Moseley v. Welch

• Decision Date: 20 November 1950
• Docket Number: 16433.
• Citation: 62 S.E.2d 313,218 S.C. 242
• Parties: MOSELEY v. WELCH et al. STATE ex rel. MOSELEY et al. v. WELCH et al.
• Court: South Carolina Supreme Court

62 S.E.2d 313

218 S.C. 242

MOSELEY v. WELCH et al.

STATE ex rel. MOSELEY et al. v. WELCH et al.

No. 16433.

Supreme Court of South Carolina.

November 20, 1950

[Copyrighted Material Omitted]

Connor & Connor, Kingstree, Samuel Want, Darlington, for appellants.

Edward W. Cantwell, Kingstree, Henry E. Davis, Florence for respondents.

OXNER, Justice.

The history of the litigation leading up to this appeal is succinctly stated in the following agreed statement:

'The original action in this matter was commenced in September, 1946, by the plaintiffs above named as two taxpayers and freeholders residing in Salters School District No. 32 against the members of the County Board of Education for Williamsburg County and the then trustees of Salters School District No 32, for the purpose of requiring said defendants to reopen the grammar school in Salters, S. C., which had been previously closed, and to enjoin the transfer of white grammar school pupils from Salters School District No. 32 to Kingstree School District No. 16. On November 18, 1946, Judge M. M. Mann issued the first decree in the case ordering the trustees of Salters School District to open and maintain the grammar school in Salters, and further directed the County Board of Education to cooperate with the trustees of the Salters School District in carrying out said order. No appeal was taken from the order of Judge Mann.

'In compliance with Judge Mann's order, a white grammar school was reopened in Salters at the beginning of the school year 1947-1948. The sufficiency of the said school is somewhat disputed, but that particular issue is not involved in this appeal. Some of the patrons of the Salters School District, after the school was reopened at Salters, continued to send their children to the Kingstree School. An additional action was brought in the matter in August, 1947, in which the same petitioners asked that the order of Judge Mann be carried into effect, and also that the defendants be enjoined from consolidating Salters School District No. 32 with Kingstree School District No. 16. On this matter Judge Martin handed down his order dated December 20, 1947, in which he held that the action to enjoin the consolidation of the school districts was prematurely brought, and dismissed this action, but held that the order of Judge Mann dated November 18, 1946, was still in effect and was res adjudicata as to all issues covered thereby and binding on all present defendants. The order of Judge Martin was not appealed from. In September, 1948, another action was brought in the same case by the same plaintiffs to further enforce the order of Judge Mann and to hold the defendants in contempt in not complying with said order. This petition was heard before Judge Greneker and he, in effect, held that the orders of Judge Mann and Judge Martin, having cata.

'The action from which this appeal stems was commenced on September 26, 1949, in which the petitioners pray that T. J. Appleby, the present Superintendent of Education, be made a party to the action; that the County Board of Education and the acting trustees of Salters School District No. 32 be required to account for all funds alleged to have been illegally diverted and misused; that the County Board of Education and the County Superintendent of Education be enjoined from transferring to any other school district any white pupils of grammar school age residing in Salters School District No. 32, and also from furnishing at public expense transportation to other school districts; and that the members of the County Board of Education and the Superintendent of Education be enjoined from paying out any public funds by way of attorneys' fees or other expenses of litigation, and to further enforce Judge Mann's order and orders subsequent thereto.

'The intervenors, who are the only appellants here, intervened in this action, alleging that they were residents of Salters School District No. 32 and that they owned property, and paid taxes in Kingstree School District No. 16, and under authority of Section 5346 of the 1942 Code of Laws of South Carolina, that they were entitled to send their children to the school of either school district. An agreement was entered into between the attorneys for the petitioner and the attorneys for the respondents in the Court below, other than the intervenors, settling all of the issues in the case except the issue of whether or not the intervenors had a right to send their children to the schools of Kingstree, School District No. 16, and have furnished for them transportation at public expense; therefore, this was the only issue before the Court. The matter was argued before his Honor, Judge William H. Grimball, at the 1949 Fall term of Common Pleas Court for Williamsburg County.

'Judge Grimball handed down his order dated December 12, 1949, holding that the order of Judge Mann was res adjudicata as regards the intervenors and that the fifth proviso of Section 5346 of the Code of Laws for 1942 was unconstitutional, and further ordered that the intervenors be required to educate their children of grammar school age in School District No. 32, commencing with the beginning of the school term in 1950-51. From this decree of Judge Grimball's this appeal is taken.'

It might be well to supplement the foregoing facts by stating that the closing of the Salters School resulted from the adoption by Williamsburg County of the 'County Unit Plan' of education. Act No. 502 of the Acts of 1944, 43 St. at L. 1368. The constitutionality of this legislation was promptly challenged but it was finally determined that while certain parts of the Act were invalid, the general scheme was free from constitutional objections. Moseley v. Welch, 209 S.C. 19, 39 S.E.2d 133.

As heretofore pointed out, all issues involved in this lengthy litigation have been settled except the question of whether the intervenors, appellants on this appeal, who reside in Salters School District No. 32 but who own real estate in Kingstree School District No. 16, have a right to send their children to the schools of the latter district and to use bus transportation furnished at public expense. They claim that they are entitled to this privilege under the following proviso contained in Section 5346 of the 1942 Code: 'Provided, however, that when either parent, the guardian or other person having in charge any pupil and maintain any such pupil at his home, shall own and pay tax on any property in a school district adjoining that in which any such person and pupil reside, such pupil may be enrolled either in the district in which he resides, or in any such adjoining district, without being required to pay tuition fee or other operating expenses and shall be entitled to all of the privileges of such school as if he resided in such school district. Provided, this law shall not apply to Clarendon County or Barnwell County. Provided, Richland County is exempted from the provisions of this section. Provided, further, that the provisions of the two preceding provisos shall not apply to Spartanburg County.'

Respondents contend, and the Court below held, that the exemption of certain counties has the effect of rendering the foregoing provision unconstitutional as denying due process of law and the equal protection of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution and Article 1, Section 5 of our State Constitution. This contention is apparently based on the claim that this provision unjustly discriminates against residents of the counties that are excluded. We pass over the question of whether those who live in a non-exempt county are in a position to challenge the constitutionality of this legislation on the ground now asserted. It should be further stated that no attack is made on this provision upon the ground that it constitutes special legislation of the sort prohibited by Article 3, Section 34 of the State Constitution. We shall, therefore, confine our consideration solely to the question of whether this provision constitutes a denial of the constitutional guaranty of due process of law and equal protection of laws.

It was long ago decided that this constitutional guaranty 'does not require territorial uniformity'. Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 715, 58 L.Ed. 1231. 'The Fourteenth Amendment does not prohibit legislation merely because it is special, or limited in its application to a particular geographical or political subdivision of the state.' Ft. Smith Light & Traction Co. v. Board of Improvement of Paving District No. 16 of City of Ft. Smith, 274 U.S. 387, 47 S.Ct. 595, 597, 71 L.Ed. 1112. 'In the absence of restrictions contained in state constitutions the legislature may determine within broad limits whether particular laws shall extend to the whole state or be limited in their operation to particular portions of the state. All that the Federal Constitution requires is that they shall be general in their application within the territory in which they operate.' 12 Am.Jur., Constitutional Law, Section 488, page 167. It is only necessary that there be a reasonable basis for the limitation or differentiation and that all persons similarly situated in the same territory are treated alike. 16 C.J.S., Constitutional Law, § 506. In State v. Berlin, 21 S.C. 292, the Court quoted with approval the following: 'To make a statute a public law of general obligation, it is not necessary that it should be equally applicable to all parts of the state; all that is required is, that it shall apply equally to all persons within the territorial limits described in the act.'

It is our conclusion that the Court below erred in holding that the proviso in...