These are proceedings for injunction against the levy of an assessment on certain property in the city of Charleston for street improvements, and an injunction against the issuance of bonds *Page 123 to pay for the same. The injunction was refused. The facts are set forth in the Circuit decree as follows:
"The above two cases were heard by me, and, as the objections raised in subdivision 2 of allegation 5 of the Sullivan suit involved the question raised in the Smith suit, it was agreed by counsel that the cases should be heard together and decided at the same time.
"It was admitted in both cases that the citations from the Constitution, Acts of the General Assembly, and ordinances of city council set forth in the respective pleadings were correctly set forth; that notices of the proposed improvements of Meeting Street, on which the property involved is situate, was given by city council by publication in the official journal of the city four times within fifteen days, and, the contract for such improvements having been made by city council, an assessment roll was filed with city treasurer showing the assessment against, among others, the property owned by each plaintiff herein; that notice was published by city treasurer in the journal of city council that such assessment roll was in his office and would remain there for one week from the date of the publication, and that all persons concerned could within that time file objections or exceptions thereto; that no objections were filed during that week; that thereafter city council confirmed said assessments, and the same were entered in the Assessment Liens Book kept by city treasurer; the publication of the ordinance of city council ratified April 18, 1922, referred to in the pleadings, was made in the official journal of city council on April 20, 1922; that no attack upon said assessments was made by either of the plaintiffs within ten days after the confirmation of the assessments; that city council had by ordinance declared that, as appears by Assessment Liens Book of the city of Charleston, there was outstanding and unpaid on the assessments levied against abutting property to meet the cost of permanent improvements on streets, the intersection of streets and sidewalks, *Page 124 and for curbing of streets and drains in the city of Charleston, the sum of $193,086.31, and directed the issuance of $193,000 of bonds of the city of Charleston, and directed the application of the proceeds of said assessments, when collected, solely to the payment of said bonds; that said bonds have never been actually issued and are still in the hands of the city council.
"It was further admitted that the statements of the plaintiff, Henry A.M. Smith, as to his business engagements and his correspondence with city council and assessment notices as received, all of which are set forth in his reply, are correct.
"It was further admitted that the assessment roll as filed with city treasurer covering the assessment against the property of plaintiff Henry A.M. Smith had the following entries: 26-24 Meeting Street roadway, $236.60; proportion of intersections, $8.37; 12-inch drain, $246.53; curb, $59.62.
"It was further admitted that at the time of the improvement of the roadway on which premises 26-24 Meeting Street abuts no new drain was laid, but that an old drain in excess of 12 inches which had been laid by city council about the year 1854, and paid for at that time out of the general funds of the city, was in said street and allowed to remain there, and that the item in the assessment roll `12-inch drain $246.53' represented the assessment which could have been made, if the cost were really so much, against said property, if a new 12-inch drain had been laid at the time of paving the roadway.
"The suit of Lucy C. Sullivan is for an injunction restraining the issuance of the bonds, and the suit of Henry A.M. Smith is for an injunction restraining city council from claiming any lien upon his property by reason of the assessment of $246.53 for drains and from collecting the same." *Page 125
1. The first question to be considered is: Can the city levy this assessment for drains laid prior to the passage of the constitutional amendment of 1919?
The amendment, so far as this case is concerned, reads:
"The General Assembly may authorize the corporate authorities of the cities of Charleston and Beaufort to levy an assessment upon abutting property for the purpose of paying for permanent improvements on streets and sidewalks, immediately abutting such property and in the city of Charleston to pay for the permanent improvement of intersecting streets and for placing curbing and for layingdrains abutting such property." (Taken from respondent's argument.)
It will be noted that the provision is to provide payment "for laying drains." There is nothing in the record to show, and it is not claimed, that the drains already there have not been paid for. There are more than three periods of the "Twenty-year presumption of payment" that have expired. The proposition is for payment, and not for repayment.Curtis v. Renneker, 34 S.C. 491; 13 S.E., 664.
The rule that a Statute will never be given such construction (retroactive), unless it is required by express words of the Statute, or must necessarily be implied from such words, is too well settled to need the citation of any authority to support it.
Before the constitutional amendment of 1919 there could have been no assessment of abutting property. The amendment is clearly not retroactive, and the Statute and ordinance need not be considered on this point. The exceptions that raise this question should be sustained.
II. Is it necessary for the voters to know the amount or a maximum amount of the bond issue?
In Dick v. Scarborough, 73 S.C. 154; 53 S.E., 86, the bond issue was sustained because the voters had official knowledge as to the approximate amount of the bond issue. In respondent's argument it is said: *Page 126
"At the time of the submission of this question to the electorate it was impossible to ascertain the exact or maximum amount of bonds to be issued."
The city council itself did not know the amount. The very fact that an election was necessary required that there should be a question to be determined. The amount of the bonds was an essential element of the election. It need not be printed on the ballot, but the voter must know the amount or there was no question to be voted on. The exception that raises this question should be sustained.
III. Was sufficient notice of the assessment given?
In respondent's argument we find:
"There is published in the daily newspaper, which is the official journal of the city, at least four times within fifteen days, notice that the city intends to improve a certain street. After the contract has been let and the assessment roll is made up and filed with the city treasurer, he then gives notice in the same newspaper that the assessment roll is on file in his office and will be there for one week, during which time the property owner can examine the same and file any objections that he might have thereto. If there are no objections filed, or even when objections have been filed, the city treasurer so reports to city council, which by ordinance duly thereafter published confirms or modifies the assessment so filed. Thereafter the abutting property owner has ten days within which to raise objections to the assessment so made, or to contest the same. Each step in the preparation and making of the assessment is fully published."
The record shows that there were 2,800 freeholders. The assessment roll was to be on file one week. It would have been utterly impossible for these 2,800 freeholders to examine the list to see what was the amount of his assessment, and yet we are asked to hold that each of the 2,800 voters is bound. This Court cannot say how long, but the time allowed must be possible. It does not appear that all *Page 127 of the 2,800 were on Meeting Street, but it must appear that this was a reasonable time for inspection.
This objection should also be sustained.
The judgment should be reversed, and the injunctions granted.
MR. JUSTICE WATTS concurs.
ON MOTION FOR MORE DEFINITE DECISION