Petition — Clay v. Hayward
Supreme Court brief1978
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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.