Bivens v. . Board of Education

*771 Adams, J. Under tbe act codifying tbe laws relating to public schools tbe board of education is given power to create special-taxing districts, in which, after the boundaries are defined and recorded, an election on the question of a special tax may be held as the act provides. Public Laws 1923, ch. 136, Art. 18; Sparkman v. Comrs., ibid., 241. But in this case the county board of education merely consolidated Aqua-dale, which is a special-taxing district, with four other districts in which no tax has been levied or. authorized. In fact no election has been called in either of these four nontaxing districts. His Honor held in effect that a school district composed of several consolidated districts cannot be maintained half taxing and half not taxing. The advantages as well as the privileges should be equal, for the purpose of the school law, as indicated in the county-wide plan of organization, is to equalize the advantages which the schools afford. But one of the grounds on which the defendants ask a reversal of the judgment is that the tax in the Aquadale District was levied for the benefit of this district and no other. They say that section 77 applies only where two or more districts having different rates are consolidated and a tax is levied in the entire district; and they take the position that after the expiration of six months, during which the school in the consolidated district must continue, the Aquadale District may prolong the term for its own benefit under the local tax. This construction would nullify the consolidation; there would be a theoretical but not •an actual consolidation of the districts within the meaning of the law. Our investigation has not disclosed any authority for holding that a segregated part of a consolidated district may be taxed even for its own benefit while the remainder of the district is exempt. The entire district should be either subject to the tax or exempt from it. Section 77 authorizes the consolidation of districts having different local tax rates, and provides that the local tax rate to be levied in the consolidated district shall be the lowest tax rate voted in any of the original districts. In construing a statute which provided that “no taxpayer in such consolidated district should be required to pay a higher special tax than that voted originally in his district,” Stacy, J., said: “But the statute is silent with reference to fixing the uniform rate or rates where local-tax districts or special chartered districts are combined with nonlocal-tax districts. Just here we have experienced some difficulty in applying the provisions of this enactment of the Legislature. It follows as a matter of course that if the-county commissioners cannot establish for any consolidated district a rate of tax higher than that originally voted in any part of said district, and some part has voted no tax at all, then,under the clause requiring that the different rates shall be made uniform, it appears that the commissioners, in such cases, would be re *772 quired to reduce tbe tax to. nothing; or, to state it differently, in such cases they ipso facto would seem to be without any proper authority at all to levy these special uniform taxes throughout the entire district.” Perry v. Comrs., 183 N. C., 387, 392. The defendants do not contend that the tax can be levied throughout the consolidated district, and in our opinion it cannot be levied in only a portion of the district. The judgment is Affirmed.