Ex parte Florence School

• Citation: 20 S.E. 794,43 S.C. 11
• Parties: Ex parte BOARD OF COM'RS OF FLORENCE GRADED SCHOOLS In re McDUFFIE, School Commissioner.
• Decision Date: 08 January 1895
• Court: United States State Supreme Court of South Carolina

20 S.E. 794

43 S.C. 11

Ex parte BOARD OF COM'RS OF FLORENCE GRADED SCHOOLS In re McDUFFIE, School Commissioner.

Supreme Court of South Carolina

January 8, 1895

Appeal from common pleas circuit court of Florence county; D. A Townsend, Judge.

Petition by the board of commissioners of the Florence Graded Schools against D. McDuffie, School commissioner. There was a judgment for defendant, and petitioners appeal. Affirmed.

McNeill & Hursey, for appellants.

W. F Clayton, for respondent.

McIVER C.J.

This was an application for a mandamus addressed to his honor Judge Townsend. The petition alleges, in its first paragraph that the persons therein named "constitute the board of commissioners of the Florence Graded Schools, created by an act of the general assembly entitled 'An act to provide for the establishment of a new school district in the [then] county of Darlington, and to authorize the levy and collection of a local tax therein,' approved December 24 1883, and an act amendatory thereof, approved January 4, 1894." In the second paragraph the allegations are as follows: "That D. McDuffie is the school commissioner of the county of Florence, and as such has under his control the sum of two hundred and nineteen and 60-100 dollars, being a balance of the constitutional tax and poll tax apportioned according to law to said school district, and which has been long since subject to his warrant for the benefit of said school district; and although demands have been made upon the said D. McDuffie, school commissioner as aforesaid, for the warrant in accordance with your petitioners' rights in the premises, he refused and still refuses to issue the said warrant." The prayer of the petition is that a writ of mandamus may issue requiring the said D. McDuffie, as school commissioner of Florence county, to issue his warrant for the payment of the sum of $219.60 to your petitioners for the purposes set forth. The respondent, in his return, admits the allegations contained in the first paragraph of the petition, but he denies all of the allegations contained in the second paragraph of the petition, except so much thereof as alleges that he is school commissioner of Florence county. The respondent, as a further reason why the writ prayed for should not issue, alleges "that the Florence Graded Schools, as organized and managed by the petitioners, are not public schools, within the contemplation of the constitution of the state of South Carolina and the acts of the legislature passed in pursuance thereof"; for he alleges that if the acts of the general assembly above referred to, to wit, the act of 1883 and the amendatory act approved 4th January, 1894, confer upon the petitioners the authority claimed and exercised, the same are in conflict with the constitution, especially sections 4 and 10 of article 10 of that instrument. Respondent also submits certain affidavits, copies of which are set out in the "case," tending to show that the board of commissioners of the Florence Graded Schools require the payment of tuition fees, except from those unable to pay the same. Upon these papers, thus briefly stated, the case was heard by the circuit judge, who, after argument, "ordered that the writ of mandamus prayed for be refused, for the reason that the act of the legislature incorporating the graded schools makes them pay schools, inasmuch as it empowers the commissioners to impose a tuition fee on each pupil. Whether they exercise this power or not does not alter the case; it is the power vested in them by the act which determines the character or kind of the school. This is contrary to the spirit of the free-school system, provided for by the constitution. Under that system, as I understand it, the schools are open to all, without restriction, until the free-school fund is exhausted. The two-mill constitutional tax can only be used for the maintenance of free public schools, and the school commissioner has no legal authority to apply it for any other purpose. Return shows that fees are charged in this school as authorized by the acts."

From this judgment the petitioners have appealed upon the several grounds set out in the record, which, under the view we take of the case, it will not be necessary to state. While we concur in the conclusion reached by the circuit judge, that the prayer for a writ of mandamus should be refused, we do not agree with him in the grounds upon which he rested his conclusion. There are, at least, two reasons why the mandamus should have been...