the votes of those without. It is this restriction of the effective

franchise to a property owning class — not the mechanics of

accomplishing the restrictions — that offends the equal

protection clause. See Hill v. Stone, 421 U.S. at 298.

The county also relies on Hunter v. City of Pittsburgh, 207

U.S. 161 (1907), which upheld a state annexation statute against

a variety of constitutional challenges and characterized the

state's power over municipal corporations as nearly absolute.

But subsequent decisions have shown that the exercise of this

A4 APPENDIX

power must conform to the Constitution, at least where voting

is concerned. See Lockport v. Citizens for Community Action,

430 U.S. 259, 264-68 (1977); Gomillion v. Lightfoot, 364 U.S.

339 (1960); cf. Perkins v. Matthews, 400 U.S. 379, 388-90 (1971).

Of course, South Carolina need not grant anyone the right to

vote on annexation; similarly, the plaintiffs in Hill, Kramer,

Phoenix, and Cipriano could assert no federal constitutional

right to vote on the matters at issue in those cases. But once the

right to vote is established, the equal protection clause requires

that, in matters of general interest tothe community, restriction

of the franchise on grounds other than age, citizenship, and

residence can be tolerated only upon proof that it furthers a

compelling state interest. Hill v. Stone, 421 U.S. at 297.

The Supreme Court has distinguished elections of special

interest from elections of general interest. Issues of special

interest involve limited purposes which so disproportionately

affect an identifiable group of voters that a state may restrict

the franchise to them or give their votes special weight. Salyer

Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S.

719, 728 (1973) (water storage district).’ In contrast, normal

governmental functions present questions of general interest to

which the requirement of an unrestricted electorate prescribed

by Cipriano, Phoenix and Hill applies. See Hill v. Stone, 421

U.S. at 295-298; Salyer Land Co. v. Tulare Lake Basin Water

Storage District, 410 U.S. at 726-30.

A change in the entire structure of local government is a

matter of general interest. Annexation will affect municipal

services that every citizen receives — whether or not he is a

freeholder. The district court found that this annexation “not

only involves changes in taxation, police, and fire protection,

‘The Supreme Court noted that the water storage district at issue in

Salyer Land Co. did not exercise normal governmental authority. It did

not have a fire department or police, and it provided no other general

public services “ordinarily financed by a municipal body.” 410 U.S. at

728-29.

Sle L Anns ms

a i

i

APPENDIX A5

sanitation, water, sewer and other public services, but brings

about a complete change in the form of municipal government

itself.” Therefore, a property-based classification of voters is of

no less constituional significance in an annexation referendum

than when the question is the issuance of municipal bonds or

the details of operating a school system.

We agree with the district court that the county has not

demonstrated that there are any differences in the impact of

annexation on freeholders and non-freeholders which amount

to a compelling state interest justifying an inequality in the

franchise. The chief difference is the immediate and direct

burden of property taxes. But the Supreme Court has held that

this is an insufficient basis for restricting the franchise to

property owners. Phoenix v. Kolodziejski, 399 U.S. at 210-11:

accord, Lockport v. Citizens for Community Action, 430 U.S.

259, 267-68 (1977) (dicta; annexation).

The district court, relying primarily on Cothran v. West

Dunklin Public School District, 189 S.C. 85, 200 S.E. 95 (1938),

and Gordon v. Executive Committee of the Democratic Party,

335 F. Supp. 166 (D. S.C. 1971), found that the unconstitutional

portions of the South Carolina annexation statute were

severable from the remainder, and it upheld the validity of the

annexation election under the constitutional portions of the

statute. We find no error in this interpretation of the South

Carolina law of severability. Those portions of the statute

requiring voters in the municipality and in the area to be

annexed to approve the change are constitutional. Lockport v.

Citizens for Community Action, 430 U.S. at 271-73 (1977).

The judgment is affirmed.

HAYNSWORTH, Chief Judge, dissenting:

For the reasons ably stated by Judge Butzner for the

majority, | agree that this annexation procedure as applied is

AB APPENDIX

unconstitutional. I dissent, however, from the conclusion that

the statutory provisions are severable and from the judgment

upholding the election solely on the basis of the vote of the

electors.

The legislature of South Carolina has shown an extraordinary

concern for the interests of property owners in areas sought to

be annexed by municipalities. The requirement of a petition by

fifteen percent of the property owners in the annexed area as a

pre-condition of any vote by electors or property owners is a

clear and persuasive indication of it. The requirement that a

majority of property owners vote in favor of the annexation

provides a further conclusive indication of the legislature's

desire to give property holders in the annexed area an effective

veto over any annexation. Severing the property holder vote

from the statute would completely undermine the intended

operation of the statutory scheme. Indeed, it seems plain to me

that the legislature was firmly of the opinion that what

happened in this case should not be allowed to happen.

This annexation proceeding did not arise out of amovement

by residents of the area sought to be annexed to have the area

annexed by the City of Charleston. It began with the City of

Charleston and arose out of its perceived need to annex a

generally industrialized area with few residents in order to

enhance the revenues of the City of Charleston without a

comparable increase in its expenditures. The City first

considered an attempt to annex a larger area, but cut off a

portion of the area initially considered to enhance the

probability that a vote of the relatively few residents of the

remaining area would be cast in favor of the annexation. The

vote of the electors residing in the City of Charleston was easily

won, of course, because annexation of this generally industrial-

commercial area would enlarge the public funds available for

expenditure within the old limits of the City of Charleston.

While I agree that as applied the particular statutory scheme

—

APPENDIX AZ

is unconstitutional, I would hold that a legal annexation was not

effected by the vote, leaving further annexation proceedings to

be had under any statute which may be enacted subsequently

by the South Carolina Legislature. ,

APPEAL FROM the United States District Court for the

District of South Carolina.

_THIS CAUSE came to be heard on the record from the

United States District Court for the District of South Carolina,

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of the

said District Court appealed from, in this cause, be, and the

same is hereby, affirmed.

Filed

Mey+-1976—-

Moth 29, 978

s/William K. Slate, II

Clerk

7 = . > . . .

Upon consideration of the appellant's petition for rehearing

and suggestion for rehearing en banc, and no judge having

requested a poll on the suggestion for rehearing en banc,

It is ADJUDGED and ORDERED that the petition for

rehearing is denied.

Entered at the direction of Judge Butzner for a panel

consisting of Judge Haynsworth, Judge Butzner, and Judge

Hall.

For the Court,

Filed s/William K. Slate, II

Maretr29—-4978 Clerk

AS APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-2028

MARION HAYWARD , et. al Appellees

be, bs. 2

CECIL D. CLAY, et. al. Appellants

ORDER

Upon consideration of the appellant's petition for rehearing

and suggestion for rehearing en banc, and no judge having

requested a poll on the suggestion for rehearing en banc,

It is ADJUDGED and ORDERED that the petition for

rehearing is denied.

Entered at the direction of Judge Butzner for a panel

consisting of Judge Haynsworth, Judge Butzner, and Judge

Hall.

For the Court,

Filed s/William K. Slate, II

May 1, 1978 Clerk

APPENDIX B

Judgment and Opinions of District Court

IN THE DISTRICT COURT OF THE UNITED STATES and

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

CECIL D. CLAY, HENRY E. HOLLINSHEAD, HIRAM C.

ADAMS, JAMES H. LEE, SR., MARY R. MILLER, and

ALFRED WILLIAMS, —_ Defendant-Third Party Plaintiff,

Civil Action v.

No. 76-2304

JOSEPH P. RILEY, JR., Mayor of the City of Charleston,

and

MARION HAYWARD, DELORES GRANT, NANCY :

LITTLE, LAWRENCE M. LIBATER, J. PHILLIPS

NOBLE, JR., and the City of Charleston, ______ Plaintiffs, J. RUTLEDGE YOUNG, JR., JEROME KINLOCH,

; DANIEL L. RICHARDSON, HILDA HUTCHINSON

JEFFERSON, ARTHUR W. CHRISTOPHER, BRENDA

C. SCOTT, ROBERT I. FORD, GEORGE A. Z. JOHN-

SON, JR., MARY R. ADER, JAMES B. MOORE, JR., W. L.

STEPHENS, JR., and HENRY E. GRIMBALL, Members

of the City Council of the City of Charleston

Third Party Defendants.

JAMES B. EDWARDS, Governor of the State of South

Carolina;

G. P. CALLISON, RUBEN L. GRAY, ZILLA HINTON,

SYLVIA A. McCULLOUGH, and MARGARET TOWN-

SEND, Members of the South Carolina Election Commis-

sion;

DONALD INFINGER, ROBERT LIGHTHART, JR.,

SOLOMON MORSE, JR., HELEN CLAWSON, CURTIS

INABINETT, Members of the Charleston County Election

Commission;

CECIL D. CLAY, HENRY E. HOLLINSHEAD, CLIFTON

D. GREEN, JR., MALCOLM C. HURSEY, HIRAM C.,

ADAMS, JAMES H. LEE, SR., CHARLES M. LANFORD,

MARY R. MILLER, ALFRED WILLIAMS, Commissioners

of the North Charleston Public Service District;

North Charleston Public Service District; and BRANFORD

HEAPE, Defendants.

APPENDIX i!

This case involves the constitutionality of various sections of

the South Carolina Code which provide for municipal

annexations.' On November 23, 1976, an election was held to

determine whether or not an area of Charleston County known

as “Garden Kiawah” should be annexed by the City of

Charleston. The election procedure involved a_ separate

“freeholder box”, where only property owners could vote.

Under the statutes, the annexation must be independently

approved by three groups of voters; the freeholders; the

registered electors (including freeholders) and the registered

voters in the annexing area (in this case, the City of Charleston).

The registered voters both in the City and in the area to be

annexed approved the annexation while the freeholders within

' S. C. Code Ann. § 47-19.11 (1975 Cum. Supp.) provides: Alternate

method when area adjacent, - - In addition to the method of initiating

an annexation election provided for in § § 47-12 through 47-14, cities

and towns may annex adjacent territory as follows: Upon presentation

to the city or town council of a petition signed by twenty-five percent

of the freeholders resident in the area or territory proposed to be

annexed, the city or town council may forthwith certify such fact to the

county commissioners of election together with a description of the

territory proposed to be annexed; and, if so certified, the county

commissioners of election shall order a referendum and an election to

be held as herein provided. No such territory shall be annexed until

such a certification is made by the city or town council and a

referendum and election are held. Except, however, with respect to

any city or town having a population of twenty-five thousand, or more,

said petition shall contain only fifteen percent , or more, of said

freeholders resident in the area or territory proposed to be annexed.

S. C. Code Ann. § 47-19.13. Referendum and elections must approve

annexation; ballot boxes. -- In cases where the referedum is held prior

to the election, if a majority of the freeholders voting in such

referendum do not approve the proposed annexation, the election shall

not be held. In cases where the referendum and the election are held

simultaneously, separate boxes shall be maintained to receive the votes

of the freeholders voting in the referendum and those of the registered

electors voting in the election. In order for an annexation to be validly

effected, a majority of the freeholders voting in the referendum must

approve the annexation; and a majority of the registered electors

voting in the election must approve the annexation, both within the

territory proposed to be annexed and within the corporate limits of the

municipality.

B2 APPENDIX

Garden Kiawah rejected it. The City, and various individual

plaintiffs within the City and Garden Kiawah, are now

challenging the constitutionality of the separate freeholders

referendum in an attempt to have it declared invalid and have

the annexation declared valid. The plaintiffs argue that the

franchise in the freeholders’ referendum is restricted to

landowners* and that ownership of property is a

constitutionally impermissible voter qualification.

The Supreme Court of the United States has ruled that in an

election of general interest, restrictions on the franchise other

than residence, age, and citizenship must promote a

compelling state interest in order to survive constitutional

attack. In Kramer v. Union Free School District No. 15, 395 U.

S. 621, 23 L.Ed.2d 583 (1969), the Court struck down an

election law limiting the franchise in local school elections to

persons who own or lease taxable real property in the school

district or who had children enrolled in the public schools.

Likewise, in Cipriano v. City of Houma, 395 U.S. 701, 23 L.Ed.

2d 647 (1969), and in City of Phoenix v. Kolodziejski, 399 U.S.

2S. C. Code Ann. § 47-19.15 (1975 Cum. Supp.) provides: County

auditor to furnish list of freeholders to commissioners of election. - Not

later than twenty days prior to the freeholders referendum provided

herein, the county auditor shall furnish to the county commissioners of

election a list of freeholders showing the names of the freeholders

owning the property within the territory proposed to be annexed as

shown by the county tax records. The county commissioners of

election shall use this list to determine what persons are eligible to vote

in the referendum.

S. C. Code Ann. 2 47-19.19. Freeholder defined in § § 47-12, 47-14 and

47-19.11 to 47-19.19. For the purposes of § § 47-12, 47-14, and 47-19.11

to 47-19.19, a “freeholder” is defined as any person twenty-one years of

age, or older, and any firm or coropation, who or which owns legal title

to a present possessory interest in real estate equal to a life estate or

greater (expressly excluding lease holds, easements, equitable

interests, inchoate rights, dower rights and future interests) and who

owns, at the date of the petition or of the referendum, at least an

undivided one-tenth interest in a single tract and whose name appears

on the county tax records as an owner of real estate.

APPENDIX B3

204, 26 L.Ed.2d 523 (1970), the Court invalidated statutes

which placed property qualifications for voting on the electors

in elections for the approval of municipal bonds.

The Supreme Court has also had the opportunity to deal

directly with the question of a system of dual boxes. one for

general electors and one for freeholders, in the case of Hill v.

Stone, 421 U.S. 289, 44 L.Ed.2d 172 (1975), rehearing denied

422 U.S. 1029, 44 L.Ed.2d 686. That case involved a dual ballot

box system whereby all electors who had “rendered property

for taxation” were allowed to vote in one box and electors

without property of record casts their ballots in a separate box.

In order for the bond issue in question to pass, approval was

required by both boxes individually and by both boxes in the

aggregate. It should be noticed that the balloting procedure in

Hill v. Stone, supra, differs from that of the present case in that,

in Hill v. Stone, only electors who had rendered property voted

in the renderers box and only electors who had not rendered

property voted in the nonrenderers box. In the present case, all

registered electors, including propertv owners, vote in the

regular annexauon election while only the property owners

may vote in the freeholders referendum. The court, in Hill v.

Stone characterized the holdings of the Kramer, supra, and

Cipriano, supra thusly:

The basic principle expressed in these cases is that as

long as the election in question is not one of special

interest, any classification restricting the franchise on

grounds other than residence, age, and citizenship cannot

stand unless the district or State can demonstrate that the

classification serves a compelling state interest.

The court went on to find that the bond issue in question,

involving a public library, was a general bond issue and a

matter of general interest to the public rather than of special

interest to a particular group. Although there are minor factual

differences between the Hill case and the case before the court,

B4 APPENDIX

there is no rational or logical way to distinguish the two cases

either legaily or factually.

The South Carolina statutory annexation procedure is

essentially a composite of three elections. One for registered

electors within the area to be annexed; one for freeholders

within the area to be annexed and one for registered voters

within the annexing area. The annexation must be approved in

all three elections or it will fail. The validity of the annexation

may rise or fall upon the decision of any one election, including

the freeholders’ referendum. Success in the freeholders’

election is essential to the annexation procedure and the

franchise in the freeholders referendum is limited to property

owners. As the Supreme Court held in Hill v. Stone, supra, and

the above cited cases which form the basis for that opinion, a

property ownership qualification in an election of general

interest cannot stand unless the state can demonstrate that the

classification serves a compelling state interest. This the state

has failed to accomplish.

The defendants essentially oppose the plaintiffs’ motion for

summary judgment on two grounds. First, they argue that the

Supreme Court has historically allowed state legislatures wide

latitude in structuring election procedures. In Hunter v. City of

Pittsburgh, 207 U.S. 161, the Supreme Court, speaking of the

broad discretion granted to the states in annexation matters,

said

Municipal corporations are political subdivisions of the

state, created as convenient agencies for exercising such of

the governmental powers of the state as may be entrusted

to them . . . The number, nature, and duration of the

powers conferred upon these corporations and the

territory over which they shall be exercised rests in the

absolute discretion of the state... The State . . . at its

pleasure, may .. . expand or contract the territorial area,

unite the whole or a part of it with another municipality,

APPENDIX ; B5

repeal the charter and destroy the corporation. All this

may be done, conditionally or unconditionally, with or

without the consent of citizens, or even against their

protest.

The defendants also cited the case of Thompson v. Whitley,

344 F. Supp. 480 (E.D. N.C. 1972) which involved an

annexation procedure where the residence of the annexed area

were completely denied the right to vote on annexation issues if

their areas were contiguous to cities with populations within

certain ranges. The Court in that case held that the right vote

within the annexed area was not fundamental in that it only

related indirectly to participation in representative

government. This court cannot agree with that conclusion in

that there is almost no-conceivable type of election which could

have a more profound effect ‘on the political life of a

community than an annexation election. While it might

possibly be permissible to deny all persons within the annexed

area the right to vote on such annexation, in the present case

some some of the electors were allowed to vote once and some

were allowed to vote twice. The differentiating criteria of the

ownership of pronerty and that criteria it is invalid.

The defendants also contend that the annexation election isa

“special interest” eletion and is therefore within the exception

to the ban on property qualifications, as was outlined in Salyer

Land Co. v. Tulare Water Storage District, 410 U.S. 719 (1973)

and Associated Enterprises, Inc. v. Toltec Watership

improvement District, 410 U.S. 743 (1973). The statutes in

question in both those cases involved elections for the

establishment and management of water storage districts to

provide irrigation to arid agricultural areas. Not only were the

elections limited to landowners but the vote was weighted

according to acreage owned. The Court gave the statutes

constitutional approval due to the limited purpose of the water

storage districts and the disproportionate effect on

landowners. The limited purpose of the water storage districts

B6 APPENDIX

may be illustrated by the fact that the district's only purpose

was the acquisition, storage and distribution of water for

irrigation. These districts served no other public service needs

and served no_ political functions whatever. As to the

disproportionate effect on landowners, it was apparent from

these cases that all costs of district projects were assessed

directly against the land in proportion to the benefits received,

that charges for services rendered were collectible directly

from landowners and that such charges became a lien on the

property involved.

While Sawyer and Associate Enterprises deal with a limited

purpose election, the present case deals with annexation, a

decision of general political interest which will have a

pervasive effect upon every citizen in the area to be annexed.

Annexation not only involves changes in taxation; police, and

fire protection, sanitation, water, sewer and other public

services, but brings about a complete change in the form of

municipal government itself. It is not a special limited purpose

election as found in the water district cases, but rather it is a

general interest election which necessitates an equal voice for

every participant.

Therefore, for the foregoing reasons, Sections 46-19.11 and

19.12, 19.13, 19.14, 19.15, 19.16, 19.19 are in violation of the

equal protection clause of the Fourteenth Amendment of the

Constitution of the United States insofar as they provide fora

separate freeholder referendum and annexation election or

make any provision for the implementation of such

referendum. All portions of such statutes which do not refer to

the separate freeholder referendum are severable and should

remain valid and in tact.

Furthermore, the defendants shall consider the “Garden

Kiawah” annexation to have been approved in the election of

November 23, 1976, and the defendants are enjoined from

interfering with the City of Charleston’s annexation of the

APPENDIX RT

‘Garden Kiawah” annexation area as effected by the votes cast

under the constitutionally permissible procedure in the

November 23rd election.

Defendants’ request for a new election is denied, as a new

election, but for the existence of the impermissible freeholders’

referendum, would be identical to the original. To order anew

election in a case such as this would encourage the electorate to

disregard electoral) procedures which they believed

questionable and go to the courts instead of the polls. By

allowing the valid election to stand, the electors are encouraged

to first exercise the franchise and then go to the courts if they

feel their constitutional rights were disregarded. .

The defendant James B. Edwards’ motion to dismiss is

granted in that all parties agreed at the hearing that defendant

Edwards, as Governor of the State of South Carolina, was nota

necessary and property party to this action.

AND IT IS SO ORDERED.

s/ROBERT W. HEMPHILL

United States District Judge

Columbia, South Carolina

June 9, 1977

Filed

June 9, 1977

Miller C. Foster, Jr., Clerk

BS APPENDIX

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Civil Action

No. 76-2304

MARION HAYWARD, ef. al. Plaintiffs

Us-

JAMES B. EDWARDS, ef. al. Defendants.

AMENDMENT TO COURT'S ORDER OF JUNE 9, 1977

The defendants have filed a counterclaim, crossclaim, and

third party complaint, alleging that the entire annexation

procedure set up by the aforementioned — statutes — is

unconstitutional in that it denies all registered voters in the

special purpose district, except those in the area to be annexed,

the right to vote in annexation elections. The defendants feel

that this procedure constitutes invidious discrimination based

on residence within artifically drawn lines against registered

voters in the remainder of the special purpose district. Under

the wide latitude given the states in structuring annexation

elections under Hunter ve. City of Pittsburgh, supra, the

exclusion of a group of voters from the election would be

permissible so long as the exclusion did not result from a

constitutionally impermissible qualification. As has been

previously discussed, residency is one of the very few

constitutionally permissible voter qualifications. As such, the

state is free to require that voters participating in an annexation

election be residents of the areas directly affected by such

APPENDIX RY

election. Therefore, the defendants’ counterclaim, cross-claim

and third party complaint are hereby dismissed.

AND TE IS SO ORDERED.

s/ROBERT W. HEMPHILL

United States District Judge

Greenville, South Carolina

June 16, 1977

Original Filed

June 17, 1977

Miller C. Foster, Jr., Clerk

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Civil Action

No. 76-2304

MARION HAYWARD, et. al. Plaintiffs

-DS-

JAMES B. EDWARDS, et. al. Defendants.

APPENDIX

B10

AMENDMENT TO ORDER, DATED JUNE 9, 1977

It appears to the Court that the following should be inserted

into this Court's Order of June 9, 1977

To strike the second paragraph on page seven (7) of the

Order to read as tollows:

The defendants’, James B. Edwards, G. P. Callison, Ruben L.

Gray, Zilla Hinton, Sylvia A. McCullough and Margaret

Townsend, Motion for Summary Judgment is granted in that

all parties agreed at the hearing that the defendants, James B.

Edwards, G. P. Callison, Ruben L. Gray, Zilla Hinton, Sylvia A.

MieCullongh and Margaret Townsend, in their respective

capacities, as Governor of the State of South Carolina and as

members of the State Election Commission, were not

necessary and proper parties to the action.

AND TE IS SO ORDERED.

s/ROBERT W. HEMPHILL

United States District Judge

Greenville, South Carolina.

June 29, 1977

Filed

June 30, 1977

Miller C. Foster, Jr., Clerk

APPENDIX BI

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Civil Action

No. 76-2304

MARION HAYWARD, et. al. Plaintiffs

-DS-

JAMES B. EDWARDS, et. al. Defendants.

JUDGMENT

This action came on for hearing before the Court, Honorable

Robert W. Hemphill, United States District Judge, presiding,

and the Plaintiffs’ Motion for Summary Judgment having been

duly heard and granted,

It is Ordered and Adjudged that Summary Judgment is

entered for the Plaintiffs, that defendants’ counterclaim, cross-

claim and third party complaint are hereby dismissed.

MILLER C. FOSTER, JR.

Clerk of Court

s/Joyce Kirby

Deputy Clerk

Dated at Columbia, South Carolina, Original Filed

this 17th day of June, 1977. June 17, 1977

Miller C. Foster, Clerk

APPENDIX C

Statutory Provisions

APPENDIX Cl

CODE OF LAWS OF SOUTH CAROLINA, 1962,

as Amended

47-19.11. Alternate method of annexing adjacent territory.

In addition to the method of initiating an annexation

election provided for in Sections 47-12 through 47-14, cities and

towns may annex adjacent territory as follows: Upon

presentation to the city or town council of a petition signed by

twenty-five percent of the freeholders resident in the area or

territory proposed to be annexed, the city or town council may

forthwith certify such fact to the county commissioners of

elction together with a description of the territory proposed to

be annexed; and, if so certified, the county commissioners of

election shall order a referendum and an election to be held as

herein provided. No such territory shall be annexed unui sucha

certification is made by the city or town council and a

referendum and election are held. Except, however, with

respect to any city or town having a population of twenty-five

thousand, or more, said petition shall contain only fifteen

percent, or more, of said freeholders resident in the area or

territory proposed to be annexed.

47-19.12. Referendum required in territory proposed to be

annexed

As a prerequisite to the annexation election provided for in

Section 47-19.11, there shall be held a referendum (either prior

to or simultaneous with the annexation) in which all freeholders

owning property in the territory proposed to be annexed shall

be entitled to vote.

47-19.13. Referendum and election must approve annexation;

ballot boxes.

In cases where the referendum is held prior to the election, if

a majority of the freeholders voting in such referendum do not

approve the proposed annexation, the election shall not be

held. In cases where the referendum and the election are held

simultaneously, separate boxes shall be maintained to receive

C2 APPENDIX

the votes of the freeholders voting in the referendum and those

of the registered electors voting in the election. In order for an

annexation to be validly effected, a majority of the treeholders

voting in the referendum must approve the annexation; and a

majority of the registered electors voting in the election must

approve the annexation, both within the territory proposed to

be annexed and within the corporate limits of the municipality.

47-19.14. Notice of referendum or election required; polling

places.

No annexation referendum or election shall be initiated

pursuant to Sections 47-19.11 to 47-19.19 unless a notice of the

referendum and election shall have been inserted in a news-

paper of general circulation within the municipality and

the territory proposed to be annexed for once a week for at

least four successive weeks, the first such notice to be given at

least sixty days prior to the date of the election. The notice shall

state the purposes of the election, the date, and the location of

the various voting places. There shall be provided at least one

polling place within the area sought to be annexed.

47-19.15. County auditor required to furnish list of freeholders

to commissioners of election.

Not later then twenty days prior to the freeholders

referendum provided herein, the county auditor shall furnish to

the county commissioners of election a list of freeholders

showing the names of the freeholders owning the property

within the territory proposed to be annexed as shown by the

county tax records. The county commissioners of election shall

use this list to determine what persons are eligible to vote in the

referendum.

47-19.16. Subsequent election after defeat of annexation

election.

When an annexation election is defeated either by the voters

inside the municipality concerned or within the territory

proposed to be annexed, or both , another annexation election

APPENDIX C3

within the territory to be annexed shall not be initiated within a

period of twenty four months from the date upon which the

voting took place.

47-19.19. “Freeholder” defined for purposes of pertinent

provisions.

For the purposes of Sections 47-12,47-14, and 47-19.11 to 47-

19.19, a “treeholder” is defined as any person twenty-one years

of age, or older, and any firm or corporation, who or which

owns legal title to a present possessory interest in real estate

equal to a life estate or greater (expressly excluding

leaseholders, easement, equitable interests, inchoate rights,

dower rights and future interests) and who owns, at the date of

the petition or of the referendum, at least an undivided one-

tenth interest in a single tract and whose name appears on the

county tax records as an owner of real estate.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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