Dove v. Kirkland

75 S.E. 503, 92 S.C. 313, 1912 S.C. LEXIS 143

• Court: Supreme Court of South Carolina
• Decided: August 1, 1912
• Docket: 8277
• Status: Published

Opinion

The publication of this opinion has been delayed by the failure of the Reporter to get a copy of the petition sooner.

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an application to the Court, in the exercise of its original jurisdiction; for an order enjoining the respondents, from issuing bonds not exceeding $20,000 in amount, to be used in building a school house, — the result of an election held under the act of 1907, being in favor of issuing said bonds.

In order to understand clearly the questions involved, it will be necessary to set out the petition, in the report of the case.

The facts alleged in the petition, are not denied by the defendants, in their return to the rule to show cause, why the prayer of the petition should not be granted.

The grounds upon which the petitioner relies, are lettered as follows: (a), (b), (c), (d), (e), (f), and (g), and will be considered in regular order.

1 “(a).” This ground can not be sustained for the reason that there is no provision of the Constitution, requiring that a survey should be made or a plat filed, before an election could be held; and, even conceding that such require-meat, under the case of McLaurin v. Tatum, 85 S. C. 444, 67 S. E. 560, is a condition precedent, it was rendered ineffectual by the validating act of 1912.

“The pivotal point in a healing or validating statute is that it must be confined to acts which the legislature could previously have authorized.” State v. Whitesides, 30 S. C. 579, 9 S. E. 661; State v. Neely, 30 S. C. 587, 9 S. E. 664.

“Although necessarily retroactive, curative acts are not for that reason invalid; for the gen'eral rule is that the legislature can validate any act, which it might originally have authorized.” 26 Enc. of Law, 698-9.

“A retrospective statute, curing defects in legal proceedings, where- they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on unconstitutional grounds, unless expressly forbidden. Of this class, are the statutes to- cure irregularities, in the assessment of property for taxation, and the levy of taxes thereon; irregularities in the votes, or other action by municipal corporations, or the like, where a statutory power has failed of due and regular execution, through the carelessness of officers or other cause, irregular proceedings in Courts, etc. The rule applicable to- cases of this description, is substantially the following: If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is'something the necessity for which, the legislature might have dispensed with, by prior statute, then it is not beyond the power of the legislature, to dispense with it by subsequent statute. ' And if the irregularity consists in doing some act, it is equally competent to make the same immaterial, by a subsequent law.” Cooley’s Con. Dim. 456-7.

These authorities are quoted with approval in the case of Hodge v. School District, 80 S. C. 518, 61 S. E. 1009, and are conclusive of this question.

2 “(b).” There are two reasons why this ground cannot be sustained: 1. Because the provision in section 4 of the act of 1907, that “it shall be the duty of the county officers, charged with the assessment and collection of taxes, to levy and collect annually from all the property, real and personal, within the limits, of such school distriot, a sum sufficient to pay the interest on such bonds, and also a sum sufficient to. provide a sinking fund, for the payment of such bonds when due,” has reference to those officers in the county, who are authorized to levy and collect the taxes in such cases; and, 2. Because the provisions of the section just quoted, have reference to. future action, and are not a condition precedent to the holding of an election, for the purpose of determining whether the bonds should be issued. That section does not relate to. the issuing of the bonds, but to their payment, after they have been issued. A similar question arose in the case of Welch v. Getzen, 85 S. C. 156, 67 S. E. 294, and was thus disposed of, by the Court: “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 cannot be impaired, as it would be in violation of article I, section 10 of the United States Constitution, and of article I, section 8 of the Constitution of South Carolina. All parties having entered into a valid contract, a remedy for its enforcement will always be found.”

3 “(c).” It is only necessary to cite the following cases, to show that this ground cannot be sustained: Connor v. Ry., 23 S. C. 427; Floyd v. Perrin, 30 S. C. 1, 8 S. E. 14; Riley v. Union Station Co., 71 S. C. 457, 51 S. E. 485; State v. O’Day, 74 S. C. 448, 54 S. E. 607; Park v. Cotton Mills, 75 S. C. 560, 56 S. E. 234; Aycock-Little Co. v. Ry., 76 S. C. 331, 57 S. E. 27; Buist v. Charleston, 77 S. C. 260, 57 S. E. 862; State v. Hunter, 79 S. C. 91, 60 S. E. 226; Jellico v. Commissioners, 83 S. C. 481, 65 S. E. 725; Power Co. v. Walker, 89 S. C. 84; State v. Fant, 88 S. C. 493, 70 S. E. 1029.

4 “(d).” This ground cannot be sustained for the reason that the validating act of 1912, cures such irregularities.

“(e).” What has already been said disposes of this question.

5 “(f).” The case of Welch v. Getzen, 85 S. C. 156, 67 S. E. 294, shows that this ground cannot be sustained, as Geo. W. Taylor and J. B. Duke, were ds facto trustees'.

“(g).” What has already been said, disposes of this ground.

Petition dismissed.