Berrier v. Board of Commissioners

120 S.E. 328, 186 N.C. 564, 1923 N.C. LEXIS 299

Opinion

Adaais, J.

Tbe act by wbicb tbe Legislature repealed tbe special tax voted in tbe consolidated district was ratified on 2 March, 1923, and on 9 March, during tbe February term, bis Honor signed tbe judgment in Evans v'. Comrs. in accordance with tbe opinion of this Court as reported in 184 N. C., 328; but at that time tbe abolition of tbe tax bad not been brought to bis attention. Tbe plaintiff insists that tbe General Assembly bad no legal right to abolish or repeal tbe special tax, and that tbe county board of education abused its discretion in forming tbe consolidated district. Neither position can be maintained. ¥e discover no evidence whatever of an abuse of discretion, and tbe power to levy or repeal a tax is peculiarly a legislative function.

His Honor’s judgment in tbe Evans case must be construed as applicable to tbe facts disclosed by tbe record, and not as concluding' tbe defendant after tbe repeal of tbe tax. Whether tbe plaintiff is not concluded by Judge Stack’s judgment refusing bis application for a restraining order we need not decide.

Tbe judgment rendered by Judge Shaw is

Affirmed.