Howell v. Howell

• Decision Date: 23 December 1909
• Citation: 66 S.E. 571,151 N.C. 575
• Parties: HOWELL et al. v. HOWELL et al.
• Court: North Carolina Supreme Court

66 S.E. 571

151 N.C. 575

HOWELL et al. v. HOWELL et al.

Supreme Court of North Carolina

December 23, 1909

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

Action by E. H. Howell and others against E J. Howell and others. Plaintiffs' motion to continue the restraining order to the final hearing of the action was denied, and the injunction dissolved and plaintiffs appeal. Affirmed.

This is an action to set aside and annul the creation of a special-tax school district in Haywood county and to enjoin the collection of the special school tax therein. It is brought by certain taxpayers of Rock Hill school district against the sheriff and county commissioners of Haywood county and the school committee of Rock Hill district. The complaint alleges that the district was not laid off "as compact in form as practicable, and the convenience and necessities of the patrons were not consulted," and that the lines were so run as to exclude certain parties opposed to the tax and include others favorable to it. In the hearing below, his honor found as facts that "one-fourth of the freeholders of said district petitioned for the same, that the county board of education indorsed said petition, and that an election was regularly held, at which a majority of the qualified voters in said district voted for the tax." Upon these facts the court held that the establishment of the district was a matter in the discretion of the county board of education, and the court had no power to enjoin the collection of the tax.

Section 4115 of the Revisal of 1905 makes provision for the creation of special-tax school districts, and the part of this section material to this case is as follows: "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 *** 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."

The plaintiffs appealed to this court from the order dissolving the injunction.

W. T Crawford and Howell & Bohannan, for appellants.

S. C. Welch, W. J. Hannah, and Bickett & White, for appellees.

MANNING J.

The statute as above quoted makes four requirements: (a) A petition from one-fourth of the freeholders within the proposed district; (b) the indorsement of this petition by the county board of education; (c) the holding of an election in the district upon this question; and (d) the vote of a majority of the qualified voters in favor of the tax. It is not alleged that any of these requirements of the statute have not been complied with; nor is there any allegation that the tax, the collection of which is sought to be enjoined, is levied or assessed for an illegal or unauthorized purpose, or that it is illegal or invalid, or that the assessment is illegal or invalid. The county board of education is not made a party to this action. All irregularities alleged in the complaint relate to the location of the lines of this special tax district. The statute vests the power of determining the boundaries of a district solely in the county board of education. There is no suggestion anywhere of misconduct, or any impropriety on the part of any member of the board of education. None of the things complained of were done, or are alleged to have been done, by the board of education. The charges made refer to individuals, advocates of the special district, but in no way officially connected with the establishment of the same.

It appears that the petition for the establishment of this district was circulated among the freeholders and was well known to the plaintiffs herein. This petition had to be presented to the board of education and receive its indorsement. The time of the meeting of the board of education is fixed by law. If there were objections to the indorsement of this petition by the board of education, it was the duty of those objecting thereto to appear before the board of education and state their objections. It would be manifestly unfair to the board of education for plaintiffs to attack this action as unwise and unjust, when they had had the opportunity and the occasion to make known to the board the reasons why such action would be unwise, and had failed to do so. If the board had refused to give them a fair and impartial hearing, the courts would have been open to them for relief upon the charges of fraud or misconduct; but they cannot stand by in silence, while the board takes such action as, in the light of facts before it, seems wise, and then make complaint. They ought not to remain quiescent until the will of the qualified voters has been expressed, the verdict of the polls entered against them, and then apply to the court for the aid of its equitable power. Covington v. Rockingham, 93 N.C. 134; Wilson v. Green, 135 N.C. 351, 47 S.E. 469. The only matters alleged which can affect the proper creation of the district are contained in paragraph 3 of the complaint, where it is alleged that the district is not "as compact in form as practicable, and the convenience and necessities of the patrons were not consulted." These charges relate to certain provisions in section 4129 of the Revisal. The wording of this section is as follows: "The county board of education shall divide the townships into convenient school districts, as compact in form as practicable. It shall consult the convenience and necessities of each race in setting the boundaries of the school district." It will be seen that this section bears upon the division of the various townships into the usual school districts and makes no reference to special tax districts. We think that the Legislature set out in section 4115 all of the requirements essential to a special-tax district; but admitting that section 4129 should be construed as applying to all districts, whether ordinary or special districts, we still think that the court has no right or power to annul this district upon these grounds. Necessarily the questions of compactness and convenience must be addressed to somebody's judgment and discretion. The statutes unequivocally delegate this duty to the county board of education.

The only absolute standard of compactness would be a circle with the schoolhouse in the center. Such would be a physical impossibility. All other opinions of compactness would be relative and not capable of exact definition. The only absolute standard of convenience would be a schoolhouse at every man's door, which, of course, is out of the question. These things are of necessity relative to and dependent upon many other circumstances and conditions, all of which have fluctuating values in the determination of what is best. The lay of the land, streams, roads, mountains, and many other things, must all be considered and given their proper influence. Conditions in adjoining districts, even ought sometimes to control, since it may and does happen that a change in one district, apparently advisable for that district, would be on the whole unwise, because it would necessitate injurious changes in adjoining districts. There are 7,707 districts in the state, and it is highly probable that in each of these there are one or more persons who, with some degree of reason, think that, from the standpoint of convenience and compactness, the district is not correctly laid off. For the courts to undertake to pass upon such matters would be manifestly unwise. The county...