Board of Educ. of Bladen County v. Board of Com'rs of Bladen County

• Decision Date: 13 December 1892
• Citation: 16 S.E. 621,111 N.C. 578
• Parties: BOARD OF EDUCATION OF BLADEN COUNTY v. BOARD OF COM'RS OF BLADEN COUNTY.
• Court: North Carolina Supreme Court

16 S.E. 621

111 N.C. 578

BOARD OF EDUCATION OF BLADEN COUNTY v. BOARD OF COM'RS OF BLADEN COUNTY.

Supreme Court of North Carolina

December 13, 1892

Appeal from superior court, Bladen county; R. W. WINSTON, Judge.

Action by the board of education of Bladen county against the board of commissioners of Bladen county.Judgment for defendant.Plaintiff appeals.Affirmed.

Batchelor & Devereux, for appellant.

MACRAE J.

The questions presented for our consideration are precisely the same as those which were determined in the case of Barksdale v. Commissioners,93 N.C. 472, wherein it was held that, while it is the duty of the county commissioners, under article 9, § 3, of the constitution of North Carolina, to keep the public schools open for at least four months in every year, yet, in discharging this duty they cannot disregard the limitations imposed by article 5, § 1, ^[1] as to the amount of tax to be levied and that section 23, c. 174,Laws 1885, which requires the commissioners, if the tax levied by the state for this purpose shall be insufficient to carry it into effect, to levy annually a special tax to supply the deficiency, is unconstitutional, because it is not such a special tax for county purposes as is provided for by article 5, § 6,^[2] of the constitution.The subject has been so recently and thoroughly discussed in the opinion delivered by Chief Justice SMITH for the court, and in the dissenting opinion of the then Associate Justice MERRIMON, with all the authorities on both sides, that we deem it unnecessary to recite the reasons upon which a conclusion was then reached by a majority of the court.

We have been induced to give the questions a careful reconsideration, and have listened with interest to the able argument of counsel, who have sought to induce us to put a different construction upon the constitution than was announced in the decision above referred to, and to hold that it is the duty of the county commissioners to obey the mandate of the act of 1885, and levy the additional tax sufficient to make up the deficiency, caused by the failure of the general assembly to provide funds to maintain the schools for at least four months in the year.But we are constrained by the principle involved in the maxim stare decisis, in which is bound up the stability of judicial decision, on which depends, not only respect for law, but knowledge of law, so necessary to be possessed by those whose duty and business it is to advise the people on all matters concerning their interests, to abide by the decisions of the court, unless it be made to appear that there was palpable error or mistake.When there is room for construction, and reasons may be adduced on both sides of a matter in controversy, the certainty of a rule is of more importance, often, than the reason of it.In saying this we do not wish it to be understood that, were the question before us an open one, we should reach a different conclusion upon it than has been declared by the court.The subject of taxation, general and special, by state and counties, has been considered in a long line of judicial decisions, beginning almost immediately upon the adoption of the constitution of 1868.It is well settled that for the ordinary expenses of government, both state and county, the first section of article 5 of the constitution places the limit of taxation, and preserves the equation between the capitation and the property tax,--the capitation tax never to exceed $2, and the tax upon property valued at $300 to be confined within the same limit.It is also settled in the same manner that by article 5, § 6, the counties may not exceed the double of the state tax, within the equation, except for a special purpose, and with the special approval of the general assembly.It appears from an examination of the authorities that no case has ever come before the courts involving the exercise of this special power of taxation by the counties except upon special or private acts for local objects, until the act of 1885 was brought to our attention, wherein, in a public act ("An act to amend the public school law,--chapter 15 of the Code") it is sought by section 23 to require a special tax in the county to supply the deficiency in the sum raised by general taxation and appropriation for public school purposes, under the requirements of article 9 of the constitution, in section 2 of which "the general assembly *** shall provide by taxation and otherwise for a general and uniform system of public schools wherein tuition shall be free of charge to all the children of the state between the ages of 6 and 21 years."It was held in Barksdale's Case, supra, which we are now asked to review, that this section 23 of the act of 1885 was not warranted by section 6, art. 5, of the constitution, because it was not such a special tax for local objects as was contemplated in the last-named section.We see no reason to doubt the correctness of the decision of the court upon this question, if it were now open to us for revision.The reasons are given and cases cited in the opinion of the chief justice, in the case referred to, and it would be but cumbering the books for us to reproduce them here.Were the question presented to us of the power of the general assembly to deal with the matter and provide adequate means for the necessary expenses incident to the maintenance of the public schools under the requirement of article 9, by general taxation, unfettered by any limitation of article 5, § 1, in the same manner as they may provide for a casual deficit, or for the payment of the public debt or interest on the same, or for the suppression of insurrection or invasion, we might possibly find a solution of the apparent difficulty which has resulted in a failure in some counties to maintain the schools for at least four months in every year; but, as the question may never arise, we will not discuss it.We are content to abide by the decision of the court in Barksdale's Case, and declare that in the judgment of his honor below, following that decision, there is no error.

AVERY J., (dissenting.)

Entertaining the most profound respect for the views of my brethren, I feel, nevertheless, constrained to give expression to the reasons that have impelled me to the conclusion that a most important provision of the organic law has been misconstrued, and the will of the people, as embodied therein, has been thwarted, by restricting the right of the legislature to delegate to the counties the taxing power to levy tax for the maintenance of public schools.If the court has fallen into error, it is a misconception that vitally concerns the public welfare.In the face of this constitutional inhibition, the legislature is no longer left free to enact and enforce uniform and liberal laws for sustaining our schools, and elevating and educating the ignorant classes of our people.Experience and observation have shown that education and morality advance hand in hand, while ignorance and vice are, as a rule, as constant companions.Acting upon the enlightened and philanthropic idea that crime could be best combated and happiness promoted by the refining influences of religion, morality, and learning, the framers of our fundamental law dug deep, and made mandatory public education, one of the bedstones upon which the constitution rests.The provisions which apply specifically to this subject are sections 1-3 of article 9, the material portions of which are as follows: "(1) Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.(2) The general assembly, at its first session under this constitution, shall provide, by taxation and otherwise, for a general and uniform system of public schools, wherein tuition shall be free of charge to all children of the state.(3) Each county of the state shall be divided into a convenient number of districts, in which one or more public schools shall be maintained at least four months in every year, and, if the commissioners of any county shall fail to comply with the aforesaid requirements of this section, they shall be liable to indictment."This, like many other expressions of the sovereign will embodied in the constitution, is not only addressed to and obligatory upon the legislature, but likewise appeals to and deals directly with its agencies for local government,--the counties,--and arms the courts with power to stimulate the commissioners to diligence.Starting out with the announcement, as solemn and binding and as clear and comprehensible as any fundamental principle transplanted from Magna Charta into our declaration of rights, that knowledge, as the handmaiden of religion and morality, is essential to the perpetuity of good government, two conventions of the people have deliberately and solemnly ordained that the system which "shall be maintained" must meet this necessity by compliance on the part of the legislature with certain requirements of the instrument, and that the aid of the criminal law also shall be invoked, if necessary, to insure the enforcement of the constitutional mandate.

1.It was made the duty of the legislature without delay, at its first session, both after the ratification of the constitution in 1868 and in its amended form in 1876, to provide for a "general and uniform system," by taxation or otherwise.

2.The county commissioners were required to fix the bounds of the districts in which one or more schools were to be maintained four months, etc.

3.The county commissioners are declared liable to indictment for an offense created by the constitution, to wit, the failure to comply with this section, not only by neglecting or refusing to...