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The opinion of the Court was delivered by
Mr. ChiEE Justice Beease.
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The decree of Circuit Judge Johnson, appealed from in this case, is satisfactory to the Court. It- will be reported. The exceptions thereto are overruled and the decree is affirmed.
■Messrs. Justices StabeEr, Carter and Bonham concur.
Mr. Justice Cothran did not participate on account of illness.
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Case posture Posture Before JOHNSON, J., Lexington, September, 1931. Affirmed.Suit by L.M. Kyzer, and others, individually and as trustees of Charter Oak School District Number 4 of Lexington County, against W.D. Dent, as Auditor of Lexington County, and others, as trustees of Lexington School District Number 1, of Lexington County. From decree for plaintiffs, defendants appeal.
The decree of Judge Johnson was as follows:
This is an action by the trustees of School District No. 4 of Lexington County, in their official capacity and as individuals, to restrain the auditor of Lexington County and the trustees of School District No. 1 of said county from putting into effect the provisions of an Act entitled An Act to Amend School District No. 4 of Lexington county, State of South Carolina, and School District No. 6 of Lexington County, State of South Carolina, to School District No. 1 of Lexington County, State of South Carolina, approved June 5, 1931 (37 St. at Large, p. 1083), and to have the said Act declared unconstitutional, null, and void.
The case was heard in open Court at Lexington courthouse September 16, 1931, upon the pleadings and an agreed
statement of facts that were then and there filed with the Court, it being then and there agreed that the case might be heard on its merits on said agreed statement of facts.
Among the facts agreed to, are the following: (a) School District No. 1, at the time of the passage of said Act, had an area of approximately 49 square miles; (b) that School Districts Nos. 4 and 6, at the time of the passage of said Act, were valid and existing school districts; (c) the auditor of Lexington County would enter taxes against property in School District No. 4, under the authority of said Act, for the use of School District No. 1, if he was not restrained from doing so; and (d) the trustees of School District No. 1 would use and disburse the taxes so levied on the property in said School District No. 4 for school purposes in School District No. 1, if they were not restrained from doing so.
The plaintiffs contend that, if said Act is given effect by the officers sought to be restrained from enforcing it, it will deprive School District No. 4 of its legitimate school funds, will prevent the opening of school in said district, will deny the right of the parents in said School District No. 4 to send their children to school therein, as well as the right of the children to attend such school, and that it will cause other wrongs more particularly set forth in the complaint; and the plaintiffs allege that said Act is null and void in that (a) it is in conflict with the provisions of Section 5 of Article 10 of the Constitution, and (b) it is violative of Section 34 of Article 3 of the Constitution, especially Subdivisions 4, 9, and 10 thereof.
In their answer, the defendants set up and rely upon Act No. 72 of the Statutes at Large, 1931, approved March 4, 1931, which amended Section 5 of Article 11 of the Constitution by adding a proviso that the limitations as to the area of school districts imposed by this section shall not apply to Lexington County but in said county school districts shall be of such area as the General Assembly may prescribe; and upon that amendment to the Constitution they
predict their contention that the Act attacked by the plaintiffs is valid.
So much of Section of Article 11 of the Constitution as amended that is pertinent to the issue here reads as follows:
The General Assembly shall provide for a liberal system of free public schools for all children between the ages of six and twenty-one-years, and for the division of the counties into suitable school districts, as compact in form as practicable, having regard to natural boundaries, and not to exceed forty-nine nor be less than nine square miles in area. * * *
Provided, further, That the limitations as to the area of school districts imposed by this section shall not apply to Lexington County but in said County school districts shall be of such area as the General Assembly may prescribe.
That section of the Constitution, among other things, directs the General Assembly to provide for the division of the counties into suitable school districts, and provides that the school districts in Lexington County shall be of such area as the General Assembly may prescribe. So far as the amendment to the Constitution is concerned, it leaves the school districts of Lexington County in exactly the same status as the school districts of other counties, except that it provides that the area of school districts in said county shall be as prescribed by the General Assembly, and not necessarily as fixed by the Constitution for other counties.
Certainly the amendment in question did not give to the Legislature any powers it did not have before respecting the creation, organization, or destruction of school districts, and all provisions of the Constitution respecting such matters (excluding area) that were in force before the adoption of the constitutional amendment were in force afterwards.
It will be noted that the Act that undertook to destroy the corporate existence of School Districts Nos. 4 and 6 and to incorporate them with School District No. 1 into a new district
does not attempt, by any of its terms or provisions, to prescribe what shall be the area of school districts in Lexington County, as is contemplated should have been done by the terms of the amendment under consideration, unless the General Assembly was satisfied with the area already prescribed by it for school districts in Lexington County and elsewhere in the State, which will be found in Section 2599, Vol. 3 of the Code.
I am of opinion that Section No. 2599 of the Code was not repealed by the constitutional amendment pleaded by the defendants, but that the provisions of said section are still of force and will remain so until a valid Act is passed by the General Assembly changing it. That section limits the area of school districts in Lexington County to 49 square miles. Since it is admitted that School District No. 1, as constituted at the time of the passage of the Act in question, contained approximately 49 square miles, it follows that they could not be combined into one school district without a violation of existing law governing the creation of school districts, and that the General Assembly did not have the power, by a special Act, to destroy the corporate existence of School Districts Nos. 4 and 6 and combine them with No. 1 into a new school district having an area admittedly far in excess of 49 square miles allowed by law.
I do not deem it necessary to discuss the other points made by the pleadings, as, having reached this conclusion, I am compelled to grant the injunction prayed for.
It is therefore ordered, adjudged, and decreed:
(1) That the Act entitled An Act to Amend School District No. 4 of Lexington County, State of South Carolina, and School District No. 6 of Lexington County, State of South Carolina, to School District No. 1 of Lexington County, State of South Carolina, approved June 5, 1931, is null and void.
(2) That the defendants and each of them be, and they are, hereby restrained and enjoined from taking any action under and by virtue of said Act; that is to say, the defendant W.D. Dent, as auditor of Lexington County, shall not enter and charge taxes against the taxable property lying in said School District No. 4 for the use of School District No. 1, and the defendants C.E. Leaphart, W.D. George, and H. N. Kaminer, as trustees of School District No. 1 shall not use or dispose of any tax funds levied or collected on the taxable property of said School District No. 4. Source: CourtListener
