dissenting: I am unable to agree with the majority opinion in this case. A fair interpretation of G.S. 130-35 and G.S. 130-36 gives the State Board of Health authority to exclude in its discretion part of the territory embraced in the original petition filed with and approved by the Board of Commissioners, provided the district as approved has the support of 51 per cent of the resident freeholders. One of the purposes of the hearing to be held by the Board of Health is to determine whether the district as approved has the required support. G.S. 130-36 provides (not the district but) a district shall be created and established, and that the State Board of Health shall adopt a resolution to that effect defining the boundaries of such district and declaring the territory within such boundaries to be a sanitary district.
G.S. 130-35 provides the State Board of Health shall give notice, naming a time and place within the proposed district, and shall hold a public hearing concerning the creation of the proposed district. By requiring the Board of Health to conduct a hearing, to fix boundaries, and by order to set up the district, the Legislature had in mind the Board should have authority to do more than simply say, “yes,” or “no,” to the proposals submitted in the petition. I do not see in the acts referred to a legislative plan thus to place the Board of Health in a straight j acket. I vote to affirm.