Galloway v. Board of Education of Brunswick County

*247 Hoke, J. Tbe decisions of tbis court bave been very insistent in upholding tbe constitutional guarantee against race discrimination in tbe distribution and use of tbe public school funds, and it is gratifying that in tbe present case there were no facts in evidence to sustain such an allegation. Williams v. Bradford, 158 N. C., 36; Bonitz v. School Trustees, 154 N. C., 375; Lowery v. School Trustees, 140 N. C., 33; Riggsbee v. Durham, 94 N. C., 800; Puitt v. Comrs., 94 N. C., 709. On plaintiff's other ground of impeachment, and as we understand tbe record, it appears that tbe first election in these proceedings was under Private Laws 1921, cb. 251, and tbis being a special act attempting to establish or change tbe lines of a school district, is in violation of tbe recent amendments to our Constitution appearing chiefly in Art. II, sec. 29, and tbe act itself, and any attempted proceedings under it, are null and void. Sechrist v. Comrs., 181 N. C., 511; Trustees v. Trust Co., 181 N. C., 306; Robinson v. Comrs., 182 N. C., 591; Woosley v. Comrs., 182 N. C., 433. As to tbe validity of tbe tax levy under and by virtue of tbe second election, that as bis Honor finds and tbe evidence shows, was held under Public-Local Laws of 1920, cb. 87, Extra Session, and it appearing that tbe levy of tbis tax was made on 8 September, tbe last month in which such a levy could be made under tbe revenue laws of 1921, and tbe election purporting to ratify tbe levy was not held until 2 November following. Being held under tbe statutes referred to, tbe limitations contained therein should ordinarily be allowed to prevail, and on perusal of first section of chapter 87, it appears that while a bond issue and a tax levied therefor are authorized “for tbe purpose of erecting, enlarging, altering, and equipping school buildings and acquiring land for school buildings of tbe school district, or for any or more of said purposes/' said section also provides: “That no bonds shall be issued under tbis act, nor any special tax levied, unless and until tbe question of such issue and levy shall bave been submitted to tbe qualified voters of such school district at a special election to bave been held for tbe purpose, and a majority of tbe qualified electors shall vote in favor of issuing said bonds and levying said tax.” In Mann v. Allen, 171 N. C., 219, tbe Court has held that “unless a statute from its language, purpose, and context clearly requires tbe contrary, tbe term levy,’ when applied to question of taxation of tbe kind signified, tbe levying or imposition of tbe tax by legislation or under legislative sanction,” and tbe statute therefor in terms too plain to admit of construction, prohibits a tax levy for tbe designated purpose, "unless and until” tbe qualified -electors have voted for tbe proposition. True, we bave held that an act which could bave been originally authorized may be ratified, and that tbe principal, in proper instances, applies both to legislative bodies and tbe electorate as well. Board of Education v. Comrs., 183 N. C., *248 300; Hammond v. McRae, 182 N. C., 747. But tbe position, in our opinion, bas no application to tbe facts presented bere, where tbe only statute under wbicb tbe electorate acted, and wbicb expresses tbe lawful limit to its powers, forbids tbat any levy be made until tbe electors of tbe district shall have approved tbe same by their vote. While we are thus constrained to differ with bis Honor as to tbe validity of tbe tax levy, we are of opinion tbat bis order dissolving tbe injunction should not be now disturbed for tbe reason tbat it further appears by affidavit received as pertinent to tbe inquiry and without objection noted tbat tbe tax in question bad been collected, accounted for on settlement with tbe municipal authorities, and paid over to persons not parties to tbe record, and in such case our decisions bold tbat tbe appeal should be dismissed, for, on tbe facts as presented, relief by injunction is no longer available to tbe parties. Griffith v. Board of Education, 183 N. C., 408; Allen v. Reidsville, 178 N. C., 513; Sasser v. Haurriss, 178 N. C., 322; Moore v. Monument Go., 166 N. 0., 211; Piclcler v. Board of Education, 149 N. C., 221. It would seem tbat in a case like tbe present, and assuming tbat tbe facts contained in tbe additional affidavit are accepted or established at tbe bearing, tbe only remedy for an injured taxpayer is to pay tbe illegal tax under protest and sue to recover tbe same as provided in C. S., 7979, a relief, however, tbat is not within tbe scope and purview of tbe present action. For the reasons heretofore given, tbe appeal is dismissed at tbe appellees’ cost. Dismissed.