Story v. Board of Commissioners of Alamance County

Adams, J. The purpose of the action is to enjoin the defendant from holding a special election in the city of Burlington on the question of issuing bonds for the benefit of the schools conducted in a school district which is coterminous with the corporate boundaries of the city. The order of the defendant authorizing the election was made pursuant to the provisions of an act passed by the Legislature at the Extra Session of 1920. Public Laws, Extra Session, 1920, ch. 87. The plaintiff contends that the order was ultra vires, and that any bonds issued as the result of the election would be invalid. His contention involves three propositions: 1. The city of Burlington is not a school district. 2. The election can be ordered only in pursuance of O. S., 5523, or in any event not by virtue of Public Laws, Extra Session, 1920, ch. 87. 3. That on 4 April, 1922, the municipal authorities of the city of Burlington held an election on the question of issuing school bonds, and another election cannot be held in the district for the same purpose within two years from that date. C. S., 5533. *340 In support of tbe first proposition it is said that by virtue of a statute enacted in 1901 (Private Laws 1901, cb. 187), tbe city constitutes two scbool districts — one for tbe white race and another for tbe colored race — and that tbe existence of these two districts implies that each race shall be taxed in breach of tbe Constitution for tbe maintenance of tbe separate schools; and, moreover, that tbe order for tbe election does not specify whether tbe bonds are to be voted upon by tbe one district or tbe other, or bow tbe proceeds from tbe sale shall be applied as between tbe two races. We do not concur in this construction of tbe act. We think tbe reference to a scbool district for each race was intended to-define tbe boundaries of tbe district in which there are schools for both races, and to make tbe boundaries of tbe district coterminous with those in tbe municipality. 'In fact, tbe plaintiff admits that tbe boundaries of tbe scbool district are tbe same as those of tbe city. Section 3 of tbe act of 1901 vests in tbe scbool committee appointed under tbe act of 1899 sole control of tbe public schools of tbe city, and it was no doubt tbe primary intention of tbe Legislature merely to provide that tbe two-races should be taught in separate schools. Tbe order for tbe election expresses tbe purpose for which tbe bonds are to be issued and it contains, no suggestion of discrimination between tbe white and colored races. Const. N. C., Art. IX, sec. 2; Riggsbee v. Durham, 94 N. C., 800; Puitt, v. Comrs., ibid., 709; Markham v. Manning, 96 N. C., 132. Tbe plaintiff next contends that tbe election can be ordered, if at all,, only under the provisions of C. S., 5523, and that tbe act of 1920 has no application. Public Laws, Extra Session, 1920, cb. 87. This section provides that in any scbool district which includes an incorporated city or town, upon tbe written petition of one-third of tbe qualified voters of tbe district for an election to be held upon tbe question of levying an additional special annual tax to an amount specified in tbe petition, with tbe approval of tbe scbool trustees of tbe district, such election shall be ordered by tbe governing body of such city or town in case tbe district is confined exclusively to such city or town, or by tbe board of county commissioners if tbe district includes a part of tbe county not embraced within tbe city or town. Tbe act of 1920, supra, applies to all school districts in tbe State, and confers powers in addition to and not in substitution of tbe existing powers of tbe scbool districts. It provides that under it, or under any other act, any scbool district, may issue bonds (section 8), that tbe term ‘school district’ shall include tbe principal administrative or governing body of a scbool district, by whatever name it may be called (section 9). Section 6 provides that whenever tbe board of trustees of any scbool district shall so request, tbe board of county commissioners . . . shall order a special election to be held in tbe scbool district at such time as tbe board of trustees may *341 designate for the purpose of voting upon tbe question of issuing'bonds and levying a tax; and section 1 provides that upon approval of the bond issue at the election by a majority of the qualified voters, the board of trustees of the school district shall be authorized to issue the bonds of such district for the purpose of erecting, enlarging, altering, and equipping school buildings, and acquiring land for such buildings, or for any one or more of these purposes, and that the county commissioners may levy an ad valorem tax for the purpose of paying the principal and interest of the bonds. In our opinion this act and section 5523 are not in conflict as to the question here presented. The powers conferred by the later statute are in addition to and not in substitution of the provisions of the older statute. One provides for levying a tax, the other provides for issuing bonds. But the plaintiff insists that the act of 1920 has been repealed by a private law enacted by the Legislature at the Extra Session of 1921, which is as follows: “That in the manner and subject to the limitations now or hereafter provided by the Constitution and laws of the State, the city of Burlington may, from time to time, raise and appropriate money for erecting, enlarging, altering, repairing, and equipping school buildings, and acquiring land, or land and buildings, for school purposes.” Public Laws, Extra Session, 1921, ch. 81. It will be noted that the object of this statute is to grant to the city authority to raise and appropriate money for the same purpose for which the school trustees are authorized to issue bonds under the act of 1920. Extra Session, eh. 8Y. It does not profess in express terms to withdraw the powers conferred upon the trustees of the school district. Does it withdraw such powers by implication? The repeal of statutes by implication is not favored. The presumption is against the intention to repeal where express terms are not used, and it will not be indulged if by any reasonable construction the statutes may be reconciled and declared to be operative without repugnance. “To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed.” 36 Cyc., 1072; College v. Lacy, 130 N. C., 364; S. v. Davis, 129 N. C., 570; S. v. Perkins, 141 N. C., 797; Sutherland on St. Con., sec. 138; Black on Int. of Laws, 112. We are unable to discover such repugnancy between the two acts as will necessarily work a repeal of the powers conferred upon the trustees of the school by the act of 1920. The plaintiff further contends that the order for the election is invalid because it provides for a second election within two years after a prior election in the same district on the same question. C. S., 5533. On 14 February, 1922, the city submitted to the voters of the district an *342 ordinance approving the issuance of bonds in the maximum principal amount of $100,000 for the purpose of enlarging, altering, repairing, and equipping school buildings and acquiring land and buildings for school purposes, and at an election held 4 April the ordinance was not approved. In Weesner v. Davidson, 182 N. C., 605, it is decided that where an election is held on the question of levying a special tax for a school district and defeated a second election cannot be ordered by the same authority on the same question in the same district within two years after the former unsuccessful election. The facts presented in the instant case differ from the facts in Weesner’s case, supra, in a most important particular. The General Assembly has conferred upon the school trustees the power to issue bonds for the purpose of erecting, enlarging, altering, and equipping school buildings and acquiring sites, and to levy an ad valorem tax to pay the principal and interest, and upon the city the power, subject to the laws of the State, to raise and appropriate money for the same purpose. If it be admitted that the authority of the city is the more limited, the powers to an extent are concurrent. To such a case section 5533 does not apply, for the exercise of the power by the city cannot deprive the trustees of the authority with which they are vested by the act of 1920. Upon an examination of the record, we think the judgment of his Honor should be Affirmed.