Middleton v. Littlejohn

• Decision Date: 21 January 1936
• Docket Number: 14212.
• Citation: 183 S.E. 593,179 S.C. 88
• Parties: MIDDLETON v. LITTLEJOHN et al.
• Court: South Carolina Supreme Court

183 S.E. 593

179 S.C. 88

MIDDLETON v. LITTLEJOHN et al.

No. 14212.

Supreme Court of South Carolina

January 21, 1936

Controversy without action between B. W. Middleton, petitioner, and N.H Littlejohn and others, constituting the Board of Trustees of School District No. 10 of Cherokee County, respondents.

Permanent injunction granted.

R. W Dobson, of Gaffney, for petitioner.

C. E Saint-Amand, Jr., and Hall, Vassy & Hall, all of Gaffney, for respondents.

STABLER Chief Justice.

This is a controversy without action submitted under section 668 of the Code of 1932. The petitioner, a resident taxpayer of school district No. 10 of Cherokee county, seeks to have the respondents, the constituted board of trustees, permanently enjoined from issuing certain bonds, the proceeds of which are to be used in the construction of a school building. The agreed case contains the following facts upon which the controversy depends: In 1923, an amendment to section 5 of article 10 of the Constitution was ratified (33 Stat. at Large, p. 4), whereby it was provided: "That the limitations imposed by this section shall not apply to School District No. 10, Cherokee County, such school district being hereby expressly authorized to vote bonds to an amount not exceeding $300,000.00, the proceeds of such bonds to be applied solely for school purposes in said district, under such restrictions and limitations as the General Assembly may prescribe, and where the question of incurring such indebtedness is submitted to the qualified electors of said school district, as provided in the Constitution upon the question of bonded indebtedness."

Pursuant to this amendment, the Legislature passed an act in 1923 (33 Stat. at Large, p. 567), authorizing and empowering the trustees of school district No. 10 of Cherokee county to issue and sell, for the purposes named in the statute, coupon bonds of the district in an amount not to exceed $300,000, provided a majority of the qualified electors of the district, at an election held to determine the question, should vote in favor of the issuance of such bonds. It was also provided, among other things, that the bonds should mature as follows: "Ten thousand thereof ten years from their date and ten thousand each year thereafter until all of said bonds have been retired and paid in full." Section 5, p. 568. Thereafter, under date of April 1, 1923, bonds of the district in the sum of $300,000 were issued and sold; and those of the issue maturing in 1933, 1934, and 1935, aggregating $30,000, have been paid, leaving outstanding a bonded indebtedness of $270,000. The assessed valuation of property for taxation in the district is $3,159,458. The present bonded debt, therefore, while less than that authorized by the amendment of 1923, is in excess of the 8 per cent. constitutional limitation.

In July, 1935, more than one-third of the resident freeholders of the age of twenty-one years and more than one-third of the resident electors of the district presented their signed petition to the board of trustees asking that an election be called for the purpose of submitting to the voters of the district the question of the issuance of bonds in the sum of $30,000; the proceeds of same to be used as above indicated. The election was ordered, and the trustees, in pursuance of the result thereof, have sold and are about to issue and deliver bonds in the amount named, "the said bonds having maturities of fifteen hundred ($1,500.00) dollars the first day of October in each of the years 1936 to 1955, inclusive."

The petitioner makes the following contentions: (1) That no bonds can be issued except as authorized by the act of 1923, and as the authority conferred by that act has been exercised in full, the district is now without any power at all to issue additional bonds, although its bonded indebtedness is less than the limit fixed by the constitutional amendment; (2) that the Legislature having prescribed the restrictions and limitations authorized by the amendment, bonds cannot be issued under the general law, but only, if at all, under authority of additional legislation supplementing the act of 1923.

This amendment was considered by the court in Smith v. Littlejohn et al., 151 S.C. 137, 148 S.E. 719, 720. The question there was whether it raised the percentage of the limitation to which the school district might issue bonds-that is to say, to an amount not exceeding the sum of $300,000 in addition to the 8 per cent. limitation.

The court said:

"It is obviously clear that under the original provisions of section 5 of article 10 of the Constitution, school district No. 10 of Cherokee county could not issue any bonded indebtedness which exceeded 8 per centum of the assessed value of all the taxable property therein. It is evident, too, that the purpose of the General Assembly, and the people of the state, was to change that constitutional provision in so far as that particular school district was concerned.

The intention of the change sought to be made must be gathered from the language used in the amendment of 1923. The first thing stated in that amendment is 'that the limitations imposed by' section 5 of article 10 "shall not apply to School District No. 10, Cherokee County. * * *' Undoubtedly, if the amendment had stopped there, all the limitations found in section 5 of article 10 would have...