Galloway v. Board of Education of Brunswick County

• Decision Date: 25 October 1922
• Docket Number: 290.
• Citation: 114 S.E. 165,184 N.C. 245
• Parties: GALLOWAY ET AL. v. BOARD OF EDUCATION OF BRUNSWICK COUNTY.
• Court: North Carolina Supreme Court

114 S.E. 165

184 N.C. 245

GALLOWAY ET AL. v. BOARD OF EDUCATION OF BRUNSWICK COUNTY.

No. 290.

Supreme Court of North Carolina

October 25, 1922

Appeal from Superior Court, Brunswick County; Lyon, Judge.

Suit for injunction by Oscar Galloway and others against Julius Moore and others, constituting the Board of Education of Brunswick County. Judgment for defendants, and plaintiffs appeal. Appeal dismissed.

Civil action heard on return to preliminary restraining order before his honor, Lyon, judge at February term, 1922 superior court of Pender county. The action is to obtain an injunction against collecting a tax for school building purposes in the Southport high school district. From the facts in evidence, it appeared that under a special act of Legislature (Pr. St. c. 251, Laws 1921) an election was held in said alleged district in June, 1921, on a proposition for a bond issue for school building purposes, after a new registration was had pursuant to the provisions of the act and the measure was approved by a large majority of the voters. There being some question as to the validity of the special legislation and with a view and purpose of securing a tax levy for building purposes for the year of 1921, the commissioners ordered another election on the subject under chapter 87, Public Acts Extra Session 1920. An election was held on November 2, 1921, and the measure was again approved by a large majority of the voters. That the election was ordered on September 6, 1921, by board of county commissioners, the tax was levied on September 8th, a new registration was held as provided by the said act, chapter 87, and the election, as stated, being on November 2d. Present action was instituted in March, 1922, by plaintiff citizens and taxpayers of the district, to restrain collecting tax on ground levy was illegal, being made prior to election. Second, that there was an unlawful discrimination against colored race in the proposed bond issue and disposition of the proceeds. At the hearing, and before us, the second ground of objection was abandoned as not sufficiently sustained by the facts pertinent, and considering the question on the first ground, as stated, the court found certain relevant facts and entered judgment as follows:

"(1) That the taxes complained of were levied by the board of commissioners on the 8th September, 1921, at the time of levying the other taxes for 1921.

(2) That the election was ordered on the September 6, 1921, and regularly held on the 2d day of November, 1921.

(3) That the tax books for the collection of said tax and the general taxes were placed in the hands of the sheriff of said county for collection on the 5th of December, 1921.

(4) Said election held on the 2d of November, 1921, was under and by virtue of chapter 87, Public Laws 1920, Extra Session.

It is considered and adjudged that the restraining order and injunction heretofore granted in this action be and the same is now dissolved and vacated. And it is further considered and adjudged that the sheriff shall proceed to collect said tax."

It was subsequently made to appear of record that, after the judgment dissolving the restraining order, the tax was collected by the sheriff; settlement had with the county commissioners for all the taxes collected by that officer for the years 1920-21, including the tax complained of. Said tax was distributed to the different funds for which they were collected, etc.

John D Bellamy & Sons, of Wilmington, for appellants.

J. W Ruark and C. Ed. Taylor, both of Southport, for appellees.

HOKE J.

The decisions of this court have been very insistent in upholding the constitutional guaranty against race discrimination in the distribution and use of the public school funds, and it is gratifying that in the present case there were no facts in evidence to sustain such an allegation. Williams et al. v. Bradford, 158 N.C. 36, 73 S.E. 154; Bonitz v. School Trustees, 154 N.C. 375, 70 S.E. 735; Lowery v. School Trustees, 140 N.C. 33, 52 S.E. 267; Riggsbee v. Durham, 94 N.C. 800; Puitt v. Commissioners, 94 N.C. 709, 55 Am. Rep. 638.

On plaintiff's other ground of impeachment, and as we understand the record, it appears that the first election in these proceedings was under chapter 251, Private Laws 1921, and this, being a special act attempting to establish or change the lines of a school district, is in violation of the recent amendments to our Constitution, appearing chiefly in article 2, § 29, and the act itself, and any attempted proceedings under it, are null and void. Sechrist v. Board Commissioners, 181 N.C. 511, 107 S.E. 503; Trustees of Fairmont District v. Trust Co., 181 N.C. 306, 107 S.E. 130; Robinson v. Commissioners, 182 N.C. 591, 109 S.E....