Young v. Town of Hendersonville

*423 MONTGOMERY, J. The General Assembly, at its session of 1901, Private Acts, Chap; 122, empowered tbe Board of Commissioners of tbe town of Hendersonville, to submit to tbe qualified voters of that town the question whether or not a -special tax should be levied annually for graded school purposes to supplement tbe public school fund, tbe election to be held “under tbe rules and regulations governing municipal elections in said town.” Tbe election was held on July 3, 1901; and there being but one polling-place in tbe town,, the judges of election declared tbe result of tbe election giving the number of tbe votes for tbe special tax and tbe number against it, and that a majority of tbe qualified voters bad not voted for tbe tax. And they made a report to the Board of Commissioners of the town of the number of votes cast for and against the tax, and the number of the qualified voters of the town. Afterwards, on the 1st day of August, 1901, tbe Board of Commissioners of tbe town, receiving tbe number of votes cast for and against tbe tax set out in tbe report of the judges of election as correct and true, went into an examination of tbe registration book in order to ascertain the number of the qualified voters on tbe day of tbe election. Upon that examination they took proof, and found that 35 names on tbe registration book bad ceased to be qualified voters because of removals and death. They eliminated those 35 names from tbe registration book, with the result that the number of votes cast for .the special tax was a majority of tbe qualified voters of tbe town, and they so held and declared. At tbe same time, tbe Board of Commissioners levied a special tax upon the property and polls of the town, and placed the same in tbe bands of a collector. The plaintiffs, who are citizens and tax-payers of tbe town, brought this action against tbe defendants, tbe Board of Commissioners, for tbe purpose of having tbe action of the defendants declared void, and to have them enjoined from *424 collecting tbe taxes, claiming tbe declaration of tbe judges of election to be tbe true result. Upon tbe motion for an injunction by'tbe plaintiffs to restrain tbe defendants from-collecting tbe taxes, tbe matter was beard upon tbe complaint and answer, treated as affidavits, and other' affidavits on both sides, and tbe injunction was refused and a former restraining order in tbe case vacated. His Honor beld tbat tbe declaration of tbe vote' by tbe judges of election and tbeir report of tbe same made out a prima facie case for tbe plaintiffs, tbat is, tbat tbe election was against tbe levying of tbe special tax, but that, as tbe dq-fondants bad shown by tbeir answer and affidavits tbat 35 of tbe names on tbe register of voters were not qualified voters at tbe time of tbe election, aüd tbat as tbe plaintiffs did not deny or dispute tbat fact, under tbe decision of Riggsbee v. Durham, 99 N. C., 341, tbe prima facie case of the correctness of tbe declaration and tbe return of tbe votes by the judges of election bad been overcome, and tbat be, in chambers, upon tbe bearing of tbe injunction, could find tbat fact ■ upon tbe evidence and declare tbe result. We think the order refusing tbe injunction and vacating tbe restraining order theretofore granted was correct, but tbat tbe true ground therefor was another one than tbat given by bis Honor. We think tbat it was no part of the duty of tbe judges of election to decide upon the number of qualified voters, but tbat it was their duty, simply, to declare tbe number of votes cast for and' against tbe special tax, and report tbat vote to tbe Board of Commissioners. In tbe case of Smallwood v. City of New Bern, 90 N. C., 36, tbe Mayor and Council were charged with tbe duty of submitting a similar proposi-tioii to tbe one in this ease to the qualified voters of tbat city. The statute authorizing the submitting of the proposition was in these words: “Tbe Mayor and Council' of the city of New Bern are authorized and required to submit to the *425 qualified voters of said city, at tbe next regular meeting of Councilmen, and under tbe rules and regulations governing said election, wbetber an annual assessment shall be levied therein for tbe support of one or more graded schools in said city.” Tbe language there is substantially tbe same as that of tbe act which authorized the submitting of the proposition to the qualified voters of Hendersonville. The Court said there, they (the Board of Commissioners) had to act upon-the result, if a majority of the votes should be cast in the affirmative. They were disinterested — had no personal interest to subserve not common to every other citizen. They might-well and reasonably be charged with a service germane to their official relations to the city. They were required to submit the proposition. Iiow and to what extent ? When was the submission to be complete? And how was it to be- completed % Certainly not until the vote should be completely taken by them “under the rules and regulations governing said (the ordinary city) election.” This latter clause can not be construed to mean literally “under the rules and regulations governing” the city election. It means, and must mean in the nature of the matter, only that such rules and regulations as apply, and as far as they needfully apply, in talcing the vote. The Mayor and Council were to submit the proposition, that is, superintend, direct, supervise the vote upon it from the beginning to the end of taking and ascertaining the result of it, employing the ordinary machinery of the regular election as far as the same might be applicable. The decision in that case seems decisive of the one before us. His Honor had before him the action of the Board of Commissioners of the town — their investigation and examination as to how many qualified voters there were on the day of election, the declaration of the result, and that a majority of that vote had been cast for the special election on the one *426 side, and tbe declaration of the judges of election, and their-report, and the number of names on the registration book, on-the' other side. The names on the registration -book were prima facie voters, but without other support it is not sufficient to overcome the evidence of the legal declaration of the-persons authorized to declare the result of the election that a different number was the true one. It was the duty, as we have seen, of the Board of Commissioners to ascertain the-whole- number of the qualified voters of -the town, and therefore their declaration as to the number was better and higher evidence prima facie in that respect than registration books. The register was corrected by the Board, and the registration book alone was not evidence sufficient to rebut the presumption of the Board’s declaration of the true number of qualified voters. Riggsbee v. Durham, supra. The injunction, therefore, should not have been granted. for the reasons stated above. ' Of course the declaration of the result of the vote is not final. It may be attacked in the Courts directly for fraud or mistake, and the true vote, if there was fraud or mistake in the declaration of the result by the Commissioners, ascertained and declared by the Court. But, until that is done, the declaration of the Board of the result is conclusive. Smallwood v. New Bern and Riggsbee v. Durham, supra. That is the main object of this action. The injunction prayed for in the meantime the plaintiffs were not entitled to, for the reasons we have given. The' plaintiffs’ whole alleged equity is denied, and it appears from the answer and affidavits that their case was fully met at all points. Affirmed. Dougx.aSj J., dissents. Euroiies, C. J. I think the injunction should have been s continued to the hearing.