BARNHILL, J., dissenting.
DEVIN and WINBORNE, JJ., concur in dissent.
Plaintiff, on behalf of himself and other taxpayers of Sand Hill Consolidated School District of Buncombe County like situated, brought this action against the Board of County Commissioners for Buncombe County to restrain the issue of certain bonds by the defendants in behalf of the school district named.
The case was heard before Judge Warlick, without the intervention of a jury, upon an agreed statement of facts, as follows:
"It is hereby agreed by and between counsel representing the plaintiff and counsel representing the defendants that the following constitutes the facts in controversy between the parties:
"1. That pursuant to chapter 279 of the Public-Local and Private Laws of North Carolina, Session 1937, the Board of Education of Buncombe County in accordance with the terms of said statute created the Sand Hill Consolidated School District of Buncombe County, a school district or special bond tax unit, and pursuant to said action of the Board of Education of Buncombe County the Board of County Commissioners of Buncombe County, in strict compliance with the terms of said statute, ordered an election in said district or bond tax unit to be held Tuesday, October 3, 1939, at which election a majority of the qualified voters of said district voted in favor of the issuance of $100,000.00 school bonds and/or notes and the levying of a sufficient tax ad valorem on the
taxable property within the district for the payment thereof for the purposes of acquiring, erecting, enlarging, altering and equipping school buildings or any one or all of said purposes, and that pursuant to said election the Board of County Commissioners in accordance with the terms of said chapter 279, canvassed the returns of said election and complied with the statute with respect to declaring the results of said election and giving notice thereof.
"2. That pursuant to the authorization aforementioned, the Board of County Commissioners of Buncombe County unless prohibited by order of court proposes to issue bonds and/or notes in the amount of $100,000.00, to be paid both principal and interest from taxes levied exclusively on the taxable property within the Sand Hill Consolidated School District for the purposes authorized in said chapter 279.
"3. That the Sand Hill Consolidated School District of Buncombe County comprises the identical territory as that contained within the limits of the Sand Hill Administrative School District created by order of the Board of Education and with the approval of the State School Commission in 1933 under the provisions of chapter 562 of the Public Laws of North Carolina, Session 1933.
"AND IT IS FURTHER AGREED by and between counsel for the plaintiff and the defendants that the sole question involved in this action is whether chapter 279 of the Public-Local and Private Laws of 1937 violates the provisions of Article II, section 29, of the Constitution of North Carolina."
The statute referred to is too long for detailed quotation. In substance it provides that upon a petition of not less than ten per cent of the qualified voters of the territory affected such territory shall be created into a school district and that bonds or notes shall be issued under the provisions of the act, payable exclusively out of the taxes levied in the district, for the purpose of erecting school buildings therein, etc.
Upon pertinent findings of fact, the trial court concluded that the pertinent statute — chapter 279, Public-Local and Private Laws of North Carolina, Session of 1937 — is in conflict with the provisions of Article II, section 29, of the Constitution of North Carolina, prohibiting the General Assembly from passing "any local, private, or special act or resolution establishing or changing the lines of school districts" and is, therefore, void and constitutes no authority for issuing the proposed bonds.
Judgment was, therefore, rendered, permanently restraining the defendants from issuing the bonds and from levying the necessary tax to pay the principal and interest thereon. From this judgment the defendants appealed.
The School Machinery Act of 1933 abolished all existing special tax districts in the State, including special charter districts, and automatically deprived all school districts of the power to issue bonds or create debt. Such districts were continued only as tax-collecting districts for the liquidation of debts already incurred. Subsequently, the debts of many of these districts were taken over by the counties, under powers expressly conferred by law or under decisions of the Court approving such action as lawful. The effect of this legislation was to leave the several counties solely responsible for furnishing school buildings and certain other school facilities.
Mears v. Board of Education, 214 N.C. 89, 197 S.E. 752, illustrates the inadequacy of existing general laws to meet this requirement, and the inability of communities in need of school facilities to procure relief under them by court action, however great the emergency.
The difficulty and delay thus experienced were enhanced by the widespread financial distress which made some of the counties unable and others, perhaps, unwilling to exercise a discretion favorable to the erection of school buildings. Several counties of the State, perhaps eleven in number, secured legislation similar to the act under consideration, permitting the communities within such counties to proceed on the principle of self-help. Many thousands of dollars in bonds have been issued and sold under such laws and school buildings have been erected. The machinery in all the acts is strikingly similar.
While, of course, the primary purpose of the act under consideration was to create a taxing district so that necessary facilities for conducting the schools might be provided by the community itself, at its own expense, there is no need to evade the fact that school districts are thus created, or may be created under the law, anywhere in the county upon compliance with the conditions named in the act.
We do not think it necessary here to go more minutely into distinctions between laws that are general and uniform as to all parts of the State and those which are special, local, or private. The field is controversial and it will be found that in many instances laws are general, special, or local merely by way of contrast. The law applying to a whole county in which numerous school districts might be created cannot be classed as private or special. As to whether a law may be called local is often to be determined by the "facts and circumstances of each particular case." In re Harris,183 N.C. 633, 112 S.E. 425. Some laws,
which must of necessity apply to all persons of the particular class selected throughout the State at the risk of offending against the constitutional provisions against the discrimination, have been pronounced local because they applied to only a few counties in the State. S. v.Dixon, 215 N.C. 161, 1 S.E.2d 521.
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BARNHILL, J., dissenting.
DEVIN and WINBORNE, JJ., concur in dissent.
Plaintiff, on behalf of himself and other taxpayers of Sand Hill Consolidated School District of Buncombe County like situated, brought this action against the Board of County Commissioners for Buncombe County to restrain the issue of certain bonds by the defendants in behalf of the school district named.
The case was heard before Judge Warlick, without the intervention of a jury, upon an agreed statement of facts, as follows:
"It is hereby agreed by and between counsel representing the plaintiff and counsel representing the defendants that the following constitutes the facts in controversy between the parties:
"1. That pursuant to chapter 279 of the Public-Local and Private Laws of North Carolina, Session 1937, the Board of Education of Buncombe County in accordance with the terms of said statute created the Sand Hill Consolidated School District of Buncombe County, a school district or special bond tax unit, and pursuant to said action of the Board of Education of Buncombe County the Board of County Commissioners of Buncombe County, in strict compliance with the terms of said statute, ordered an election in said district or bond tax unit to be held Tuesday, October 3, 1939, at which election a majority of the qualified voters of said district voted in favor of the issuance of $100,000.00 school bonds and/or notes and the levying of a sufficient tax ad valorem on the
taxable property within the district for the payment thereof for the purposes of acquiring, erecting, enlarging, altering and equipping school buildings or any one or all of said purposes, and that pursuant to said election the Board of County Commissioners in accordance with the terms of said chapter 279, canvassed the returns of said election and complied with the statute with respect to declaring the results of said election and giving notice thereof.
"2. That pursuant to the authorization aforementioned, the Board of County Commissioners of Buncombe County unless prohibited by order of court proposes to issue bonds and/or notes in the amount of $100,000.00, to be paid both principal and interest from taxes levied exclusively on the taxable property within the Sand Hill Consolidated School District for the purposes authorized in said chapter 279.
"3. That the Sand Hill Consolidated School District of Buncombe County comprises the identical territory as that contained within the limits of the Sand Hill Administrative School District created by order of the Board of Education and with the approval of the State School Commission in 1933 under the provisions of chapter 562 of the Public Laws of North Carolina, Session 1933.
"AND IT IS FURTHER AGREED by and between counsel for the plaintiff and the defendants that the sole question involved in this action is whether chapter 279 of the Public-Local and Private Laws of 1937 violates the provisions of Article II, section 29, of the Constitution of North Carolina."
The statute referred to is too long for detailed quotation. In substance it provides that upon a petition of not less than ten per cent of the qualified voters of the territory affected such territory shall be created into a school district and that bonds or notes shall be issued under the provisions of the act, payable exclusively out of the taxes levied in the district, for the purpose of erecting school buildings therein, etc.
Upon pertinent findings of fact, the trial court concluded that the pertinent statute — chapter 279, Public-Local and Private Laws of North Carolina, Session of 1937 — is in conflict with the provisions of Article II, section 29, of the Constitution of North Carolina, prohibiting the General Assembly from passing "any local, private, or special act or resolution establishing or changing the lines of school districts" and is, therefore, void and constitutes no authority for issuing the proposed bonds.
Judgment was, therefore, rendered, permanently restraining the defendants from issuing the bonds and from levying the necessary tax to pay the principal and interest thereon. From this judgment the defendants appealed.
The School Machinery Act of 1933 abolished all existing special tax districts in the State, including special charter districts, and automatically deprived all school districts of the power to issue bonds or create debt. Such districts were continued only as tax-collecting districts for the liquidation of debts already incurred. Subsequently, the debts of many of these districts were taken over by the counties, under powers expressly conferred by law or under decisions of the Court approving such action as lawful. The effect of this legislation was to leave the several counties solely responsible for furnishing school buildings and certain other school facilities.
Mears v. Board of Education, 214 N.C. 89, 197 S.E. 752, illustrates the inadequacy of existing general laws to meet this requirement, and the inability of communities in need of school facilities to procure relief under them by court action, however great the emergency.
The difficulty and delay thus experienced were enhanced by the widespread financial distress which made some of the counties unable and others, perhaps, unwilling to exercise a discretion favorable to the erection of school buildings. Several counties of the State, perhaps eleven in number, secured legislation similar to the act under consideration, permitting the communities within such counties to proceed on the principle of self-help. Many thousands of dollars in bonds have been issued and sold under such laws and school buildings have been erected. The machinery in all the acts is strikingly similar.
While, of course, the primary purpose of the act under consideration was to create a taxing district so that necessary facilities for conducting the schools might be provided by the community itself, at its own expense, there is no need to evade the fact that school districts are thus created, or may be created under the law, anywhere in the county upon compliance with the conditions named in the act.
We do not think it necessary here to go more minutely into distinctions between laws that are general and uniform as to all parts of the State and those which are special, local, or private. The field is controversial and it will be found that in many instances laws are general, special, or local merely by way of contrast. The law applying to a whole county in which numerous school districts might be created cannot be classed as private or special. As to whether a law may be called local is often to be determined by the "facts and circumstances of each particular case." In re Harris,183 N.C. 633, 112 S.E. 425. Some laws,
which must of necessity apply to all persons of the particular class selected throughout the State at the risk of offending against the constitutional provisions against the discrimination, have been pronounced local because they applied to only a few counties in the State. S. v.Dixon, 215 N.C. 161, 1 S.E.2d 521. Since, however, a county must be considered a unit, so far as its responsibility for furnishing school facilities is concerned, as well as for the purpose of division into school districts, it may well be questioned whether an act providing for the creation, not of one particular school district within the county, but the creation of any number of them, under its machinery, could properly be called "local." In re Harris, supra.
The question presented is one of first impression, since the decisions of this Court striking down legislation purporting to establish school districts as in opposition to Article II, section 29, of the Constitution, have applied to the attempted creation of a single or special district.Robinson v. Comrs., 182 N.C. 590, 109 S.E. 855; Galloway v. Board,184 N.C. 245, 114 S.E. 165; Trustees v. Trust Co., 181 N.C. 306,107 S.E. 130; Sechrist v. Comrs., 181 N.C. 511, 107 S.E. 503. The precise question involved here is different. However the act is labeled, it is our opinion that the constitutional provision cited does not prevent or forbid the creation of school districts by the method set out in the act applicable to any district which may be so created in the county.
It will be observed that the act in question prescribes a method whereby school districts or special bond tax units may be uniformly established throughout the county. The act itself deals only with the mechanics of establishing or changing the lines of school districts or special bond tax units, and does not, ex proprio vigore, undertake to establish or to change any such lines. These are matters which, in terms, are committed to the sound discretion of the county board of education. The constitutional prohibition as respects the matter now in hand is against direct action on the part of the General Assembly and not against the establishment of machinery for the accomplishment of these ends.
In Trustees v. Trust Co., supra, and again in Sechrist v. Comrs., supra, it was inadvertently stated that this constitutional inhibition was directed against the passage of any local, private or special act "relating to establishing or changing the lines of school districts." The word "relating" is used seven times in the section. It does not appear in connection with the prohibition against establishing or changing the lines of school districts. The elusion is significant. The difference was not material in the cited cases, as both of the acts there considered were clearly prohibited, but in the instant case the precise meaning of the section is important.
In cases like this it is incumbent upon us to remember the limitations
which have been wisely set to the power of this Court in dealing with the acts of the Legislature. We cannot declare them unconstitutional and void where there is any doubt. Hood, Comr., v. Realty, Inc., 211 N.C. 582,191 S.E. 410; S. v. Brockwell, 209 N.C. 209, 183 S.E. 378; Glenn v. Boardof Education, 210 N.C. 525, 187 S.E. 781; Albertson v. Albertson,207 N.C. 547, 178 S.E. 352; Wells v. Housing Authority, 213 N.C. 744,197 S.E. 693.
The litigant parties agreed that the sole question presented to this Court was whether the act under consideration is offensive to Article II, section 29, of the Constitution. A careful consideration convinces us that the study given to the case by counsel on both sides of the controversy has led them to a correct conclusion in this regard.
Questions of policy derived solely from statutes can be of little avail in determining the priority or potency of separate statutes upon the same subject where there is a suggested conflict. Certainly the same power which creates a policy may destroy it, or modify it, or make exceptions, or do with it as it will; and frequently the stronger indication of policy lies in the exception rather than in the rule.
It has been suggested here that because the School Machinery Act of 1933 has provided a uniform method by general law for redistricting the counties of the State a policy has been produced which will not tolerate amendment or exception. The suggestion is that the School Machinery Act of 1937, having vested in the State School Commission "all the powers and duties heretofore conferred by law upon the State Board of Equalization and the State School Commission, together with such other powers and duties as may be conferred by this act," this board has now the exclusive power to divide the counties into school districts. But such power as the School Commission has been given, under this law, is clearly subject to such exceptions and modifications as had been previously made; and the repealing clause must be held advertent to the rule that the particular act is considered an exception to the general act, and not in contradiction of its terms.Hammond v. Charlotte, 205 N.C. 469, 171 S.E. 612.
It is recognized that a comprehensive law may bear internal evidence that it is intended to be exclusive upon the subjects with which it deals, and where the repealing clause is of sufficient character to carry out such intent, other statutes upon the subject must give way. This, however, is nothing more nor less than repeal by implication, which is not favored in the law.
The statute under consideration and the School Machinery Act were passed at the same Legislature and are, therefore, to be construed as having been enacted at one and the same time. They are to be considered in pari materia
and, as stated, it is the prevailing rule that the
particular statute shall prevail as an exception to the general statute.Bramham v. Durham, 171 N.C. 196, 88 S.E. 347; Rankin v. Gaston County,173 N.C. 683, 92 S.E. 719; Hammond v. Charlotte, supra. A proper construction of these statutes must reconcile them under this rule, which is so clearly expressed in Felmet v. Comrs., 186 N.C. 251, 119 S.E. 353.
It has been said that the policy of the State is epitomized in the expression, "An equal educational opportunity for every boy and girl in the State." Equality in educational opportunity must not be achieved by a leveling down process. We find no public policy in this State which can be invoked to nullify the statute and suppress initiative in educational advancement in communities which have greater resources or more faith, and are willing to translate them into tangible educational facilities. The law intended they should have this power. We see no reason to depart from the ordinary rules of the statutory construction in an attempt to invest the public school laws with a legalistically satisfying but devitalizing symmetry which would destroy it.
We are speaking of the building of schoolhouses, not of the maintenance of the schools. When the State took over the maintenance of the public schools, it did not take over the business of building school houses. The law simply abolished all taxing districts, including special charter districts, to which the great advance in the building program had been largely due. To call the resulting condition one of uniformity is to tax optimism. There are one hundred counties in the State, each with its own difficulties and problems, some of which seem to be almost unsolvable. There are one hundred governing boards, composed of men who have widely different ideas upon this subject and with a discretion which may be exercised and reflected in widely divergent standards throughout the State. Under such conditions the recognition of community initiative seems to be as imperative as it has ever been. At any rate it is our opinion that the Legislature was acting within its constitutional limitations in enacting the law under consideration and that it is not invalidated or repeated by any general law.
The judgment of the court below is
Reversed.