March 3, 1915. The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Memminger, granting a writ of mandamus as prayed for by the petitioners, and his order sets forth the facts of the case practically and will be reported. Upon call of the case in this Court a motion to dismiss the appeal was duly made and argued, this motion is overruled and refused. Exceptions one and two impute error on the part of his Honor in not sustaining the demurrer to the petition on the ground that the petitioners had a plain and adequate remedy by appeal to the State board of education and in deciding that the approval or disapproval of a school warrant was not in the discretion of a superintendent of education. The facts of this whole case show that it is an attempt to compel the superintendent of Jasper county to approve and honor a claim approved by the trustees of Hampton county school district No. 21. There was an agreement made by the board of education of Hampton and Jasper counties to run the school jointly and it was so run during the scholastic year 1912-1913 satisfactorily, but in September, 1913, the respondents (appellants here) passed a resolution discontinuing the agreement to run the school jointly with Hampton county and annexed it to Grays school district in Jasper county, and erected a school building at a cost of $160, and paid a teacher $150, and the taxes for that district was $446.30.
We do not think under the cases of Ex parte GreenvilleCollege, 75 S.C. 93, 55 S.E. 132, and Hughes v. School *Page 156 District, 66 S.C. 259, 40 S.E. 885, that the petitioners are entitled to the extraordinary remedy of mandamus; especially in view of the fact that it does not appear that the county treasurer had in his hands sufficient funds applicable to this fund to pay the same, and in view of the fact that the agreement made in the first instance to run the school jointly 1912-1913 could not bind the successors in office of the board of education of the two counties for the year 1913-1914, and they had the right not to renew the agreement, which it appears they did in September, 1913, all of which is alleged as error on the part of his Honor in the other exceptions in the case. The order appealed from must be reversed, but inasmuch as the respondents (appellants here) admit that they are willing and recognize their duty to pay whatever part of the expenses of school that are properly chargeable to Jasper county and admit that some of the pupils attending the school were from Jasper county and are willing to pay the proportionate part of the expenses of the school that the number of children from Jasper county bore to the number of Hampton county, the case will have to be remanded to ascertain what this will be; unless the parties arrive at an arrangement by agreement that evidence be taken to establish what the facts are on this point.
Reversed and remanded. *Page 157