#### R. D. JONES et al. v. BOARD OF EDUCATION OF ROBESON COUNTY and BOARD OF COUNTY COMMISSIONERS.

(Filed 9 April, 1924.)

1. Schools — Consolidation—Taxation—Bonds—Statutes.

C. S., 5526, applies primarily to the consolidation of nonspecial-school-tax territory; and in order to consolidate existent school-tax districts having different rates, by extending the limits of some of them to include others, section 5530 requires that a majority of the committee or trustees of either of these districts sought to be 'enlarged file a written request with the county board of education to thus enlarge its boundaries, and an election must be held before consolidation, and the other material requirements of the statute complied with; and where this course has not been followed, the tax attempted to be levied in the consolidated district, and bonds ordered to be issued in pursuance thereof, are invalid.

2. Same,

Where the consolidation of existing school districts with various rates of taxation attempted under the provisions of C. S., 5530, is invalid, an election thereafter held under the provisions of C. S., 5473, as amended by'Laws 1921, ch. 179, sec. 1, cannot relate back and validate the consolidation and the tax to be levied and bonds to be issued thereunder.

Appeal by plaintiffs from a judgment upon the pleadings by Lyon, J at chambers.

Prior to 6 March, 1922, there were five separate public-school districts in Thompson’s Township, Robeson County, known as White Public-School districts Nos. 6, 8, 9, 10, and 11. Each was a special-taxing district, in which a special tax had been voted, as follows:

(a) In District No. 6, a special tax of 30 cents on the $100 valuation of property.

(b) In District No. 8, a special tax of 30 cents on the $100 valuation of property.

(c) In District No. 9, a special tax of 25 cents on the $100 valuation of property. ' ’

*558(d) In District No. 10, a special tax of 20 cents on tbe $100 valuation of property.

(e) In District No. 11, a sj)ecial tax of 10 cents on tbe $100 valuation of property.

On 6 March, 1922, tbe board of education made an order for tbe consolidation of these districts into one, to be known as Thompson’s Graded School District. At tbe request of tbe board of education, tbe board of commissioners then called an election, which was held on 6 May, 1922, in tbe consolidated district, upon tbe question of issuing twenty-year bonds iu tbe sum of $25,000 for building purposes, and of levying an additional special tax of 30 cents on tbe $100 valuation of property, and a majority of tbe qualified voters voted for said bonds and tax. On 5 June, 1922, tbe board of education made an order revoking tbe consolidation of tbe several districts, and tbe board of commissioners declared null and void tbe election which bad been carried for tbe bonds and special tax. These orders were made in consequence of tbe construction given by these boards to one or more decisions of tbe Supreme Court. On tbe same day tbe board of education consolidated districts 6 and 8, which bad levied tbe same tax, and considered petitions praying that the graded-scbool district (composed of 6 and 8) be enlarged by adding thereto districts 9, 10, and 11, and that an election be held in these three districts on tbe question of making their respective tax rates equal to those in tbe consolidated district. Tbe board of commissioners ordered such election to be held, and in each district tbe election resulted in raising tbe tax to 30 cents. Accordingly, on 4 September, 1922, districts 9, 10, and 11 were consolidated with districts 6 and 8. On 5 March, 1923, tbe board of' commissioners made an order in effect declaring the bonds and special tax voted in tbe special election of 6 May, 1922, to be valid, and annulled “all proceedings of this board since 6 May, 1922, relative to said bonds.” It is admitted that tbe trustees of tbe Thompson Graded School District (districts 6, 8, 9, 10, and 11) are preparing to issue and sell tbe bonds ($25,000) and to levy tbe special tax voted in tbe election of 6 May, 1922.

Tbe plaintiffs contend that tbe Thompson Graded School District bad not been legally consolidated or established when tbe election of 6 May was held, and that tbe bonds, therefore, cannot be issued nor tbe tax levied. His Honor held that tbe bonds, when issued and sold, will be valid and tbe tax collectible, and vacated tbe restraining order. Tbe plaintiffs appealed.

J. E. Carpenter and McKinnon, Fuller & McKinnon for plaintiffs.

L. JR. Varser, Diclcson McLean, and• H. E. Stacy for defendants.

*559Adams, J.

Tbe order first consolidating tbe several school districts was made on 6 March, 1922, and tbe election purporting to authorize tbe issuance of bonds for tbe consolidated districts and tbe levy of a special tax was held on 6 May, 1922. On 5 June tbe order consolidating these districts was rescinded and tbe election declared Amid, AAdiereupon districts 6 and 8, having tbe same tax, were combined and a petition was filed Avith tbe board of education praying that these tAvo districts be enlarged by adding thereto districts 9, 10, and 11. Tbe election Avas held and tbe tax in each of tbe three districts was raised and made uniform with tbe tax in tbe two' combined districts, and on 4 September tbe five districts were consolidated and designated “Thompson’s Graded School District.”

Tbe plaintiffs contend that tbe first order of consolidation was illegal even if tbe board of education bad no power to revoke it or bad power to reinstate it (as it attempted to do) and that tbe election purporting to authorize tbe bonds and tbe special tax was ineffective even if tbe board of commissioners had no power to declare it void. Tbe appeal therefore presents tbe question whether tbe first order of consolidation was valid.

In tbe five districts a special tax bad been levied — in tbe first two thirty cents on property valued at one hundred dollars, and in tbe last three twenty-five cents, tAventy cents, and ten cents respectively, and on tbe question of consolidation no election was held until 4 September, 1922, about four months after tbe election which resulted in favor of tbe bonds and tbe sjiecial tax. Tbe order of 6 March, consolidating tbe five districts, cannot be sustained unless by virtue of section 5526 or 5530 of tbe Oonsolidated Statutes, or by tbe act of 1921.

In our opinion it cannot be sustained under section 5526 because this section “was intended to apply primarily to cases where new districts are created or formed, in tbe manner prescribed therein, out of territory exclusive of special-tax districts, or at least out of territory having tbe same existing school tax or taxes.” Perry v. Comrs., 183 N. C., 387.

It is also clear, we think, that it cannot be upheld under section 5530. Tbe plaintiffs allege, it is true; that at a meeting held on 6 March, 1922, tbe board of education made an order consolidating tbe territory embraced Avithin districts 6, 8, 9, 10 and 11, and this is admitted by tbe defendants; but it is also alleged that there were differing tax rates in tbe seAeral districts, and upon these allegations arises a Avell-defined question of law. Besides, there is no allegation that a majority of tbe committee or trustees of either of these districts bad filed a Avritten request with tbe board of education to enlarge its boundaries or that tbe other provisions of tbe statute bad been complied with. If tbe statute contemplates nothing more, tbe extension of tbe bounda*560ries of a local taxing district by taking in contiguous nontaxing territory, obviously it is inapplicable bere because all tbe districts bad levied a special tax. If tbe election therein referred to should be construed as applying to tbe consolidation of several contiguous districts], levying different tax rates in order to secure uniformity, still no election was held before tbe consolidation was effected; and there is no provision in this section that upon such consolidation only tbe lowest rate should be levied and collected. Paschal v. Johnson, 183 N. C., 129; Perry v. Comrs., supra; Hicks v. Comrs., 183 N. C., 394.

What bearing, then, has- tbe act of 1921 on tbe consolidation of these districts? Section 5473, as amended by Public Laws 1921, ch. 179, sec. 1, provides that tbe county board of education may consolidate local-tax districts having different special tax rates -for schools; but it is further provided that tbe rate on any consolidated districts created from local-tax districts having different local tax rates shall be made uniform by the county commissioners upon the recommendation of the county board of education, and that no taxpayer in such consolidated districts shall be required to pay a higher special tax than that voted originally in his district. This is probably the statute on which the defendants chiefly rely; but we find nothing in the record to show that the county board of education ever made the necessary recommendation to the board of county commissioners or that the commissioners ever attempted to make uniform the rate on the consolidated districts. If such recommendation had been made it is altogether probable that the district paying the highest rate would have objected; at any rate, this inference is reasonable in view of the subsequent election to increase the lowest rate to the highest.'

Upon a careful consideration of the record we are convinced that the order of consolidation made on 6 March, 1922, was not made in compliance with law, and that the election in pursuance thereof was not effective. If it be conceded that the consolidation of 4 September in pursuance of the election ordered on 5 June was held as the- law requires, still it could not relate back and validate a void election purporting to sanction or authorize the issuance of bonds and the levy of the special tax. The defect is not cured by the order made by the board of commissioners on 5 March, 1923, in reference to the election held on 6 May, 1922. ¥e see no good reason, however, why relief may not be sought in another election. The judgment is

Reversed.