# Kinston City Board of Education v. Board of Commissioners

> Court of Appeals of North Carolina · June 2, 1976 · 29 N.C. App. 554

URL: https://www.frixlaw.com/law-library/cases/6733167

## Case

- **Full name:** KINSTON CITY BOARD OF EDUCATION v. BOARD OF COMMISSIONERS OF LENOIR COUNTY
- **Court:** Court of Appeals of North Carolina
- **Decided:** June 2, 1976
- **Citations:** 29 N.C. App. 554; 225 S.E.2d 145; 1976 N.C. App. LEXIS 2565
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Vaughn
- **Judges:** Arnold, Britt, Vaughn
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6733167

## Opinion text

VAUGHN, Judge.
The only assignment of error is that the court erred in permitting a jury from Wayne County to sit and render a verdict in the case. As appellant puts it:
“The question now before this Court on appeal is whether or not citizens and residents of another county than the county whose tax funds are at issue may render a decision which results in the tax levying authorities being ordered to allocate and appropriate tax funds to support the educational institutions in the county.”
*556 When the judge ordered that the jury be summoned from another county he was acting in accordance with the express authority granted by the statute:
“ . . . any judge of the superior court, if he is of the opinion that it is necessary in order to provide a fair trial in any case . . . may order as many jurors as he deems necessary to be summoned from any county or counties in the same judicial district as the county of trial or in any adjoining judicial district.” G.S. 9-12.
The thrust of defendant’s argument appears to be that the jury trial authorized by G.S. 115-88 is a delegation of the power to tax to the people residing within the jurisdiction of the local taxing authority and that only those people can make up the jury. Defendant then argues that the surrender of the decision on whether to tax citizens of another county is an unconstitutional surrender of the power of the people of Lenoir County to detérmine their own taxation.
Defendant is attempting to raise in this Court a constitutional question that was not raised at trial. Generally, appellate courts do not consider a constitutional question unless it was raised and considered at trial. Moreover, a jury passes on issues of fact and not political issues. Defendant’s argument to the effect that citizens of one county would make better “representatives” of that county, while sitting as jurors in a court of law, than impartial jurors from another county only emphasizes the soundness of the discretion exercised by the trial judge.
The judgment is affirmed.
Affirmed.
Judge Britt concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6733167. Public record. Not legal advice.