Opinion
13091
March 13, 1931.
Before RAMAGE, J., Lexington, September, 1930. Affirmed.
Action by J.W. Riser and others on behalf of all the citizens of Brookland School District No. 29, Lexington County, against John W. Blume and others as Trustees of Brookland School District No. 29, Lexington County. Decree for defendants and plaintiffs appeal.
The constitutional amendment involved, and the decree of the lower Court, were as follows:
CONSTITUTIONAL AMENDMENTBy Act No. 6, Acts of the General Assembly of South Carolina, 1929, page 4, ratifying an amendment to Section 5, Article 10, of the Constitution, the following proviso is added to said Article and Section, to wit:
"Provided, further, That the limitations as proposed by this Section shall not apply to School District No. 29, of Lexington County, South Carolina, said School District being hereby authorized to issue additional bonds in an amount not exceeding fifteen (15%) per cent. of the valuation of the assessable property in said school district, and that the question of incurring said indebtedness be submitted to the qualified electors of said school district as provided in the Constitution upon the question of bonded indebtedness."
Act Providing for Issue of Bonds in School District Number 29, and Providing for Election ThereonAct No. 1046, at page 1900, Acts of 1930, provides:
"Section 1. Brookland School District No. 29, Lexington County, to Issue Bonds. — Be it enacted by the General Assembly of the State of South Carolina: That for the purpose of acquiring sites for school buildings, repairing, improving, constructing, erecting, establishing, furnishing and equipping school buildings, the Board of Trustees of Brookland School District No. 29 of Lexington County, the State of South Carolina, is hereby authorized to issue serial bonds of said School District in the aggregate principal amount not exceeding One Hundred Thousand ($100,000.00) Dollars, payable to bearer and in such denominations as said Board may determine, bearing interest at a rate not exceeding six (6%) per annum payable semi-annually."
Sections 2 and 3 provide terms of bonds and that they shall be binding obligations of School District No. 29.
"§ 4. Trustees to Order Election to Determine Whether or Nor Bonds are to Issued — Election. — That for the purpose of determining whether or not the said bonds shall be issued as provided in Section 1 hereof, said Trustees of said School District shall order an election to be held at such place or places in said School District as may be designated by the said Trustees, at which election only the qualified voters residing in said School District shall be allowed to vote; and said Trustees shall give notice of such election by insertion of such notice immediately preceding such election for two weeks in a newspaper published in the County of Lexington which notice shall designate the time and place or places at which said election will be held, and the said Trustees shall appoint the managers of such election, receive the returns and declare the result.
"§ 5. Petition Nor Plat Required for Election. — No petition for the holding of such election or the making and filing of the plat of such School District shall be required as a prerequisite to the holding of such election or the issuance of said bonds."
The other portions of the Act are immaterial here.
DECREEThe purpose of this action is as follows:
(1) To set aside an election for school bonds; (2) that the Act under which the election was held be declared unconstitutional, null, and void and against public policy; (3) that defendants be restrained and enjoined from selling any bonds or taking any other action pursuant to said election, which was held on the 24th day of June, 1930.
I was much impressed at the hearing with the position taken by Mr. Winter that the Act of the Legislature dispensing with the freeholders' petition was unconstitutional. It appeared to me then that he was right, but I find that our Supreme Court has taken a contrary view in Burriss v. Brock, 95 S.C. 104, 79 S.E., 193. That case holds: "Article 2, Section 13 of the Constitution requiring a petition of the freeholdres of a city or town as a condition precedent to an election for the issuance of bonds does not apply to a school district in an election for issuing bonds for school purposes whether the district is coterminous with the city limits included or not." Justice Hydrick in said case at page 106 of 95 S.C. 79 S.E., 193, 194, uses this language "Among other things, the Act authorizes the board of trustees of the new school district to submit to the qualified voters residing therein the question of issuing $100,000 of bonds, and provides that $35,000 of the bonds so issued shall be exchanged for, or used to pay, the $35,000 of school bonds issued by the city of Anderson, and the balance for the purpose of improving the present school property, acquiring additional property, and erecting buildings for school purposes."
It looks as if the objections raised against the Act are fully met in Burris v. Brock, 95 S.C. 104, 79 S.E., 193, and Brownlee v. Brock, 107 S.C. 232, 92 S.E., 477, both by that very able Judge and accomplished lawyer, Justice Hydrick.
The ratification of the amendment is as follows: "That the limitations are proposed by this Section [Article 5, § 10] shall not apply to School District No. 29, of Lexington County, South Carolina, said school district being hereby authorized to issue additional bonds in an amount not exceeding fifteen (15%) per cent of the valuation of the assessable property in said school district, and that the question of incurring said indebtedness be submitted to the qualified electors of said school district as provided in the Constitution upon the question of bonded indebtedness."
The Act of 1930 (see page 1901), Section 5 says: "No petition for the holding of such election or the making and filing of the plat of such school district shall be required as a prerequisite to the holding of such election or the issuance of said bonds."
Mr. Winter makes the point that the provision as to the petition and also as to the plat violate the Constitution. These objections are met by the cases of Burriss v. Brock, and Brownlee v. Brock, supra.
I shall next consider the matter of the refusal to allow certain parties to vote. The Constitution provides, Article 2, § 4:
"The qualifications for suffrage shall be as follows: (a) Residence in the State for two years, in the county one year, in the polling precinct in which the elector offers to vote four months, and the payment six months before any election of any poll tax then due and payable. * * *
"(e) Managers of election shall require of every elector offering to vote at any election, before allowing him to vote, proof of the payment of all taxes, including poll tax, assessed against him and collectible during the previous year. The production of a certificate or of the receipt of the officer authorized to collect such taxes shall be conclusive proof of the payment thereof."
"Persons who failed to pay their property and poll taxes on or before the 31st day of December, 1920, when they were due and payable, were not entitled to vote at a special election on the question of annexing a portion of one county to another county, held on January 11, 1921, though paying before the election, and, the number so voting being enough to have changed the result, the election was void, Const. Article 2, § 4, prescribing as a prerequisite of the right to vote the payment six months before any election of any poll tax due and payable, and requiring every voter to prove payment of old taxes assessed against him and collectible during the previous year." Abernathy v. Wolfe, 117 S.C. 545, 109 S.E., 275.
I refer to the certificate of W.D. Dent, auditor, furnished at my request, dated August 20, 1930. This shows that of those refused the right to vote seventeen had not paid their poll tax six months before the election. Admitting that the eight voters against whom no poll taxes were chargeable would have voted against the bonds, and those illegal voters who were allowed to vote voted for the bonds, yet there would not be a sufficient number of illegal votes, or a sufficient number of legal voters deprived of the ballot to change the result. I mark the certificate of the auditor "Ex. 1, C. J.R."
See Jennings x. McCown, 97 S.C. 487, 81 S.E., 963; Wright v. Board, 76 S.C. 588, 57 S.E., 536; Callison v. Peeples, 102 S.C. 265, 86 S.E., 635, Ann. Cas. 1917-E, 469.
It does not appear from the showing made before me that there were a sufficient number of illegal votes or a sufficient number of legal voters, who were deprived of the right to vote, to have changed the result.
Now, as to the contention that there was no sufficient and legal notice given of the election: I hold that this ground falls on account of lack of proof. It appears not only was there publication in the weekly paper published at Lexington, S.C. but that there was a posting of notices in Brookland and Cayce and there was a sufficient compliance with the law in this regard.
I cannot go into a discussion of this case as fully as I should like, owing to the fact that the time for filing additional authorities was extended and I am on the eve of leaving this circuit for the purpose of taking up my duties as presiding Judge of the Sixth Circuit, and I realize that if I delay the filing of this decree, it may mean a delay of some months and I do not wish to delay the matter that long.
I adopt the additional or "supplemental points and authorities" and "points and authorities" of B.J. Wingard by reference so far as applicable to the questions raised in this action: I mark these "Exhibits Two (2) and Three (3) C.J.R." for a citation of authorities, etc.
"Where the right of appeal is provided from an inferior jurisdiction that must be pursued and certiorari will not be allowed.
"2. An appeal lies from the County Board of Canvassers to the State Board of Canvassers in an election pertaining to the information of new counties. Method of conducting appeals and canvassing returns in such elections indicated.
"3. Certiorari will not issue to a Board of County Canvassers when it appears that the records in good faith passed out of their hands."
State Ex Rel. Martin v. Moore, 54 S.C. 556, 32 S.E., 700.
"This Court will not enjoin a special election when parties complaining have a plain and adequate remedy at law by contest before Board of Canvassers and no property rights are involved justifying the interference of this Court with the election by injunction." Little v. Barksdale, 81 S.C. 392, 63 S.E., 308.
Chief Justice McIver, in State v. Moore, 54 S.C. 560, 32 S.E., 700, 701, held that in an election case where a right of appeal was given, "that mode of correcting errors of law * * * must be resorted to" — in other words, the officials of said boards are judicial officers and where a party fails to adopt the method provided by and in the statute law, that it is then too late to apply the remedy either of injunction or certiorari.
I cite the above as the law, but I have gone ahead and considered the case on its merits anyway. I have considered the case in all of its phases and its merits, but the plaintiff's case is hopeless.
Plaintiff further says, "That at the Cayce poll in said school district the vote was cast principally by women who owned no property and a number of whom had no registration certificates, etc."
As to women voting who had no property there is no law against this, and plaintiff has failed to show enough illegal voting or illegal deprivation of voting to have changed the result. It seems unjust for people who own no property to vote bonds on other people, but that is a matter for the Legislature and not for the Courts. A glaring illustration of this was in Davis v. Town of Saluda, 147 S.C. 498, 145 S.E., 412. It does seem that there ought to be legislative action along this line, but so far this has not been done. In Davis v. Saluda, the Court said: "Issuance of bonds for establishment of waterworks system and sewerage system held not to amount to confiscation of property and taking of property without due process of law, especially where majority of voters of town voted in favor of establishing such systems." The trouble is: The property owners were asleep till it was too late and now expect the Courts to grant relief, when the bonds have been voted according to the power of law. I am in sympathy with them, but under the law and facts of this case and under the decisions in prior cases, I am unable to give any relief. I therefore refuse the injunction asked for and cannot grant the prayer of the complaint and dismiss the temporary restraining order heretofore granted.
Mr. D.M. Winter, for appellant, cites: Regulations governing issuance of school bonds: Const. 1895, Art. 10, Sec. 11; Art. 2, Sec. 13; 3 Civil Code 1922, Sec. 2606. Construed: 95 S.C. 107; 143 S.C. 120; 83 S.C. 88. Acts March 20, 1930 (36 Stat., 1900), as amended (36 Stat., 4) unconstitutional: 136 S.C. 345.
Mr. B.J. Wingard, for respondent, cites: Acts constitutional: 95 S.C. 107; 107 S.C. 252; 119 S.C. 101; 136 S.C. 256; 139 S.C. 392; 2 N. McC., 233; 137 S.C. 315.
March 13, 1931. The opinion of the Court was delivered by
This is an appeal from an order of his Honor, Circuit Judge Ramage, refusing a permanent injunction against the issuance and sale of bonds in the sum of $100,000 of School District No. 29, Lexington County, S.C. authorized under an Act of the General Assembly (Act No. 1046), approved March 20, 1930 (36 St. at Large, 1900).
By stipulation of counsel all issues in the cause based on alleged irregularity or illegality in the conduct of the election which authorized and approved the issue were abandoned on the appeal before us. The only real question to be passed on is the constitutionality of the Act in question, in the light of the objections thereto made by appellants.
We have given careful consideration to these objections and are satisfied with the disposition made of them by the learned Circuit Judge. Let the decree be reported.
It is the judgment of this Court that the order of the Circuit Court appealed from be affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES COTHRAN, STABLER, and CARTER concur.