#### ALEX. F. BURNET et al. v. COMMISSIONERS OF BLADEN COUNTY et al.

(Filed 1 November, 1922.)

1. School Districts — Consolidation—Taxation—Elections—Constitutional Law.

Where a school district has been made of consolidated special tax and nonspecial tax territory, by the county board of education, and thereafter, at an election held for the purpose, according to law, the question of taxation for school purposes has been submitted to each of the old districts comprising the new or consolidated one, and they each have voted favorably upon the question, the result is not the levying a tax upon the nonspecial tax district without the legal approval of the voters therein, and the taxation so approved is constitutional and valid.

*275S. Same — Statutes—Ratification—Curative Acts.

A statute allowing an existing consolidated school district to submit the question of taxation and the issue of bonds for school purposes to the district is not prohibited by Article II, section 29, or the amendments of 1920 to the State Constitution, as to general legislation upon local or private affairs in “establishing or changing the lines of school districts”; and the Legislature, having the authority to enact a law of this character, when an election has been held approving this proposition, even if without warrant of law, may cure the defect by subsequent ratification and confirm the results of the election previously held.

3. Constitutional Law — Amendments—School Districts — Poll Tax — Appeal and Error — Costs.

Since the constitutional amendment of 1920, a tax by a school district upon the poll with the property tax, under a statute authorizing it, is unconstitutional as to the poll tax, and where the property tax is legal and valid, the taxation upon the poll will be eliminated, and the valid part upheld by the courts. On this appeal the cost is taxed equally between the parties.

Appeal by plaintiffs from Bond, J., at chambers, 18 September, 1922, from BladeN.

Civil action to restrain the defendants from levying and collecting certain special school taxes in Brown Marsh Township School District, Bladen County, upon the alleged ground that the elections under which said taxes were approved by a majority of the qualified voters resident within the district were illegally held, and are therefore void.

From an order denying the application for injunctive relief, plaintiffs appealed.

B. D. Dickson for plaintiff.

Henry L. Williamson for defendants.

Stacy, J.

It is alleged in the complaint and admitted in the answer that on 25 April, 1921, the whole of Brown Marsh Township, Bladen County, comprising four nonspecial tax districts and one special tax district, was consolidated by the board of education of said county into one township high school district. Thereafter, on 6 June, 1921, an election was ordered in said consolidated district, or township, to ascertain the will of the people in regard to levying “a special annual tax of not more than 30 cents on the $100 valuation of property and 90 cents on each poll within said district to supplement the public school funds, which may be appropriated to such district by the county board of education for the maintenance and running of a proper school therein.”

At the same time another election was ordered to be held in said district for the purpose of ascertaining whether or not a majority of the qualified voters resident in the district wished to approve a bond issue *276to tbe amount of $25,000 for tbe purpose of building, rebuilding, and repairing tbe scboolbouses therein, and furnishing tbe same witli suitable equipment, and thereupon to authorize tbe levy and collection of an annual tax of not more than 30 cents on tbe $100 valuation of property and 90 cents on each poll in said district for tbe purpose of paying the interest on and creating a sinking fund for tbe retirement of said bonds-at maturity.

These elections were held together on 12 July, 1921, and both resulted in a favorable majority vote, not only in tbe territory of tbe original special tax district and nonspeeial tax districts voting separately, but. also in tbe entire consolidated district, or township, voting as a whole.. Tbe taxes authorized by these elections have been levied and collected for tbe year 1921, levied for tbe year 1922, and tbe bonds in question, have been issued and sold.

Tbe defendants contend that tbe first election was properly held under tbe law then in force, «whether tested by tbe requirements of C. S., 5473, as amended by Public Laws 1921, ch. 179, C. S., 5511, or C. S., 5526 and 5530, as construed by this Court in Hicks v. Comrs., 183 N. C., 394; Perry v. Comrs., 183 N. C., 387, and Riddle v. Cumberland, 180 N. C., 321; and that the second election was clearly authorized by C. S., ch. 95, art. 39. On tbe other band, both of these propositions are controverted by tbe plaintiffs.

It will be observed that tbe consolidation of tbe districts, which: occurred on 25 April, 1921, is not specifically attacked by tbe plaintiffs; but, even if it were, we think tbe present consolidation should be approved under tbe decisions in tbe Hides, Perry, and Biddle cases, supra.. The voters have bad a free and untrammeled opportunity to pass upon tbe questions submitted for their approval, both in tbe original special tax territory and tbe nonspecial tax portion of tbe district, counting tbe votes in each separately, and then counting them in tbe entire district as a whole; and this with substantial conformity to tbe requirements, of the statutes bearing upon tbe subject. Both of tbe propositions met. with but little opposition at tbe polls. Tbe bonds have been issued and sold, and they are now in tbe bands of innocent purchasers for value. Under these circumstances, we should be slow to impair their validity,, unless the defect were such as to require us to do so.

But tbe gravamen of tbe complaint .is that tbe elections subsequently held in tbe already consolidated district or township were called and held without proper warrant of law, and are therefore void. Regardless-as to bow tbe technical regularity of these elections may be viewed, conceding tbe district was properly established under tbe general law then in force, we think it was within tbe power of tbe Legislature to-ratify and to confirm tbe results of these elections, and to validate the-*277Issuance of said bonds, and tbus cure any defect, if sucb existed, as it did by cb. 32, Private Laws, Extra Session, 1921. Board of Education v. Comrs., 183 N. C., 300. Barring certain exceptions, tbe general rule Is that the Legislature may validate retrospectively any proceeding which it might have authorized in advance. Anderson v. Wilkins, 142 N. C., 157. In a very recent case, Charlotte Harbor & Northern Ry. Co. v. Welles et al. (decided 16 October, 1922), the United States Supreme Court, speaking to this question, said: “In support of the •contention of the petition, plaintiff in error makes a distinction between a curative statute, which it is conceded a Legislature has the power to pass, and a creative statute, which, it is the assertion, a Legislature has not the power to pass. The argument in support of the distinction is ingenious and attractive, but we are not disposed to review it in detail. The general and established proposition is that what the Legislature could have authorized, it can ratify if it can authorize at the time of ratification,” citing U. S. v. Heinszen, 206 U. S., 370; Wagner v. Baltimore, 239 U. S., 207; Stockdale v. The Insurance Companies, 20 Wall., 323.

The act we are now considering nowhere undertakes to establish a new school district, nor to change the lines or boundaries of one already existing. Its only purpose was to ratify and to confirm the results of certain elections which previously had been held in the then existing districts. It is clear, we think, that the present act is not in-conflict with Article II, section 29, of the State Constitution, prohibiting, as this section does, among other things, any local, private, or special legislation in regard to “establishing or changing the lines of school districts.” Here, it will be noted, the inhibition is against establishing or changing the lines of school districts by any local, private, or special legislation, but not against providing ways and means for the general prosecution of educational work in the district already established. Roebuck v. Trustees, ante, 144; Honeycutt v. Comrs., 182 N. C., 319.

We observe, however, that a tax of 90 cents on the poll was approved in each election, and that this has been levied along with the property tax in both instances. This is not a county tax, but a special district tax. Hence, the poll tax must be held to be invalid under the constitutional amendment of 1920. Hammond v. McRae, 182 N. C., 754. See, also, concurring opinion in Ballou v. Road Com., 182 N. C., 473. The property tax will be upheld.

As thus modified, the judgment of his Honor denying the plaintiffs’ application for injunctive relief is approved.

The costs of this appeal will be divided equally between the parties.

Modified and affirmed.