#### OSCAR GALLOWAY et al. v. BOARD OF EDUCATION OF BRUNSWICK COUNTY et al.

(Filed 25 October, 1922.)

1. Constitutional Law — Racial Discrimination.

EelS,, on this appeal, there was no evidence to sustain an allegation that the constitutional inhibition against race discrimination in the distribution and use of the public school funds had been violated.

2. Constitutional Law — School Districts — Local Legislation — Statutes.

Since the enforcement of the amendment to our Constitution, Art. II, sec. 29, a special act of the Legislature to establish or change the lines, etc., of a school district, and any proceedings under it, are null and void.

3. Taxation — School Districts — Statutes — Limitation of Powers — Void Levy.

The power of the county board of education to levy a tax under an election called by the county commissioners, for the purpose of erecting, enlarging, altering, and equipping buildings, etc., for school purposes, under Public-Local Laws of 1920, ch. 87, see. 1, Extra Session, is expressly therein limited, “unless or until” the qualified eléctors have voted for the proposition; and a levy of such tax contrary to this restriction as to the time thereof is void under the express statutory inhibition.

4. Same — Void Levies — Elections—Ratification.

Where the levy of a tax by a county for school purposes is originally invalid because in violation of an express provision of the statute under which the levy is proposed to be made, requiring that the levy shall not be made unless and until the approval of the voters at an election held, etc., and which has never been modified or changed, the subsequent approval thereof by the voters cannot have the effect of relating back and curing the defect, or render the levy a valid one.

5. Injunction — Taxation—Acts Accomplished — Statutes—Remedy of Taxpayer.

Injunctive relief is not available to the taxpayers of a county, where a tax levy for school purposes has been made, when it appears that under the levy complained of the moneys have been raised and distributed to the branches of government entitled thereto, some of which are not parties to this suit. Semble, the only remedy for the injured taxpayers is to pay the illegal tax under protest and sue to recover the same, as provided by statute. O. S., 7979.

Appeal by plaintiffs from Lyon, J., at February Term, 1922, of PENDER.

Civil action, beard on return to preliminary restraining order.

Tbe action is to obtain an injunction against collecting a tax for sebool building purposes in tbe Southport High School District. From tbe facts in evidence, it appeared that under a special act of Legislature, Pr. St., cb. 251, Laws 1921, an election was held in said alleged dis*246trict in June, 1921, on a proposition for a bond issue for school building purposes, after a new registration was bad pursuant to the provisions of the act, and the measure was approved by a large majority of tbe voters. There being some" question as to the validity of the special legislation, and with a view and purpose of securing a tax levy for building purposes for the year 1921, the commissioners ordered another election on the subject under ch. 87, Public-Local Laws, Extra Session, 1920. An election was held on 2 November, 1921, and the measure was again approved by a large majority of the voters. That the election was ordered on 6 September, 1921, by board of county commissioners, the tax was levied on 8 September, a new registration was held as provided by the said act, chapter 87, and the election, as stated, being on 2 November. Present action was instituted in March, 1922, by plaintiff citizens and taxpayers of the district to restrain collecting a tax on ground of levy was illegal, being made prior to election. Second, that' there was an unlawful discrimination against colored race in the proposed bond issue and disposition of the proceeds. At the hearing, and before us, the second ground of objection was abandoned as not sufficiently sustained by the facts pertinent, and considering the question on the first ground, as stated, the court found certain relevant facts, and entered judgment as follows:

“1. That the taxes complained of were levied by the board of commissioners on 8 September, 1921, at the time of levying the other taxes for 1921.

“2. That the election was ordered on 6 September, 1921, and regularly held on 2 November, 1921.

“3. That the tax books for the collection of said tax and the general taxes were placed in the hands of the sheriff of said county for collection on 5 December, 1921.

“4. Said election, held on 2 November, 1921, was under and by virtue of ch. 87, Public Laws 1920, Extra Session.

“It is considered and adjudged that the restraining order and injunction heretofore granted in this action be and the same is now dissolved and vacated. And it is further considered and adjudged that the sheriff shall proceed to collect said' tax.”

It was subsequently made to appear of record that after the judgment dissolving the restraining order, the tax was collected by the sheriff, settlement had with the county commissioners for all the taxes collected by that officer for the years 1920-21, including the tax complained of. Said tax was distributed to the different funds for which they were collected, etc.

John D. Bellamy & Sons for plaintiffs.

J. W. Buarh and Q. Ed. Taylor for defendants.

*247Hoke, J.

Tbe decisions of tbis court bave been very insistent in upholding tbe constitutional guarantee against race discrimination in tbe distribution and use of tbe public school funds, and it is gratifying that in tbe present case there were no facts in evidence to sustain such an allegation. Williams v. Bradford, 158 N. C., 36; Bonitz v. School Trustees, 154 N. C., 375; Lowery v. School Trustees, 140 N. C., 33; Riggsbee v. Durham, 94 N. C., 800; Puitt v. Comrs., 94 N. C., 709. On plaintiff's other ground of impeachment, and as we understand tbe record, it appears that tbe first election in these proceedings was under Private Laws 1921, cb. 251, and tbis being a special act attempting to establish or change tbe lines of a school district, is in violation of tbe recent amendments to our Constitution appearing chiefly in Art. II, sec. 29, and tbe act itself, and any attempted proceedings under it, are null and void. Sechrist v. Comrs., 181 N. C., 511; Trustees v. Trust Co., 181 N. C., 306; Robinson v. Comrs., 182 N. C., 591; Woosley v. Comrs., 182 N. C., 433. As to tbe validity of tbe tax levy under and by virtue of tbe second election, that as bis Honor finds and tbe evidence shows, was held under Public-Local Laws of 1920, cb. 87, Extra Session, and it appearing that tbe levy of tbis tax was made on 8 September, tbe last month in which such a levy could be made under tbe revenue laws of 1921, and tbe election purporting to ratify tbe levy was not held until 2 November following. Being held under tbe statutes referred to, tbe limitations contained therein should ordinarily be allowed to prevail, and on perusal of first section of chapter 87, it appears that while a bond issue and a tax levied therefor are authorized “for tbe purpose of erecting, enlarging, altering, and equipping school buildings and acquiring land for school buildings of tbe school district, or for any or more of said purposes/' said section also provides: “That no bonds shall be issued under tbis act, nor any special tax levied, unless and until tbe question of such issue and levy shall bave been submitted to tbe qualified voters of such school district at a special election to bave been held for tbe purpose, and a majority of tbe qualified electors shall vote in favor of issuing said bonds and levying said tax.” In Mann v. Allen, 171 N. C., 219, tbe Court has held that “unless a statute from its language, purpose, and context clearly requires tbe contrary, tbe term levy,’ when applied to question of taxation of tbe kind signified, tbe levying or imposition of tbe tax by legislation or under legislative sanction,” and tbe statute therefor in terms too plain to admit of construction, prohibits a tax levy for tbe designated purpose, "unless and until” tbe qualified -electors have voted for tbe proposition. True, we bave held that an act which could bave been originally authorized may be ratified, and that tbe principal, in proper instances, applies both to legislative bodies and tbe electorate as well. Board of Education v. Comrs., 183 N. C., *248 300; Hammond v. McRae, 182 N. C., 747. But tbe position, in our opinion, bas no application to tbe facts presented bere, where tbe only statute under wbicb tbe electorate acted, and wbicb expresses tbe lawful limit to its powers, forbids tbat any levy be made until tbe electors of tbe district shall have approved tbe same by their vote. While we are thus constrained to differ with bis Honor as to tbe validity of tbe tax levy, we are of opinion tbat bis order dissolving tbe injunction should not be now disturbed for tbe reason tbat it further appears by affidavit received as pertinent to tbe inquiry and without objection noted tbat tbe tax in question bad been collected, accounted for on settlement with tbe municipal authorities, and paid over to persons not parties to tbe record, and in such case our decisions bold tbat tbe appeal should be dismissed, for, on tbe facts as presented, relief by injunction is no longer available to tbe parties. Griffith v. Board of Education, 183 N. C., 408; Allen v. Reidsville, 178 N. C., 513; Sasser v. Haurriss, 178 N. C., 322; Moore v. Monument Go., 166 N. 0., 211; Piclcler v. Board of Education, 149 N. C., 221. It would seem tbat in a case like tbe present, and assuming tbat tbe facts contained in tbe additional affidavit are accepted or established at tbe bearing, tbe only remedy for an injured taxpayer is to pay tbe illegal tax under protest and sue to recover tbe same as provided in C. S., 7979, a relief, however, tbat is not within tbe scope and purview of tbe present action.

For the reasons heretofore given, tbe appeal is dismissed at tbe appellees’ cost.

Dismissed.