Williams v. County Commissioners

Hoke, J. The present statute on the subject (Revisal, sec. 4129, amended in 1909, ch. 856, and 1911, ch. 135, now appearing in Gregory’s Supplement, p. 659) prohibits the formation of school districts having less than sixty-five children of school age unless the same shall contain at least twelve square miles of territory, or unless it is separated by dangerous natural barriers from a schoolhouse in the district of which the proposed new district is a part, etc., and the jury having found that *557 tbe proposed district contains tbe twelve square miles of territory tbe first ground of plaintiffs’ complaint is removed by tbe verdict. As to tbe objection to tbe proposed tax levy, our decisions on tbe subject are to tbe effect that a taxing- district of tbis character is witbin tbe provisions of our Constitution, art. 7, sec. 7, restraining counties and other municipal corporations from contracting debts, levying taxes, etc., .except for tbe necessary expenses thereof, unless approved by a majority of tbe qualified voters therein. Stephens v. Charlotte, 172 N. C., 564; Smith v. School Trustees, 141 N. C., 143, and that tbe subject of tbis proposed tax is not a “necessary expense” witbin tbe meaning of tbis inhibition. Sprague v. Comrs., 165 N. C., 603; Hollowell v. Borden, 148 N. C., 255. It is also held that a qualified voter is one having tbe constitutional qualifications for tbe privilege, who is duly registered pursuant to law, and has the present right to vote at tbe election being held. Pace v. City of Raleigh, 140 N. C., 65, and, further, that tbe term “majority of tbe qualified voters” required by tbe Constitution to approve such a. measure as tbis, by correct interpretation, signifies a majority of tbe qualified voters in tbe district and not a majority of those voting in tbe election. Clark v. Statesville, 139 N. C., 490; Duke v. Brown, 96 N. C., 127. An application of these principles- to tbe facts presented in tbe record are, in our opinion, against tbe conclusion reached by tbe lower court, and tbe judgment directing the levy of tbe tax must be set aside and a new trial bad. From these facts it appears that while thirty-nine votes were cast at tbe election, twenty-one for and eighteen against tbe proposed tax, on tbe morning of tbe election there were forty-three names on the registration list, all duly qualified and registered voters except.Aden Ben-net, who bad not paid bis poll tax, thereby being disqualified under tbe decision in Pace v. Raleigh, supra. Leaving out bis name, there were forty-two duly qualified voters in tbe district having 'the present right to vote. In order to reduce tbis number so as to make twenty-one a majority for tbe proposition, as tbe law requires, it becomes necessary to uphold tbe action of tbe registrar, who, just prior to tbe opening of tbe polls or during tbe day, erased from tbe registration list tbe name of the voter, F. E. Whitesides, claiming authority to do so by reason of a request from him, tbe registrar, testifying to tbe matter as follows: “I erased tbe name of F. E. Whitesides from tbe registration book. He simply asked me to. I did not erase it when be asked me; be wrote me a letter to erase it and I marked it off tbe morning of tbe election. He first asked me in tbe presence of two men, as well as I recollect it. I did it that morning. He did not appear and ask to vote. . . .” And *558 again: “I scratched E. E. Whitesides’ name off without any challenge or anything, and yet I certify here he had paid his poll tax. I just marked it off the book because he asked me to take it off. I took it off without any ceremony or examination and any notice.” On this, the evidence relevant to the question, we are of opinion that the registrar was without lawful authority to erase the .name of the voter from the registration list and the validity of the election must be determined as if his name regularly appeared thereon.. While the Constitution and statutes have not made either registration or voting compulsory, when the list of resident voters is made out pursuant to law, it becomes in the nature of a public record, one in which the public have a vital interest, and it should not be altered or depleted at the mere .wish of the individual voter who is still a resident of the district and otherwise qualified for registration. Such a position would tend to introduce too great an element of uncertainty into elections of this character and might at times afford too great an opportunity for fraud and imposition. We are well assured that a record of this character should only be changed in some way and by some method provided by law. The power to order a new registration or to revise the “polling book” of voting precincts is conferred by the statute on the county board of elections. Laws 1913, ch. 138; Gregory's Supplement, sec. 4305, and in Casey v. Dare County, 168 N. C., 285, decided intimation is given that the registrar has no power himself to erase names from the registration list. For the error in upholding the action of the registrar in erasing from the list the name of the voter, F. E. Whitesides, and by reason of which the jury have found that he was not a qualified voter, there must be a new trial; and if, on a second hearing, the facts are as now presented, the proposed tax levy should be enjoined. New trial.