Berrier v. Board of Commissioners, 186 N.C. 564 (1923)

Dec. 5, 1923 · Supreme Court of North Carolina

186 N.C. 564

V. A. BERRIER v. BOARD OF COMMISSIONERS OF DAVIDSON COUNTY.

(Filed 5 December, 1923.)

Taxation — Schools—Injunction—Statutes—Repealing Acts — Appeal and Error — Judgments.

It is peculiarly within the legislative authority to levy or repeal a tax; and where an injunction has been issued by the courts against the levy of a special tax for public-school purposes by a school district, affirmed by the Supreme Court on appeal, but before the order had been signed in the Superior Court in-conformity with the opinion, the Legislature has abolished the school district and the levying of the tax, the plaintiffs right to the injunctive relief ceases, though the judge thereafter signs the order by inadvertence to the repealing statute.

The PLAINTIFF appealed from a judgment of Shaw, J., 5 June, 1923, refusing the restraining order set out in the record. From Davidson.

Iiis Honor found the facts to be as follows;

That some time prior to May, 1920, the Board of Education of Davidson County ordered a consolidation of all or parts of five school districts, and an election was duly called to vote on a special tax for said consolidated district; that said election was held and carried; that subsequent to said election an action was brought by a citizen of the said consolidated district to restrain the levy of the special tax voted at said election, and in such action the complaint and answer set up in the complaint in this action were duly filed; that upon the hearing of a motion for an injunction in said action in the Superior Court, the same was ordered from which the defendants appealed to the Supreme Court, where the judgment of the court below was affirmed; that after the said case had been decided in the Supreme Court, but before the judgment according to the opinion of the Supreme Court had been signed, the General Assembly of North Carolina passed an act abolishing and repealing the special tax on the former districts included in said consolidated district, which act is chapter 156, Public-Local Laws, 1923, being House Bill No. 1032, and Senate Bill No. 908, ratified on 2 March, 1923; that the February Term, 1923, of the Superior Court of Davidson County began on 26 February and continued for two weeks, and the judgment in case of Evans v. Oomrs., 184 N. C., 328, set out in the complaint herein, was signed at said term, and on 9 March, 1923, and that the said act was not brought to the attention of the court before the said judgment was signed.

That at May Term, 1923, the plaintiff made a motion for an injunction as prayed for in the complaint herein filed, which was refused, and the plaintiff excepted but did not appeal; at the same term the plaintiff moved to be allowed to take a nonsuit as set out in tbe record, wbicb was refused, and tbe plaintiff excepted as set out in tbe record; tbe plaintiff then obtained permission of tbe court to file an amended complaint, wbicb be did; that tbe facts set out in tbe amended complaint, as to Cicero Kimel being completely surrounded by tbe consolidated district, is found not to be true.

Walser & Walser and Z. I. Walser for plaintiff.

Raper & Raper and W. 0. JBurgin for defendant.

Adaais, J.

Tbe act by wbicb tbe Legislature repealed tbe special tax voted in tbe consolidated district was ratified on 2 March, 1923, and on 9 March, during tbe February term, bis Honor signed tbe judgment in Evans v'. Comrs. in accordance with tbe opinion of this Court as reported in 184 N. C., 328; but at that time tbe abolition of tbe tax bad not been brought to bis attention. Tbe plaintiff insists that tbe General Assembly bad no legal right to abolish or repeal tbe special tax, and that tbe county board of education abused its discretion in forming tbe consolidated district. Neither position can be maintained. ¥e discover no evidence whatever of an abuse of discretion, and tbe power to levy or repeal a tax is peculiarly a legislative function.

His Honor’s judgment in tbe Evans case must be construed as applicable to tbe facts disclosed by tbe record, and not as concluding' tbe defendant after tbe repeal of tbe tax. Whether tbe plaintiff is not concluded by Judge Stack’s judgment refusing bis application for a restraining order we need not decide.

Tbe judgment rendered by Judge Shaw is

Affirmed.