43 S.C. 11 | S.C. | 1895
The opinion of the court was delivered by
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
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 the 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 tree school fund is exhausted. The two mill constitutional tax can only be applied to and for the maintenance of free public schools, and the school commissioner has no legal authority to apply it for any other purpose. Beturn shows that fees are charged in this school as authorized by the act.”
But, in addition to this, it seems to us more than questionable whether it is competent for respondent to raise the constitutional question in this case. For, as is said in Cool. Cons. Lim., at pp. 163-4: “Nor will a court listen to an objection made to the constitutionality of an act, by a party whose rights it does not affect, and who has, therefore, no interest in defeating it. * * * The statute is assumed to be valid until some one complains whose rights it invades. Prima facie, and on the face of the act itself, nothing will generally appear to show that the act is not valid, and it is only when some persons attempt to resist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his property, or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the legislature, therefore, concurs with well established principles of law in the conclusion that such an act is not void, but voidable only; and it follows as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of the act, and not by strangers.” In this case it appears that the petitioners are doing nothing more than what they are expressly authorized to do by the sixth section of the act of 4th January, 1894, from which the preceding quotation has been made; and if it is claimed that such provision is unconstitutional, and invades or infringes upon the constitutional rights of any citizen, it is for such citizen to raise the question by some proper proceeding against the petitioners, and not for this respondent, whose constitutional rights, so far as we can discover from anything appearing in this case, have neither been invaded nor infringed upon by said act, or by the action of the petitioners thereunder. We must, therefore, decline to indicate any opinion as to the constitutional question, resting our affirmance of the judgment below solely upon the grounds herein above stated, and not upon the grounds presented in the Circuit d'ecee.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.