Gill v. Bd. Of Com&rs Of Wake County

• Citation: 160 N.C. 176,76 S.E. 203
• Court: United States State Supreme Court of North Carolina
• Decision Date: 07 November 1912
• Parties: GILL et al. v. BOARD OF COM'RS OF WAKE COUNTY.

76 S.E. 203
160 N.C. 176

GILL et al.
v.
BOARD OF COM'RS OF WAKE COUNTY.

Supreme Court of North Carolina.

Nov. 7, 1912.

1. Schools and School Districts (§ 103^*)— Formation—Election.

Under Revisal, § 4115, amended by Pub. Laws 1909, c. 525, and Pub. Laws 1911, c. 135, § 1, providing that special school districts may be formed by the county board of education upon a petition of one-fourth of the freeholders within the proposed district, indorsed by the county board of education and that the board of county commissioners after 30 days' notice shall hold an election, etc., the board of education and the county commissioners are not authorized to call an election, unless the petition is signed as required by statute and the election can be directly attacked for want of such signing.

[Ed. Note.—For other cases, see Schools and School Districts, Cent. Dig. §§ 240-245; Dec. Dig. § 103.*]

2. Schools and School Districts (§ 103*)— Elections—"Freeholders."

The word "freeholders, " as used in Revisal, § 4115, amended by Pub. Laws 1909, c. 525, and Pub. Laws 1911, c. 135, § 1, providing that special school districts may be formed upon a petition signed by one-fourth of the freeholders within the proposed special school district, does not embrace female owners of freehold estates, nor infants, nor nonresidents, as the word "freeholder, " when used with reference to political rights, or suffrage or gov-

[76 S.E. 204]

ernmental matters, has never been understood to include such persons.

[Ed. Note.—For other cases, see Schools and School Districts, Cent. Dig. §§ 240-245; Dec. Dig. § 103.^2-*

For other definitions, see Words and Phrases, vol. 3, pp. 2969-2970; vol. 8, p. 7667.]

3. Statutes (§ 191*)—Construction—Rules.

A statute should be construed not textually, but contextually, and with reference to the particular matter dealt with.

[Ed. Note.—For other cases, see Statutes, Dec. Dig. § 191.*]

4. Statutes (§ 219*)—Executive Construction.

The construction placed upon a statute by the officers charged with executing it is entitled to great consideration, especially if such construction is that of the highest officer in the executive department, or has been acted upon for many years, and should not be disregarded or overturned unless clearly erroneous.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 296, 297; Dec. Dig. § 219.*]

5. Constitutional Law (§ 70*) — Judicial Functions—Public Policy.

The Legislature establishes the public policy of the state, and the court cannot question its motive or the wisdom of its policy, but must accept it, and enforce it as it finds it.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.*]

6. Appeal and Error (§ 1169*)—Reversal— Injunction.

On appeal from an injunction pendente lite against counting and certifying the result of a special election granted on the ground that the petition for the election was not sufficiently signed, the appellate court, on deciding that the petition was properly signed, will reverse the order, though it was also claimed that the proposed tax had been defeated, where there is no serious dispute but that there was a small majority in favor of the proposition.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4531-4539; Dec. Dig. § 1169.*]

7. Appeal and Error (§ 91*) — Decisions Reviewable—Interlocutory Injunction.

An appeal from an injunction pendente lite against counting and certifying the result of a special election granted on the ground that the petition was insufficiently signed, in that women, infants, and nonresidents, though freeholders, were not counted in determining the necessary number of signers, is not subject to dismissal as fragmentary and premature, though the plaintiff also counted that the tax proposed at the election was defeated, the order being appealable, though interlocutory, as affecting a substantial right.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 612-641; Dec. Dig. § 91.*]

Clark, C. J., and Brown, J., dissenting.

Appeal from Superior Court, Wake County; Ferguson, Judge.

Action by George E. Gill and others against the Board of Commissioners of Wake County. From an order continuing an injunction to the final hearing, defendants appeal. Reversed,

This action was brought by the plaintiffs to test the validity of an election held in Wake Forest for the purpose of establishing a school district therein and levying a special tax for the support of the same under Revisal, § 4115, which was amended by Public Laws 1909, c. 525, and Public Laws 1911, c. 135, § 1. It provides that "special school tax districts may be formed by the county board of education in any county without regard to township lines under the following conditions: Upon a petition of one-fourth of the freeholders within the proposed special school district, indorsed by the county board of education, the board of county commissioners, after thirty days' notice at the courthouse door and three public places in the proposed district, shall hold an election to ascertain the will of the people within the proposed special school district whether there shall be levied in such district a special annual tax of not more than thirty cents on the one hundred dollars valuation of property and ninety cents on the poll to supplement the public school fund, which may be apportioned to such district by the county board of education, in case such special tax is voted." It is not necessary that we should further refer to the amendments. A petition purporting to be signed by one-fourth of the freeholders of the proposed district was presented to the county board of education and duly indorsed by them, and the board of county commissioners thereupon ordered the election to be held in the district on June 15, 1912, for the purpose aforesaid. Revisal, § 4115, also provides that: "In case a majority of the qualified voters at the election is in favor of the tax, the same shall be annually levied and collected in the manner prescribed for the levy and collection of other taxes." Plaintiffs allege that a sufficient number of freeholders—that is, one-fourth—did not sign the petition for the election, but that the women in the district, and persons who are freeholders, but are themselves not residents of the district, were not counted in making up the total of freeholders of the district, and that, if they are included, one-fourth of the freeholders within the district did not sign the said petition. The defendants admit that, if the women of the district who own freeholds therein are to be counted in order to make a proper roster of the freeholders, then three-fourths of the freeholders did not sign the petition, without any regard to the freeholders who are nonresidents. They contend, though, that plaintiffs cannot raise the question as to the lack of a sufficient number of qualified signers to the petition, because they are concluded by the indorsement or approval of the county board of education, and the order for the election, which was made by the county commissioners. They also insist that the women should not be counted, as they are not freeholders within the meaning and intendment of the statute. Plaintiffs further allege that, if the election was properly

[76 S.E. 205]

ordered, the question submitted did not receive the approval of a majority of the qualified voters of the district, as required by the statute. It appears that the vote at the election was canvassed by the registrar and pollholders, who are about to certify the result to the board of county commissioners, who, it is alleged and admitted, will receive the election returns, record the same, and levy the tax as provided by Revisal, § 4115. Plaintiffs prayed that the said election be declared void, set aside, and annulled, and, as ancillary to this relief, that defendants be enjoined from declaring the alleged illegal result and from levying the tax. The court, his honor, Judge Garland S. Ferguson, presiding, was of the opinion, and so decided, that women and nonresidents who own freeholds in the district should be included in the count, so as to make up the total number of freeholders, or, in other words, that the term, "freeholders within the proposed special school district, " embraced female as well as male, and therefore that the petition did not have the requisite number of signers, freeholders, and nonresident freeholders. The court thereupon continued to the final hearing the temporary injunction theretofore granted by Judge Bragaw, and defendants appealed.

Winston & Biggs, of Raleigh, for appellants.

N. Y. Gulley, of Wake Forest, Douglass, Lyon & Douglass, W. B. Snow, and Armistead Jones & Son, all of Raleigh, for appellee.

WALKER, J. (after stating the facts as above). The first question for our consideration is, Can the plaintiffs now object that a sufficient number of qualified persons did not sign the petition for the election?

We think upon mature reflection and an examination of the authorities that they can, as the jurisdiction, if we may so term it, of the board of education and the county commissioners Is dependent upon the presentation to them of such a petition as is required by the statute; it being a condition precedent to the exercise of the particular authority conferred by the statute upon them. It was the foundation upon which all else rested, and without which the subsequent proceedings cannot stand. What is said by Justice Merrimon in McDowell v. Construction Co., 96 N. C. 514, 2 S. E. 351, is very pertinent here: "Accepting it as true that the commissioners of Rutherford county did ascertain and declare the result of the election in question properly and sufficiently— and this by no means appears to be certain— their action in that respect, while it could not be attacked collaterally, was not conclusive, and it might be questioned and contested in an action brought directly for that purpose. It cannot be that such a...