#### R. H. OWEN et al. v. BOARD OF EDUCATION OF CUMBERLAND COUNTY et al.

(Filed 1 November, 1922.)

Injunction — Taxation — School Districts — Final Judgment — Hearing— Trials.

On this appeal: Held,, the trial judge properly dissolved a temporary order restraining the county hoard of education from levying a special tax for school purposes, pursuant to an election held upon the question in the district; but erred in adjudging that the defendants “go without day,” such being permissible only when the facts are admitted for the purpose or fixed and established at the final hearing. Davenport v. Board, of Education, 183 N. C., 570.

Civil action, beard on return to preliminary restraining order, before Connor, J., on 12 June, 1922, from CumbeelaND.

Tbe action is to challenge the formation of Seventy-first Consolidated School District in said county. To restrain a proposed bond issue, and the levying of a special tax to provide for same, pursuant to an election held in said district. And also the present location and erection of the school buildings within said district as now planned and intended by the school authorities. On the hearing the court made a full and comprehensive finding of the pertinent facts, and entered judgment in terms as follows:

“1. That the restraining order heretofore issued in this case be and the same is hereby dissolved.,

“2. That the election held in that part of the 71st Consolidated School District, excluding Kornbeau, is hereby declared valid and sufficient to authorize, and does authorize, the levying and collection of the special tax as asked for in the petition.

“3. That the election held in the Kornbeau territory is hereby declared valid and sufficient tó authorize, and does authorize, the levying and collection of the special tax as asked for in the petition.

“4. That the two said districts were properly consolidated, and now constitute the 71st Consolidated School District.

“5. That the bond election held in the 7lst Consolidated District is hereby declared valid, and said bonds a legal and binding obligation when issued upon and against the 71st Consolidated School District, and the property therein.

“And the proper authorities are hereby authorized and directed to take such further steps as may be necessary for the levying of said tax and the issuing of said bonds, and it is further decreed that the defendants go hence without day and recover their costs of the plaintiff and his surety.”

*268 Bose & Bose, J. 0. Tally, and Bullard & String-field for plaintiff.

Oates & H&rring, Shaw & Shaw, and Sinclair, Dye & Ciarle fon defendants.

Hoxe, J.

Tbe facts in evidence as they now appear of record are fully sufficient to support and justify tbe conclusions of tbe trial judge. As to tbe proper formation of tbe school district in question, tbe legality of tbe election and proposed bond issue and tax levy to provide for same, and tbe lawful selection of tbe proposed school site as contemplated by tbe authorities in control of tbe matter, and tbe judgment dissolving tbe injunction must be upheld. But we think bis Honor went beyond tbe powers conferred upon him in undertaking to make a final determination of tbe rights of tbe parties, and adjudging that defendants “go without day.” Except where tbe facts are agreed upon or admitted for tbe purpose, such a judgment in a case of this kind may only be bad at tbe final bearing and on tbe facts as they may be then fixed and established. This was virtually held in the recent case of Davenport v. Board of Education, 183 N. C., 570, and tbe ruling is in accord with the prevailing decisions on the subject. Galloway v. Board of Education, ante, 245; Davenport v. Board of Education, supra; Moore v. Monument Co., 166 N. C., 211.

This will be certified that tbe judgment of tbe lower court be modified in accordance with this opinion.

Modified.