11, Bonitz v. Board of Trustees of Ahoskie School Dist. No. 11

• Decision Date: 22 March 1911
• Citation: 70 S.E. 735,154 N.C. 375
• Parties: BONITZ v. TRUSTEES OF AHOSKIE SCHOOL DIST. NO. 11.
• Court: North Carolina Supreme Court

70 S.E. 735

154 N.C. 375

BONITZ v. TRUSTEES OF AHOSKIE SCHOOL DIST. NO. 11.

Supreme Court of North Carolina

March 22, 1911

Appeal from Superior Court, Hertford County; J. S. Adams, Judge.

Action by H. E. Bonitz against the Trustees of the Ahoskie School District No. 11. From a judgment for plaintiff, defendants except and appeal. Reversed.

Const art. 9, § 2, providing that the children of the white race and the children of the colored race shall be taught in separate schools, but that there shall be no discrimination in favor of either race is mandatory, so that an act requiring funds to be raised within a school district to be applied exclusively to the white schools, and limiting the facilities afforded to the white children only, would be unconstitutional.

Priv.Laws 1909, c. 210, entitled "An act to incorporate Ahoskie school district and allow it to vote on a special tax for schools and to issue bonds," though designating the district as "A school district for the white race," is to be construed, to sustain its validity, as authorizing the application of the fund derived without discrimination to furnish educational facilities to both races.

The facts stated in the case on appeal are as follows: "(1) The General Assembly of North Carolina at its session of 1909 passed an act entitled 'An act to incorporate Ahoskie School District and allow it to vote on a special tax for schools and issue bonds,' which is chapter 210 of the Private Laws of 1909.

"(2) That on the 4th day of May, 1909, an election was held in said school district, as provided for in said act, and the question 'for school tax' and 'against school tax' was submitted to the qualified voters of said school district, as directed by said act, and at said election a majority of the qualified voters of said district voted 'for school tax.' The result of said election was duly declared as directed by the provisions of said act.

"(3) That at said election the question of issuing bonds under the provisions of said act was also submitted to the qualified voters of Ahoskie graded school district.

"(4) That said election was held and conducted as provided for in said act, and a majority of the qualified voters of said district voted ballots with the word 'approved' written or printed thereon.

"(5) That the result of said election was declared and certified as required by said act.

"(6) That thereafter the bonds of said district were duly issued and executed, as provided for in said act to the amount of $8,000, and are now under the control of said board of trustees.

"(7) That on the -- day of June, 1910, said board of trustees contracted with said H. E. Bonitz to construct and build in said school district at Ahoskie a graded school building at a cost of about $8,000, for which said Bonitz agreed to accept in part payment a portion of said bonds, provided they were valid and binding.

"(8) That said Bonitz has nearly completed said building, and is demanding of said trustees payment for his said work, but declines to accept any of said bonds, as he is advised and believes that they are not valid and binding for the reason that said act is unconstitutional and void, but that he is willing to accept a portion of said bonds in part payment of his said work, provided the court decides that said act is constitutional and said bonds are valid and binding.

"(9) The defendants are ready, willing, and able to deliver to plaintiff $4,000 of said bonds in part payment of his said work under their contract.

"(10) That none of the admissions herein contained are in any wise to affect either party or to be regarded as made except for the purpose of this submission of this controversy.

"(11) The questions submitted to the court upon this case are as follows:

"First. Is said act (chapter 210 of the Private Laws of 1909) constitutional?

"Second. Are said bonds issued under said act, as therein directed valid and binding?

"If said questions are answered in the affirmative, then judgment shall be rendered that said bonds are valid and binding, and that the plaintiff is compelled to accept a portion of said bonds in part payment of his contract price for erecting said school building when tendered by said board of trustees. If answered in the negative, then judgment is to be rendered that the plaintiff is not bound to accept any part of said bonds in payment of his contract."

On these facts the court, being of opinion that the act was unconstitutional and the bonds were void, gave judgment for plaintiff, and defendants excepted and appealed.

Winborne & Winborne, for appellants.

F. W. Bonitz, for appellee.

HOKE J.

The Constitution of this state (article 9, § 2), in providing for a "uniform system of public schools wherein tuition shall be free of charge to all the children of the state, between the ages of six and twenty-one years," contains the requirement "that the children of the white race and the children of the colored race shall be taught in separate schools," and, further, "but there shall be no discrimination in favor of or to the prejudice of either race." In numerous and well-considered decisions, this court has held that these provisions of our Constitution in regard to the two races are mandatory, and may be disregarded, neither by Legislatures nor by officials charged with the duty of administering a given law. Smith v. School Trustees, 141 N.C. 143-159, 53 S.E. 524; Lowery v. School Trustees, 140 N.C. 33, 52 S.E. 267; Puitt v. Commissioners, 94 N.C. 709, 55 Am. Rep. 638; Riggsbee v. Durham, 94 N.C. 800. If, therefore, the act in question here in designating a certain boundary as a "school district for the white race" can only be construed as requiring that the funds to be raised under its provisions should be applied exclusively to the white schools within such boundary and the additional facilities afforded only enjoyed by the white children attending such schools, it would be clearly unconstitutional, but in our opinion such is not the necessary nor proper construction of the act. It is a well-recognized principle of statutory construction that "a court will not adjudge an act of the Legislature invalid unless its violation of the Constitution is, in their judgment, clear, complete and unmistakable" (Black, Const. Law, p. 61), and that, as between two permissible interpretations, that should always be adopted which will uphold the law. "That construction of a statute should be...