This is an action to enjoin the sale of a schoolhouse by the trustees of school district No. 6, of Dillon county. The facts are thus stated in the decree of his Honor, the Circuit Judge:
"In the year 1874, a number of citizens in the community now known as Reedy Creek school district, being interested in establishing a school, got together and by private subscription raised money to build a schoolhouse. Reedy Creek church owns a lot of land, of about two acres, and it seems to have been the consensus of opinion that if proper arrangements could be made, that the schoolhouse should be placed on the church grounds, and in pursuance of that idea an agreement was entered into with the deacons of Reedy Creek church that the schoolhouse should be placed on the church grounds, that it should be used as a place of meeting for the deacons and elders of the church, and that it should remain upon the premises so long as desired by any one of the original subscribers. The schoolhouse was built, and within a short time of its completion was burnt, and practically the same parties rebuilt another at the same place. This old building continued to be used until 1903, when a new church was built, and in a meeting of the congregation duly notified and held, a resolution was passed by the congregation that *Page 45 old Reedy Creek church should be turned over to the trustees of Reedy Creek school, to be used as an academy, and that the old building then being used as a schoolhouse and the furniture in the old church should be sold, and the proceeds given to Reedy Creek church. The old church was so used until 1913, when old Reedy Creek school was consolidated with an adjoining district, and a new and modern schoolhouse was built. Thereupon the trustees, acting upon the suggestion of the county superintendent of education, entered into a contract with their codefendant, D.D. McRae, to sell the old building, and he was proceeding to tear it down and move it when this suit was brought. * * * The testimony tends to establish, and it was admitted by counsel in open Court, that ever since the establishment of school districts in the State, the property in question has been handled and entirely controlled by the board of trustees of the school district; Reedy Creek school district being recognized as one of the established school districts of the State. During all that time, and for more than 20 years, the original subscribers never intimated that they had any claim, nor attempted in any manner to exercise any control over the property, but, on the contrary, it has been practically dedicated to the school district. In 1903, as above set forth, it was by resolution of the church, so far as it had power, formally turned over to the trustees, and according to the testimony and admissions of counsel it had been so used for many years previous to that time."
From these facts he reached the conclusion that:
"The plaintiffs have unquestionably waived any right, title, or interest they may have formerly had therein, even conceding that they had such right, and are not now in a position to assert a right which they may have formerly had."
The Circuit Judge thus states the reasons for the error into which the plaintiffs have fallen: *Page 46
"The error into which plaintiffs have fallen is, in treating the controversy in question, as one between plaintiffs and the church, when, as a matter of fact, it is a controversy between plaintiffs and trustees of the public school district."
It will be observed that Reedy Creek church was not made a party to this action, and its rights therefore are not involved. The Circuit Judge, however, says:
"There's nothing in the testimony tending to show that the church authorities are attempting to violate the alleged contract, and hence in the present controversy the plaintiff can derive no advantage therefrom."
There were about a dozen original subscribers, whose names appear in the testimony, but none of them, except the two plaintiffs, are parties to this action.
What was said in Bannister v. Bull, 16 S.C. 220, is applicable to the other subscribers now living:
"They had the right to refuse to sue. They may wish to have a separate suit for their interest or they may not intend to set up their rights at all."
That case also shows that section 168 of the Code of Civil Procedure, providing that one or more may sue for the benefit of the whole, has no application to this case. Therefore the injunction should not be granted, unless it appears from the testimony that these particular plaintiffs are entitled to relief. The testimony shows that the plaintiff, E.A. McCormac, was a trustee at the time the two school districts were consolidated, and that he signed the petition for the consolidation. He is therefore estopped from relying upon the fact that the consolidation was illegal. John D. Alford, the other plaintiff, is a bachelor, and has no children to be affected by the consolidation. They are therefore not in a position to seek the equitable aid of the Court.
Mr. Justice Hydrick relies upon the proposition:
"That the church authorities had no right to turn the building over to the trustees of the school district, to be sold by them, and the latter had no right to sell it in order that the *Page 47 proceeds might be used in the erection of another school building at another place, without the consent of all parties interested."
This proposition is sound, and we will proceed to show that not only the church authorities (who had a certain interest in the building), but also the subscribers, consented for the building to be dedicated to the school trustees for school purposes, without a special limitation upon their powers.
H.N. Cousar testified as follows:
"I am an elder in Reedy Creek Presbyterian church, and am clerk of the session. I keep a record of the minutes of the session. My record shows that on March 22, 1903, at a congregational meeting of Reedy Creek Presbyterian church, by a unanimous vote, the following resolution was passed: `That the old Reedy Creek church be turned over to the trustees of Reedy Creek school, to be used as an academy, and that the building now used as a schoolhouse, and the furniture in the old church be sold, and the proceeds given to Reedy Creek church.' I was present at the meeting and took those minutes. That resolution was passed in regular meeting of the church members, after giving two weeks' regular notice. That was the proper way to pass it in regular meeting of the congregation."
The plaintiff, John D. Alford, testified that "most of the subscribers to that fund were members of Reedy Creek church." The plaintiff, E.A. McCormac, testified:
"I was present at the time the new church building was completed, and the old schoolhouse was turned over to the church. Mr. Richards was the first man to make the proposition. He made it to the trustees of the school. * * * I was a member of the church and a trustee when the old church was substituted for the school building."
The defendant, W.W. Evans, one of the school trustees, testified:
"When the consolidation was first started, Mr. McGregor was the principal leader. The trustees took an active part *Page 48 in it. Mr. McCormac also took a part, and signed the petition for it."
McCormac was at that time also one of the school trustees. E.A. McCormac, when recalled, testified as follows:
"Q. Mr. McCormac, it is said in the testimony of some of these gentlemen that you took part in the establishment of the Minturn school. Please state what you did. A. No, sir; I did not. When they first talked of consolidating those schools, and the question was raised where they would like to put the building, I offered to give them two or three acres of land on a hill between my house and Evans' and would give them $50 towards erecting a school building, if they would put it there. They wanted to vote bond issues before they would decide on the site of the school. I told them I would not support it until they decided positively where they would put the building. They wanted to put it in a pond, on the other side of the railroad on my place. I went still further and made another proposition, that if they would put it on the Steed place, and from under the influence of mischief that was going on there with no police, that I would give $50 towards paying for the lot."
It will be observed that the plaintiff, McCormac, was present at the meeting of the congregation in 1903, when the building in question was dedicated to the trustees, and that he consented to the adoption of the resolution making the dedication; that he was a school trustee at that time, and also at the time of the consolidation in 1914, and signed the petition for the consolidation; that the resolution was adopted without any limitation upon the powers of the trustees, other than those imposed by law; that as most of the contributors were members of Reedy Creek church, and the said resolution was unanimously adopted at a congregational meeting of the church, the only reasonable supposition is that most, if not all, the contributors were present and assented to the dedication; that McCormac did not object to changing the location of the building, provided the *Page 49 change was acceptable to him. There is nothing in the record from which a reasonable inference to the contrary can be drawn. Having reached this conclusion, we proceed to determine whether the trustees, in the absence of a special limitation upon their powers, had the authority to sell the building. The rule in such cases is thus stated in 8 R.C.L. 33:
"In any case, however, such use is authorized as is fairly within the terms of the dedication, and reasonably serve to fit the property for enjoyment by the public, in the manner contemplated. The dedicator is presumed to have intended the property to be used, within the limitation of the dedication, in such way by the public as will be the most convenient and comfortable, and according to not only the proprieties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions."
Furthermore, the acceptance of the schoolhouse for school purposes was subject to the provisions of the statute, relative to the sale of such property by the trustees. Section 1755 of the Code of Laws (Civ. Code) 1912 provides that:
"The school trustees of the several school districts are authorized and empowered to sell school property, real or personal, in their school districts whenever they deem it expedient to do so, and to apply the proceeds of sale * * * to the school fund of the district, wherein such sale is made."
Section 1761 provides that the board of trustees shall also have authority, and it shall be their duty:
"(1) To provide suitable schoolhouses in their districts, and to make the same comfortable, paying due regard to any schoolhouse already built or site procured, as well as to all other circumstances proper to be considered so as best to promote the educational interests of their district. * * *
"(5) To take care of, manage and control the school property of the district."
For these reasons I dissent. *Page 50