The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-24
SUPREME COURT DIGESTS.


Wednesday, other than those in the
cases of Gattis VS.. Kilgo and Pace
VS.. the City of Raleigh, which were
printed in full yesterday.
Several of the cases decided are of
interest, among them that of State VS..
Johnson, in which the Mecklenburg
liquor law is upheld, probably the
most important being the decision in
the case of Lowery VS.. School
Board. in which Judge Conner. in an
elaborate opinion states fully the
status of the existing school laws
with reference to the establishment of
new school districts and the bearing
of the constitution upon the distribu-
ton of school funds between the races.
In this case. it is held that the dictum
as to per capita distribution which
occurred in the case of Hooker VS..
Greenville, 1870, N. c., AIS is not a
correct construction of the constitu-
ton.
w. A. LOwery ct al, appellants, VS..
Board of Graded School Trustees,
from FOrsythc. Affirmed.
Plaintiffs applied for an injunction,
which was refused, restraining the de-
PENDANT board from issuing bonds.
Ilevying taxes, etc, under the proVis-
ions of the act of the Legislature Gre
ating such board entitled an ''act to
establish a graded school in the town
of Kernersville, Forsythe county, n.
IC." The allegations were, in the main.
that the act was unconstitutional by
reason of certain sections claimed to
be a discrimination in favor of the
white and against the colored children
of the district The act contained the
usual provisions creating the board
authorizing an election to determine
the levy of a tax and the issue of
bonds. created the town of Kerners-
vile a school district, made provision
for a census of the school chii-
dren in said district, and providing
that all such children between the
ages of and q years shall be admit
ted to the school free of charge. Sec
ton of the act provides that the
moneys appOrtioned to said district
shall be turned over by the treasurer
of Forsythe county to the school trus-
tees provided that in apportioning the
school fund of said county, said graded
school shall be allowed the proportion
of said fund per capita to the white
children of school age" In their an
sWer it appeared that the trustees had
attempted to leave r the kernersvile
district only white children, letting the
colored children remain in the former
district obtaining before the passage
of the act and that in the new district
there were 307 white and IS colored
children. There were other matters
in the pleadings which were not vital
to the case though disposed of in the
opinion.
Held: l. That the recognized rule in
the construction of a statute is that
it shall be read in the light of the
constitution, and that every presump-
ton is in favor of the validity of the
act and doubts resolved in its favor.
2. The use of the word graded
school in the act establishing such
school district is not significant in
that it is singular in the light of the
evident attempt to conform the act
to the provisions of the constitution,
the power of the board to divide the
district into separate schools for the
races and other provisions of the act
assuring the privilege of attending the
school to all the children therein re-
siding without discrimination as to
color.
3. When duty is imposed and
power conferred upon a public agency
by necessary implication, the duty and
power to do the thing in the manner
directed by the constitution attaches.
4. If the general scope and purpose
of a statute are constitutional and
constitutional means are provided for
the expression of such general pur
poses, the entire statute will not be
declared void because some one or
more of the details prescribed or
minor provisions incorporated are not
i'm accordance with the constitution,
provided such invalid portions may
be eliminated without destroying or
materially affecting the general pur-
pose of the act
5. If the purpose ~ section of the
act was to empower the trustees to
devote all the school money appor-
toned to the school district for white
schools, it is clearly unconstitutional,
the money, after ppOrtionment. be-
longing to both races and applicable
to the support of both white and col
ored schools.
s. While it is permissible for school
authorities under the general school
law in each county to SO arrange the
districts as to meet the needs of each
race in the case of new district Gre
ated by the Legislature with the power
to levy d. special tax, there can be no
uniformity unless all children of both
races are included in such district: and
the effect of this act is to take out of
the original colored school district all
property and children so as to include
them in the newly established district.
l. The court is reluctant to de-
clare invalid an act establishing any
public school. when it has received
the sanction of the people directly and
locally interested. unless it be mani
fest that the provisions of the con-
stitution requiring separate schools
and no discrimination between the
races have been violated
8. The expression of the court in
the case of Hooker VS.. Greenville. 100
n. c.. 47S. seeming to hold that in no
other way than by a per capita dis
tribution of all taxes collected for
public schools can the provisions of
the constitution be observed, is not
approved.
Jarvis Lyles. Administrators. vs.. Bran
non Carbonating Company. from
Mecklenburg. Affirmed.
Civil action for alleged negligent
killing of plaintiff son. The jury found
the defendant not negligent and. from
judgment plaintiff appealed. The facts
on which the action was based were
that the defendant company borrowed
soda water tank from another cor
poration and while the deceased was
engaged in charging the tank with gas,
it exploded. causing death. There was
no negligence alleged in the method
of charging the tank or in respect
tn tho ntba, cpruantS of tho defend