
    GEORGE E. GILL et al. v. BOARD OF COMMISSIONERS OF WAKE COUNTY.
    (Filed 7 November, 1912.)
    1. County Commissioners — Equity—Injunction—School Districts— Petition of Freeholders — Conditions Precedent — Taxation.
    As a condition precedent to the action of the board of county commissioners in forming special school districts and submitting to the vote of the people the question of levying the tax under the provisions of chapter 135, sec. 1, Public Laws of 1911, and chapter 525, Public Laws 1909, amending Revisal/sec. 4115, the “petition of one-fourth of the freeholders within the proposed school district, indorsed by the county board of education,” etc., must first be presented. This is a prerequisite made by the statute to the exercise of the authority conferred on the board of county commissioners, and is necessary to. confer jurisdiction on them, and it may be shown, in proceedings to enjoin the county commissioners from levying the tax, that the petition upon which they were assuming to act was not in fact signed by the required number of the freeholders in the proposed district.
    
      2. Same — Power of Courts.
    When an injunction is sought to the main relief of declaring the invalidity of taxes proposed to be levied by the county commissioners for a special school district, laid out in accordance with the provisions of chapter 135, sec. 1, Public Laws of 1911, amending Revisal, sec. 4115, upon the ground that the requisite number of the freeholders of the district had not signed the petition, the courts may inquire into the legality of the proposed' ■action of the board in levying the tax, in direct proceedings, and in proper instances afford the relief applied for, so that the status qwo may be preserved until the rights of the parties are finally determined.
    3. Injunction — Ministerial Duties — Statutory Observance.
    While the courts will not restrain a municipal official in the exercise of a discretionary power conferred on him by statute, they will restrain him .when he assumes to act in a manner not contemplated by the statute.
    4. County Commissioners — School Districts — “Freeholders” — Words and Phrases — Woman Suffrage — Interpretation of Statutes.
    The word “freeholders,” used in chapter 135, sec. 1, Public Laws of 1911, amending Revisal, sec. 4115, as to who are required to sign the petition for the laying off special school districts and levying a tax therein, should not be construed by itself, but in the light of proper,and relevant circumstances, such as that under the common law of England a freehold estate was held by a freeman, and the feudal duties thereof were not performed by women; that the former qualification under our Constitution that a Senator should be the owner of a freehold in 50 acres of land did not make a woman eligible for the position, requiring that a freeman, excluding woman, should be seized thereof, and thus understood in political matters, excluding woman from suffrage; that under our statutes the word “freeholder,” as describing qualifications of appraisers, commissioners, and a special class of jurors (Revisal, secs. 2122, 2685, 2686, 5202, and others), excludes females; that the construction placed by the other legal advisers of the department has consistently for years been that the meaning of the word “freeholders,” used in this connection, excluded women, of which the Legislature was doubtless aware and made no statutory change or correction; and Held, that if the petition be not signed by the required per cent of the freeholders in the proposed district, excluding the ownership of lands by women, infants, nonresidents, etc., it is not a compliance with the requisites of the stat-üte: Held further, tlae interpretation of the word “freeholders” as used by the statute should not be confined to the quantity of estate held in the land.
    5. County Commissioners — School Districts — Taxation—Injunction —Appeal and Error — Superior Court — Incorrect Ruling — Correct Result — Different Matters — Court’s Investigation — Reversal — Procedure.
    In this cause for an injunction against the action of the board of county commissioners in creating a special school district and submitting to the vote of the people the question of a tax levy under the provisions of chapter 135, sec. 1, Public Laws of 1911, amending section 4115 of the Revisal, the Superior Court judge granted the restraining order to the hearing, erroneously ruling that women were “freeholders” within the meaning of the act. The question of whether the proposition submitted received a majority of the votes cast, being also involved, the Supreme Court would affirm the granting of the order, though based on the wrong ruling, except that it appears from the examination of the allegations of the respective parties that there was no real or serious dispute as to the result of the figures and admissions that the proposition received the approval of a majority of the qualified voters; and therefore the judgment of the lower court continuing the injunction to the final hearing is reversed, without prejudice to the plaintiff to renew his motion therefor upon new or additional fficts showing his right to it.
    6. Appeal and Error — County Commissioners — School Districts— Taxation — Injunction—Interlocutory Order — Substantial Rights —Fragmentary Appeals.
    In this action an injunction was asked restraining the county commissioners from ordering a levy of taxgs in a special school district laid off under the provisions of chapter 355, Public Laws of 1911, and chapter 525, Public Laws of 1909', amending sec. 4115 of the Revisal, which involved two propositions: (1) the invalidity of the petition conferring jurisdiction; (2) the question as to whether a sufficient number of the qualified voters had voted in favor of the question submitted to them. Upon the first proposition it is ascertained that no jurisdiction was conferred, and in the second, that a sufficient number of the qualified voters had voted favorably: Held,, the order appealed from was interlocutory, affected a substantial right, and the appeal taken was not objectionable as fragmentary. Revisal, sec. 587.
    Clark, C. L, and Brown, J., dissenting.
    
      Appeal by defendant from Ferguson, J., at July Term, 1912, of Waxe.
    Tbis action was brought by tbe plaintiffs to test tbe validity of an election beld in Wake Forest for tbe purpose of establishing a school district therein and levying a special tax for tbe support of tbe same, under Revisal, sec. 4115, which was amended by tbe Public Laws of 1909, ch. 525, and Public Laws of 1911, ch. 135, sec. 1. It provides that “Special school tax districts may be formed by tbe county board of education in any county without regard to township lines under tbe following conditions: Upon a petition of one-fourth of tbe freeholders within the proposed special school district, indorsed by the county board of education, the board of county commissioners, after thirty days notice at the courthouse door and three public places in the proposed district, shall hold an election to ascertain the will of the people within the proposed special school district whether there shall be levied in such district a special annual tax of not more than 30 cents on the $100 valuation of property and 90 cents on the poll to supplement the public school fund, which may be apportioned to such district by the county board of education, in case such special tax is voted.” It is not necessary that we should further refer to •the amendments. A petition purporting to be signed by one-fourth of the freeholders of the proposed district was presented to the county board of education and duly indorsed by them, and the board of county commissioners thereupon ordered the election to be held in the district on 15 June, 1912, for the purpose aforesaid. Revisal, sec. 4115, also provides that “in case a majority of the qualified voters at the election is in favor of the tax, the same shall be annually levied and collected in the manner prescribed for the levy and collection of other taxes.”
    Plaintiffs allege that a sufficient number of freeholders, that is, one-fourth, did not'sign the petition for the election, but that the women in the district, and persons who are freeholders but are themselves not residents of the district, were not counted in making up the total of freeholders of the district, and that' if they are included, one-fourth of the freeholders within the district did not sign the said petition.
    
      The defendants admit that if the women of the district who own freeholds therein are to be counted in order to make a proper roster of the freeholders, then three-fourths of the freeholders did not sign the petition, without any regard to the freeholders who are nonresidents. They contend, though, that plaintiffs cannot raise the question as to the lack of a sufficient number of qualified signers to the petition, because they are concluded by the indorsement or approval of the county board of education, and the order for the election, which was made by the county commissioners. They also insist that the women should not be counted, as they are not freeholders within the meaning and intendment of the statute.
    Plaintiffs further allege that if the election was properly ordered, the question submitted did not receive the approval of a majority of the qualified voters of the district, as required by the statute. It appears that the vote at the election was canvassed by the registrar and pollholders, who are about to certify the result to the board of county commissioners, who,, it is alleged and admitted, will receive the election returns, record the same, and levy the tax as provided by Revisal, sec. 4115.
    Plaintiffs prayed that the said election be declared void, set aside and annulled, and,, as ancillary to this relief, that defendants be enjoined from declaring the alleged illegal result and from levying the tax.
    The court, his Honor, Judge Garland S. Ferguson, presiding, was of the opinion, and so decided^ that women and nonresidents who own freeholds in the district should be included in the count, so as to make up the total number of freeholders, or, in other words, that the term “freeholders within the proposed special school district” embraced female as well as male, and, therefore, that the petition did not have the requisite number of signers, freeholders and nonresident freeholders. The court thereupon continued to the final hearing the temporary injunction theretofore granted by Judge Bragatw, and defendants appealed.
    
      N. Y. Gulley, Douglass, Lyon & Douglass, W. B. Snow, and Armistead Jones & Son for plaintiffs.
    
    
      Winston & Biggs for defendants.
    
   Walkee., J.,

after stating tbe facts: Tbe first question for our consideration is, Can tbe plaintiffs now object tbat a sufficient number of qualified persons did not sign tbe petition for tbe election? We think, upon mature reflection and an examination of tbe authorities, tbat they can, as tbe jurisdiction, if we may so term it, of tbe board of education and tbe county commissioners • is dependent upon tbe presentation to them of .such a petition as is required by tbe statute, it being a condition precedent to tbe exercise of tbe particular authority conferred by tbe statute upon them. It was tbe foundation upon wbicb all else rested, and without which tbe subsequent proceedings cannot stand. Wbat is said by Justice Merrimon in McDowell v. Commissioners, 96 N. C., 514, is very pertinent bere: “Accepting it as true tbat tbe commissioners of Euther-ford County did ascertain and declare tbe result of tbe election in question, properly and sufficiently — and this by no means appears to be certain — tbeir action in tbat respect, while it could not be attacked collaterally, was not conclusive, and it might be questioned and contested in an action brought directly for tbat purpose. It cannot be tbat such a determination and exercise of authority by county commissioners, in respect to. matters frequently involving questions and rights of great moment, are final and absolutely conclusive. There is certainly no statute tbat so provides, and tbe spirit and principle of law in regard to tbe settlement and determination of tbe rights of parties and tbe public plainly imply tbe contrary. . . . Tbe chief and leading purpose of this action is to contest directly tbe regularity and validity of tbe election in question, including tbe ascertainment and declaration of tbe result thereof by tbe county commissioners. The plaintiff seeks to have tbe election adjudged void for tbe causes alleged, and prays for incidental equitable relief by injunction pending tbe action, and a perpetual injunction. We can see no reason why this is not competent, although we need not now decide conclusively any question in this respect. It is true, tbe plaintiff did not bring bis action at once after tbe result of tbe election was declared, to contest its validity, but it was not necessary tbat be should do so, until some action was about to be taken in pursuance of it. It might be that the county authorities, seeing the election was irregular ahd void, would so treat and .disregard it, in which case an action to have it declared void would be unnecessary. It seems that the plaintiff gave notice of his purpose to bring his action when and as soon as it became necessary, and that he did bring it promptly after the commissioners manifested their purpose to act upon the result of the election. There is no statutory provision that requires such elections to be contested at once after they take place, and in a particular manner. It was, therefore, sufficient for the plaintiff to bring his action within a reasonable period, and in the ordinary method.”

Referring to Smallwood v. New Bern, 90 N. C., 36, cited by appellants in that case, this Court further said in McDowell v. Construction Co., supra, that it was not applicable, it being an action to enjoin a tax, which was a collateral and not a direct attack upon the commissioners’ declaration of the result of the election, and thus quoted from the opinion in that case: “If the plaintiff was dissatisfied with the action of defendants in ascertaining the result of the vote in the respect mentioned, he ought, at the proper time, to have brought his action to question the truth and justice of their decision of the matter, and had the same reversed, declared irregular and void, or properly modified. There was a remedy, but that remedy cannot be had in an action like this.” And the Court, in McDowell v. Construction Co., at p. 532, added, in connection with that extract from Smallwood v. New Bern: “Nor did this Court say, or intend to say, to the contrary, in Simpson v. Commissioners, 84 N. C., 158; Cain v. Commissioners, 86 N. C., 8, and Norment v. Charlotte, 85 N. C., 387.”

Oases in the courts of other States sustain the view that the jurisdiction of the boards to pass upon the petition is special, and there is no power to act when the required number of legal signatures is wanting, and this defect can certainly be availed of by a direct impeachment of the election. It is said in Hoxie v. Scott, 45 Neb., 199 : “The want of jurisdiction of the county commissioners and other officers clothed with like powers, with respect to similar petitions, to act upon the petition of less than fifty freeholders, or of a certain proportion of qualified electors, is no longer a debatable question in this State [citing caseá]. As tbe county commissioners bad presented to tbem no petition upon wbicb they bad jurisdiction to order an election, tbe bonds were issued without authority of law.” Tbe case of People v. Oldtown, 88 Ill., 202, affords another illustration of tbe principle. An election bad been held upon a petition alleged to have been signed by ten legal voters. It was not, in fact, so signed, or, at least, there was no sufficient evidence of tbe fact that it was, and tbe jury so .found for their verdict. Plaintiff bad applied for a mandamus to compel tbe delivery of certain bonds to him, wbicb were authorized, as be alleged, by tbe election. Tbe Court thus disposed of bis contention: “It is, therefore, tbe application that confers ■ power to call tbe election, and without it there could be no valid election. In a proceeding of this character, tbe burden is on tbe relator to clearly establish tbe right sought to be enforced.” Tbe writ was refused, as no proof bad been offered that tbe petition contained tbe legal requirements. Where township bonds bad been issued after an election at wbicb, it was alleged, tbe issue of tbem bad been approved by a majority of tbe voters, as required by tbe law, tbe Court held, in People v. Cline, 53 Ill., 394, that tbe township was not estopped to question tbe legality of tbe call for or tbe result of tbe election, in an action for a mandamus to compel tbe issue of more bonds, when tbe applicant bad notice of tbe facts. This decision is in point because, in tbe present case, no right of an innocent bolder of bonds or one having any other equitable right has intervened, not meaning to decide that even such a state of facts would make any difference. Tbe authorities upon this question wbicb we have cited, and others wbicb are applicable, are put upon tbe ground that there is no authority to proceed, in ordering an election, unless tbe proper petition has been filed, and tbe ordinary rule obtains that tbe proceeding can be directly assailed, in tbe absence of tbe facts necessary to confer jurisdiction, and that is our case. Damp v. Town of Dane, 29 Wis., 419; 15 Cyc., 319.

It should be noted that the' statute (Revisal, sec. 4115) uses apt words to- create a condition precedent to the exercise of the power of ordering an election, the specific condition being that a petition signed by one-fourth of the freeholders shall be first exhibited to the boards before they can do what is required of them.

There is no question in this case of the bona fide purchase of bonds, issued in pursuance of an election conducted irregularly, nor any other equitable matter which would protect an innocent party. By the statute, the boards were not authorized to act at all until a properly signed petition had been filed. R. R. v. Rich Township, 45 Kan., at p. 292, citing Jones on Railway Securities, sec. 280, and cases- therein mentioned; Lake County v. Graham, 130 U. S., 674; Harshman v. Bates County, 92 U. S., 569.

Our opinion is that the action is properly brought, and that we can inquire into the legality of the order for the election made by the board of county commissioners, this being a direct attack upon the validity of the election, the injunctive process of the court having been invoked in aid of the main relief, and in order that the status quo may be preserved until the rights of the parties are finally determined. “We disclaim the power of the court to restrain a ministerial officer from doing an act which he has been commanded to do by the Legis-laturej when acting within the scope of its authority. And we put our decision upon the ground that the act here restrained is not the act which the Legislature contemplated.” Perry v. Whitaker, 71 N. C., 475.

The case of Howell v. Howell, 151 N. C., 575, to which we were referred by plaintiff’s counsel, does not militate against our view, but a careful reading of it will disclose that it sustains what we have said, for Justice Manning- puts the decision squarely on the ground that plaintiffs in that action could not, by injunction, assail the election because the board of education had not acted discreetly in indorsing the petition and establishing the school district, nor because in other respects they may not have exercised their judgment or discretion very wisely. These matters, says he, should have been brought to the athmtion of tbe board before action was taken by it; but be expressly says that it is not alleged or shown that one-fourth of tbe freeholders within the district did not sign the petition, nor that any other of the vital requirements of the statute had not been complied with. All this is in perfect harmony with our decision in this case.

The next question for us to answer is, Was'the petition signed by one-fourth of the freeholders ? This one presents more difficulty than the first, as the language-of the statute, if isolated and considered by itself, without any reference to extrinsic facts, may mean one thing, while if it is examined, as it-should be, in the light of proper and relevant circumstances, it may have another and quite a different. meaning. Let- us first inquire, Who is a freeholder? Does the term embrace women, or only men and qualified voters or electors? We think the latter is its true meaning, and is what was ¿dearly intended by the Legislature when it chose the words with which to express its will. Judge Blackstone tells us that “an estate of freehold, liberum tenementum, or franktenement, was defined by Britton to be ‘the possession of the soil by a freeman.’ ” And St. Ger-myn said that “The possession of the land is called in the law of England the franktenement or freehold.” Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold; which actual'possession can, by the course of the common law, be only given by the ceremony called livery of seizin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold: that it is such an estate in lands as is conveyed by livery of seizin, or, in tenements of any incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littlet.on that where a freehold shall pass, it behooveth to have livery of seizin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seizin, they are properly estates of freehold; and, as no other estates are conveyed with the same solemnity, therefore no others are properly freehold estates. 2 Blackstone, star p. 104.

It appears, from this account of the great commentator, that anciently and even modemly, at the common law, a freehold was the possession o£ a freeman, and a freeholder, therefore, was a man, the tenure of whose land was free, that is, who held it discharged of the feudal duties and services formerly imposed upon it, which women did not perform. But this definition, which confines a freeholder to the owner of land by free tenure, may not be sufficient, by itself, to restrict the word, as used in our statute, to men, exclusive of women, though in speaking of the elective franchise, when based upon the ownership of a freehold, Blackstone confines its exercise to males who possess the other legal qualifications. 1 Blackstone, 171. But in, the great contest between Hon. John Berry and Hon. Hugh Waddell for a seat in the State Senate, a question arose as to the meaning of a freeholder, with reference to the qualifications of persons holding, or supposed to hold, certain stated interests or estates in lands, to vote' — the Constitution, at that time, requiring the possession of a freehold estate in 50 acres of land as a qualification to vote for a Senator. This Court, in response to a request for its opinion, through Ghief Justice Ruffin, defined a freeholder, as used in the Constitution, and said: “The term ‘freehold’ is a legal one, of very ancient use and of known signification in the common, law. It means an estate in land, of which a freeman is seized for the term of his own life, or the life of another, at the least.” Berry v. Waddell, 31 N. C. (Anno. Ed.), marg. p. 520. And as thus understood, the right to vote has been confined to males in this State, as it was in England. 1 Blackstone, 171 el seq. We have sought in vain for anything in our law which has modified this ancient rule. Several of our statutes make use of this word “freeholder” in describing the qualification of appraisers, commissioners, and a special class of jurors, and the uniform practical construction has been that it does not include females. Revisal, secs. 2122, 2685, 2686, 2689, 5202, and others that might be mentioned. Besides, our Constitution (Art. YI, sec. 1), and the statutes enacted in pursuance thereof, provide that only native and naturalized male persons, who are of full age, shall be voters or endowed with the right of suffrage.

The whole policy of our State, so far as established by constitutional and legislative enactment to this time, has been to exclude women from participation in governmental affairs and from exercising any influence, by tbeir action or inaction, as of legal right, in controlling the right of suffrage or the right of the State, or any one of its political subdivisions, such as counties, townships, or districts, to adopt such measures as may meet with the sanction of the voters and will promote its welfare or that of the people residing within its borders. We are aware of a case in another State, Cummins v. Hyatt, 54 Neb., 38, where the Court held against our construction, but we are unable to follow the decision. It may have been influenced by statutes in force there or by a policy which does not prevail with us, or, rather, has found no lodgment here, and if not, we do not think the case is in harmony with the rulings of other courts, to be hereafter noticed, or with the rule of reason. A cas§ arose in another State where the word “citizen” was used with reference to those who should sign a petition for a liquor license, and it was held that, while females were citizens as well as males, the word was used in the sense of a person qualified to vote, and for several cogent reasons, which were clearly stated by Justice Cobb, it did not include women. Wray v. Harrison, 116 Ga., 93. And the same conclusion was reached in a case where the words “citizens and freeholders” were used in describing those qualified to sign a petition for an election to change a county-seat. Scarborough v. Eubank, 52 S. W., 569, the Court saying: “We are asked, in view of another trial, to construe the word 'citizen’ as used in the statute providing that a given number of citizens and freeholders might apply for an election to change the county-seat. We are disposed to adopt the view expressed by our court of criminal appeals, that, when used in such statutes, the word 'citizen’ should be construed to mean one who is recognized by law as competent to exercise political rights, including particularly the sovereign right of voting, and that it does not include women and children, as seems to be contended in this case. Ex parte Lynn, 19 Tex. App., 294; Abrigo v. State, 29 Tex. App., 149, 15 S. W., 408.” And to the same general effect are the following cases: School District v. School District, 63 Ark., 543; Blanch v. Pansch, 113 Ill., 60; Thomason v. State, 15 Ind., 449; Crandall v. State, 10 Conn., 339; Blair v. Kilpatrick, 40 Ind., 312. These are strong analogies, and virtually bold that when tbe qualification is tbat of “citizen,” or, for tbe same reason, “freeholder,” it means one who is a voter or elector. A similar expression was used in tbe Constitution of 1776, sec. 9, viz.: “tbat all persons possessed of a freehold in any town shall be entitled to vote for a member to represent said town in tbe House of Commons,” and no one ever supposed tbat this conferred tbe right of female suffrage.

A statute must be construed, not textually, but contextually, and with reference to tbe particular matter dealt with, and tbe word “freeholders,” when used with reference to political rights or suffrage, or governmental matters, has never been understood to include women.

But there is another principle, well settled, which applies to this case: “The construction placed upon a statute by the officers whose duty it is to execute it is entitled to great consideration, especially if such construction has been made by the highest officers in the executive department of the Government, or has been observed and acted upon for many years; and such construction should not be disregarded or overturned unless it is clearly erroneous.” 36 Cyc., 1140. The rule is thus substantially stated in New York v. R. R., 193 N. Y., 543 : When the meaning is doubtful, a practical construction by those for whom the law was enacted, or by public officers whose duty it was to enforce it, is entitled to great influence; but the ambiguity must not be captious, but ^should be so serious as to raise a reasonable dopbt in a fair mind, reflecting honestly upon the subject. Numerous authorities agree practic'ally that contemporaneous construction and official usage for a long period by persons charged with the administration of the law have alwáys been regarded as legitimate and valuable aids in ascertaining the meaning of a statute. Sutherland on Stat. Constr., sec. 309; Smith v. Bryan, 100 Va., 204; 26 Am. and Eng. Enc. of Law (2 Ed.), 633, 635; Va. C. and L. Co. v. K. C. and L. Co., 101 Va., 728; Black on Inter, of Laws, pp. 221, 222; Lewis’s Suth. on Stat. Constr., sec. 474; Whittimore v. People, 227 Ill., 453 (10 Am. and Eng. Anno. Cases, 44, and note at p. 51), and Bloomer w. Todd, 1 L. R. A., Ill, in wbicb it is also beld tbat “citizens,” witb reference to tbe right of suffrage, means male persons: Brown v. U. S., 113 U. S., 568; Sedgewick on Stat. and Const. Law, 225.

It bas been suggested tbat we should give to tbe word “freeholder” its technical meaning, as. understood and defined in 2 Blackstone, witb reference to tbe quantity of an estate, and without regard to tbe context of tbe statute we are construing, or to tbe fact tbat tbe Legislature was dealing witb a question involving tbe exercise of tbe elective franchise, nor even to tbe uniform and long prevailing interpretation of tbat department of tbe State Government wbicb is charged witb tbe enforcement and execution of this law. We could not do so without plainly disregarding every well-known rule of statutory construction. Such a meaning of the word would be far more antiquated and moss-covered — dating back to tbe time of Blackstone, Cruise, and Coke, and even to tbe era of tbe Tear Book and Domesday — than tbe sensible and enlightened one of a more modern age.

If by tbe word “freeholder” was meant merely one who bad an estate in fee or for life, then, by tbe same token, tbe word, when used in tbe statutes, as to jurors, appraisers, and commissioners, must be given tbe same meaning; and we all know tbat time out of mind, and by common consent, tbe unvarying construction of tbe word, as thus used, bas excluded females.

It is far more reasonable -to exclude them, in this instance, for otherwise they would, in a very important respect, be indirectly controlling the electorate by their silent vote, wbicb they could use to prevent a vote by tbe people upon questions concerning their local and vital interests. Tbe Legislature bas never, as yet, endowed women witb tbe right to participate in governmental affairs, for reasons satisfactory to itself. It establishes tbe public policy of tbe State, and we have no power vested in us by tbe Constitution to question its motives or tbe wisdom of its policy. ¥e must accept it and enforce it as we find it, and not as we may think it should be, as we do not make tbe law, but merely declare what it is. If any such radical change in our governmental policy is to be made, it should originate in the Legislature, acting within its legislative sphere, and not in this Court.

It is inconceivable that a consistent and persistent construction- given to similar statutes by the Superintendent of Public Instruction and his legal adviser, the Attorney-General, for so long a time, should have escaped the attention of the Legislature, and its silence may be safely construed as an assent to their interpretation of the word.

The reason which would extend the scope of the word “freeholder” so 'as to embrace women, would apply also to nonresidents and infants, and it is too plain for discussion that, by the very language and purpose of the statute, they were not intended to be included. They are entitled to as much protection as the residents and adults of the school district. We prefer to adopt the uniform construction of the departments, which we believe to be in accord with the manifest intention of the lawmaking body and the great weight of authority. It is easy for the Legislature to change that meaning if, in its wisdom, a different policy should be inaugurated. Until that is done, we will stand by the ancient and settled rule of interpretation. “A contemporary exposition, practiced and acquiesced in for a period of years, fixes the construction, unless contrary to the obvious meaning of the words.” Attorney-General v. Bank, 40 N. C., 71, citing Stewart v. Laird, 1 Cranche (U. S.), 299. This is also a rule in the construction of contracts when the meaning is doubtful. Attorney-General v. Bank, supra, at page 72. This record discloses that the educational department and the Attorney-General, its legal adviser, have constantly and consistently for years construed this particular statute to mean that the petition must be signed by freeholders who are voters. This excludes women and nonresidents.

It cannot successfully be argued that there is no doubt about the meaning of the word “freeholder” as used in section 4115. On the contrary, it is involved in a great deal of doubt, with a decided preference, though, for the departmental interpretation, and this we adopt as being not only a safe guide, but as agreeing with our notion of what the Legislature meant.

It results that the petition was signed by the requisite number of freeholders, and the board of-county commissioners lawfully ordered the election. But this would not reverse the ruling of the court if there is a serious controversy between the parties as to the validity of the election itself, the plaintiffs alleging that the proposal submitted to the people to establish a school district and levy a tax for its maintenance did not receive a majority of the qualified votes in its favor, and the defendants denying this and averring that such a majority of the votes was cast in favor of the school district and tax. If there is such a controversy as to the election, it would require us to sustain the judge’s ruling, by which he granted an injunction to the hearing, and to remand the case for the trial of the issue as to the election, though his decision upon the other matter was erroneous. "We would, in such an event, affirm the judgment, which would be correct, though the learned judge gave the wrong reason for his ruling. It would simply place the order on its true foundation, so that it may stand, disregarding the reason assigned by the court for making it. But upon a careful examination of the allegations of the respective parties, treating the pleadings as affidavits, we are satisfied that there is no such real and serious dispute as to the result of the election as to warrant the continuance of the injunction to the final hearing. When the figures, as stated by the plaintiffs, are scrutinized and the admitted facts are considered with them, it appears that the question submitted to the people received the approval of a majority of the qualified voters, though small it may have been. At the very most, the plaintiffs have not presented such a ease as should induce the court to put forth its restraining arm and thus postpone the execution of the people’s will. We, therefore, reverse the judgment continuing the injunction to the final hearing, but without prejudice to a renewal of the motion of plaintiffs for such an injunction, upon new or additional facts showing their right to it under the well-settled principles of law relating to such cases.

Counsel for plaintiffs moved in this Court to dismiss the appeal upon the ground that it is fragmentary and premature, and relied on Rogerson v. Lumber Co., 136 N. C., 266; Shelby v. R. R., 149 N. C., 537, and Higgs v. Gooch, 93 N. C., 112; but they are not applicable. In tbe first of tbe cases we said: “We were asked to decide, not tbe whole controversy, but only a part of tbe ease. If we should comply with tbe request, and tbe case should be further tried upon tbe question of damages, and tbe other side should allege errors in tbe trial of that issue and appeal, we should have tbe anomalous case presented of two judges trying two parts of tbe same controversy, which tbe law has always required to be tried by only one.” It is apparent that this case and those just cited are much unlike. Tbe judge continued tbe injunction to tbe bearing, and from bis order tbe defendant properly entered an appeal. Tbe order was interlocutory merely, and clearly reviewable, by appeal, in this Court, as it affected a substantial right.. Revisal, sec. 587; Bank v. Jenkins, 64 N. C., 720. There are no two branches in this case, as there were in each of those relied on, but only one question, viz., thé right to an injunction, though two propositions are involved in it, one as to tbe petition and tbe other as to tbe election. It would, perhaps, have been better if the judge bad passed upon the facts in regard to tbe election, as well as those concerning the petition; but, as we can review bis findings, it is competent for this Court, in such a case as this, to determine tbe whole matter here, when it can see that there is really no serious controversy as to the facts. "With the other question settled, it may be that the 'parties can adjust their differences without longer protracting the litigation.

Reversed.

Clark:, O. J.,

dissenting: The statute requires as a condition precedent to the submission of the proposed school tax, a “petition of one-fourth of the freeholders” in the proposed special school district. No question arises or could arise as to the right of women to vote, for the Constitution prescribes as a qualification of suffrage (Art. YI, sec. 1) that only “male persons” shall be entitled to vote in this State. But the fact that this is a condition precedent to ordering an election, and that the petition is required to be signed by one-fourth of the “freeholders,” and not of the “electors,” shows conclusively that the Legislature did not consider tbe two words as synonymous. It was trying to protect “freeholders” whose property would bear the burden of the tax, but who might be outvoted by the nonfree-holders) as well as the women freeholders who would have no ballot or voice in the election, if ordered.

The word “freeholder” means the “owner of a freehold,” and has no sex. Any one, male or female, of legal age, who holds an estate in fee simple or for life in realty is a “freeholder” in law. Cummings v. Hyatt, 54 Neb., 38; 2 Bl. Com., 39 and 417; 20 Cyc., 843; 14 A. and E. (2 Ed.), 530; Webster’s Dictionary.

The courts in construing a statute should take the meaning of the Legislature from the standpoint of the present time, and not with any reference to what were the views of judges centuries ago. A woman, whether single or married, who owns realty is a “freeholder,” and, for the very reason that she is not protected by having the right of suffrage when a special tax is to be laid upon her property, ought to be protected by her consent being required to the antecedent and preliminary petition which the Legislature has a right to require before such election can be ordered. There would be small use of such preliminary petition if it was to be signed only by the same class who would vote at the election. In this way the Legislature as a condition precedent to the ordering an election for a fence law has sometimes required that a petition for such election should be signed by a specified number of the “landowners,” because the assessment for the fence would fall only upon property, whereas at the election every male person would be entitled to vote. Similar requirement of a petition by a specified number of “householders” has been required as a condition precedent to other elections.

Shakespeare, who was a fairly good lawyer, stated the law of England in his day when he made Petruchio say of his wife (Taming of the Shrew, Act II, Sc. 2) :

“I will be master of what is mine own.
She is my goods, my chattels; she is my house,
My household stuff, my field, my barn,
My horse, my ox, my ass — my anything.”

And Judge Settle in S. v. Oliver, 70 N. C., 60, recognized that till then in this State (1874) a husband had a “right to whip his wife, provided he used a switch no larger than his thumb.” And for the first time the courts in this State then declared that they had “advanced from that barbarism.” Pearson, C. J., a few years before, in S. v. Rhodes, 61 N. C., 453, held that this barbarism was still law in North Carolina. The Court in S. v. Oliver changed it without a statute. S. v. Fulton, 149 N. C., 500.

To construe a statute of the Legislature, passed now, with reference to long antiquated holdings of former judges in regard to women, is illogical and unjust. The average legislator knows nothing of the absolute barbarism of the law formerly as to women, especially married women, as evinced by the above and other rulings. The Legislature votes without any ideas of that kind. It is but fair and just to deem that in passing an act, the legislators are acting with a view to the present consideration paid to women and their present status and, in this case, with knowledge of the fact that our Constitution of 1868— forty-four years ago — made a woman as absolute owner of her property “as if she were unmarried,” and that whether single, married, or a widow, she now owns her property as absolutely as a man. If she owns real estate for life or in fee, she is a “freeholder” fully as much as a man, and when the statute requires that one-fourth of the “freeholders” shall sign a petition before an election is ordered to levy a tax, there is no logical reason, in the light of the present day, for a court construing away her right by holding that she shall not be counted among the other freeholders.

We know that at the present time in ten great States of this country, and in a dozen foreign countries, women exercise the full right of suffrage and of holding any office; that in thirty other States of this Union they vote upon all questions that concern schools, or special assessments upon their property, and our Legislature should be deemed to have been intending to be abreast of the age, and just enough to give women freeholders the privilege of being counted like other freeholders on preliminary petitions requisite to the ordering of an election, taxing their property, more especially since our Constitution does not allow them to vote when the proposition of the tax itself is submitted to the ballot box. In this district there are 61 women freeholders and 158 male freeholders.

Not only have women held the highest office in England, Spain’ and Eussia, as, for instance, Elizabeth and Victoria in England, Isabella in Spain, and Catherine in Eussia, who were among the ablest sovereigns of those countries; not only was Deborah “judge over all Israel,” but, at the present, women are competent to hold office in many countries and in several of our States. In North ■Carolina and generally everywhere in civilized communities they are now members of the bar, bank presidents; physicians, and ministers, and exercise any other avocation they see fit. It is “harking back” to the past and a distinct denial of the progress of the age to hold that under present-day surroundings, and in the light in which woman is now viewed, she is not to be counted as a freeholder when the statute, in order to protect property from being subject to a special tax which can be voted by an electorate, a majority of whom perhaps may not be property holders, provides that there shall be . a preliminary petition signed by “one-fourth of the freeholders.” Considering this evident object of the act, and that a woman is in truth both in fact and in law a “freeholder” equally with a man, if she holds realty for life or in fee simple, she should not be held by a court not a “freeholder” within the purport of this statute because in times past women were subjected to many disabilities and wrongs (and-nearly in every instance by courts inventing such disabilities, and rarely, if ever, by legislation) from which they have been gradually freed by legislation and by the evolution of mankind to a higher state of civilization.

In the only case in which this precise point has been presented, Cummings v. Hyatt, 54 Neb., 38, it was held that a married woman who owned land, for life or in fee, was a “freeholder” and must be counted in passing on a preliminary petition required, under an-act exactly like this, before ordering an election to issue bonds. “Equal Suffrage” or “’Woman’s Suffrage” does not exist in Nebraska, and if it did this point could not have arisen.

That ease is exactly in point. We can derive no aid by reference to tbe status of women under tbe feudal system, wbicb was long ago rejected by tbe common sense and sense of justice of our race and tbe remnants even of wbicb were abolished as long ago as 12 Charles II, A. D. 1660, over two centuries and a half ago. Nor is there any help to be bad from decisions like Berry v. Waddell, 31 N. C., 520, concerning tbe meaning of tbe word “freeholder” as one of tbe qualifications for voting and bolding office wbicb are restricted by tbe Constitution to “male persons.” We are here dealing with a statute to provide safeguards in voting taxation, and tbe ownership of property, unlike suffrage, is not restricted to one sex. It is not tbe province of tbe courts to seek out strained analogies, or to delve in tbe debris of a rejected and barbarous legal system to defeat and destroy an act wbicb tbe Legislature has adopted in accord with tbe spirit of an advancing civilization. It is not for us to bivouac always by tbe abandoned campfires of more progressive communities. Tbe courts should construe legislation from tbe standpoint of this age and of tbe men who enact it.

BkowN, J., concurs in dissenting opinion.  