Riggsbee v. Town of Durham

• Decision Date: 28 February 1886
• Citation: 94 N.C. 800
• Court: North Carolina Supreme Court
• Parties: A. M. RIGGSBEE v. THE TOWN OF DURHAM.

94 N.C. 800

A. M. RIGGSBEE

v.THE TOWN OF DURHAM.

Supreme Court of North Carolina.

February Term, 1886.

Motion to continue a restraining order to the hearing, in a case pending in the Superior Court of DURHAM county, heard before Clark, Judge, at Chambers in Greensboro, on February 19, 1886.

At the session of 1881, the General Assembly passed an act “to establish a graded school in the town of Durham,” chapter 231, the provisions of which, so far as they relate to the present controversy, are in substance these:

The first section directs the submission to the voters of the town, of the question whether an annual tax shall be levied for the support of a graded school in the town, and prescribes the mode in which the popular will shall be ascertained.

The second section, in case of an affirmative vote, authorizes the imposition and collection by the town authorities, of a tax upon property and polls, not exceeding one-fifth of one per cent. upon the value of the former, and seventy-five cents upon the latter, within the town and subject to taxation, the proceeds of which, it is declared, “shall be applied exclusively for the support of a ‘graded public school’ and shall not be expended for any other purpose.”

Section three is in these words: “The special taxes thus levied and collected from the taxable property and polls of white persons, shall be expended in keeping up a graded public school for persons of both sexes, between the ages of six and twenty-one years; and the special taxes thus levied and collected from the taxable property and polls of colored persons, shall be expended for the benefit of the colored schools for the colored children between the ages of six and twenty-one years.”

The other sections of the Act, regulate the management of the school and the administration of the funds, and are not important in the present exigency. Nor is the principle involved, affected by the subsequent amendments. Acts 1883, chapter 377; Acts 1883, Private, chapter 106; Acts 1885, chapter 87, Private, An election was held, and a favorable vote taken, pursuant to which a graded school was set up for the education of white children only, to support which the taxes derived from white tax-payers were appropriated, while those from colored persons were distributed among the colored districts, which entered within the corporate limits of the town, in the general division of the county into separate school districts for the education of both classes of children. The county authorities accordingly fixed upon the maximum tax allowed by the enactment upon property, and upon sixty cents on the poll, preserving the constitutional equation between the two, which the act disregarded in imposing the limitations, and a tax list was made out and delivered to the town tax-collector, who was proceeding to levy and collect, when the present action was instituted by the issue of a summons against him and the other defendants, on the 13th day of February of the present year. The purpose of the suit, is to have a perpetual injunction against the enforcement of the tax, preliminary to the final hearing of which, the plaintiffs, upon notice, applied to Clark, Judge, on the 18th day of the same month, for an intermediate restraining order to prevent the collection.

It was in evidence, in support of the plaintiff's motion, that there had been no graded school established in the town for colored children; that the town contains over two thousand inhabitants; that the territory embraced in the corporate limits of Durham, constitutes parts of three colored districts, into which the county is divided, and the school-houses in each are outside the town limits; that there are no school-houses therein for educating colored children, or into which they are allowed to enter; and that the taxes collected from that race, are distributed among the county colored districts, enuring as well to the benefit of colored children therein, who reside without, as to those who reside within the town. It was insisted for the plaintiff, that the Act, in its essential provisions and purposes, is in violation of the Constitutions of the United States and of this State, in making unwarranted distinctions between the white and colored races, and that it is inoperative and void.

The Court rendered judgment as follows:

“This cause coming on to be heard, upon a motion by the plaintiff for an injunction, notice of motion having been duly served upon the defendants, and both parties being present, the complaint, (which is read as an affidavit,) and affidavit of plaintiff, and also affidavit of defendant being read, and it being agreed by both parties, that the statements in said complaint and affidavits shall be taken as facts admitted, (and they are found as facts by this Court,) and upon argument of counsel, the Court being of opinion:

1. That there is no irregularity or illegality in the mode of levying or collecting the tax complained of.

2. That clause 3 of the Act, (chapter 321, Acts of 1881), is unconstitutional and void, so far as it directs a discrimination between the races in the apportionment or appropriation of the fund raised by said tax.

3. That nothing in said Act, permits or authorizes the appropriation of the money raised by said tax, to the benefit of the public schools, or to any other purpose...