Rigsbee v. Board of Commissioners

MekrimoN, J., (after stating the case). The purpose of the legislature in enacting the statute (Acts 1887, Ch. 86,) to allow the town of Durham to have authority to levy an annual tax, as prescribed, for the support of public schools *347 therein, if a majority of the qualified voters of that town should vote in favor of a proposition to that effect at an elec* tion directed to be held, is too apparent to admit of question. That statute plainly declares the purpose and makes large provision, much in detail, for carrying it into practical effect. It provides that if a majority of the votes cast at such election shall be in favor of such tax, it shall be levied. It may be conceded for the present purpose that such a vote could not authorize the levy of such tax, but when, under the statute containing this provision, a majority of all the qualified voters of the town vote in favor of it, such vote is sufficient to give the authority. When the legislature declares that a majority of the votes cast at the election shall give the authority, this certainly, in the nature of the matter, includes and implies its willingness and purpose, for the same and like considerations, to give it, if a majority of all the qualified voters of the town shall vote in favor of it. The nature of the statute — its purpose and provisions — all clearly indicate such intent, and we can see nothing in the constitution or sound public policy that forbids or prevents it. The chief and leading purpose is to give the authority to levy the tax if at least a majority of the votes cast shall be in favor of it, and the constitution (Art. VII, § 7,) declares that “ a vote of the majority of the qualified voters ” of the town shall be necessary to give it. If the statute had omitted, as it might have done, to prescribe the necessary vote, the constitution would have determined it. This interpretation harmonizes the statute with the constitution, and gives effect to the legislative intent. Wood v. Oxford, 97 N. C., 227. As the statute was thus operative, the defendants, Commissioners, had authority to hold the 'election, and it was their duty to ascertain, determine, declare and report whether or not a majority of all the qualified voters of the town voted “ For school.” They did so, and their action was official and authoritative. The presumption, therefore, is that they ascertained *348 and reported the result of the election correctly and truly. . Omnia prsesumuntur solemniter esse acta. Their report was evidence, and evidence sufficient to prove prima facie what the result of the election was. Hence, the plaintiff having alleged in the complaint that the defendant Commissioners made their report that a majority of the qualified voters of the town voted “ For school,” the burden was on him to prove the contrary. It is settled, that the qualified voters of the town were only such persons whose names were registered as such, and that the registration books of voters were evidence prima facie of who such voters were, and the number of them. Southerland v. Goldsboro, 96 N. C., 49; Duke v. Brown, Ibid., 127; McDowell v. The Construction Company, Ibid., 514; Smith v. Wilmington, 98 N. C., 343. It was the duty of the Commissioners, in ascertaining the result of the election, to have reference to such registration books for the purpose of ascertaining the whole number of registered voters, but it was likewise their duty to scrutinize those books and ascertain what number of persons whose names were registered as voters had, for any cause, ceased to be such. Duke v. Brown, supra. How such scrutiny of the registration books shall be made is not prescribed by any statute. In the absence of any prescribed method it must be summary — in some way intelligible. The Commissioners in determining that a person, whose name is registered as a voter, had ceased to be such on or before the day of election, should act with care and caution and not upon mere conjecture. Being sworn officers, they might act upon their own knowledge; if witnesses are examined, they should be sworn; they are not confined to hearing only evidence that would be strictly competent on the trial of an issue before a jury, but the evidence should be pertinent, and such as satisfies them of the existence of the fact as they find it to be. While such scrutiny of the *349 registration books should, be just and as thorough as practicable, as to every voter named in them who is ascertained not to be such in fact, less strictness as'to the proof of facts is allowable, because of the imperfect summary method of procedure, the expedition that must be observed, and because the ascertainment of the facts is only evidence prima facie of what they really are, including the result of the election. The result of the election, as determined, may be questioned by action, as the plaintiff seeks to do in this case. The Commissioners should carefully note and file-with the returns and papers of the election a list of the names of such persons as they determine are not qualified voters, so that fair opportunity may be afforded to contest the declared result of the election. It is alleged in the complaint, in general terms, that a majority of the qualified voters did not vote “For school” at the election in question, and that the defendants Commissioners improperly declared that one hundred and eighty voters, whose names appeared on the registration books, were not such, and did not count them in ascertaining the whole number of the qualified voters of the town. The defendants likewise allege in the answer that they, by mistake, counted as voters fifteen persons whose names appeared on the registration books, who, as it now appears, were not such. These allegations, in a case like this, are too general and indefinite. The plaintiff should have alleged specifically and particularly the ground of complaint against the validity or sufficiency of the election; if he intended to allege that qualified voters were denied the right to vote, he should have named them and the number of them; if the ground -of complaint was that the registration books were not opened for the registration of voters next before the election, this should have been alleged particularly; if he intended to allege that qualified voters were not properly counted in a connection and for a purpose, as they should have *350 Teen, the number of such voters and their names should have been specified; and so, also, the defendants should have alleged particularly the names and number of the persons who were and ought not to have been counted as voters. Such precision in the pleadings in this, and like xespeets, should be observed in order to give the opposing party reasonable notice, to give greater point to and facilitate the trial, and avoid confusion as to the evidence. The •Court might ex mero motu, or upon application, direct the pleadings to be made thus precise. Ex parte Dougherty, 6 Ired., 155. The pleadings in this case raised directly the material is,sue: “ Did a majority of the qualified voters of the town of Durham vote ‘ For school?’ ” and, strictly, this issue should have been submitted. It seems, however, to have been as.sumed, in view of the constituent and evidential facts alleged, that the issue submitted was sufficient to determine the material matter of inquiry, and perhaps it was. The other issues tendered by the plaintiff were immaterial. If the irregularities suggested by them did in fact exist, they could not render void and defeat the election. The question to be ¡settled by this action was not, whether the Commissioners proceeded regularly and properly to ascertain the result of the election, but what was the true result — did a majority of the qualified voters of the town of Durham vote “For school ?” This was the material inquiry to be considered and determined de novo by the Court, and finally. The report of the Commissioners of their action in ascertaining the result of the election, was only evidence on the trial in this action, and sufficient to prove, prima facie, that the result of the election was what and as they declared it to be. They could not, by their irregular action, whether done by inadvertence or on purpose, destroy the election or •change, conclusively, the just result of it. They had authority to ascertain regularly and truly the result — their ac *351 tion, though irregular, was prima facie correct, and stood effectual, unless the result, as ascertained by them, should be questioned by action, in which ease it was for the Court to determine the result. This does not imply that there may not be irregularities in the conduct of an election that would render it void, nor that the report of the Commissioners of their action might not, in possible cases, be so imperfect as not to be evidence for any purpose. On the trial, the evidence of the witnesses tended only to prove such irregularities as are suggested by the issues just adverted to, tendered by the plaintiffs in addition to the first one submitted. The Court properly suggested that all this evidence was irrelevant, because it did not tend to prove what was the result of the election in question. It is alleged in the complaint that the defendant Commissioners ascertained, declared and certified the result of the election. The Court might, therefore, on the trial, accept the fact as true, and the result as ascertained by the Commissioners as prima facie correct, and it might have instructed the jury that the fact so appeared. The result of the election, as ascertained by the Commissioners, thus appearing, the burden was on the plaintiff to prove, by competent evidence, that a majority of the qualified voters of the town did not vote “ For school.” The only evidence produced by him for that purpose was the registration books of voters. These, as we have seen, were evidence, prima facie, of the number of the qualified voters in the town of Durham, on the day of the election, and they, taken in connection with the report of the Commissioners, upon their face showed that a majority of the qualified voters did not vote “ For school.” The plaintiff therefore contended that these books were evidence, and sufficient evidence to disprove the result of the election appearing prima facie from the result thereof as certified by the Commissioners. The Court thought and sug *352 gested otherwise, and we think correctly; because, ■ the ascertainment of the number of qualified voters in the town by the Commissioners was authorized and official, and based upon the. registration books corrected and purged for the purpose by the Commissioners of the names of such persons as had on the day of the election ceased, for some cause, to be qualified voters. It was the official duty of the Commissioners to 'thus ascertain the whole number of the qualified voters in the town, and hence, their certificate as to the number was better and higher evidence prima facie in that respect than the registration books. The latter were corrected by the Commissioners, and such correction was presumed to be correct; and the registration books alone were not evidence sufficient to rebut or destroy that presumption. There is therefore no error, and the judgment must be-affirmed.- Affirmed.