Markham v. . Manning

Smith, C. J. This action, resting substantially upon the same facts, differs from the case of Duke v. Brown, decided at this Term, in that it seeks to restrain the defendant from using the funds raised by a sale of bonds, in the purchase of a lot, and the erection of a graded school building thereon. The demand for this relief for the tax payers, is sustained by an undenied averment in the complaint, that the moneys collected by taxation from white property owners are to be'spent exclusively in furnishing education to white chil *133 dren; while such as are paid by colored property owners are to be alone applied to the education of colored children, and further, that a majority of the qualified voters of the town are' not required by the statute to give, and in the election held to ascertain the popular will, did not give their sanction to the loan, as provided in the Constitution, Art. YII., §7. It is alleged in the complaint, that while the larger number of those voting favored the loan on the conditions and for the purpose specified in the Act, they do not constitute a majority of those qualified to vote. The answer, admitting the casting of the vote as alleged, avers under advice, that the favoring vote “was a majority of the qualified voters of said town.” An explanation of the meaning of this averment is found in a subsequent part of the answer, which says: “ These defendants are advised, that a majority of the qualified voters of said town, within the meaning of the Constitution of the State of North Carolina, and the statute referred to, did vote in favor of,” &c., thus putting the same construction upon, and giving the same meaning to, the different expressions used in the Constitution and in the Act. This must be deemed an assent to the allegation in the complaint as to the state of the vote, and so considered, it places this appeal in the same category as that of Duke v. Brown, and requires the same disposition to be made of it. After this ruling, preceded by the decisions in Puett v. Commissioners, 94 N. C., 709 ; and Riggsbee v. Durham, Ibid., 800; little if anything remains to be added. The bonds are issued, and the money paid under proceedings which attempt to disregard the constitutional limitations put upon these municipal bodies, and purchasers, as well as others, are chargeable with knowledge of this want of power, and that which the Constitution forbids; cannot be made valid upon the ground of a misinterpretation of its *134 meaning, and this, more especially, in face of the construction given in The Railroad v. Commissioners of Caldwell, 72 N. C., 486; and our modified ruling at the present Term, as to the true import of the clause, do not in any manner injuriously affect the defence. Adhering to the cases cited as to the effect of the discriminating race features which pervade the Act, we think there was error in refusing to continue the injunction to the hearing, and the appellants’ motion ought to have been allowed. The appeal being from an interlocutory judgment, this opinion will be certified for further proceedings in conformity with it, to the Court below. Error. Reversed.