Lazenby v. Board of Commissioners

Adams, J. Tbe petitioners undertook to prescribe conditions upon which their petition should become “null and void,” and tbe plaintiffs contend that tbe defendant bad no authority to order tbe election because these conditions were in conflict with C. S., 5526. In this section there are two conditions which are precedent to granting an order for bolding tbe election: (1) tbe petition must be signed by one-fourth tbe freeholders within tbe proposed special school district in whose names real estate therein is returned in the tax list of tbe current fiscal year, and (2) it must be endorsed by tbe county board of education. It was held in Gill v. Comrs., 160 N. C., 181, that tbe jurisdiction of tbe board of education and of tbe county commissioners is dependent upon the presentation to them of such a petition as is required by tbe statute, and that such petition is precedent to tbe exercise of the particular authority which tbe statute confers. See, also, Key v. Board of Education, 170 N. C., 123. In tbe instant case tbe two conditions prescribed by tbe statute were complied with, and tbe question for decision is whether tbe other conditions stated in tbe petition were fatal to tbe exercise of tbe jurisdiction conferred by law upon tbe defendant. As to this question both sides refer to tbe decision in Comrs. v. Malone, 179 N. C., 110. In that case tbe county commissioners were authorized by a public-local law to issue bonds in behalf of any general or special school-taxing district of tbe county, on approval of a majority of tbe qualified voters, for tbe purpose of repairing, altering, making-additions to or erecting new buildings, and purchasing schoolhouse sites. In tbe petition for tbe election tbe purpose stated was tbe erection and equipment of a new school building and tbe purchase of school grounds; and tbe court said that if tbe word “equipment” should be regarded a substantial departure from tbe purposes contemplated and provided for in tbe statute, tbe provisions of tbe statute mentioned in tbe petition were controlling, and tbe term, even if unwarranted, should be rejected as surplusage or disregarded as being in violation of law. Upon tbe record in tbe case at bar this principle is controlling. His Honor found as a fact that in tbe advertisement of tbe election neither tbe location of tbe schoolhouse nor tbe character of tbe school to be *550 established was mentioned, and that the only question considered by the voters was that of the special tax. There is nothing in the record to indicate fraud or to show that any voter was deceived or misled either as to the location of the building or as to the character of the school. On the contrary, the alleged cause of action is based solely upon the ground that the conditions stated in the petition conflict with the statute and render the election invalid. In.this conclusion we do not concur. The right of the petitioners to ask that the choice of a site be submitted to the qualified voters is not involved. The objectionable feature of the petition is the apparent purpose of the petitioners to control the discretion of the board by designating the place where the building shall be erected; but, the petition being otherwise sufficient, the expression of such purpose cannot divest the commissioners of the jurisdiction given them. In other words, the conditions requisite to conferring jurisdiction have been prescribed by the Legislature {Gill v. Gomrs., siopra), and when compliance with these conditions is properly made to appear, the petitioners cannot disregard the statute and defeat or qualify the jurisdiction of the board by incorporating extraneous or irrelevant matter in their petition or by directing in what manner and to what extent such jurisdiction shall be exercised. Also, the plaintiffs contend that the election is void for the reason that only one ballot was used in submitting to the voters of the district the three propositions whether a special tax should be levied, whether the school should have additional grades, and whether the site should be changed; and in support of their contention they rely on the doctrine stated in Winston v. Bank, 158 N. C., 512, and in Hill v. Lenoir, 176 N. C., 572. It is not necessary to point out the distinction between the facts in these two cáses and those in Briggs v. Raleigh, 166 N. C., 149; Keith v. Lockhart, 171 N. C., 451, and Taylor v. Greensboro, 175 N. C., 423, with a view to deciding whether the three propositions are practically one or whether they are distinct and unrelated. The order of election shows, and in his statement of facts his Honor 'finds, that the levy of the special tax was the single question which the voters had in mind. The appeal does not present any amendment of the school law as codified by the General Assembly of 1923. The record disclosing no error, the judgment is Affirmed.