Scruggs v. . Rollins

ClakksoN, J. The question involved: Did the court below err in refusing to vacate the restraining order against the county commis *338 sioners of Rutherford County, North Carolina, from issuing and delivering $163,000 in bonds and in continuing same until the final hearing? We think not. In Hermic v. Commissioners of Yadkin, 206 N. C., 845 (847), it is said: “The only question presented by this appeal is whether a'bond order passed by the board of commissioners of a county in this State, under the authority and subject to the provisions of the County Finance Act (Public Laws of North Carolina, 1927, ch. 81, N. C. Code of 1931, ch. 24, Art. VII-A), authorizing and directing the issuance of bonds of the county for the purpose of procuring money to be expended in the purchase, construction, improvement, and equipment of schoolhouses in the several school districts-of the county, which are necessary for the maintenance of public schools in said districts, for a term of at least six months each year, as required by the Constitution of this State, is subject to the approval of the voters of the county, when a petition signed by the requisite number of voters of said county has been filed with the said board of commissioners, in accordance with the provisions of said act. This question must be answered in the affirmative, and for that reason the judgment in the instant case is affirmed. See Frazier v. Commissioners, 194 N. C., 49, 138 S. E., 433. . . . Where, however, a petition is filed in accordance with the provisions of the County Finance Act, praying that a bond order duly passed by the board of commissioners of a county in this State, authorizing and directing the issuance of bonds of the county for the purpose of procuring money for the purchase, construction, improvement, or equipment of schoolhouses required for the maintenance of a school in each of the districts of the county as required by the Constitution of the State, be submitted to the voters of the county, such bond order is not valid or effective until the same has been approved by the voters of the county, as provided in the act. It is so provided in the County Finance Act, as we construe its terms and provisions.” Where no petition is filed according to the provisions of the above act, the bond order is valid and effective without the approval of the voters of the county, Eermic case, supra. It is contended by plaintiff that in accordance with the provision of the act, the plaintiffs filed, in time, with the register of deeds and clerk to the board of county commissioners of Rutherford County, North Carolina, a petition containing the names of 2,697 voters of Rutherford County, North Carolina. That this was more than twenty per cent of the votes cast at the general election in 1932 for the office of Governor, requesting an election to' determine the issuance of $163,000 in bonds for the erection of additions to school buildings in Rutherford County, North Carolina. The plaintiff alleges that the clerk “reported that he investigated the sufficiency of said petitions and presented it to the county commission *339 ers on Tuesday, 7 August, 1934, in which report he stated that there were only 1,550 qualified voters on said petitions, but failed, neglected, and refused to indicate the names appearing on said petition which he contended and alleged were not qualified voters.” The plaintiff further alleges: “That within the past two or three years over 2,000 homes and farms in Rutherford County, North Carolina, have been sold for taxes on account of the inability of the taxpayers and citizens to meet the demand for taxes and, as plaintiffs are informed, believe, and so allege, the issuing of said bonds over' the protest and in defiance of the request of the plaintiffs and other taxpayers that said order be submitted to a vote of the voters of Rutherford County, North Carolina, would work irreparable damage and harm lo the plaintiffs and all other persons similarly situated, and is arbitrary, wrongful, and unlawful." (Italics ours.) The petitioners prayed that the defendants be enjoined and restrained from issuing and delivering the proposed bonds. The defendants in their answer say, in part: “It is admitted that a petition purporting to contain the names of approximately 2,700 citizens of Rutherford County, North Carolina, was filed within the thirty-day period, but it is specifically denied that said petition contained the names of the required fifteen per cent of the qualified voters of Rutherford County, North Carolina, as provided by law. That these defendants aver the truth to be that after a careful investigation they find the said petition does not contain the names of more than 1,550 qualified voters, if in fact it contains that number. That, as defendants are advised and believe, it is incumbent upon them to determine the sufficiency or insufficiency of the petition. The method of determining this fact not being specifically outlined by the law, the defendants conscientiously and after long and hard work reached the conclusion, after giving petitioners the benefit of every doubt.” The court below restrained the issuing and delivering of the bonds to the final hearing of the case on its merits; in this we can see no error. In Castle v. Threadgill, 203 N. C., 441 (442), speaking to the subject: “It has long been the settled rule in this jurisdiction that this Court, on appeal in injunction suits, has the power to find and review the findings of fact in controversies of this kind. On the record it appears that as to material facts there is a serious conflict. The rule is to the effect that if plaintiff has shown probable cause of a prima facie case, or it can reasonably be seen that he will be able to make out his case at the final hearing, the injunction will be continued. It is also settled that the burden is on appellant to show error. Wentz v. Land Co., 193 N. C., 32; Realty Co. v. Barnes, 197 N. C., 6.” The judgment or order of the court below is Affirmed.