Perry v. Cox

• Decision Date: 26 April 1922
• Docket Number: 281.
• Citation: 112 S.E. 6,183 N.C. 387
• Parties: PERRY ET AL. v. COX ET AL., BOARD OF COM'RS.
• Court: North Carolina Supreme Court

112 S.E. 6

183 N.C. 387

PERRY ET AL. v. COX ET AL., BOARD OF COM'RS.

No. 281.

Supreme Court of North Carolina

April 26, 1922

Appeal from Superior Court, Bladen County; Keir, Judge.

Action by G. D. Perry and others against E. J. Cox and others, Board of Commissioners of Bladen County. From a judgment for defendants, plaintiffs appeal. Reversed, and judgment entered for plaintiffs.

Civil action to enjoin and perpetually restrain the defendants from levying and collecting a special school tax, authorized by a vote of the people in a new and proposed consolidated district of what was originally three contiguous and adjacent school districts in Bladen county, namely, Council, a local tax district, and Carver's Creek and Boggy Branch nonlocal tax districts. A majority of the voters in the two districts last named voted against levying the special tax here called in question, but the tax was carried in the entire territory voting as a unit.

From a judgment denying the relief sought and adjudging the tax to be valid and legal, the plaintiffs appealed.

R. D Dickson, of Wilmington, for appellants.

Henry L. Williamson, of Elizabethtown, and J. Bayard Clark, of Fayetteville, for appellees.

STACY J.

The facts of this case, briefly stated, are as follows:

Council, Carver's Creek, and Boggy Branch have been for many years, and were up to June 6, 1921, when consolidated by the board of education of Bladen county, three contiguous and adjacent school districts, occupying and covering a large portion of Carver's Creek township, which township covers the entire southeastern end of Bladen county from Cape Fear river to the Columbus county line.

In the year 1905 a special tax election for schools was held in the old Council district, and a tax of 30 cents on the $100 valuation of property and 90 cents on the poll was voted and carried. This tax, by another election held in said district in 1920, was increased to 50 cents on the $100 valuation of property and $1.50 on the poll; also there was held in the year 1917 in said old Council district a school bond election, and a tax of 15 cents on the $100 valuation of property and 45 cents on the poll to pay interest, and to create a sinking fund on account of said bond was voted and carried, which tax has been levied and collected annually in said district since that time; the bonds issued by authority of said election being due to mature in 1922, one year after the date of the election herein contested. While this was the status of the old Council school district with reference to taxes, the Carver's Creek and Boggy Branch districts had never voted a special school tax of any kind prior to the date of the election herein contested.

On June 6, 1921, the board of education of Bladen county combined these three districts into one consolidated district; and on the same day it caused to be ordered an election in said consolidated district on the question of voting a special tax of 30 cents on the $100 valuation of property and 90 cents on the poll, "to supplement the public school fund to be apportioned by the county board of education to said consolidated district," which election was held on July 18, 1921, and carried by a majority of the voters in the entire territory, and this is the election which the plaintiffs contest.

While the vote in the instant election was taken without regard to the former lines of the old school districts, yet, as a matter of fact, a majority of those residing in the territory of the original nonlocal tax districts of Carver's Creek and Boggy Branch voted against the levy now sought to be enjoined.

It is conceded that prior to the enactment of chapter 179, Public Laws 1921, the present consolidated district could not have been formed except as provided by article 18, chapter 95 of the Consolidated Statutes; and, in Paschal v. Johnston, at the present term (N. C.) 110 S.E. 841, decided intimation is given that where local tax districts are sought to be combined and joined with nonlocal tax districts, or nonspecial tax territory, the question should be considered and dealt with as an enlargement of districts, already existing, under C. S. § 5530, whereby the outside territory is allowed to vote separately on the proposed tax. And such is the holding in Hicks v. Board of Education, just decided (N. C.) 112 S.E. 1.

In construing these different statutes, relating to the same subject-matter, as they do, it is our duty to reconcile and to harmonize them, if possible, and at the same time to give to each and every one its proper significance, if such can fairly and reasonably be done. Cecil v. High Point, 165 N.C. 431, 81 S.E. 616.

For the sake of clearness, it may be well to note just here that the procedure authorized by C. S. § 5526, would seem to refer, and apparently was intended to apply, primarily to cases where new districts are created, or formed, in the manner prescribed therein, out of territory exclusive of special tax districts, or at least out of territory having the same status throughout its entirety, so far as concerns the then existing school tax, or taxes. Under these circumstances every voter is given a fair chance, uninfluenced by other considerations, to declare with his ballot whether or not he wishes to be taxed for the creation and maintenance of such a district. To allow this section to be called into operation under any other conditions would be to introduce different considerations for popular approval in different sections of the district, and this no doubt would have a tendency to retard rather than to promote the cause of education and the establishment of better schools. At any rate, such would seem to be the legislative intent as gathered from a careful reading of the section. Hicks v. Board of Education, at the present term; Howell v. Howell, 151 N.C. 575, 66 S.E. 571; Gill v. Com'rs, 160 N.C. 177, 76 S.E. 203, 43 L. R. A. (N. S.) 293; Chitty v. Parker, 172 N.C. 126, 90 S.E. 17. In the case at bar, different issues were being voted upon by different portions of the consolidated district. In the old council district the sole question was not whether the voters in that district should continue a special tax for schools, but for them the success of the election meant a reduction of 20 cents on the $100 valuation of property and 60 cents on the poll; and for the voters of the old Carver's Creek and Boggy Branch districts it meant the imposition of an entirely new and special tax. The people in the nonlocal tax districts of Carver's Creek and Boggy Branch were outvoted by the practically unanimous cast in the old Council district. We do not think the Legislature intended that the school law should be executed in this way.

Possibly it would be well to observe, also, that we are not now considering the proposed establishment of a central high school, or high schools in a given township, as provided by C. S. § 5511. Woosley v. Com'rs, 182 N.C. 429, 109 S.E. 368.

We then come to a consideration of C. S. § 5473, as amended by chapter 179, § 1, Public Laws 1921. It will be conceded, at the outset, that the amendment of 1921 is somewhat ambiguous and its application is not altogether free from difficulty. But regardless as to how we may be able to adjust its provisions to pre-existing statutes, in all events they must be made to square with the requirements of the Constitution, or else disregarded. Prior to...