#### C. C. TAYLOR v. CITY OF GREENSBORO.

(Filed 24 April, 1918.)

1. Municipalities — Cities and Towns —i Charter — Amendments—Ballots— Elections — Schools—Taxation.

Upon a referendum by valid town ordinance to ascertain by ballot the will of the voters upon the question of an amendment to the charter to create a school board and increase the minimum rate of taxation for school purposes, the result in favor of the amendment will not be declared void because the ballots were small rectangular papers of two kinds, upon one being printed “For the proposed amendment to the city charter,” and upon the other “Against the proposed amendment to the city charter,” the regulation in the existing charter as to the kind of ballot to be used being directory only.

2. Municipal Corporations — Cities and Towns — Election—Voting Places— Booths.

Where it is admitted that no voter had been interfered with or prevented from voting a free ballot at a municipal election to change the charter, it becomes immaterial that no place had been provided with booths in which the voters could retire to prepare their ballots.

3. Municipal Corporations — Cities and Towns — Charter — Amendments — Education — Taxation—Coordinate Government.

An amendment by referendum made to a city charter under ordinance ■ passed in pursuance of chapter 136, Public Laws 1917, and of the recent constitutional amendments creating a board of education with power to ascertain and certify the necessary amount of a tax necessary to maintain the schools to be levied by the town commissioners, does not create a separate and' unrelated corporation, but a coordinate branch of the city government under the express and valid legislative power conferred.

4. Constitutional Law — Municipal Corporations — Eminent Domain — Schools —Taxation.

The question as to the constitutionality of such parts of chapter 136, Public Laws 1917, as confer upon municipalities the right to pass ordinances conferring the power of eminent domain, does not invalidate an ordinance or arise in its construction, referring to the voters the question of amending its charter by creating a board of education and authorizing the raising of a minimum tax levy for the maintenance of its schools, or affect it.

5. Municipal Corporations — Cities and Towns — Charter—Amendments—Ballots — Elections.

Where the question of amending a city charter in several respects are, under a valid ordinance, submitted to its voters upon ballots expressing the choice of the voter as either for or against the amendment, the forms of the ballots are sufficient. Bank v. Winston, 158 N. C., 512, cited and distinguished. Semble, the method of submitting the question is regulated by the Legislature and not restricted by the Constitution.

*424Appeal by plaintiff from Adams, J., at March Term, 1918, of Gum-EORD.

This is an action brought by the plaintiff, a citizen and taxpayer of the city of Greensboro, for the purpose of having an election declared void. The election was held upon a referendum submitting to the voters an ordinance passed by the board of commissioners of said city for the creation of a school board and increasing the maximum rate of taxation for school purposes from 30 cents to 50 cents.

The case was heard in the Superior Court of Guilford County by Adams, J., upon complaint, answer, and facts agreed. The judge rendered the following judgment and opinion.

“This cause is heard on an agreed statement of facts.

“The plaintiff asks that the election referred to in the pleadings be declared void, and that the defendants be enjoined from exercising any right or.power which the election purports to confer. He bases his prayer for judgment upon the allegations in paragraphs 11, 13, 14, and 15 of the complaint.

“1. The plaintiff claims that the ballots cast were not of the prescribed form. It is agreed that the ballots were small rectangular pieces of paper of two kinds; that upon one were only the words, Tor the proposed amendment to city charter,’ and upon the other only the words, 'Against the proposed amendment to city charter’; that the resolution providing for the election was adopted after six days from the date it was introduced, and was published once a week for four weeks in two daily newspapers in the city; that the number of registered and qualified voters was 791; the number of votes cast for the amendment 414, and'against the amendment 58 — leaving 319 of those qualified not voting. There is no suggestion in the facts agreed that the voters did not comprehend the purpose and scope of the proposed amendment. The clause 'stating the nature of the proposed ordinance’ (Charter, see. 29 B) is directory, even if it be conceded that the nature of the proposed ordinance is not stated in the ballot. The form of the ballot in my opinion does not vitiate the election.

“•2. The plaintiff insists that the election is void because the board of commissioners failed to provide a place in which the voter might prepare his ballot in secret. It is admitted that no booth was provided, and that persons who were not election officials or officials of the city were permitted to stand within a few feet of the ballot box. This question becomes academic upon the express admission that no person was interfered with in voting or prevented from casting a free ballot.

“3. The plaintiff contends that the board of education is not lawfully constituted, and that the attempt to vest in this board the powers of a body politic is ultra vires. He argues that the election of the board of *425•education by tbe board of commissioners is tbe creation by tbe municipality of a distinct corporation wbicb bas no power to levy a tax or to eondemn land. Chapter 136, Public Laws 1917, was enacted pursuant to tbe amendments of Article 8 of tbe Constitution. While tbe board of education may say what tax within tbe prescribed limits is necessary to maintain -the schools, tbe tax is to be levied by tbe board of commissioners ; and while it is made tbe duty of tbe board of commissioners to levy tbe tax certified by tbe board of education, tbe latter, in contemplation of the act of 1917, is not a separate and unrelated corporation, but a coordinate branch of the city government wbicb, under tbe express legislative power conferred, is authorized to ascertain and certify the rate of taxation necessary to tbe maintenance of tbe city schools.

“As to tbe right of eminent domain. Tbe General Assembly usually ■confers this power. But tbe act of 1917 specially provides that tbe legislative power of tbe governing body of a city may be exercised as provided by an ordinance or a rule adopted by it. Tbe correct interpretation of this law would probably lead to tbe conclusion that tbe board •of education is empowered to condemn land by virtue of tbe ordinance adopted in tbe exercise of legislative authority, but a decision of tbe ■question is not necessary for this reason: It is not alleged in tbe complaint nor does it appear in tbe facts agreed that tbe board of education bas undertaken to condemn tbe plaintiff’s property or to exercise tbe right of eminent domain. It would be vain to declare tbe election illegal upon tbe possibility of a contingency that may never occur. Tbe same principle applies to tbe plaintiff’s argument concerning tbe diversion of school taxes. Until such diversion is attempted tbe judgment of tbe court would be premature.

“4. Tbe plaintiff alleges that in tbe election two distinct and unrelated propositions were combined and voted for on a single ballot, to wit, tbe creation of tbe board of education and tbe increase of tbe maximum tax rate. He contends that tbe election for this reason is invalid. In my opinion tbe objection is not fatal to tbe election.

“Tbe facts in tbe case of Winston v. Banlc, on wbicb tbe plaintiff relies, are distinguishable. Moreover, in that ease it is held that the method of voting on tbe proposition of municipal indebtedness under •ordinary conditions is for tbe Legislature. But tbe very purpose and ■effect of the act of 1917 are to confer upon municipal corporations legislative powers wbicb may be exercised as prescribed by an ordinance ■of the municipality. In tbe exercise of its legislative power tbe city .adopted an ordinance prescribing tbe form of the ballot and regulating tbe machinery of tbe election, and thereby respected tbe legal principle stated in tbe ease on wbicb tbe plaintiff relies. -It will be observed that tbe proposed increase in tbe tax was adopted with tbe approval of a ma*426jority of tbe qualified voters, and not by a mere majority of tbe votes cast. Upon tbe pleadings and tbe facts agreed, it is ordered and adjudged tbat plaintiff take notbing by bis action and tbe defendants go-without day and recover costs.”

From tbe judgment plaintiff appeals.

R. D. Douglas and Brooles, Sapp & Kelly for plaintiff.

Charles A. Ilines and.R. C. Strudwick for defendant.

BbowN, J.

For tbe reasons so clearly stated by tbe learned judge of tbe Superior Court, we are of opinion bis judgment should be affirmed.

The case of Bank v. Winston, 158 N. C., 512, presented a very different question from tbe one involved in this case. In tbat case it is held: “When a popular vote is required to authorize or validate a municipal indebtedness, tbe proposition should be single, and when tbe question presented embodies two or more distinct and unrelated propositions, and tbe voter is only afforded an opportunity to express bis preference or decision on a single ballot, and on tbe question as an entirety, tbe election as a rule is invalid and, on objection made, in apt time and in a proper way, may be disregarded and set aside.”

It is also held tbat tbe method of submitting tbe matter to a vote of tbe people is not fixed by tbe Constitution, but is regulated by tbe Legislature.

There was only one proposition submitted to tbe voters of Greensboro, and tbat was to amend tbe city charter in two particulars. A proposition could be submitted to amend a section of a city charter in a dozen particulars, and yet it would be but one proposition and require but one ballot for or against tbe amendment. Briggs v. Raleigh, 166 N. C., 149; Keith v. Lockhart, 111 N. C., 451.

Affirmed.