Welch v. Getzen
67 S.E. 294
S.C.
1910
Check Treatment

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an application to the Supreme Court, in the exercise of its original jurisdiction, for an order enjoining the respondents from issuing certain bonds described in the petition herein, which, together with the return or answer of the respondents, will be set out in the report of the case.

The grounds upon which the petitioners pray for the injunction will be considered in regular order.

1 (a) In disposing of this ground of objection, we desire to call special attention to the following allegations of the petition: “That when the said high school district was formed in 1907, as aforesaid, the defendants, J. H. Getzen, Cook McKie, Dr. Wade Woodward, C. L. Butler and R. E. Broadwater, were duly appoimed the trustees of said high school district, and the defendant, J. H. Adams, as chairman of common school district No. 48, and the defendant, J. D. Barksdale, as chairman of common school district No. G6, are now, and ever since have been, ex officio members of the said high school board, by virtue of the said Act of 1907, authorizing the creation and incorporation of high school districts in this State. That all of the said original trustees are now, and ever since have been, on the said high school board,. exercising the duties of their office, except the said R. E. Broadwater, who resigned therefrom, in the summer of 1909, and the defendant, George Walker, Sr., was duly appointed on the said board to fill the said vacancy.” Thus showing that the failure to comply with the requirement that the tenure of office of five of the trustees shall be determined by lot, only affected the tenure of office of a single trustee.

“The policy of the law is to guard against a failure of *163 a public service, and a grant of power in the nature of a public office to several, does not, in general, become void, upon the death or disqualification of one or more, provided there is left a sufficient number to confer together.”

This principle is specially applicable to the present case, where there has been a failure to comply with a statutory requirement, that is merely directory.

Furthermore, the cases of State v. McJunkin, 7 S. C., 21; State v. Lce, 35 S. C., 192, 14 S. E., 395; State v. McGraw, 35 S. C., 283, 14 S. E., 630, and Cromer v. Boinest, 27 S. C., 436, 3 S. E., 849, show that the trustee, whose tenure of office would have been for only two years, if lots had been cast, was a de facto trasteé.

2 (b) Conceding “that there is no .provision of the law, allowing the levy of a special tax, in the high school district for the purpose of paying off coupon bonds, issued to raise funds for high school purposes in such district,” we fail to see why that should be a ground for enjoining the issue of such bonds, as it is not a condition precedent. When bonds are issued, there arises a contract between the purchaser and seller, the obligation of which can not be impaired, as it would be in violation of article 1, section 10, of the United States Constitution, and of article 1, section 8, of the Constitution of South Carolina.

After parties have entered into a valid contract, a remedy for its enforcement will always be found.

(cj This ground is disposed of by what was said in considering (b).

3 (d) It is unnecessary to cite authorities to sustain the proposition: that neither the high school district, nor any common school district unit thereof, by exercising its right at any time, to vote off the special levy for high school purposes, or to vote itself out of the high school district, can escape liability, for its proportionate part of the indebtedness which it, along with other school districts, has incurred.

*164 4 (e) The petition alleges that the high school district mentioned in the petition is a body politic and corporate, and authorized to sue and be sued. As such, it is a distinct entity from the two common school districts, out of which it was created; and, the fact that common school district No. 66 has already a special levy of 4 mills, which it can not exceed, is no reason why the high school district may not levy a tax of 1 mill.

The Act of 1908 (page 1119) provides, that a high school district shall be authorized to- vote a high school tax not exceeding 2 mills by the same rules and under the same terms as special taxes are now voted under section 1308 of the Code of Taws of 1903. And the Act of 1907 (page 531) authorizes suchjrigh school district to issue coupon bonds within the constitutional limit (which is declared in article X, section 5 of the Constitution) for the purposes therein mentioned.

Section 5, article X, of the Constitution provides, that “whenever there shall be several political divisions or municipal corporations, covering or extending over the territory, or portions thereof, possessing the power to- levy a tax, or contract a debt, then each of such political divisions or municipal corporations shall so1 exercise its power to increase its debt, under the foregoing eight per cent, limitation, that the aggregate debt over and upon any territory of this State, shall never exceed fifteen per centum of the value of all taxable property in such territory.” Thus showing that the amount of the indebtedness of common school district No. 66 could not affect the indebtedness of the high school district, unless their aggregate indebtedness exceed fifteen per centum of the value of all taxable property in their territory. Todd v. Laurens, 48 S. C., 395, 36 S. E., 682.

It is the judgment of this Court that the petition be dismissed.