Black v. Stokes , 139 S.C. 381 ( 1927 )

April 11, 1927. The opinion of the Court was delivered by This is an action by the appellants as citizens and taxpayers of school district 13-M, of Greenville County, against the respondents, as trustees of said school district, to enjoin the issuance of school bonds. A rule to show cause and temporarily restraining the respondents was issued by his Honor, Judge T.J. Mauldin, and served with the complaint upon the respondents, to which a return and answer were filed. A traverse was had, and, upon argument, Judge Mauldin issued an order denying the petition for injunction and revoking the restraining order thereinbefore issued. From this order of Judge Mauldin, the petitioners appeal to this Court under two exceptions, but raising only one question, Was the plat before the Court such a plat of the school district as was contemplated by the statute governing the issuance of school bonds in such cases? Therefore it is only necessary to refer to so much of the record as discloses the facts and circumstances under which the plat was made.

It is admitted that there was a complete and correct plat of the school district filed in the office of the clerk of court of Greenville County prior to the election for the issuance of bonds, but the appellants contend that no survey of the school district, as required by law, was had, that no survey was made in contemplation of the election on the issue of bonds, and that, therefore, the plat so filed could not be a sufficient compliance with the statute, even though the plat on file in the office of the clerk of court be a complete plat of the school district in question.

It appears from the record that in the year 1925 there were three school districts in the upper part of Greenville County, and that these three districts filed a petition with the county board of education for consolidation into one district.

For this purpose a survey was made and also a plat was made of the three districts to be consolidated. It is admitted that this plat showed the metes and bounds of each district separately and was duly filed in the office of the clerk of court for Greenville County. Later, before action was had by the county board of education on the petition, one of these school districts decided not to consolidate with the other two districts, and the county board of education ordered the consolidation of the other two and gave to the consolidated district so formed the name of 13-M. Thereupon this new district, 13-M, decided to issue bonds, in the sum of $3,000, and a competent surveyor was engaged to make a new plat from the old plat; that is, a plat of the newly consolidated district, 13-M, formed out of the remaining two districts after one district had withdrawn from the proposed consolidation. This last-named plat, plat of district 13-M, was duly filed in the office of the clerk of court before the election was held on the issue of bonds. It is admitted that this plat so filed is a correct plat of the district, 13-M, and it shows the correct measurements and boundaries of the district. Does it meet the requirements of the statute? Section 2606 of the Code of Laws of 1922, Vol. 3; that is, that portion bearing on the question before the Court, reads as follows:

"Provided, further, that before any election is held hereunder it shall be the duty of the trustees of the school district to have a survey of said school district made by some competent surveyor, and a plat thereof made and filed in the office of the clerk of court."

Appellants contend that, under this Section, it was necessary to have a separate and special survey, after the consolidation, prior to the election, and a plat made based on that survey and filed accordingly, notwithstanding the fact that there was at the time a correct plat of the district on file in the office of the clerk of court, and appellants cite in support of their position the case of McLaurin v. Tatum,85 S.C. 444; 67 S.E., 561. By reference to the opinion of the Court in that case, it will be seen that the facts in that case were materially different from the facts in the case now under consideration. According to the finding of the Court in McLaurin v. Tatum, supra, the trustees, prior to the election, adopted one of two conflicting plats, the plat so adopted and approved by the board of trustees having been made several years prior to the proceedings for the issue of bonds, and which plat was made by a surveyor "from filed notes, surveys and plats he had made himself at different times during the past 40 years, which notes, surveys and plats covered all the lands in * * * the school district and all lines necessary except one, which he made from other lines and courses which he had," but there was no survey of the district at that time and the plat was made from field notes and other data acquired while making surveys of different tracts of land situate in that territory during a period of 40 years, and the testimony was conflicting as to the plat of the district. Therefore, this case (McLaurin v.Tatum) is clearly distinguished from the case under consideration. In a later case (Matthews v. Lynch, 110 S.C. 63;96 S.E., 494), this Court, in passing upon a state of facts similar to the facts in the instant case, held that the intent of the Legislature in requiring a survey and plat had been substantially complied with. It is our opinion that this case (Matthews v. Lynch) is sufficient authority to sustain the judgment of the Circuit Court in the instant case, and the Court so holds.

Further, in the year 1923, the Legislature amended the School Bond Act as to the requirement for a survey and plat (see Acts 1923, page 152), so that the Act, as amended, reads as follows:

"Provided, further, that before any election is held hereunder it shall be the duty of the trustees of the school district to have a survey of said school district made by some competent surveyor and a plat thereof made and filed in the office of the clerk of court, except in cases where surveys have already been made and plats filed. * * *"

The act, as amended, clearly permits the use of a plat already in existence, and it is the opinion of the Court that the plat, as filed, was a sufficient compliance with the law. The complaint, the return to the rule, the answer, the order of Judge Mauldin dismissing the petition, and the exceptions will be reported.

The exceptions are therefore overruled, and it is the judgment of the Court that the judgment of the Circuit Court be affirmed.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN and STABLER and MR. ACTING ASSOCIATE JUSTICE WHITING concur.