The opinion
Hoee, J.
It has been held in several of our recent decisions that under a proper construction of the legislation now prevailing on the subject, C. S., ch. 95, secs. 5469-5526, etc., also Laws 1921, ch. 179, that while county boards of education are given power to consolidate special tax districts, observing the provisions of the statutes in reference thereto, when they undertake to consolidate special tax districts with school districts in which no special tax has been voted, the case, in so far as levying the uniform tax is concerned, is one coming under the requirements of C. S., 5530, referring more especially to the enlargement of special tax districts, and in which it is provided that before any such consolidation or enlargement shall take place, it must have the approval of the voters outside of the special tax district or districts.
Hicks v. Comrs.,
183 N. C., 394 ;
Perry v. Comrs.,
183 N. C., 387 ;
Paschal v. Johnson,
183 N. C., 129 .
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In further application of the principle approved in these decisions in
Burney v. Comrs., ante,
274, decided intimation is given that a formal election on the question in the outlying or nontax territory would not always be regarded as essential, provided it affirmatively appeared that in an election on the question, by the entire district a majority of the voters in the outlying territory had in fact approved the measure.
On the present record, however, there is no evidence tending to show, nor is it claimed or suggested that the voters of these two nontax districts have given their sanction to this proposed tax levy, and the case, therefore, as now presented, comes directly within the decisions of
Perry v. Comrs., supra,
and
Hicks v. Comrs., supra,
to the effect that the levy of the special tax for the consolidated district has not been properly approved.
It is urged for the appellant that decisions relied upon by.appellee do not apply here by reason of an averment in the answer that Ohurchland District, No. 3, was never lawfully a special tax district, because the election under which it was organized and the special tax imposed was held in July, 1911, within three months of another election in May of the same year, citing for the position
Weesner v. Davidson,
182 N. C., 604 . Whatever may be the effect of this averment when properly presented and established, it appears that Ohurchland District, No. 3, was organized and has functioned as a special tax district since 1911, and the election in question has been recognized and acted on both by the municipal government and electors as valid since said date, and on authority its existence as a special tax district cannot be assailed collaterally in a proceeding of this character.
S. v. Cooper,
101 N. C., 684 ;
Riggsbee v. Durham,
98 N. C., 81 ;
School District v. School District,
45 Kansas, 543;
Voss v. School District,
18 Kansas, 467;
Keweenaw Asso. v. School District,
98 Mich., 437 ; 35 Cyc., p. 846. It will be noted that in the
Weesner case, supra,
the action was one in which the validity of the election was directly assailed.
On the facts as they now appear, we are of opinion that his Honor correctly ruled that the restraining order be continued to the final hearing.
Affirmed.