Waters v. Board of Com'rs of Buncombe County

• Citation: 120 S.E. 450,186 N.C. 719
• Decision Date: 20 December 1923
• Docket Number: 552.
• Parties: WATERS ET AL. v. BOARD OF COM'RS OF BUNCOMBE COUNTY ET AL.
• Court: North Carolina Supreme Court

120 S.E. 450

186 N.C. 719

WATERS ET AL. v. BOARD OF COM'RS OF BUNCOMBE COUNTY ET AL.

No. 552.

Supreme Court of North Carolina

December 20, 1923

Appeal from Superior Court, Buncombe County; McElroy, Judge.

Suit by William Waters and others against the Board of Commissioners of Buncombe County and others. From the judgment rendered plaintiffs appeal. Affirmed.

Where the resolution of a board of education recited that a petition presented for the holding of an election under Pub.Loc.Laws 1915, c. 722, for issuance of school bonds, was signed by more than 25 per cent. of the voters in the district, and a similar resolution of the board of commissioners, were in due form, the resolutions were prima facie correct, and, in the absence of allegations tending to impeach their validity, evidence as to how the two boards arrived at their conclusions was not admissible, in a suit to test the validity of the bonds.

Civil action to enjoin the defendants from issuing certain school bonds of Haw Creek special school district, Buncombe county to the amount of $50,000, which the defendants propose to issue pursuant to chapter 722, Public Local Laws 1915; the same having been authorized by an election held in said school district on October 17, 1922.

From a judgment sustaining the legality of the election and upholding the validity of the bonds in question, the plaintiffs appealed.

M. W Brown, of Asheville, for appellants.

Chas N. Malone, G. A. Thomasson, and George W. Craig, all of Asheville, for appellees.

STACY J.

Upon the petition of one-fourth of the voters of Haw Creek special school district, which petition was approved by the county board of education, the board of county commissioners of Buncombe county ordered an election to be held in said district on the 17th day of October, 1922, for the purpose of submitting to the qualified voters of said district the question as to whether bonds to the amount of $50,000 should be issued for said school district, the proceeds derived therefrom to be used in erecting a new school building as provided by chapter 722, Public Local Laws 1915. The election was duly carried, and the defendants are preparing to issue the bonds as authorized. This suit is to test the regularity of said election and to determine the validity of the said proposed bond issue.

In the first place, it is alleged that while the action of the board of education in approving the petition in question and requesting the board of commissioners to order an election thereon appears to be regular on its face and in due form, yet, as a matter of fact, such action on the part of the board of education was without due inquiry as to whether the petition contained the requisite signatures of one-fourth of the qualified voters of said district, and that the approval of the board of education, as well as the action of the board of commissioners, was taken pro forma, for which reason, plaintiffs contend, the election should be held for naught, and the bonds declared invalid.

The evidence offered by the plaintiffs, tending to impeach the proceedings of the two boards, was excluded by the trial court on the ground the plaintiffs have not alleged nor do they contend that the petition did not contain the requisite number of signatures, but the objection of the plaintiffs, without any allegation of bad faith, fraud, or lack of a proper petition, simply relates to the manner in which the two boards arrived at their conclusions. To the action of the trial court in excluding this evidence, the plaintiffs except and assign same as error. The exception cannot be sustained. The resolutions of the two boards are in due form, and, in the absence of any allegation which tends to impeach their validity, evidence of the character offered will not be received. The recital in the resolution of the board of education that the petition presented was "signed by more than 25 per cent. of the voters residing in the district," and the recital in the resolution of the board of commissioners, "Whereas, it has been found and judicially determined that the signatures to said petition constitute more than 25 per cent. of the voters resident in said school district: Therefore, be it resolved," etc., are to be taken, prima facie at least, as correct. No competent evidence was offered to overcome the presumption of sufficiency arising from such recitals. 28 Cyc. 977; McManus v. People, 183 Ill. 391, 55 N.E. 886. Indeed, the sufficiency of the petition is not even questioned.

The next contention of the plaintiffs, which merits discussion, is that chapter 722, Public Local Laws of 1915, is repealed by implication by the passage of chapter 73, Public Local Laws Extra Session 1921, or, if not abrogated by this act, it is repealed by implication by the Municipal Finance Act (chapter 106, Public Laws Extra Session 1921).

Chapter 73, Public Local Laws Extra Session 1921, purports to amend chapter 518, Public Local Laws of 1913, an act relating to the school law in its application to Buncombe county, but this act of 1913 in no way conflicts with chapter 722, Public Local Laws of 1915. The act of 1915 (section 1) provides for issuance of bonds "for the purpose of repairing altering,...