
    J. R. LAZENBY et al. v. BOARD OF COMMISSIONERS OF IREDELL COUNTY.
    (Filed 5 December, 1923.)
    1. Schools — Statutes—Taxation—Special Tax — Petition—Counties—Discretion.
    Where the electors of a school district of a county have voted for a special tax for the erection of a public school building, based upon a petition filed with the county commissioners, and approved by the county board of education in conformity with the requirements of C. S., sec. 5526, except that the petition attempted to take away the discretionary power of the commissioners in locating it, this restrictive provision in the petition is contrary to law, and will be'disregarded, and the election being free from fraud and giving the electors full opportunity to vote, the special tax thereby approved will be held valid.
    2. Same — Ballot®—Unrelated Questions — Appeal and Error — Objections and Exceptions.
    Where the exception on appeal to the validity of a special tax approved by the voters of a school district for public school purposes, is upon the ground that the question was submitted on several unrelated propositions upon one ballot, it will not be sustained when it properly appears from the findings of the lower court that the only question voted upon and approved by the electors, and involved in the controversy, was the levying of the special tax.
    PlaiNtiees appealed from an order of' Long, J., 1 September, 1923, dissolving a restraining order. From Ieedell.
    In June, 1922, one-fourth, the freeholders in a described territory filed with the defendant the following petition:
    “We, the undersigned, petition that Chestnut Grove Schoolhouse be built on the Winston-Salem Highway, somewhere between N. C. Summers’ and J. L. Wike’s, as the most suitable place. This petition to be null and void unless schoolhouse is built on the Winston-Salem Highway or near said highway, and also higher grades must be added to said school; respectfully petition your honorable board for an election to ascertain the will of the people within the proposed special school district, whether there shall be levied in said district a special annual tax of not more than ten cents on the one hundred dollars valuation pf property and .... cents on the poll, to supplement the public school fund which may be apportioned to said district by the county board of education in case such special tax is voted.”
    The county board of education approved the petition and the defendant ordered an election to be held “for the purpose of voting on a special school tax of not more than ten cents on the $100 worth of property.” A majority of the qualified voters voted for the tax, and tbe plaintiffs brought this suit to declare tbe election void and to enjoin tbe levy and collection of tbe special tax. Tbe defendant filed an answer, and upon tbe bearing bis Honor found tbe facts and dissolved tbe restraining order theretofore issued.
    
      B. T. Weatherman, Grier & Grier, and W. D. Turner for plaintiffs.
    
    
      Burén Jurney and John A. Scott, Jr., for defendant.
    
   Adams, J.

Tbe petitioners undertook to prescribe conditions upon which their petition should become “null and void,” and tbe plaintiffs contend that tbe defendant bad no authority to order tbe election because these conditions were in conflict with C. S., 5526. In this section there are two conditions which are precedent to granting an order for bolding tbe election: (1) tbe petition must be signed by one-fourth tbe freeholders within tbe proposed special school district in whose names real estate therein is returned in the tax list of tbe current fiscal year, and (2) it must be endorsed by tbe county board of education.

It was held in Gill v. Comrs., 160 N. C., 181, that tbe jurisdiction of tbe board of education and of tbe county commissioners is dependent upon the presentation to them of such a petition as is required by tbe statute, and that such petition is precedent to tbe exercise of the particular authority which tbe statute confers. See, also, Key v. Board of Education, 170 N. C., 123. In tbe instant case tbe two conditions prescribed by tbe statute were complied with, and tbe question for decision is whether tbe other conditions stated in tbe petition were fatal to tbe exercise of tbe jurisdiction conferred by law upon tbe defendant. As to this question both sides refer to tbe decision in Comrs. v. Malone, 179 N. C., 110. In that case tbe county commissioners were authorized by a public-local law to issue bonds in behalf of any general or special school-taxing district of tbe county, on approval of a majority of tbe qualified voters, for tbe purpose of repairing, altering, making-additions to or erecting new buildings, and purchasing schoolhouse sites. In tbe petition for tbe election tbe purpose stated was tbe erection and equipment of a new school building and tbe purchase of school grounds; and tbe court said that if tbe word “equipment” should be regarded a substantial departure from tbe purposes contemplated and provided for in tbe statute, tbe provisions of tbe statute mentioned in tbe petition were controlling, and tbe term, even if unwarranted, should be rejected as surplusage or disregarded as being in violation of law.

Upon tbe record in tbe case at bar this principle is controlling. His Honor found as a fact that in tbe advertisement of tbe election neither tbe location of tbe schoolhouse nor tbe character of tbe school to be established was mentioned, and that the only question considered by the voters was that of the special tax. There is nothing in the record to indicate fraud or to show that any voter was deceived or misled either as to the location of the building or as to the character of the school. On the contrary, the alleged cause of action is based solely upon the ground that the conditions stated in the petition conflict with the statute and render the election invalid. In.this conclusion we do not concur. The right of the petitioners to ask that the choice of a site be submitted to the qualified voters is not involved. The objectionable feature of the petition is the apparent purpose of the petitioners to control the discretion of the board by designating the place where the building shall be erected; but, the petition being otherwise sufficient, the expression of such purpose cannot divest the commissioners of the jurisdiction given them. In other words, the conditions requisite to conferring jurisdiction have been prescribed by the Legislature {Gill v. Gomrs., siopra), and when compliance with these conditions is properly made to appear, the petitioners cannot disregard the statute and defeat or qualify the jurisdiction of the board by incorporating extraneous or irrelevant matter in their petition or by directing in what manner and to what extent such jurisdiction shall be exercised.

Also, the plaintiffs contend that the election is void for the reason that only one ballot was used in submitting to the voters of the district the three propositions whether a special tax should be levied, whether the school should have additional grades, and whether the site should be changed; and in support of their contention they rely on the doctrine stated in Winston v. Bank, 158 N. C., 512, and in Hill v. Lenoir, 176 N. C., 572. It is not necessary to point out the distinction between the facts in these two cáses and those in Briggs v. Raleigh, 166 N. C., 149; Keith v. Lockhart, 171 N. C., 451, and Taylor v. Greensboro, 175 N. C., 423, with a view to deciding whether the three propositions are practically one or whether they are distinct and unrelated. The order of election shows, and in his statement of facts his Honor 'finds, that the levy of the special tax was the single question which the voters had in mind.

The appeal does not present any amendment of the school law as codified by the General Assembly of 1923.

The record disclosing no error, the judgment is

Affirmed.  