dissenting: Tbis is not a quo warranto to try tbe title to office, but simply an injunction, wbicb was temporarily granted, to restrain intruders from exercising certain duties wben, upon unquestioned facts, they were acting without authority.
The Ahoskie School District had six trustees. On 7 May, 1917, an 'election was had for three members of said board. The encumbents, candidates for reelection, were defeated and three new members elected. The regular day for the session of the board at which the new members should have appeared to take their seats was the first Tuesday in June following' — i. e., 5 June. But three of the old board, 0. G. Powell, J. A. Williams, and M. D. Gatling (the last two of whom had been defeated of reelection) met in session on 21 May, without notice to the newly elected trustee, and, assuming themselves to be the board, and without notice-to him, declared vacant the position of one of the absent members (A. E. Garrett) and assumed to elect in his place one A. B. Cowan; and then again on 25 May they met, with Cowan present, and declared vacant the place of another absentee, L. T. Sumner, and elected to fill the same J. G. Garrett, and- subsequently, upon the resignation of A. B. Cowan, they elected M. D. Gatling (who had been defeated at the election) in his place. On the first Tuesday in June, Powell (one of the three), J. E. Garrett, and A. B. Cowan, both of whom had been elected as above set out, without authority, met with said Gatling and declared the office of W. L. Curtis, one of the newly elected members, vacant because he had not qualified and appointed J. A. Williams (who had been defeated at the election) in his place, and then invited the other two newly elected members to sit with them, which was declined.
This was an injunction, brought by P. H. Mitchell and W. W. Bogers, two of the new members elected on 7 May,'asking an injunction against C. G. Powell, one of the old members, and his three associates, who had all been illegally chosen in the ingenious manner just narrated, as intruders, from taking, possession of the school building and property and interfering in any way with the management of the school.
A temporary restraining order was granted by Kerr, J., 28 July, 1917, returnable before Whedbee, J., 14 August, 1917, when it was dissolved, and the plaintiffs appealed.
It is apparent from this summary that the defendants were usurpers and should have been restrained until there was a legal meeting of a majority of the board.
The defendant’s right to exercise any authority depends entirely upon the validity of the meeting on 21 May. That meeting was an absolute nullity, because, in the best view for the defendants, there were only three members present, which is not a majority of six, Cotton Mills v. *392Comrs., 108 N. C., 678; Rev., 2831 (2); and furthermore it was not held at the regular time, the first Tuesday in.June. Moore v. Comrs., 113 N. C., 128. The action taken by them in declaring, the seat of one of the absent members vacant and attempting to fill it was a nullity, for three members out of six had no authority to take this or any other action, and consequently the subsequent meeting of these three men with the substitute chosen by them on 21 May, and all their subsequent conduct which reinstated two of the very men the people hád put out, is invalid, because it is all based upon the meeting of 21 May, which was itself a nullity.
We do not know, and it is immaterial, what was the issue at the election on 7 May. But we do know that the three members of the old board were defeated for reelection, and that the three new members were elected in their stead, and yet two of the men defeated by the people kept the new members out till they reinstated themselves.
Under a government which rests upon the consent of the governed, the voice of the people, whether in a school district or a township or in the State or nation, legally expressed, should govern. It matters not that this is only a school district. The methods herein attempted to set aside the duly expressed will of the people in this school district if attempted on a larger scale would have had serious consequences.
Of the three men who met on 21 May, two had been defeated of reelection. But if it be conceded that they were all three prima facie trustees of the school on 21 May, they were not a majority of six, and their conduct in vacating the office of an absent member and electing a substitute was without color of authority, and all subsequent action is vitiated thereby. Water cannot raise above its source, and as the meeting on 21 May was invalid, no subsequent action dating back to that meeting has any validity.
The courts should give no countenance to such disregard of the public will and to the methods thus resorted to to set it aside. The court should have continued the injunction and should have issued a mandatory injunction that the two newly elected members of the board (the other one of them not having accepted) and Powell, who was the only one of the three whose seats were not lost at the election or who was not holding another office in violation of the Constitution, should meet and organize. As there were then only three legal members of the board (two of the plaintiffs and Powell), they would have been the entire board, and these three could legally have filled vacancies till next election.
The arguments of defendants, appealing to technicalities based upon this being a quo warranto, is simply the traditional red herring drawn across the trail to divert attention from the real issue. We were told in *393the argument by counsel on both sides that a quo warranto is pending in the court below to decide the title, and, pending sueh decision, the court should have continued the injunction with a mandatory order for the three valid members, as above stated, to hold a meeting and conduct the school until the quo warranto is decided. Tise v. Whitaker, 144 N. C., 507.
Nothing is more to be reprehended than conduct designed to set aside and thwart the popular will, whether this is done by force, by fraud, or by finesse. A loyal observance of the declaration of the people at the ballot box is the first duty of every citizen under our form of government.