Powell v. Hargrove

• Decision Date: 16 August 1926
• Docket Number: 12053.
• Citation: 134 S.E. 380,136 S.C. 345
• Parties: POWELL et al. v. HARGROVE et al.
• Court: South Carolina Supreme Court

134 S.E. 380

136 S.C. 345

POWELL et al. v. HARGROVE et al.

No. 12053.

Supreme Court of South Carolina

August 16, 1926

Appeal from Common Pleas Circuit Court of Dillon County; E. C Dennis, Judge.

Suit for injunction by E. L. Powell and others against Mrs. John N. Hargrove and others.From an order discharging a rule to show cause, and dismissing their petition for a restraining order, plaintiffs appealed, and also filed petition in the original jurisdiction of the Supreme Court, asserting additional grounds for relief.Order appealed from affirmed and original petition dismissed.

McColl & Stevenson, of Bennettsville, for appellants.

Gibson & Muller and W. C. Moore, all of Dillon, for respondents.

BLEASE J.

The General Assembly, at the regular session of 1925, passed an act entitled "An act to require the county board of education for Dillon county to divide the county of Dillon into three high school districts, and to provide for the appointment of trustees for said high schools to authorize each of said high school districts to issue bonds to provide high school buildings, and to levy a tax to pay the interest and principal on said bonds, and to levy a tax in each district to pay the expenses of maintaining such high schools, including transportation of high school pupils," which was approved by the Governor on the 30th day of March, 1925.ActNo. 324, 1925;34 Statutes at Large, p. 691.

The plaintiffs, as citizens and taxpayers of Dillon county, and as citizens, taxpayers, patrons, and trustees of certain school districts of that county, brought this suit against the defendants, who are respectively members of the county board of education of Dillon county, the county auditor of that county and the trustees of the high school districts created by the act mentioned, for the purpose of restraining and enjoining the defendants from taking and enjoining the defendants from taking any steps of any kind to put into execution the terms of the act.

Omitting formal allegations, the complaint alleges, briefly, these things:

(1) That the act is unconstitutional because it violates subdivisions 4 and 9 of section 34 of article 3 of the Constitution, forbidding the General Assembly to pass special laws.

(2) That it violates section 5 of article 11 of the Constitution, in that it disregards the constitutional guaranty provided in that section for the division of Dillon county into suitable school districts, by attempting to create and set up over the same territory certain high school districts, which are intended to usurp and destroy the usual and natural functions of the original school districts already created under the authority of the Constitution.

(3) That it violates section 6 of article 11 of the Constitution, in that it interferes with and diminishes the school taxes and the method of apportionment of such taxes, that are guaranteed by the Constitution for the benefit of the original school districts.

(4) That it is contrary to Section 7 of Article 11 of the Constitution, for the reason that no provision is made for a separation of high schools for children of the white and colored races; that no provision is made for the creation of high schools or high school districts for members of the colored race.

(5) That plaintiffs, and other citizens of Dillon county, situated as they are, would be deprived of their property by the terms of the act without due process of law, in that the said act undertakes to vest in certain high school trustees the arbitrary power of determining how expensively the high school districts and high schools shall be operated, and of determining how great shall be the tax levies, and how large the amount of bond issues to be imposed upon the property of the school districts; that no provision is made for any election upon the question of creating such bonded debt.

(6) That the act makes a sudden and drastic change in the fundamental school organization of the county.

Upon the application of the plaintiffs, Hon. E. C. Dennis, circuit judge, issued a rule directed to the defendants, requiring them to show cause before him why the injunction prayed for should not be granted.

The defendants, in their return, denied all the material allegations of the complaint, except formal matters alleged therein.In addition thereto, they took the position that the act is wise legislation, for the reason that it improves greatly the educational facilities of Dillon county, and in the end will result in the economical benefit of the taxpayers.

Upon the hearing of the cause, Judge Dennis adjudged that the return was sufficient and dismissed the petition for the restraining order.From the order of Judge Dennis, the plaintiffs appealed upon numerous exceptions made and referred to hereinafter.

After hearing of the cause in this court, plaintiffs presented a petition asking this court to consider grounds, other than those urged before Judge Dennis, as additional reasons to have the questioned act declared unconstitutional.The defendants have agreed that the court shall pass upon the question raised by this petition in the decision of the cause heard by the circuit judge.In view of the fact that a large number of the citizens of Dillon county are interested in obtaining an early determination of this cause, and for the further reason that the educational interests of Dillon county may be affected by the result of this litigation, this court has decided to hear the petition of the plaintiffs, filed herein, along with the appeal from the order of Judge Dennis.

The petition, in very general terms, attacks the constitutionality of the act of the Legislature on the ground that it also violates the following provisions of the Constitution:

Article 8, § 3, requiring the General Assembly to restrict the power of cities and towns to levy taxes and assessments, to borrow money, and to contract debts and providing that no tax or assessment shall be levied or debt contracted, except in pursuance of law, for public purposes specified by law.

Article 8, § 7, as to bonded indebtedness of municipal corporations.

Article 10, § 5, as to the levying of taxes for corporate purposes and the limitation of bonded debts.

Article 10, § 6, as to the purposes for which taxes may be levied or bonds issued.

Article 10, § 8, requiring that the publication of an accurate statement of the receipts and expenditures of the public money shall be published with the laws of each regular session of the General Assembly.

Article 10, § 11, as to the public debt and issuance of state bonds.

Article 11, § 12, as to the income from sale or licenses for sale or liquors.

Article 10, § 13, as to the assessment for taxes.

In our consideration of the questions before us, we are to be governed, of course, by that principle of constitutional law, that the act under investigation is presumed to be valid, and that this presumption extends to everything in the act and to everything upon which it is based.We are to be guided, too, by that other principle, that this court must sustain the validity of the legislative enactment, if it is possible to do so by any reasonable construction of the Constitution, even though the court might differ with the Legislature as to the propriety of the legislation.Chapman v. Greenville Chamber of Commerce,127 S.C. 173, 120 S.E. 584;Massey v. Glenn,106 S.C. 53, 90 S.E. 321;City of Columbia v. Smith,105 S.C. 353, 89 S.E. 1030;Bradford v. Richardson,111 S.C. 205, 97 S.E. 58.

The position of plaintiffs that the act violates the provisions of section 34 of article 3, in that it is special legislation, has been decided adversely to this contention already by this court, and the holding made heretofore seems to us to be so conclusive on this matter that we think it is only necessary to cite two cases, which sustain our view, namely, Arnette v. Ford,129 S.C. 526, 125 S.E. 138, andWalker v. Bennett,125 S.C. 389, 118 S.E. 779.

The attack made upon the act, that it violates section 5 of article 11, is not tenable either, under the authority of Arnette v. Ford and Walker v. Bennett, supra.The act does not disregard the provisions of that section and article of the Constitution as to division of Dillon county into suitable school districts.To the contrary, in section 10 of the act, it is distinctly provided that the corporate existence and entity of the common school districts of the county shall not in any way be deemed to be impaired or affected.The Constitution, in section 5 of article 11, requires the General Assembly to provide for a liberal system of free public schools for all children between the ages of 6 and 21 years, and for the division of counties into suitable school districts.This direct and positive requirement cannot be held or construed to mean that the General Assembly is thereby denied the right to go further in the establishing of "a liberal system of free public schools" by creating high school districts, for certainly it cannot be gainsaid that "a liberal system of free public schools" would include high schools as well as that class which we term "common schools."

We do not find anything in the act which justifies the statement that it interferes with or diminishes the school taxes or the method of apportionment of such taxes as fixed in section 6 of Article 11.The fact that the common school districts are to remain as formerly established would indicate that such districts will receive hereafter the school taxes which ordinarily, they will be entitled to receive, and that these taxes will be apportioned as required by that section and article of the Constitution.The further fact, that the act provides the manner whereby the high schools are established...