Allen v. Adams

• Decision Date: 27 May 1903
• Citation: 44 S.E. 938,66 S.C. 344
• Parties: ALLEN v. ADAMS, Mayor, et al.
• Court: South Carolina Supreme Court

44 S.E. 938

66 S.C. 344

ALLEN v. ADAMS, Mayor, et al.

Supreme Court of South Carolina

May 27, 1903

Petition in the original jurisdiction of the court by J. H. Allen for injunction against the town council of Edgefield, to restrain them from issuing bonds for the erection of a school building. Dismissed.

The amended petition is as follows:

"First. That your petitioner is a citizen of the county of Edgefield, in the said state, and is a resident and taxpayer in the town of Edgefield, situate in said county and state.

Second. That W. W. Adams is the mayor of the said town of Edgefield, and the following names compose the board of aldermen: J. P. Ouzts, B. J. Crooker, E. H. Folk, C. E. May M. P. Wells, and J. L. Caughman.

Third. That your petitioner is informed and avers that the said mayor and aldermen, constituting the town council of the said town of Edgefield, have resolved to issue bonds of the said town in the aggregate in the sum of $15,000, payable thirty years after the date thereof, with interest at the rate of five per cent. per annum, payable semiannually, for the purpose of building a schoolhouse within the corporate limits of said town.

Fourth. Your petitioner alleges that the said mayor and aldermen constituting the said town council are without authority of law to issue such bonds, for the reason that the purpose for which said bonds are to be issued is neither a public purpose nor a corporate purpose; that there is no authority of law for the said town council to enjoy or exercise any control over the schools in said town, and the said town council is without authority to incur the expenses incident to the erection of a school building which is to be managed and controlled without the interference or co-operation or supervision of the authorities of the said town. That is to say, your petitioner alleges that the said school building which the said town council proposes to erect by the proceeds of the sale of the bonds mentioned in paragraph 3 thereof is to be erected on a lot of land situate within the corporate limits of the said town of Edgefield, which was conveyed by one Eldred Simkins, Sr., on the 10th day of July, 1825, to Edmond Bacon, Whitfield Brooks, Matthew Mims, John S. Jeter, and Eldred Simkins trustees of the Edgefield Village Academy, and to their successors in office, with the following limitations expressed in said deed, to wit: 'To have and to hold all and singular the premises before mentioned unto the said trustees and their successors in office for the express purpose of being used and employed by them as a site for a seat of learning or an academy, to them and their successors and assigns forever.' Your petitioner alleges that he is informed and believes that ever since the execution of said deed, and unto the present time, there has been maintained upon said lot a building for the educational uses of said town by the said board of trustees and their successors in office; that it is said to be believed that the building now on said lot is inadequate to the uses of the town for such educational purposes; and that therefore the said town council proposes to erect a building thereon for said purposes at the cost of about $15,000, which said sum is to be raised by the issuance and sale of the bonds hereinabove mentioned. Your petitioner alleges that he is informed and believes that the building so to be erected upon said lot is to be managed and controlled by the said board of trustees, and that the said mayor and aldermen, as he is informed and believes, will not have the direction of the management of the said institution; on the contrary, that the said institution of learning is to be managed and controlled by the existing board of trustees, being the successors of the board of trustees mentioned in the said deed of July 10 1825.

Fifth. Your petitioner is informed and avers that the said town council claims to possess the power to issue said bonds by authority of the provisions of section 18 of an act of the General Assembly of the said state entitled 'An act to provide for the incorporation of towns of not less than one thousand nor more than five thousand inhabitants,' approved the fifth day of March, 1896; but in reference thereto your petitioner avers that the said town of Edgefield has never been incorporated under the provisions of said act, and has never become invested of the privileges, powers, and immunities prescribed thereby.

Sixth. Your petitioner further alleges that the petition addressed to the said town council, praying that an election might be ordered for the purpose of determining whether or not bonds should be issued for such purpose, was not signed by a majority of the freeholders of said town, as required by law, and that the notice issued by the said town council that an election would be held for the purpose of determining whether or not such bonds should be issued was not published for the time required by law, and that the result of such election did not authorize the issuance of such bonds.

Seventh. Wherefore your petitioner prays that the said mayor and aldermen may be restrained and perpetually enjoined from signing, sealing, and issuing such bonds in accordance with their resolution so to do, and that the process of this court may forthwith issue, directed to the said mayor and aldermen, requiring them to show cause, on a day to be appointed, why they should not be restrained and perpetually enjoined from issuing such bonds, and that in the meantime an order may be issued by this honorable court preventing and restraining them from issuing such bonds until the further order of this court; and your petitioner, as in duty bound, will ever pray."

To the rule issued on said petition the following return was filed:

"Now come W. W. Adams, J. P. Ouzts, B. J. Crooker, E. H Folk, C. E. May, M. P. Wells, and J. L. Caughman, mayor and aldermen, constituting the town council in and for the town of Edgefield, and, for return to the rule to show cause why the prayer of the petition herein should not be granted, respectfully show unto the court:

First. That they admit the allegations made by and contained in paragraphs 1, 2, and 3 of the petition.

Second. That they deny the allegation in paragraph 4 of the petition that they 'are without authority of law to issue such bonds, for the reason that the purpose for which said bonds are to be issued is neither of public purpose nor a corporate purpose.' On the contrary, these respondents aver that they are authorized by the law of the state in such case made and provided to issue said bonds. In reference to which these respondents respectfully show unto the court that in and by the provisions of section 2021 of the Code of Laws of South Carolina (1902) it is provided: 'It shall be the duty of the municipal authorities of any incorporated city or town of this state, upon the petition of a majority of the freeholders of said city or town, as shown by its tax books, to order a special election in any such city or town for the purpose of issuing such bonds, for the purchasing, repairing or improving the city or town hall, or park or grounds thereof, market and guard house, enlarging, extending or establishing electric light plants or other lights, or water works, or sewerage, erecting, repairing or altering school buildings, fire protection purposes, improvement of streets and sidewalks, or any corporate purpose set forth in said petition;' the only proviso in said section being 'that the aggregate bond indebtedness of any city or town shall never exceed eight per cent. of the assessed value of the taxable property therein.' These respondents further show that, in and by section 18 of an act of the General Assembly of said state (22 St. at Large, p. 73) entitled 'An act to provide for the incorporation of towns of not less than one thousand nor more than five thousand inhabitants,' it is provided that 'said town council shall have power to borrow money for corporate purposes, and to issue from time to time as occasion may require the bonds of the corporation for the payment of the principal, of

which said town shall be at all times responsible'; the proviso in said section being that no such bond debt shall in any instance exceed the limit prescribed in the Constitution of this state, and that no bond debt shall be issued except upon the vote of the citizens of the municipality as provided in the Constitution. These respondents allege, with reference to the said proviso in said section 2021, that the aggregate bonded indebtedness of the said town of Edgefield, including the bonds mentioned in the petition herein, does not equal, much less exceed, eight per cent. of the assessed value of the taxable property therein; and these respondents allege, in reference to the proviso in said section 18, that the bonds which they now propose to issue have been authorized by a vote of the citizens of the municipality as provided in the Constitution. Wherefore, these respondents submit that it is not true, as stated in paragraph 4 of the petition, that they are without authority of law to issue said bonds, and that the statement in said paragraph 'that there is no authority of law for the said town council to enjoy or exercise any control over the schools in said town' is immaterial, if it be true.

Third. The statement in paragraph 5 of the petition is true, as set forth in the next preceding paragraph hereof, that these respondents claim 'to possess the power to issue said bonds by authority of the provisions of section 18' of the act therein mentioned; but these respondents deny the averment of said paragraph 'that the said town of Edgefield has never been incorporated under the provisions of said act.' In reference to which these

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