Carr v. . Little

123 S.E. 625, 188 N.C. 100, 1924 N.C. LEXIS 13

• Court: Supreme Court of North Carolina
• Decided: June 21, 1924
• Status: Published

Opinion

Clarkson, J.

This is an action begun by injunction to restrain the issuance of $200,000 of bonds of the Greenville Graded School District, and the levy of tax for payment thereof. We have set forth fully the material facts and the contentions of the parties, as this action is to test the validity of the bonds and a levy of tax to pay the principal and interest and also the levy of the maintenance tax within the territory referred to as the 1905 School District, which is now known as the “Greenville Graded School District,” and in which district the vote was taken to issue the bonds now in dispute.

We will consider what territory composes tbe Greenville Graded School District: Tbe Legislature of 1903 passed an act, chapter 106, Private Laws, creating the Greenville Graded School District and defining the boundaries as being coterminous with the then town of Green-ville. In 1905, by chapter 132, Private Laws, the boundaries of the district were extended to take in additional territory, such extension not being submitted to the vote of the people, though taxes have been levied therein continuously since 1905. In 1915, Private Laws, ch. 222, the boundaries were again extended to include additional territory, but no vote was taken on the extension and no tax has been levied in such additional territory since the first two or three years following 1915. The caption of this act is “An act to enlarge the boundaries of the Greenville Graded School District.” The election of 1 April, 1924, was submitted to the voters residing in the territory as defined by the 1905 act and excluded the 1915 addition.

It will be noted that in chapter 106, Private Laws 1903, in which the vote was taken in accordance with Article VII, section Y, of the Constitution, establishing the graded school in the town of Greenville, section 12 says:

“That all children within the corporate limits of. said town as now constituted, or as they may be hereafter extended, who are entitled to attend the public schools, shall be admitted into said graded schools free of charge: Provided, always, that the whites shall attend the schools provided for them and the blacks the schools provided for them: Provided further, that the board of trustees shall have power to admit the children to either of the said schools who reside outside of the corporate limits of said town upon such terms as they may deem fair and just.”

“Sec. 13. That the corporate limits of said town shall constitute a school district for each race, but the trustees of the graded school and the persons charged by law with the duties of locating and managing the various school districts in the county of Pitt may extend the boundary of the graded school districts so as to take in territory and people not included within the corporate limits of said town. (Italics ours.) And the board of trustees may enter into negotiations with the school committee of the district in which the said graded schools are situated and the county board of education, looking to acquiring the title to the lands and the school buildings for the white and for the colored races belonging to said school committee, on such terms as may be agreed upon, and the sale of these buildings and the investment of the proceeds in the graded school buildings for such races respectively. And the said board of trustees shall have full power and authority to receive, use or hold any donations, gifts, devises and bequests made for either or both of said graded schools.”

Tbe act of 1905 extended tbe corporate limits of tbe school district to take in additional territory outside of tbe limits of tbe town of Green-ville. Tbe act says:

“Sec. 5. Tbat tbe person or persons appointed to take tbe list of taxable property in said town and to collect tbe same shall also take tbe tax list and collect tbe taxes for tbe support of tbe schools in said graded school district and pay over tbe same to tbe town treasurer, to be by him disbursed according to law for tbe benefit of said graded schools.

“Sec. 6. Tbat in levying tbe taxes for tbe support of said graded schools tbe board of aldermen of said town of Greenville shall levy tbe same tax on all real and personal property within tbe boundaries of said school district, whether said property be within tbe corporate limits of said town or not, and in levying said tax tbe valuation fixed by tbe State and county assessments shall be taken as tbe valuation of this assessment.”

Tbe Private Laws of 1915, cb. 222, construed in connection with Private Laws 1905, cb. 132, only enlarged tbe boundaries as set forth in tbe latter act, but did not in any way repeal tbe then existing district. Tbe caption of tbe act says: “Enlarge tbe boundaries.” After levying tbe tax, two or three years following 1915, tbe levy was abandoned in tbe enlarged territory; but for 19 years, without 'objection from any taxpayer until this suit, the tax has been levied and collected in tbe territory under tbe 1905 act.

Tbe plaintiff, R. L. Carr, who resides and owns property in tbe territory of tbe enlarged corporate school limits of 1905, and ~W. D. Turner, who resides and owns property in tbe corporate limits of tbe town of Greenville, and on behalf of all other taxpayers, etc., are parties to this injunction proceeding. Tbe $200,000 bond issue was voted on in this 1905 district.

Constitution of N. C., Art. VII, see. 7, is as follows:

“No county, city, town or other municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied or collected by any officers of tbe same, except for tbe necessary expenses thereof, unless by a vote of tbe majority of tbe qualified voters therein.”

Tbe vote of tbe people, under Private Laws 1903, cb. 106, voted not only tbat tbe children in tbe corporate limits could get tbe benefit of tbe graded school, but provided in section 12 of tbe act “Tbat all children within tbe corporate limits of said town as now constituted, or as may be hereafter extended, shall be admitted,-” and tbe method of admittance until tbe limits are extended, "who reside outside of the corporate limits of said town upon such terms as they may deem fair and just." This power was given to tbe board of trustees of tbe graded school to fix the fair and just terms. When the school limits were extended, the maintenance tax was under sections 5 and 6, Private Laws 1905, ch. 132, made the same as the tax in the old corporate limits of the town of Greenville.

Under section 13, chapter 106, Private Laws 1903, again “May extend the boundary of the graded school district so as to take in territory and people not included within the corporate limits of said town ”

The people of the town of Greenville voted, under Private Laws 1903, ch. 106, to establish the graded school and to levy the tax not only for children in the corporate limits of the town of Greenville, as then constituted, but for the children in the limits that might be thereafter extended. They further under the said act, voted that the trustees of the graded school, under agreement with the county school authorities, could extend the boundary of the graded school district so as to take in territory and people not included within the then school district — the corporate limits of the town.

We think that Article VII, section 7, of the Constitution, supra, has been substantially complied with. The vote taken under the act made the town of Greenville contract a debt not only for those children in the town but for those in the extended district when the district was enlarged by legislative act 1905, supra, or under 1903 act, sec. 13, by agreement of the Trustees of Graded School of Greenville with the legal authorities of the proper county school district. After 19 years payment of tax, without protest from any citizen or taxpayer, including plaintiffs, it is presumed that the law has been complied with and the taxpayers and citizens of the district are estopped to question the validity of the tax.

“As in original creation, the law will indulge in presumptions in favor of the validity of changes of boundaries. Thus after public acquiescence for a considerable period presumptions in favor of the regularity of proceedings to attach territory to a municipal corporation will be indulged, and this is true although irregularities which would have defeated the annexation, if action has been taken in time, appears. So, where territory is annexed under a law which is unconstitutional because special in its character, and the city exercised municipal functions over the new territory for a period of four years without objection, and its operations would be seriously interfered with by holding annexation void, it was held that the complainant would be estopped from urging invalidity of the annexation.” McQuillan on Municipal Corporations, sec. 289 (see cases cited) ; 20 A. & E. Enc. Law (2 ed.), 1155, and cases cited.

We do not think that chapter 135, Public Laws 1923, entitled, “An act validating the organization of special school districts,” from the position we take in tbis case, bas any application. 'It legalized and validated the elections beld under Article VII, section 7, of tbe Constitution, in relation to school districts, proposed school districts or portions of school districts.

Public-Local Laws 1915, ch. 253, is an enabling act, “An act to authorize the Board of County Commissioners of Pitt County to order an election in certain school districts in said county to issue bonds for certain purposes.” There is no limit in this act as to the amount o'f bonds to be issued. "What the certain school districts were is not clearly stated, but as one of the conditions imposed by the act was a petition from the school committee of any public school district in the county of Pitt, and as the Greenville District was under a board of trustees and not a school committee, we do not think this act applies.

The General Assembly enacted chapter 386, Private Laws 1911, by which law the provisions- of said law of 1903 relative to the election of trustees of said district was amended, and by which same law the boundaries of the town of Greenville, as set forth in chapter 261, Private Laws of 1907, were enlarged by amendment of said chapter 261, the mandatory act of 1911 did not purport to amend said act of 1905. We think, from the position we take, that these acts had the effect only of reducing the number of trustees of the district as now constituted, known as 1905 District.

Private Laws, 1921, ch. 53, is “An act to authorize the Greenville Graded School District to issue bonds in an amount not exceeding $200,000, for the purpose of funding certain indebtedness and for the purpose of building, equipping or enlarging graded schools and teachers’ home in said district.”

It may be noted that in this act the territory known as Greenville School District (referred to as the 1905 School District in this opinion), which has paid maintenance tax for 19 years without objection, is fully recognized. Section 1 of the act is as follows: “That for the purpose and benefits of this act, the provisions of all laws governing assessment of real and personal property, the levy and collection of municipal taxes, and the holding of municipal elections in the town of Greenville, shall be and are hereby extended to that portion of the Greenville Graded School District lying without the corporate limits of said town as fully as if the same lay within said corporate limits, and to such other additions to said Greenville Graded School District as shall be lawfully made; and that for the purpose of levying and collecting taxes for the purpose of this act, and in all elections to be held under this act,” etc. This act is repealed by chapter 38, Private Laws, Extra Session, 1921.

With these laws on the statute books, the Legislature of North Carolina, Public Laws 1923, ch. 136, passed the school law, the caption and preamble of which is as follows:

“An act to amend the Consolidated Statutes and to codify the laws relating to public schools.

“Whereas the acts of the General Assembly relating to public education are for the purpose of aiding all the people, and especially school officials, in maintaining and conducting a system of public schools and .in providing revenue for the same; and

“Whereas a great need is apparent for collecting all the laws relating to public education and codifying them in such a way as to set forth as clearly as possible the legal duties, powers, and responsibilities of the several officials, in order to give them and all other friends of public education a clearer conception of their duties in maintaining and conducting public schools in accordance with the needs of the people and the provisions of the Constitution: Now, therefore.”

The word “officials” in the above preamble is defined by section 5 of the act in the case of a special charter district to be “the Board of Trustees.”

We think that chapter 38, Private Laws 1921, Extra Session, should be construed in pari materia, with chapter 136, Public Laws 1923. This latter act, although being designated a public act, treats with the private or special school acts of the State. In this respect we have the two acts, both relating to private or special school acts. The act of 1921 limits the bond issue to $200,000, the amount of bonds voted for under act of 1923 being $200,000. Both acts provide that they must mature in 30 years. Under the act of 1921 the discretion, as we construe the act, gives the authority to issue serial bonds. The act of 1923 provides for 30-year serial bonds. In conformity with Constitution, Art. VII, sec. 1, both acts provide that the bonds cannot be issued unless a majority of the qualified voters of the school district vote in favor of the issuance. The board of trustees under both acts have to petition for the election. The act of 1921 requires the petition to the county commissioners ; that of 1923 to the governing body of the town, which is the Board of Aldermen of the town of Greenville. The main conflict in the two acts relate to the body that submits the bonds to the vote of the qualified voters in the 'particular school district and the body that issues the bonds. Under the 1921 statute, supra, no bonds were ever voted. In the interpretation of statutes, the spirit and reason of the law should prevail — “For the letter killeth, but .the spirit giveth life.” The legislative intent in both the laws of 1921 and 1923, supra, was to give the qualified voters an opportunity to vote for bonds for school purposes in the particular districts like the one under consideration. To carry out tbis intent, tbe acts should be so construed, if possible, as to reconcile them and effectuate each. If there is any conflict, the latter one repeals the former pro tanto to the extent of the repugnancy.

It was said in S. v. Kelly, 186 N. C., 372: “Where two statutes are thus in conflict and cannot reasonably be reconciled, the latter one repeals the one of earlier date to the extent of the repugnance. Comrs. v. Henderson, 163 N. C., 120; Comrs. v. Comrs., 186 N. C., 202. ‘Between the two acts there must be plain, unavoidable and irreconcilable repugnancy, and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy.’ 36 C. L. P., 1074. Every affirmative statute is a repeal by implication of a prior affirmative statute, so far as it is contrary to it, for the maxim is Leges posteriores priores contrarias ahrogant (later laws abrogate prior laws that are contrary to them). S. v. Woodside, 31 N. C., 500; Black’s Law Dictionary.”

In chapter 136, Public Laws 1923, sec. 378, the repealing clause is as follows: “All laws and clauses of laws, including all acts passed by the General Assembly of one thousand nine hundred and twenty-three in conflict with this act are hereby repealed.”

We do not think the position here taken disturbs the principle laid down in Felmet v. Comrs., 186 N. C., 251.

The only material conflict between the two acts is in reference to the referendum and the body that issues the bonds.

Laws of 1923, ch. 136, sec. 263, subsec. (b), is as follows: “In the case of special charter districts not coterminous with an incorporated city or town, the petition for the election shall be made by the board of trustees to the board of county commissioners, which board shall call, hold, and determine the result of the election as provided in this article, and the bonds shall be issued by the board of trustees: Provided, however, that in districts of the kind described in this subsection in which special school taxes are now levied by the principal governing body of a city or town situated within the district, the powers and duties conferred by this article on board of county commissioners shall be exercised and performed by said principal governing body. Bonds of districts of the kind described in this subsection shall be issued in the corporate name of the district if the district is incorporated, or in the corporate name of the board of trustees if the district is not incorporated.”

This section must be construed with Private Laws 1903, ch. 106, establishing a graded school in the town of Greenville, and chapter 386, Private Laws 1911, reducing the number of trustees, etc. Under those acts, trustees were elected by the Board of Aldermen of the town of Greenville, and when their term expired it is provided that any vacancy shall be filled by the board of aldermen, the governing body of Greenville. Subsection (b), supra, provides that the bonds of the district when the board of trustees (as in the present case) is not incorporated shall issue them “in the corporate name of the board of trustees if the district is not incorporated.”

The facts in Comrs. v. Prudden, 187 N. C., 794, are different from ' this case, and that case is not in conflict with the case at bar.

We think that the procedure followed, in calling and holding the election of 1 April, 1924, was a sufficient and substantial compliance with the law, and that the will of the qualified voters of said district has- been duly ascertained, since there were registered 987 voters, of which number 696 voted in favor of the issuance of the bonds and a levy- of the tax in payment thereof, and 74 voters voted against the issuance of said bonds. We are of the opinion that the said election is in all respects valid, and when the bonds shall be issued by the board of trustees and executed as they may direct, and sold by them after due advertisement, same will be valid and binding obligations of the Green-ville Graded School District in the territory that has been recognized for the last 19 years as the district, and taken in under the Private Laws of 1905, ch. 132.

We reach the samer conclusion here as the court below — that the bonds are valid. The position here taken being, in our opinion, the law, the judgment of the court below is

Affirmed.