Walker v. Bennett

• Decision Date: 26 July 1923
• Docket Number: 11283.
• Parties: WALKER ET AL. v. BENNETT ET AL., TRUSTEES OF PARKER SCHOOL DISTRICT No. 8A.
• Court: South Carolina Supreme Court

118 S.E. 779

125 S.C. 389

WALKER ET AL. v. BENNETT ET AL., TRUSTEES OF PARKER SCHOOL DISTRICT No. 8A.

No. 11283.

Supreme Court of South Carolina

July 26, 1923

Original proceeding for a permanent injunction in the original jurisdiction of the Supreme Court, by A. C. Walker and others against T. M. Bennett and others, Trustees of Parker School District No. 8A. Injunction denied.

Marion J., dissenting.

Hodges & Leatherwood, of Greenville, for plaintiffs.

Martin & Blythe, of Greenville, for defendants.

COTHRAN J.

This is a proceeding, in the original jurisdiction of the court instituted by the plaintiffs, an taxpayers and residents of the county of Greenville and of the territory embraced within the limits of the so-called Parker School district No. 8A for an injunction, restraining the defendants, as trustees of said school district, from issuing and selling a certain issue of school bonds in the amount of $300,000.

Prior to the passage of Act February 17, 1923, hereinafter more particularly defined, there were, in the territory just outside the limits of the city of Greenville, the following separate school districts: Union No. 8A; Sam-Poe No. 8B; Mills-Dunean No. 8C; West Greenville No. 8D, and City View No. 8E.

Extensive plans have been developed by the citizens interested for the improvement of the school facilities in this territory; they involve the consolidation of the five school districts named into one school district, with a centralized control.

Accordingly on February 17, 1923, an act was passed by the General Assembly, purporting to effect the desired consolidation, incorporating the new school district and defining the powers and duties of the board of trustees, among which are the powers of school districts generally, under the statute, to issue bonds.

After the approval of the act referred to, the board of trustees, upon petition duly signed by one-third of the qualified electors and one-third of the resident freeholders within said territory, proceeded to order an election upon the question of the issuance of bonds in the sum of $300,000 for school purposes; at that election the votes cast were 231 for, and 6 against, the bonds. Thereafter the result of the election was declared and the bonds authorized to be issued. After advertisement for bids, that of Stacey and Braun of Toledo, Ohio, was accepted for par, plus a premium of $1,800.

Before the bonds were issued or delivered, this action was instituted. The objections urged by the plaintiffs to the validity of the proposed issue of bonds are:

(1) That the act of 1923 is an attempt to incorporate a school district, in contravention of the Constitution, art. 3, § 34, subd. 4.

(2) That the Act is in contravention of the Constitution, article 3, § 17, which requires that every act shall relate to but one subject, and that shall be expressed in the title.

(3) That there are now outstanding against school district 8E, one of the constituent districts, bonds to the amount of $24,000: that that is the debt of the constituent district and not of the consolidated district; and that the issue of the new bonds will create an excess of the debt of school district 8E, over 15 per centum, and over 8 per centum of the assessed valuation of its property, in contravention of the Constitution, art. 10, § 5.

As to the first objection: The constitutional provision is as follows:

"The General Assembly of this state shall not enact local or special laws concerning any of the following subjects or for any of the following purposes, to wit:

I. * * *

II. * * *

III. * * *

IV. To incorporate School Districts."

The main object of the act of 1923, as plainly appears upon its face, was to consolidate the five school districts into one. The Constitution contains no delegation of power to the General Assembly in reference to the consolidation of school districts and no limitation of its power in reference thereto; and consequently its powers in regard thereto are referable to the reservoir of general powers, except when limited by the Constitution. Consolidation is not incorporation, and an inhibition against incorporation should not apply to consolidation.

Section 1738 of volume 1, Code of Laws A. D. 1912, authorizes county boards of education to consolidate school districts upon certain conditions, and the act of 1923 specifically directing the consolidation of these particular school districts, may be regarded as an amendment to section 1738, a special provision in a general law, permitted by the Constitution.

The fact that the act of 1923 attempts to incorporate the new district does not at all make the act one of incorporation, for the necessary result of a consolidation, either by the county board of education, as authorized by section 1738, or by the act of 1923, is the incorporation of the new district so consolidated. So much of the act of 1923 as purports to incorporate the new district is therefore superfluous.

There is certainly as much difference between incorporation and consolidation, as there is between incorporation and amendment, and it has been held in the case of State v. McCaw, 77 S.C. 351, 58 S.E. 145, that an amendment to the act incorporating a school district does not come within the inhibition of the Constitution. It appears in that case that the school district of Yorkville was created by a special act in December, 1888, prior to the Constitution of 1895 containing the inhibition under discussion. In February 1907, an act (25 St. at Large, p. 731) was passed providing for a material extension of the school district and that the new district "be declared a separate school district, and to be known as the school district of Yorkville." Objection was made that the act was violative of the contitutional provision in question, but the court held:

"Nor is it repugnant to subdivision V [now IV] of that section, as the statute does not incorporate the school district, but is in effect, only an amendment of a previous statute of incorporation."

So in the case of Burriss v. Brock, 95 S.C. 104, 79 S.E. 193. The act of 1895 (prior to the Constitution) created a special school district of the city of Anderson. The act of 1913 enlarged it by annexing certain adjacent territory beyond the corporate limits, and provided for the issuance of bonds. The same objection to the act was interposed, but the court, in line with the McCaw Case and State v. Brock, 66 S.C. 357, 44 S.E. 931, held that the amendment did not constitute the incorporation of a new school district, although, as a matter of fact, a new district was created; the creation of the new district being simply an incident of the valid exercise of the legislative power of amendment.

In the case of Columbia v. Smith, 105 S.C. 348, 89 S.E. 1028, the court quotes with approval the following from the McCaw Case:

"A statute, therefore, which could be enacted as a special provision in a general law will not be declared unconstitutional merely because it is in form a separate act, but will be regarded as an amendment of the general law upon the subject."

And in Grocery Co. v. Burnet, 61 S.C. 205, 39 S.E. 381, 58 L. R. A. 687, it is said:

"If it be competent for the Legislature, while enacting a general law, to enact special provisions therein, it is also competent to enact similar special provisions."

So here, section 1738 is a general law covering the matter of consolidation, and the act of 1923, although a separate act applying to this particular school district, may, in the matter of their consolidation, be deemed an amendment to section 1738.

As to the second objection: The title of the act declares the purpose to be the establishment of a new school district. One recognized method of establishing a new district is by the consolidation of two or more districts, and for this ample and specific provision is made in the body of the act. As is said in Lillard v. Melton, 103 S.C. 10, 87 S.E. 421:

"When the general subject is expressed in the title of a statute, any details of legislation as to means, methods or instrumentalities to facilitate the accomplishment of the general purpose and germane to it, may be embraced in the body of the Act without violating article III, § 17, of the state Constitution."

See, also, Furman v. Willimon, 105 S.C. 159, 90 S.E. 700; Brownlee v. Brock, 107 S.C. 230, 92 S.E. 477.

As to the third objection: It is conceded, without going into the details of the figures, that, if the outstanding bonded debt of school district 8E ($24,000) continues after the consolidation to be the debt of that school district, the proposed issue of bonds will exceed the constitutional limit, so far as this district is concerned; but otherwise not.

When the consolidation district was formed, the inevitable result of the formation was to destroy the existence of the five constituent school districts in so far as owning separate property and owing separate debts was concerned. The purpose of the act was to unite the territory under one school management, which necessarily required that management to exercise control of all the properties of the constituent districts and make the consolidated district the unit for the purpose of owning property, holding assets, paying liabilities and providing unified system of instruction. In 24 R. C. L. p. 567, the rule is stated:

"In case of the abolition of the old district and the formation of new districts out of its territory, the new districts are deemed the successors of the old, and as such liable for all its debts and entitled to all of its property."

The above rule is stated practically the same way in 35 Cyc. 851.

It was held in Folsom v. Ninety Six Township, 159 U.S. 611 16 S.Ct. 174, 40 L.Ed. 278, that, where a township...