135 S.E. 467 | N.C. | 1926
The Legislature has prescribed the method by which the county boards of education may adopt a county-wide plan for the organization of the schools in their respective counties. 3. C. S., 5481; Public School Law, sec. 73-a. The plan was duly adopted by the board of education in Anson County on 21 July, 1924. Harrington v. Comrs.,
When the case came on for hearing the judge not only dissolved the restraining order, but adjudged that the Polkton Consolidated Special School District had been created in accordance with law; not only that the election had been lawfully conducted, but that the result authorized the levy of the tax. This judgment the plaintiffs have assailed on three grounds: (1) Notice of the election was published in a newspaper not three times, but only two. (2) In the published notice it was said that the election would be held by virtue of a statute different from that applicable to school districts. (3) The territory in which the election was held had not been consolidated into one school district and the proposed tax could not properly be levied.
1. The statute provides that notice of the election shall be given by publication at least three times in some newspaper published or circulated in the territory; that the first publication shall be at least thirty days before the election; that a new registration shall be ordered and that notice of registration may be considered one of the three notices of the election. The notice of the election and the notice of registration *593
were published at the same time, and the plaintiffs say that one notice cannot be disjoined from the other with the effect of making them two notices instead of one, thus leaving only two published notices of the election. If this be granted the election is not thereby necessarily invalidated. There is no suggestion that any elector was deprived of his vote or that the result would have been changed if the publication had been made in different issues of the paper. If a statute simply provides that certain things shall be done within a particular time of in a certain way and does not declare that their performance is essential to the validity of the election, they will be regarded as mandatory if they affect the merits of the election and directory if they do not. McCrary on Elections (3 ed.), sec. 190, cited with approval in Hill v. Skinner,
2. The petitioners requested an election under Public Laws 1923, ch. 136, Art. 17; the board of commissioners ordered that an election be held under this article; the published notice referred to an election to be held under chapter 135 instead of 136. This, as pointed out in the judgment, was a typographical error which did not invalidate the petition, the order, or the election.
3. The third ground of exception is that the districts were not legally consolidated; that there can be no legal consolidation except in conformity with the county-wide plan; that committeemen and patrons filed affidavits that they had no notice of the intended change, and that though it is declared in the judgment that they did receive the notice the matters in dispute should have been submitted to a jury.
The county board of education did not attempt to consolidate districts; it created a new district. 3 C. S., 5481. The plaintiffs insist that this action was void because proper notice of the meeting had not been given; but there is evidence that the committeemen and patrons were notified and that at the hearing the Brown Creek District was represented by a committee in a general discussion of the proposed modification. And then at the adjourned meeting a delegation from the same district, including some of the committeemen, was present. Upon the evidence the judge found as a fact, and set forth in his judgment, that due notice of the meeting had been given; and as the district was fairly represented in more than one meeting held before the new district *594
was created we see no sufficient reason to reverse or modify this conclusion, even if there was an irregularity in the publication of the notice. The intervention of a jury was not necessary to determine the questions presented. The motion to continue the restraining order was heard upon the pleadings and affidavits, the plaintiffs taking the position that upon the admitted facts the tax should have been declared illegal and the injunction made permanent. As to the one or two remaining questions reference may be made to Causey v. Guilford, supra; Harrington v. Comrs.,supra; Blue v. Trustees,
Affirmed.