Rigsbee v. Town of Durham

Davis, J., (after stating the case). The plaintiff insists that the Act of the Legislature “ in relation to the public schools in the town of Durham,” (Chapter 86, Laws of 1887) is unconstitutional. The question is identical, in principle, with that presented in the case of Wood v. Oxford, decided at the last term of this Court, 97 N. C., 227. It was then carefully and fully considered, and upon a review of the argument presented in the present case, we can see no reason to reverse the decision then made. The Constitution, Art. 7, §7, will not'permit the tax for the support of the public schools in the town of Durham to be levied or collected “ unless by a majority of the qualified voters therein,”and the question was submitted to the “qualified voters.” If a majority of the votes cast shall also be a ma *86 jority of the qualified voters, no violence will be done to the letter or the spirit of the Constitution. The Act is not unconstitutional, and we content ourselves with a reference to Wood v. Oxford, supra. This disposes of the first objection presented. The next is, that a majority of the qualified voters of the town of Durham did not vote “ for school,” and that the action of the board of commissioners, in ascertaining and declaring the result, was illegal. No objection appears to the regularity of the proceedings touching the election, antecedent to the appointment of a' committee .by the board of commissioners to ascertain and report what names on the registration book were not qualified voters of the town of Durham. It is insisted that the board of commissioners alone could investigate and judicially determine the result of the election and declare whether a majority of the qualified voters had voted in favor of the tax — that they could not delegate this duty, nor any part of it, to a committee of their own number, and that the action of the board, in appointing such a committee, and in receiving and acting upon its report, and declaring that a majority of the qualified voters had voted for the ratification of the Act, was illegal; that the board could not, by any such method, ascertain legally, what names on the registration books were not qualified voters, by 'reason of deaths, removals, or other disqualifying causes. We do not understand that it is claimed for the defendants that the action of the board of commissioners in declaring the result (unless collaterally brought in question) is final or conclusive, or that the regularity and validity of the election, including the ascertainment and declaratibn of the result by the board of commissioners, may not be attacked by a direct proceeding as this is, instituted for the purpose of contesting the validity of the election. This may be done. McDowell v. The Construction Company, 96 N. C., 514, and cases there cited; ancj the plaintiff seeking to have the election *87 declared illegal and Amid for the causes stated, had a right to the temporary restraining order as incidental to the relief sought, and if, upon the answer and proof, it shall appear that the plaintiff’s allegations are not sufficiently negatived, and that there is reasonable ground to believe that irreparable injury will be sustained, the restraining order will not be dissolved, but confined to the hearing. Perry v. Michaux, 79 N. C., 94; Monroe v. McIntyre, 6 Ired. Eq., 65; Miller v. Washburn, 3 Ired. Eq., 161. “ But,” as was said by ByNüm, Judge, in Perry v. Michaux, “ it is also a ivell settled rule, that when by the answeruf the defendant, the plaintiff’s whole equity is denied, and the statement in the answer is credible, and exhibits no attempt to evade the material charges in the complaint, an injunction, on motion, will be dissolved.” Perkins v. Hollowell, 5 Ired. Eq., 24; Sharpe v. King, 3 Ired. Eq., 402. This is clearly so, if, upon the complaint, answer and affidavits, it appears that the plaintiff’s claim to have the restraining order continued, is fully met-This makes it our duty to examine the complaint, answer and proofs, to ascertain whether the plaintiff has made a case entitling him to have the restraining order continued to the hearing. All the material allegations of the complaint are distinctly denied, or met by a clear and positive statement of what transpired in canvassing and dermining the result of the election. Is the matter left in such doubt as to entitle the plaintiff to have the restraining order continued to the hearing ? The registration book contains the prima facie evidence of the list and number of qualified voters in the town. Norment v. Charlotte, 85 N. C., 387; Duke v. Brown, 96 N. C., 127; Southerland v. Goldsboro, 96 N. C., 49. But the list, as was said by the Chief Justice, in Duke v. Brown, is “open to correction for deaths, removals and other causes subsequently occurring, and perhaps for intrinsic dis *88 qualifications existing at the time of registration, and error in admitting their names to the list.” IIow is this correction to be made ? The plaintiff says that the board must act judicially upon each name sought to be erased — that it cannot conduct the investigation of any part of it, by or through a committee, and that, in the present case, the action of the board in appointing the committee and considering its report in their determination of the result was illegal. We take a different view. It is, we believe, the common, if not universal practice, in cases of contested elections (and this is to contesl the result of an election to be determined by the board) to commit the investigations of controverted matters of fact and details to committees, and the reports of such committees, when made, are considered and acted upon. They are not conclusive or binding, but when adopted or to the extent of their adoption, it was never contended or suggested that the result was rendered invalid by reason of the fact that they were considered, although, as usually is the case, they may have formed the basis upon which the result was ascertained. In Norment v. Charlotte, supra, the board appointed and acted upon the report of a committee. It is the constant practice of Courts to appoint commissioners to investigate and report upon matters of account, and questions which majr more conveniently be determined in this way — and when acted upon and confirmed they are valid. Upon a careful examination of the evidence, we think there was no error in the finding of facts. There were 216 names on the registration book about which there was controversy; it is in evidence that every name about which there was doubt remained on the registration book, and of the 216, only 180 were adjudged to be disqualified, and it does not appear that a single name contained in the affidavit in behalf of the plaintiff was erased. There is no error. No error. Affirmed.