Full opinion text
ORDER HAMILTON, District Judge. Plaintiffs, various utility companies owning approximately ninety percent of the Catawba Nuclear Power Station (Catawba) in York County (York), South Carolina, challenge the constitutionality of a water and sewer district (Water and Sewer District or District) created by the York County Council (County Council or Council). Plaintiffs challenge the constitutionality of S.C.Code Ann. § 4-9-30(5)(b) and the ordinance that created the District under the following provisions of the United States Constitution: (1) due process clause of fifth and fourteenth amendments; (2) takings clause of fifth amendment as incorporated through the due process and equal protection clauses of the fourteenth amendment; and (3) “one man, one vote” principle arising out of the equal protection clause of the fourteenth amendment. The matter is currently before the court upon cross-motions for summary judgment. The factual background giving rise to the instant action is simple and undisputed in all material respects. Apparently at some point in 1981, York citizens and community leaders began to voice the need for improved water and sewer service in the unincorporated areas of the county. During that same year, County Council commissioned a study by B.P. Barber & Associates, Inc., consulting engineers, to determine the water and sewer needs of the county. On November 2, 1982, a countywide referendum was held, the results of which favored providing water service to the unincorporated areas of the county. Although it is disputed whether Council or private citizens initiated certain discussions which occurred between representatives of the City of York and the Town of Clover, two municipalities located in Eastern York, and county officials and residents of Western York, it is clear that such discussions did occur. See York County Council Minutes (Council Minutes), April 2, 1984, para. Ill, September 18, 1985, para. VII, December 2, 1985, para. XI. As a result of these discussions between representatives of the neighboring municipalities and the citizens of the unincorporated areas of York and their elected officials, County Council approved the creation of a committee to study the establishment of a special tax district in Western York on December 16, 1985, and Council members Harold Dickson and Peggy G. Upchurch were appointed to the committee. See Council Minutes, December 16, 1985, para. 4. This committee was called the “Western York County Water Study Committee” (Water Study Committee). Id. Subsequently, County Council was regularly apprised of the Water Study Committee’s progress. Council Minutes, January 20, 1986, para. Ill, February 3, 1986, para. VI, April 8,1986, para. IV. Council also authorized B.P. Barber & Associates, Inc. to update its earlier water study and to assist in the development of a special tax district in Western York. Id. The Water Study Committee created by Council met on January 27, 1986, and, as plaintiffs do not dispute, reviewed a proposed draft ordinance prepared by the York attorney for the creation of a special tax district to be known as the Western York County Water and Sewer District. Klugh affidavit, paras. 9, ll. On June 2, 1986, County Council adopted a resolution endorsing and supporting the creation of the District. Klugh affidavit, Exhibit A. At its meeting on June 25, 1986, County Council accepted a petition signed by approximately 3,300 freeholders in Western York requesting that a special referendum and election be held to determine whether Council should be authorized to enact an ordinance to create the proposed district. Council Minutes, June 25, 1986, para. VI. At the August 18, 1986, Council meeting, representatives of Duke Power Company, one of the plaintiffs in this action, appeared before Council to protest the proposed referendum and election scheduled for September 23, 1986. Duke Power representatives presented Council with a constitutional burdens and benefits analysis, asserting that the proposed method of financing the water and sewer improvements was totally unfair to Duke Power and its customers. Council Minutes, August 18, 1986, para. II. On July 7, 1986, County Council ordered that a special referendum and election be held on September 23, 1986, for the purpose of determining whether the freeholders and electors within the area encompassed by the proposed district favored its creation. The voters were requested to give their opinion on the following questions: 1. Shall a special tax district to be known as the Western York County Water and Sewer District and comprised of approximately 183.6 square miles, the area of and boundaries of which are described in the Notice of Election and appear on the tax map of York County filed in the office of the Assessor of York County, be created in order that water and sewer services may be rendered therein and an annual millage of zero mills be levied in order to provide for the operation and maintenance of the functions of said special tax district, such operation and maintenance to be financed instead by service charge and/or user fees, in addition to ad valorem taxes levied to pay the debt incurred by the issuance of general obligation bonds for such special tax district? 2. Shall the York County Council be empowered to issue and sell, either as a single issue, or from time to time as several separate issues, general obligation bonds for Western York County and Water and Sewer District not exceeding $22 Million which will be paid from the levy and collection of ad valorem taxes without limit as to rate or amount on all taxable property located solely within that area of York County which is the Western York County Water and Sewer District, whose proceeds shall be applied to defray the cost of constructing a water treatment and distribution system? The special referendum and election was held as scheduled, and the dual ballot box arrangement prescribed by § 4-9-30(b)(5), a section of a comprehensive South Carolina statute commonly known as the Home Rule Act, was utilized. A majority of both classes of voters entitled to vote, the electors and the freeholders, answered the two questions submitted in the affirmative by margins exceeding sixty percent. Thereafter, Council duly considered and enacted an ordinance creating the District as approved by both classes of voters. On October 6, 1986, Council gave first reading to the ordinance creating the District. Council Minutes, October 6, 1986, para. XIII. The second reading of the proposed ordinance occurred on October 20, 1986, at which time Council decided to hold a public hearing on the proposed ordinance prior to its meeting scheduled for November 10, 1986. Council Minutes, October 20, 1986, para. X. At the November 10, 1986, public hearing, plaintiffs’ counsel appeared and opposed the subject ordinance. Council subsequently unanimously approved the ordinance and plaintiffs brought the current action seeking the following relief: (1) a declaration that § 4-9-30 is unconstitutional; (2) a declaration that the ordinance creating the District is unconstitutional; and (3) a permanent injunction against creation of the District. The Water and Sewer District itself, which contains about 183.6 square miles, lies south of Charlotte, North Carolina, and immediately to the west of the 1-77 corridor. It includes a substantial portion of the western shoreline of Lake Wylie. Affidavit of Michael B. Burkhold, para. 8. The Lake Wylie shoreline is a principal area of development to be served by the District. Id., paras. 6, 10, 11, and 13. The District’s western border follows the North Carolina state border as it cuts through Lake Wylie and continues that line through the lake. The District includes 54.9 miles of the lake’s western shoreline. Id., para. 7. The proposed water intake and water treatment facility for the District, which constitute the District’s hub, is to be located on the western shore of Lake Wylie near Catawba. Id., para. 11. Catawba is located on the neck of a peninsula of land on the western shore of Lake Wylie well within District boundaries. Residences to be served by the system are located all around Catawba, which is located 31.7 miles along the shoreline from the most northeastern point of the shore in the District and about 19.2 miles along the shoreline from the most southeastern point of the shoreline not contained in the District. Id., para. 12. The nearest land which is not part of the District is 1.5 miles away to the southeast near Newport. Id. In support of their motion for summary judgment, defendants contend that res judi-cata requires dismissal of this action due to resolution of a related state court action in their favor. Alternatively, defendants submit that plaintiffs lack standing to attack § 4-9-30(5) on equal protection grounds because plaintiffs are freeholders and because both freeholders and electors voted overwhelmingly for the Water and Sewer District. Defendants also assert that the ordinance creating the District does not violate plaintiffs’ due process rights or the “one man, one vote” principle embodied in the equal protection clause of the fourteenth amendment. Finally, defendants argue that the tax burden imposed upon plaintiffs’ property under the ordinance does not violate the takings clause of the fifth amendment as applied to the states through the fourteenth amendment as a matter of law. Plaintiffs seek summary judgment on three alternative grounds. First, plaintiffs contend that § 4-9-30(5)(b) is unconstitutional as a matter of law because it violates the due process clause of the fifth and fourteenth amendments. Plaintiffs submit that this statutory provision is constitutionally defective because it allegedly permits a special tax district to be created by private citizens without providing for review of the propriety of its boundaries by a legislatively-authorized tribunal having the power to determine whether property included within the district should be so included. Plaintiffs also contend that the dual ballot box voting scheme codified in § 4-9-30(5)(b) creates a property-based classification that violates the equal protection clause of the fourteenth amendment. Specifically, plaintiffs argue that requiring the freeholders to approve the proposed district, in addition to the electors, could potentially dilute the votes of electors and thus violates the “one man, one vote” principle enunciated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362,12 L.Ed.2d 506 (1964). Plaintiffs also submit that the ad valorem tax imposed upon their property by the subject ordinance amounts to a confiscatory taking of their property in violation of the fifth and fourteenth amendments. Although defendants have moved for summary judgment on all of plaintiffs’ causes of action, plaintiffs initially contended that summary judgment was not appropriate on their second cause of action. Plaintiffs’ rationale for excluding the takings clause claim from the summary judgment process was two-fold. First, plaintiffs argued, and defendants did not dispute, that the ad valorem valuations of property located within the proposed district were out of date. Second, plaintiffs contended that the county had not determined the precise level of taxation plaintiffs’ property would bear under the proposed ad valorem schedule. Accordingly, plaintiffs submitted that an issue of fact existed which precluded judgment as a matter of law on their second claim for relief. On August 14, 1989, the court held a hearing in this matter, at which time the parties agreed that plaintiffs’ property would bear at least the majority, and possibly up to ninety percent, of the tax burden necessary to finance the Water and Sewer District. The court ordered defendants to determine the exact proportion of the cost plaintiffs would bear under the tax and to submit this information to the court and serve it upon plaintiffs by September 5, 1989. Subsequently, on August 15, 1989, the parties were directed to submit additional briefs on the issue of whether summary judgment should be granted on plaintiffs’ second cause of action, and were also told to assume, for purposes of their briefs, that the burden imposed on plaintiffs’ property would fall between the two parameters stated hereinabove. Pursuant to the court’s direction, defendants have determined the current ad valo-rem valuation for all real property located within the District. According to Isaiah Boyd, York County Auditor, the total assessed value of all taxable real property located within the District for the 1989 tax year is $278,902,472.00. The total assessed value of Catawba is $221,897,870.00, or 79.5611% of the total assessed value of all real property located within the District. The total assessed value of plaintiffs’ interest in Catawba, excluding the interest of Saluda, is $198,643,460.00, or 71.2233% of the total District-wide assessment. Each of the individual plaintiffs’ respective share of the total assessed value of all property located within the District is as follows: Duke Power Company, $17,390,380.00, or 6.2353%; North Carolina Membership Corporation, $68,336,140.00, or 24.5018%; North Carolina Municipal Power Agency Number One, $83,537,570.00, or 29.9523%; and Piedmont Municipal Power Agency, $29,379,370.00, or 10.5339%. Supplemental Affidavit of Isaiah Boyd, paras. 3-7. Neil J. Keane, Treasurer and Finance Director of plaintiff Piedmont Municipal Power Agency, states that a tax of seven mills, the maximum assessment permissible under the subject ordinance, would result in an annual tax of $1,628,655.76 upon Catawba. The annual tax burden on plaintiffs, excluding Saluda, would equal $1,457,-189.02. Declaration of Neil J. Keane, paras. 1, 3. Because the precise burden which plaintiffs’ property will bear under the subject ordinance has now been determined, and because no material facts relevant to this claim otherwise remain in dispute, all parties and this court agree that summary judgment is the appropriate vehicle for resolution of all three of plaintiffs’ claims for relief. Letter from Jane W. Trinkley to the court (September 6, 1989). Accordingly, the respective motions for summary judgment are now ripe for disposition, which necessitates a discussion of the following issues: (I) whether res judicata bars plaintiffs’ suit in its entirety based on the judgment rendered in favor of defendants in the parallel State proceeding; (II) whether § 4-9-30(5)(b) violates plaintiffs’ right to due process of law under the fourteenth amendment; (III) whether plaintiffs have standing to assert an equal protection challenge to the referendum and election held September 23, 1986, and the procedures governing such referendum and election contained in § 4-9-30; and (IV) whether defendants’ legislative determination to finance the proposed water and sewer improvements through imposition of ad valo-rem taxes upon the real property located within the District, including plaintiffs’ property, constitutes a palpably discriminatory and wholly arbitrary confiscatory taking of plaintiffs’ property in violation of the fifth and fourteenth amendments. I. Res Judicata: Defendants contend that res judicata precludes the present action because (1) the related state court action was dismissed in favor of the same defendants, (2) that action involved the same subject matter as the present suit, and (3) plaintiffs could have raised their federal constitutional arguments in that suit. Plaintiffs contend, however, that res judicata does not bar this action because the state court action did not involve the same issues, or, alternatively, because defendants waived their right to assert res judicata by consenting to plaintiffs splitting their cause of action between the state and federal courts. Under the Full Faith and Credit Clause, Article IV, Section I of the U.S. Constitution, “a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984). See also 28 U.S.C. § 1738. The preclusive effect of the state court judgment is thus determined by South Carolina law. Under South Carolina law “[t]he essential elements of res judicata are identity of parties, identity of subject matter and adjudication in a former suit. A litigant is barred from raising any issue which was adjudicated in the former suit and all issues which could have been raised in the former suit.” Ford v. Watson, 282 S.C. 66, 69, 316 S.E.2d 429, 431 (App.1984) (emphasis added) (citations omitted). The only element of the res judicata formula seriously disputed in the present case is whether both suits involve the same subject matter. Although a strong argument can be made that res judicata might otherwise bar the present action, this court nevertheless finds that defendants consented to plaintiffs splitting their cause of action between federal and state court and thus waived any defense predicated on the doctrine of res judicata. It is generally recognized that the rule against splitting a cause of action is primarily for the benefit of the defendant, and that he or she may permit plaintiff to split the cause of action. Significantly, if the court determines that defendant has expressly or implicitly consented to the splitting of the cause of action, defendant is held to have waived the right to assert res judicata. Annotation, 40 A.L.R.3d, 108, 111 (1971). See Restatement (second) of Judgments § 26(l)(a) 1982. Calderon Rosado v. General Electric Circuit Breakers, Inc., 805 F.2d 1085 (1st Cir.1986). It is also universally recognized that a defendant asked to defend two lawsuits alleging the same cause of action waives the right to object to the litigation of both actions if he or she does not protest at the earliest possible time. See Southern Stock Fire Insurance Company v. Raleigh, Charlotte & Southern Railway Company, 179 N.C. 290, 293, 102 S.E. 504, 505 (1920); Diversified Mortgage Investors v. Viking General Corporation, 16 Mass.App. 142, 450 N.E.2d 176 (1983). Under South Carolina law the owner of a single cause of action is prohibited from either dividing or splitting that cause of action in order to make it the subject of several causes of action “unless the party against whom the cause of action exists consents thereto.” Nunnery v. Brantley Construction Company, Inc., 289 S.C. 205, 345 S.E.2d 740, 743 (App.1986). Defendants’ argument that res judi-cata bars the present action suffers from two fatal flaws. First, defendants have waited too long to assert res judicata, and, in addition, they have impliedly, and perhaps explicitly, consented to plaintiffs’ decision to split their cause of action between state and federal court. Although plaintiffs filed their state and federal complaints on the same day, defendants did not raise any objection to either suit in their present answer or in the state court action. In addition, eight months after both suits had been filed and after judgment had been rendered in the state action, defendants again failed to raise this issue and urged this court to grant plaintiffs’ motion to stay. Perhaps most important, the transcript of the hearing held on August 7, 1987, reveals that defendants consented to plaintiffs’ motion to stay this action with the understanding that if plaintiffs’ suit in State court was ultimately unsuccessful, they could return to this court to litigate their constitutional challenges to creation of the District. See Transcript, Civil Action No. 86-2911, August 7, 1987. Indeed, the motion to stay was predicated on the concept that the parties would return to this court for litigation of the federal constitutional claims only if necessary after resolution of the pending state action. Defendants thus waived any objection to plaintiffs’ federal suit by consenting to an arrangement whereby plaintiffs could return to this court to litigate their constitutional claims should their state suit ultimately prove unsuccessful. Accordingly, res judicata does not bar the present suit. II. Due Process: Plaintiffs apparently contend that § 4 — 9—30(5)(b) denies them due process of law because, according to plaintiffs, it permits a particular group of private citizens to determine what property will be included within a special district, and provides no procedure whereby landowners within the proposed district are given an opportunity to have their objections heard by a tribunal which has been legislatively-authorized to consider whether their property will be benefited (ie., a “benefits” hearing). Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330 (1926). Specifically, plaintiffs note that § 4-9-30(5)(b) provides that a referendum and election “shall be held” whenever fifteen percent of the freeholders in a proposed district sign a petition requesting its creation. Furthermore, the statute directs that the “district shall be created by council ordinance if the referendum and election are passed by a majority of electors and freeholders.” Plaintiffs contend that County Council had no discretion in this process to determine which property should be included within the District, and that due process requires that a benefits hearing be held pursuant to statute before a tribunal which has the authority to alter the boundaries of the proposed district. Plaintiffs assert that no such entity had authority to alter the boundaries of the district proposed by the petitioning freeholders, and thus that this statutory scheme violates their due process rights. Defendants, on the other hand, argue that § 4-9-30 must be presumed to be constitutional and must be liberally construed to grant powers to county governments. Defendants concede that use of the word “shall” in the statute is not particularly artful, but nevertheless argue that it connotes only that certain acts must occur before a special tax district can be created. In other words, defendants argue that whenever “shall” is used in the statute, it merely connotes a necessary prerequisite to formation of a valid district, and does not eliminate all discretion from the process. Defendants further contend that South Carolina law is particularly adamant that statutes be interpreted in a manner that preserves their constitutionality. Defendants finally contend that County Council in fact reviewed the proposed district boundaries, and that adoption of plaintiffs’ construction of § 4-9-30 would lead to absurd results. It is uniformly recognized that due process is a flexible concept which requires only “such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). See Mathews v. Eldridge, 424 U.S. 319, 332-35, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); United States v. Charters, 863 F.2d 302, 306-07 (4th Cir.1988); Harrison v. United States Postal Service, 840 F.2d 1149, 1153-55 (4th Cir.1988). Contrary to plaintiffs’ assertion, however, it is quite evident that plaintiffs were not entitled to notice and an opportunity to be heard, at least not in the sense required by Browning v. Hooper, supra. In Hancock v. City of Muskogee, 250 U.S. 454, 39 S.Ct. 528, 63 L.Ed. 1081 (1919), owners of realty sought to enjoin defendants, a municipality and certain of its officials, from encumbering their lands with a special assessment necessary to finance a sewer improvement district. Rejecting plaintiffs’ contention that they were entitled to notice and opportunity to be heard at some stage of the local legislative proceedings, the Court concluded that plaintiffs were not entitled to a hearing or an opportunity to be heard because the full legislative power over the issue of local taxation had been conferred by the State legislature upon the municipal defendant and its officials. Id. at 459, 39 S.Ct. at 530. Under these circumstances, the Court reasoned, the line of decisions which, like Browning v. Hooper, supra, had required notice and opportunity to be heard, were distinguishable. Unlike the delegation of authority by the legislature in those cases, where the question of benefits had been delegated to some “inferior tribunal with administrative or quasi-judicial ” authority, the legislative determination by a local legislative body was held to constitute the equivalent of state legislative action. Id. (emphasis added). Consequently, the Court concluded that local government’s determination on the question of benefits was conclusive absent an actual abuse of power. Id. Similarly, § 4-9-30, a provision of the comprehensive Home Rule Act, clearly vests county governments such as County Council with certain enumerated legislative powers. See § 4-9-120 (“council shall take legislative action by ordinance”) (emphasis added); North Charleston Land Corporation v. City of North Charleston, 281 S.C. 470, 474, 316 S.E.2d 137, 139 (1984) (“[a]n ordinance is a legislative enactment and is presumed to be constitutional”) (emphasis added). Additionally, the South Carolina legislature has vested the respective county governments with full authority over the assessment of local ad valorem taxes under § 4-9-30. Because Council determined the benefits question in the exercise of its legislative discretion, like the municipal defendant in Hancock, plaintiffs’ contention that § 4-9-30 denies them due process of law because they were allegedly not afforded an opportunity to be heard on the benefits question is without merit. Alternatively, assuming that Browning v. Hooper, supra, controls the disposition of this action, the statutory process codified at § 4-9-30(5), and incorporated into the Home Rule Act, satisfies fourteenth amendment due process if: (1) the statutory process itself requires a hearing before a legislatively-authorized tribunal with authority to reject or alter a palpably discriminatory district; and (2) affected landowners were in fact afforded a benefits hearing in the present case. Section 4-9-30 (emphasis added) provides in pertinent part: § 4-9-30. Designation of powers under each alternative form of government except board of commissioners form. ... each county government within the authority granted by the Constitution and subject to the general law of this State shall have the following enumerated powers which shall be exercised by the respective governing bodies thereof: (5) to assess property and levy ad valo-rem property taxes and uniform service charges ... and make appropriations for functions and operations of the county, including, but not limited to, appropriations for general public works, including roads, drainage, and other public works; water treatment and distribution; sewage collection and treatment; ... provided, however, that prior to the creation of any special tax district for the purposes enumerated herein, one of the following procedures shall be required: (b) When fifteen percent of the freeholders in a proposed special tax district sign a petition requesting the creation of such a district, a referendum and election shall be held. Separate boxes shall be maintained to receive the votes of the freeholders voting in the referendum and those of the electors voting in the election. A majority of electors voting and a majority of the freeholders voting in the proposed special tax district shall approve the creation of that district, the nature of the services to be rendered and the maximum level of the taxes authorized to be levied.... ... [where] the result is favorable for creation of a special tax district, such district shall be created by council ordinance. ... Although § 4-9-30 does not incorporate a hearing provision, that section, as already indicated, is part of the comprehensive Home Rule Act. Section 4-9-30 is incorporated in Chapter 9 of the South Carolina Statutes Annotated, entitled “County Government,” and more specifically, is incorporated into Article I of Chapter 9, entitled “General Provisions.” The substantive provisions of Article I delegate legislative authority from the State legislature to county governments for various governmental functions of substantial local interest, but do not individually contain hearing provisions. Nevertheless, two provisions intended to satisfy procedural due process protections are incorporated into this Article, which require several public meetings and a public hearing before routine legislative action can be taken by County Council. Specifically, §§ 4-9-120 and 4-9-130 require three noticed public meetings and at least one public hearing before County Council, among other things, can enact an ordinance to levy taxes. Precisely because no substantive provisions are incorporated into either of these procedural sections, it is apparent that these provisions were intended to operate in conjunction with the substantive provisions also contained in the same Article of this comprehensive statute, and thus are triggered by certain actions of County Council under Article I. It is clear, therefore, that § 4-9-30, as part of the comprehensive statutory scheme codified in Chapter 9, Article I of the South Carolina Code, does require a noticed public hearing to afford affected parties an opportunity to be heard — before taxes can be levied by ordinance. Although § 4-9-30(5) provides that a special tax district “shall be created by a council ordinance” upon passage of the referendum, it is nonetheless clear that county government does retain discretion to alter the boundaries of a district proposed by the freeholders, or, alternatively, to refuse to create the district altogether. While the South Carolina Supreme Court has generally held the word “shall” to be mandatory in regard to customary ministerial government action conducted pursuant to statute, see Horry County v. City of Myrtle Beach, 288 S.C.App. 412, 419, 343 S.E.2d 36, 38-40 (1986), cert. dismissed, 293 S.C. 456, 361 S.E.2d 615 (1987) (“shall” and “must” held mandatory for notice and publication requirements inherent with ordinance enactment), South Carolina Department of Highways and Public Transportation v. Dickinson, 288 S.C. 189, 341 S.E.2d 134, 135-36 (1986) (term “shall” was mandatory and required hearing to be held within specified twenty (20) day period although time period seemed to be unreasonably short), it has apparently not addressed the question of whether the term “shall” is mandatory where the government action at issue is inherently discretionary or legislative in nature. Under long-standing principles of law, courts are required to give statutory terms a permissive meaning where the apparent literal meaning would require ignoring the legislative intent and defeating the spirit or purpose of the statute, see Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892), where a permissive interpretation is necessary to uphold the constitutionality of an act, Des Moines v. Manhatten Oil Co., 193 Iowa 1096, 184 N.W. 823 (1921), or where the term’s use in relation to other parts of the statute evinces a permissive interpretation. West Wisconsin R. Co. v. Foley, 94 U.S. (4 Otto) 100, 103, 24 L.Ed. 71 (1876). As stated in 73 Am.Jur.2d Statutes § 25 (emphasis added) (footnotes omitted): [t]here are cases in which words of a statute, which are generally regarded as mandatory, are nevertheless given a directory or permissive meaning, in order to give effect to the legislative intent. Thus, a legislative intention that the word “shall” is to be construed as permissive may appear from the spirit or purpose of the act, or from the connection in which it is used or the relation into which it is put with other parts of the same statute. It is particularly true that the word “shall” in a statute may be held to be not mandatory, where such a construction is necessary to uphold the constitutionality of the statute.... Likewise, the present case gives rise to factors supporting the invocation of each of these exceptions to the general rule of practice that “shall” be construed as mandatory. First, it is clear, as previously stated, that the Home Rule Act grants enumerated legislative powers to county legislative bodies. See §§ 4-9-30, 4-9-120 (“council shall take legislative action by ordinance”) (emphasis added); North Charleston Land Corp., 281 S.C. at 474, 316 S.E.2d at 139. The legislative process is inherently discretionary, and, significantly, the Home Rule Act contains no provision serving to unconditionally abrogate or restrict exercise of the customary level of deliberation and discretion normally associated with the legislative process — at least other than the apparent inadvertent use of the term “shall” in § 4-9-30(5). In addition to this textual failure to repudiate or limit the exercise of legislative discretion normally exercised by county government under South Carolina law, the Act also contains several provisions which serve to affirmatively reinforce the conclusion that county government retains discretion throughout the special tax district creation process. Specifically, § 4-9-30(5) vests county council, and not private citizens, with the sole legislative authority to assess taxes, and provides that voter approval is a mere condition precedent to exercise of that authority. Interestingly, the term “shall” is also used within this provision in regard to voting. Section 4-9-30(5)(b), the provision utilized in the present case to satisfy the voter approval condition precedent, provides that “[a] majority of electors voting and a majority of the freeholders voting in the proposed special tax district shall approve the creation of that district_” (emphasis added). If the term “shall” was intended to be mandatory in this provision, then voters would apparently have no choice but to approve the proposed district. Evidently the term “shall,” as used in § 4-9-30(5), was intended by the State legislature to signify only that several distinct steps must take place before a special tax district can be created in the discretion of county government. In short, § 4-9-30(5) gives a two-step process for creation of special tax districts. First, a condition precedent to council consideration is voter approval under one of three alternative procedures, see § 4-9-30(5)(a)-(c). Second, if the district is approved by the voters, county council must still legislatively create the district through passage of an ordinance. As already indicated, § 4-9-120 provides that the passage of an ordinance under the Home Rule Act constitutes legislative action. See North Charleston Land Corp., 281 S.C. at 474, 316 S.E.2d at 139 (“[a]n ordinance is a legislative enactment and is presumed to be constitutional”) (emphasis added). Thus, county legislative bodies necessarily retain inherent discretionary authority to vary the boundaries of the proposed district, or, to refuse to pass an ordinance creating the district altogether. Indeed, the requirement that county council pass an ordinance to create a proposed special tax district would be rendered an exercise in futility if, as plaintiffs contend, it was required to enact an ordinance to create the exact district proposed by the petitioning freeholders and approved in the referendum and/or election. It can be reasonably assumed, however, that the legislature intended local legislative bodies to serve as a check against arbitrary, unsound, or possibly unconstitutional citizen initiatives by virtue of its inclusion of § 4-9-30(5)’s requirement that county council pass an ordinance creating the proposed district notwithstanding voter approval. Consequently, voter approval of a proposed special tax district under § 4-9-30(5) is a mere condition precedent to council’s jurisdiction to consider enactment of an authorizing ordinance, and, significantly, was not intended to eliminate council’s discretionary role in the process. Additionally, adoption of plaintiffs’ interpretation of the Home Rule Act, rather than vest county government with enhanced legislative power, the stated intent of the Act, would instead render county government hostage to the actions of their own constituents. While an unduly narrow view of § 4-9-30 might colorably support this view, consideration of the Home Rule Act as a whole serves to refute this strained interpretation of that provision. Accordingly, the court concludes that §§ 4-9-120 and 4-9-130 grant affected parties an adequate opportunity to be heard on the question of benefits as an integral part of the tax district creation process under the Home Rule Act, and that county legislative bodies such as Council retain discretion to refuse to enact an ordinance necessary to create a district approved by the voters or, alternatively, to alter the boundaries of the proposed district. It is also clear that County Council in fact exercised this grant of discretion in the present case. Although plaintiffs argue that a group of private citizens determined District boundaries and then submitted the material to County Council, the uncontradicted evidence of record shows that Council was involved in the process to create the District almost from its inception. As already indicated, Council initially sponsored studies by the engineering firm of B.P. Barber & Associates, Inc. to determine the water and sewer needs of the county. These studies revealed that the area now comprising the District was in need of a centralized water supply system. Burkhold Affidavit, paras. 3-5. In addition, the record reveals that certain Council members actually served on the Water Study Committee, and regularly reported on its progress to County Council. See Council Minutes, December 16, 1985, para. IV, January 20,1986, para. Ill, February 3, 1986, para. VI. Indeed, the York county attorney even drafted the proposed ordinance that designated the boundary lines for the District. Id., February 3, 1986, para. VI. It was the boundaries established by this draft that were eventually adopted and incorporated into the freeholder petition presented to County Council. In summary, it is clear that Council publicly supported creation of the District and was the initiating and guiding force behind the entire process. Members of Council were intimately involved in the process leading to creation of the District, and Council exercised discretion in passing the resolution calling for the referendum and election, and in adopting the ordinance creating the District. Accordingly, plaintiffs’ due process challenge to the comprehensive statutory process used to afford voters a role in determining the level and amount of new taxes to be imposed as well as its challenge to the ordinance creating the Water and Sewer District must be rejected by the court. The court also finds that the procedural due process protections conferred upon plaintiffs by County Council pursuant to §§ 4-9-120 and 4-9-130 were sufficient as a matter of law — even if, as plaintiffs contend, that the principles of Browning v. Hooper control disposition of the present case. Of course, the mere fact that the county did not actually alter the boundaries of the proposed district does not, standing alone, indicate that County Council had no potential discretionary authority should alterations have become necessary in their judgment. Rather, the focus must necessarily center on whether plaintiffs were afforded an opportunity to state whether they thought their properties would be benefited by inclusion within the proposed district, and whether Council could have altered such boundaries in the exercise of their discretion. At the August 18, 1986, meeting of County Council, representatives of Duke Power Company, one of the plaintiffs in this action, appeared before Council to protest the proposed referendum and election scheduled for September 23, 1986. Duke Power representatives presented Council with a constitutional burdens and benefits analysis, asserting that the financing method of the proposed water and sewer district was totally unfair to Duke Power and its customers. Council Minutes, August 28, 1986, para. II. At the October 6, 1986, Council meeting, the subject ordinance was unanimously given its first reading in accordance with § 4-9-120. Id,., October 6, 1986, para. XIII. The minutes of the October 20, 1986, meeting of County Council indicate that Council voted unanimously to give the second reading to the ordinance, as required by § 4-9-120, and also agreed to hold a noticed public hearing, as required by § 4-9-130, on November 10, 1986. Id., October 20, 1986, para. X. Significantly, at the November 10, 1986, hearing, representatives of the plaintiffs appeared and opposed the creation of the District. The plaintiffs were therefore afforded the opportunity to oppose the creation of the District and the Council was apparently unmoved by their presentation. Plaintiffs contend that Browning v. Hooper, supra, controls the instant action. Upon the petition of 50 resident voters of any county under the statutory scheme at issue in Browning v. Hooper, the Court stated that it was the “duty” of the commissioners’ court to order an election in the district as described in the petition. Moreover, if two-thirds of the votes cast were in favor of the proposition, the commissioners’ court, a nonlegislative body, was “required” to issue and sell the bonds for the exact district proposed by the voters. Id. 269 U.S. at 401, 46 S.Ct. at 142. The Court noted that the legislature did not levy the tax, and that the duties of the commissioners’ court were purely ministerial. Perhaps most important, the appellants in Browning v. Hooper were not afforded any opportunity to be heard on the question of whether their properties would be benefited by inclusion within the proposed special tax district. Unlike in Browning v. Hooper, where affected landowners were deprived of any opportunity to be heard, the plaintiffs here, along with any other interested parties, were afforded three public meetings and a public hearing, all of which were required by statute, to state their opposition to the proposed ordinance. See §§ 4-9-120, 4-9-130. Significantly, this hearing was held prior to council’s legislative enactment of the ordinance which created the District, as required by the procedural protections contained in §§ 4-9-120 and 4-9-130. In addition, whereas the Browning v. Hooper Court noted that the duties of the commissioners’ court were purely ministerial, specifically, that the commissioners’ court was “required” to issue and sell the proposed bonds, legislative approval of an ordinance to finance the present District was necessary under § 4-9-30(5). Indeed, the District approved by the electors and freeholders was of no force and effect unless and until County Council enacted an ordinance to (1) create the district; and (2) levy taxes necessary to finance the local improvements authorized. As a result, the due process objections that rendered the statutory process in Browning v. Hooper invalid are not implicated here. First, under the Home Rule Act, local legislative bodies, and not private citizens, are vested with the authority to levy taxes sufficient to finance local improvements. See § 4-9-30. The statute provides that “council shall take legislative action by ordinance,” § 4-9-120, and the State Supreme Court has determined that an ordinance enacted by county council is the equivalent of a statute under State law. North Charleston Land Corporation, 281 S.C. at 474, 316 S.E.2d at 139. Thus, a legislative body must approve creation of the district proposed by the voters, and must also approve any taxes required to fund necessary improvements. Section 4-9-30’s requirement that County Council legislatively approve the proposed district, as well as any taxes required to fund local improvements authorized thereby, is wholly distinguishable from the ministerial role of the commissioners’ court, which of course, unlike County Council presently, did not ordinarily exercise legislative discretion, and, perhaps more importantly, was not expressly vested with such discretion under the statutory process at issue there. In contrast, County Council, as a legislative body, ordinarily exercised legislative discretion, and necessarily retained authority by virtue of the provisions of the Home Rule Act which grant increased powers to county government. As a result, Council retained authority to alter the boundaries proposed by the voters, or, alternatively, in the exercise of its legislative discretion, could refuse to enact the ordinance altogether — for any reason or no reason at all. “[I]t is essential to due process of law that [affected landowners] be given notice and opportunity to be heard,” Browning v. Hooper, 269 U.S. at 406, 46 S.Ct. at 143, and it is clear that plaintiffs were in fact afforded such an opportunity. Accordingly, the plaintiffs have been afforded their rights under the due process clause of the fourteenth Amendment, and the procedures utilized to create the District pursuant to § 4-9-30(5)(b) do not offend due process of law. III. Standing to Assert “One Man, One Vote” Claim: Plaintiffs contend that the dual ballot box procedure required by § 4-9-30(5)(b) and used by York officials to conduct the September 23, 1986, referendum and election violates the “one man, one vote” principle announced in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and thus violates the equal protection clause. In support of this assertion, plaintiffs contend that the property owners, through the exercise of their franchise, could potentially frustrate the will of the electors by failing to approve a proposed tax district by a majority vote. Plaintiffs submit that this procedure facially and, as applied, violates the equal protection clause. Plaintiffs also argue that they possess standing to attack this procedure because, if the assessment under the ordinance is levied, they will suffer injury from increased taxation and, in addition, because they assert their injury is judicially remediable. Defendants contend, however, that plaintiffs, as freeholders, lack standing to assert any constitutional injury allegedly suffered by the class of electors. In other words, defendants contend that plaintiffs do not have standing to assert the rights of a third party. The court finds that the plaintiffs lack standing to assert the rights of an effectively adverse entity, the electors. The jus-ticiability aspect of standing requires that plaintiffs (1) have a personal stake in the outcome of the controversy (injury in fact), and (2) that their injury be judicially remediable. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); Duke Power Company v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72-73, 98 S.Ct. 2620, 2630-31, 57 L.Ed.2d 595 (1978). Obviously, plaintiffs satisfy this initial aspect of the standing inquiry. First, if ad valorem taxes are levied pursuant to the subject ordinance, the plaintiffs will inevitably be required to pay a substantial share of this burden. Thus, plaintiffs have demonstrated that they have a sufficient personal stake in the outcome of this dispute. Second, if the procedures used to create the district were deemed unconstitutional, this court’s remedial powers could be invoked to redress any injury. The justiciability aspect of the standing doctrine, however, does not end the inquiry where a party attempts to assert the rights of a third party. “Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953). Although a party may suffer direct and substantial injury from the application of the challenged statute, the Barrows Court declared that he or she nevertheless cannot challenge its constitutionality unless the party shows it is within the class of persons whose constitutional rights were allegedly infringed. Id. at 256, 73 S.Ct. at 1035. In support of this assertion, the Court noted that when actually faced with the question, the state court might narrowly construe the statute to obliterate the objectionable feature, or might declare the unconstitutional provisions separable. Id. The Court also noted that it would be undesirable for federal courts to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. Accordingly, the court stated that the “salutory rule” precluding a party from asserting jus tertii should only be disregarded where “outweighed by the need to protect the fundamental rights” of the third party. Id. In United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), the Court determined it had no jurisdiction to pronounce any State statute void “because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.” Id. at 21, 80 S.Ct. at 522. As a corollary to this rule, the Court concluded that third party standing did not exist unless the facts of the case gave rise to an unconstitutional application. As stated by the Court: [kjindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. Id. In support of this principle, the Court noted that judicial review should be exercised sparingly, citing Marbury v. Madison, 1 Cranch 137, 177-80, 2 L.Ed. 60 (1803). Thus, as already stated, the Court deemed it undesirable “to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” 362 U.S. at 21, 80 S.Ct. at 523. The Court concluded that statutes should not be pronounced unconstitutional “with reference to hypothetical cases thus imagined.” Id. Nevertheless, the Court listed certain exceptions to this “rule of practice,” but noted that these exceptions were only implicated where weighty countervailing policies had been recognized. Id. The Court has more recently reaffirmed this principle in several contexts. See, e.g., Pennell v. City of San Jose, 485 U.S. 1,108 S.Ct. 849, 99 L.Ed.2d 1 (1988); Hodel v. Virginia Surface Mining Reclamation Association, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Singleton v. Wulff 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). In light of these precedents, it is clear that the plaintiff power companies, as freeholders, do not have standing to assert the rights of the electors unless weighty policy considerations outweigh the well-established rule of practice against assertions of jus tertii. Application of these principles to the present case reveals that no such weighty considerations exist. Initially, it must be noted that no injury was suffered by the electors in the present case. In the line of cases beginning with Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and including Kramer v. Union Free School District Number Fifteen, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970), Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975), and Hayward v. Clay, 573 F.2d 187 (4th Cir.), cert. denied, 439 U.S. 959, 99 S.Ct. 363, 58 L.Ed.2d 351 (1978), the freeholders, as a separate voting block, had actually diluted the voting power of the electors by effectively vetoing and frustrating the will of the majority of the citizens in their respective tax districts. In the present case, however, the majority of the electors, the allegedly injured party, approved creation of the District by an overwhelming majority. In addition, a majority of the freeholders approved creation of the District, again by an overwhelming margin. Presumably the plaintiffs exercised their right to vote as freeholders. Now the plaintiffs seek to assert that allowing the freeholders to vote was unconstitutional. As an initial matter, as previously stated, it is clear that no injury was suffered by the electors in the present case. The electors voted to approve the process, and now the plaintiffs seek to frustrate the will of the majority by asserting the rights of an uninjured party, the electors. As is quite apparent, the interests of the class of electors and the plaintiffs presently are not at all harmonious, but rather are essentially adverse. To allow the plaintiffs to assert the rights of an uninjured third party with basically adverse interests would hardly present an ideal case or controversy for adjudication by this court. Perhaps most important, plaintiffs have failed to show that any exception to the rule against assertions of jus tertii exists on the present facts. First, no claim of first amendment overbreadth is alleged by the plaintiffs. See Massachusetts v. Oaks, — U.S. —, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). Second, there is no allegation that if the electors themselves had been injured, they could not effectively assert their rights under the statute. See Barrows, supra. Third, plaintiffs have presented this court with no overriding policy interest which would justify ignoring the well-established rule of practice against assertions of jus tertii repeatedly emphasized by the Supreme Court. Accordingly, this court finds that plaintiffs lack standing to assert the rights of an uninjured third party with adverse interests. IV. Confiscatory Taking: Primarily relying upon the burdens and benefits analysis enunciated in Myles Salt Company v. Board of Commissioners, 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392 (1916) and Thomas v. Kansas City Southern Railway Company, 261 U.S. 481, 43 S.Ct. 440, 67 L.Ed. 758 (1923), plaintiffs contend that the ad valorem tax imposed by the subject ordinance violates the fifth and fourteenth amendments because it results in such a flagrant and palpable inequality between the burden imposed and the benefit received as to effectively amount to the confiscatory taking of their property without just compensation. More particularly, although acknowledging that there is generally no requirement that the benefit conferred be equal to the burden imposed, plaintiffs nevertheless assert that the critical question is whether the burden imposed so far outweighs the benefit received as to amount to an unconstitutional burden upon their property. Although plaintiffs concede that indirect benefits may sometimes justify a special assessment, they also argue that vague speculation of indirect benefits will not justify an assessment which imposes a burden manifestly unequal to that imposed on other property owners. Asserting that special benefits are those conferred upon the property in addition to those received by the community-at-large, plaintiffs allege that they will bear approximately seventy-one percent of the cost of the Western York County Water and Sewer System, yet will not receive any direct benefit because they have installed, and maintain at their own expense, private water and sewer facilities for Catawba. Plaintiffs also allege that County Council did not rely on, and defendants have failed to present, any evidence which shows that the construction of the proposed facilities will confer any of the benefits to plaintiffs’ property asserted by Council. Consequently, plaintiffs maintain that any benefits derived from construction of these facilities will accrue to York as a whole, and apparently not only to property located within the District. In addition to the alleged severe burden imposed, plaintiffs also contend that Council’s actions in creating the District were wholly arbitrary and capricious. First, plaintiffs allege that County Council did not conduct any benefits and burdens analysis. Second, plaintiffs assert that Council members consistently relied upon benefits which will inure to the entire county — yet failed to identify any special benefit that will accrue to plaintiffs’ property. Finally, plaintiffs contend that at least one Council member implicitly acknowledged that a key consideration in the chosen method of financing the District was the allegedly great burden which would ultimately be borne by Catawba. Plaintiffs thus urge this court to find that Council’s actions in creating the District were arbitrary and capricious and designed to take advantage of the enormous taxes which could be generated by Catawba. In support of this contention, plaintiffs submit that the tax sought to be imposed is a special assessment. Plaintiffs argue that a great distinction exists between general taxes and special assessments; namely, unlike a general tax, a special assessment must return some benefit to the assessed property in order to pass constitutional muster. Additionally, plaintiffs assert that public policy also justifies the distinction between general taxes and special assessments. Specifically, plaintiffs reason that if the taxing jurisdiction has the ability to levy a disproportionately high tax on some property above and beyond the encumbrance levied on other property, that fairness requires the return of some corresponding benefit. In the present case plaintiffs allege that four facts compel the conclusion that the creation of the District was an arbitrary exercise of legislative power in violation of the fourteenth amendment: (1) Catawba is the single most valuable piece of property in the District; (2) selection of the ad valo-rem method of taxation as the sole basis to finance the proposed Water and Sewer District; (3) neither County Council nor the Water Study Committee allegedly made any comparison of the benefits and the burdens, despite knowledge that Catawba would bear the lion’s share of the tax burden; and (4) the only possible benefit to Catawba from the District is indirect, speculative, and general, as compared to the direct, immediate and certain benefits which will accrue to other property owners in the District. Plaintiffs seek to illustrate this alleged gross disparity by a comparison of the burden to be borne by an average homeowner whose property is valued at $50,000.00 and that of the plaintiffs’ property. The average homeowner would incur an annual tax of $14.00, whereas Catawba would bear an annual tax of approximately $1,628,655.00. Although plaintiffs argue that federal courts should ordinarily defer to state legislative enactments and presume that land included within a special tax district will receive a benefit that justifies the burden imposed, they nonetheless contend that the legislature’s discretion to create a special tax district is not unlimited and that this presumption does not control in the face of plainly arbitrary action. Plaintiffs thus urge this court to strike down this particular assessment on grounds that it violates the fifth and fourteenth amendments. Asserting plaintiffs shoulder the burden of proving that the tax assessment at issue violates the Constitution, defendants submit that the objectively applied, uniform ad valorem tax imposed by the subject ordinance violates the fifth and fourteenth amendments only if the legislative determination which led to its assessment was palpably discriminatory or a plain abuse of governmental taxing power. While defendants concede that plaintiffs’ property is extremely valuable, and thus would bear a large portion of the cost, defendants nevertheless assert that this factor alone is not sufficient to necessitate the exclusion of plaintiffs’ property from assessments necessary to finance a public imp