Gill v. Board of Com'rs of Wake County

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

76 S.E. 203

160 N.C. 176

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

Supreme Court of North Carolina

November 7, 1912

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.

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

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 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 determination and exercise of authority by county commissioners in respect to matters frequently involving questions and rights of great moment are final and absolutely conclusive. There is certainly no statute that so provides, and the spirit and principle of law in regard to the settlement and determination of the rights of parties and the public plainly imply the contrary. *** The chief and leading purpose of this action is to contest directly the regularity and validity of the election in question, including the ascertainment and declaration of the result thereof by the county commissioners. The plaintiff seeks to have the election adjudged void for the causes alleged, and prays for incidental equitable relief by injunction pending the action, and a perpetual injunction. We can see no reason why this is not competent, although we need not now decide conclusively any question in this respect. It is true the plaintiff did not bring his action at once after the result of the election was declared to contest its validity, but it was not necessary that he should do so, until some action was about to be taken in pursuance of it. It might be that the county authorities, seeing the election was irregular and void, would so treat and disregard it, in which case an action to have it declared void would be unnecessary. It seems that the plaintiff gave notice of his purpose to bring his action when and as soon as it became necessary, and that he did bring it promptly after the commissioners manifested their purpose to act upon the result of the election. There is no statutory provision that requires such elections to be contested at once after they take place, and in a particular manner. It was therefore sufficient for the plaintiff to bring his action within a reasonable period, and in the ordinary method." Referring to Smallwood v. Newbern, 90 N.C. 36, cited by appellants in that case, this court further said in McDowell v. Construction Co., supra, that it was not applicable, it being an action to enjoin a tax, which was a collateral and not a direct attack upon the commissioners' declaration of the result of the election, and thus quoted from the opinion in that case: "If the plaintiff was dissatisfied with the action of defendants in ascertaining the result of the vote in the respect mentioned, he ought, at the proper time, to have brought his action to question the truth and justice of their decision of the matter, and had the same reversed, declared irregular and void, or properly modified. There was a remedy, but that remedy cannot be had in an action like this." And the court in McDowell v. Construction Co., 96 N.C. 532, 2 S.E. 359, added, in connection with that extract from Smallwood v. Newbern: "Nor did this court say, or intend to say, to the contrary in Simpson v. Commissioners, 84 N.C. 158, Cain v. Commissioners, 86 N.C. 8, and Norment v. Charlotte, 85 N.C. 387." Cases in the courts of other states sustain the view that the jurisdiction of the boards to pass upon the petition is special and there is no power to act when the required number of legal signatures is wanting, and this defect can certainly be availed of by a direct impeachment of the election. It is said in Hoxie v. Scott, 45 Neb. 199, 63 N.W. 387: "The want of jurisdiction of the county commissioners and other officers clothed with like powers, with respect to similar petitions, to act upon the petition of less than fifty freeholders, or of a...