Riddle v. Cumberland County

"Walker, J., after stating tbe case: It is provided by statute tbat special-tax districts may be formed by the county board of education in any county, without regard to township lines under tbe conditions which are therein set forth. Consol. Statutes, sec. 5526. Those conditions refer altogether to tbe levy of a tax to provide a supplementary fund for tbe support of schools in tbe district, and this tax is not to be levied unless approved by a majority of voters at an election to be held to ascertain tbe will of tbe people, residing in tbe proposed district, with regard to it. Machinery is provided for bolding tbe election, and it is required tbat tbe ballots to be used shall have printed or written on them [326] “For special tax” and “Against special tax.” There is no provision that the use of such ballot shall be essential to the validity of the election, or that it shall be void if they were not used, but the statute simply designates what kind of ballots shall be used by the voters to express their choice. The provision of the statute, under the facts and circumstances of this case, where the form of the ballots cannot affect the merits, should be considered as directory and not mandatory. There is no intimation in the law that a failure to comply with it in this respect should render the election void. It was merely a convenient form of ballot designated to express the will of the qualified voters upon the question submitted to them, and the ballots used by them and the surrounding circumstances show clearly and unmistakably what their intention was, so that no doubt whatever can exist as to it. If the statute' expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statutes must so hold, whether the particular act in question goes to the merits or affects the result of the election or not. Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, the statute provided that certain acts or things shall be done within a particular time, or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory, if they do, and directory if they do not, affect the actual merits of the same. This is the rule gathered by an able text-writer from the authorities (McCrary on Elections, secs. 187 to 190, both inclusive), and has been more than once adopted and approved by this Court. Briggs v. City of Raleigh, 166 N. C., 149-154. It has been held by us that statutes prescribing rules for conducting popular elections are designed chiefly for the purpose of affording an opportunity for the free and fair exercise of the right to vote.' Such rules are directory, not jurisdictional or imperative. Only the forms which affect the merits are essential to the validity of an election or the registration of an elector. This is, of course, subject to the rule as to the imperative or mandatory character of the statutory requirement. DeBerry v. Nicholson, 102 N. C., 465. When it has been found as a fact by the lower court that every qualified voter has had a fair and ample opportunity to register and vote, an election declaring for a special school tax will not be held invalid because of an irregularity not pertaining to the merits. This was substantially said in Younts v. Comrs., 151 N. C., 582. It was held in Briggs v. City of Raleigh, supra, that an irregularity in the conduct of an election which does not deprive a voter of his rights or admit a disqualified person to vote, which casts no uncertainty on the result, and which was [327] not caused by tbe agency of one seeking to derive a benefit from tbe result of tbe election, will be overlooked when tbe only question is wbicb vote was greatest. Tbe same principles are applicable to tbe rules regulating tbe registration of electors. Tbis liberal rule of tbe law relating to elections, where not forbidden by tbe language of tbe particular statute of a mandatory character, is thus stated and applied in Hawes v. Miller, 56 Iowa, 395, at 396-397: “These county-seat elections are governed by tbe same rules that are applicable to tbe election of officers. In canvassing votes of electors their intentions must be ascertained from their ballots, wbicb must be counted to accord with such intentions. If tbe ballots express such intentions beyond a reasonable doubt it is sufficient, without regard to technical inaccuracies, or the form adopted by tbe voter to express bis intentions. Of course tbe language of a ballot is to be construed in tbe light of all facts connected with tbe election; thus, tbe office to be filled, tbe names of tbe candidates voted for, or tbe subject contemplated in tbe proposition submitted to tbe electors, and tbe like, may be considered to aid in discovering the intentions of tbe voter,” citing S. v. Cavers, 22 Iowa, 343; Cattell v. Lowry et al., 45 Iowa, 478; Carpenter v. Ely, 4 Wis., 438; The People v. Matteson, 17 Ill., 167; The People v. McManus, 34 Barb., 620; The State ex rel. v. Elwood, 12 Wis., 552; Railroad Co. v. Bearss, 39 Ind., 600; State ex rel. Phelps v. Goldthwait, 16 Wis., 146. In tbe construction of statutes regulating elections, it is important to keep in mind two recognized principles: (1) Tbe legislative■ will is tbe supreme law under tbe Constitution, and tbe Legislature may prescribe tbe forms to be observed in tbe conduct of ’ elections, and provide that such method shall be exclusive of all others; (2) since tbe first consideration of tbe State is to give effect to tbe expressed will of tbe majority, it is directly interested in having each voter cast a ballot in accordance with tbe dictates of bis individual judgment. Eecognizing tbe principle first above stated, tbe courts have uniformly held that when tbe statute expressly or by fair implication declares any act to be essential to a valid election, or that an act shall be performed in a given manner and in no other, such provisions are mandatory and exclusive. 15 Cyc., 317. Tbe vital and essential question is, if tbe statute be not mandatory in its terms, in wbicb case a failure to comply with it is fatal, whether noncompliance with it or a mere irregularity will avoid an election, if it does not affect tbe merits. Our decisions, and those of other States upon tbe same question, are to tbe effect that it will not in tbe specified instances. We have discussed tbe question very fully in Hill v. Skinner, 169 N. C., 405, and Hill v. Lenoir Co., 176 N. C., 572, and as to at least one feature of tbe question in Reade v. Durham, 173 N. C., 668. In [328] the last ease we permitted the time when the recent constitutional amendments should take effect and be in force to be determined by something that did not appear on the ballots, and in the other case we disregarded irregularities and matters of form which did not affect the merits or ■the substance. It was required, in a special act, or charter, that election ballots were required to be of a certain kind, without declaring that those which were not of that kind should be void, and excluded from the count, and this Court held that, as there was no such declaration as that above stated in the statute, ballots of a different kind, cast in an election held under the statute were a mere irregularity, which did not exclude them from being included in the count of votes. Wright v. Spires, 152 N. C., 4. The Court said in R. R. v. Comrs., 116 N. C., at pp. 568-569: “We think the object of all elections is- to ascertain fairly and truthfully the will of the people — the qualified voters. That registration, notice of elections, pollholders, judges, etc., are all parts of the machinery provided by law to aid in attaining the main object — the will of the voters; and should not be used to defeat the object which they were intended to aid. This being so, it is held that a substantial compliance with the provisions of the statute, under which the election is held, is sufficient. . . . They have no power to issue the bonds demanded by plaintiff, unless a majority of the qualified voters voted for the subscription. But, having the power to submit the question, a substantial compliance with the formalities of the statute in submitting the question to the people, if there was no fraud practiced, and no design in doing so to impose on the people and get them to do what they would not have done if there had been a literal compliance with the terms of the statute in submitting the question, is sufficient. And if a majority of the qualified voters of the county voted for the subscription, it is the duty of defendant to issue the bonds.” In this case it appears that in the order calling the election, and in the notice thereof, it was stated clearly and distinctly what was the question submitted to the voters, it being whether or not a tax of thirty (30) cents on property and ninety (90) cents on the poll should be levied for a particular school purpose. We have seen that the wording of a ballot is to be read and considered in the light of all the facts and circumstances connected with the election, and the subject contemplated in the question submitted to the voters, so as to discover or determine the intention of the voters, or what they meant when they cast their ballots. Thus considered, it cannot be successfully questioned that a large majority of those qualified to vote cast their ballots in favor of the levy .of the tax, though the form of the ballots was for the consolidation of the separate 'districts into one. The phraseology of the statute was such that a vote for consolidation was in effect one for the levy of the tax, for the one [329] could not exist without the other — they must coexist. The case, therefore, is even stronger in favor of the validity of the election than some of those we have cited. Faison v. Comrs., 171 N. C., 411, and Keith v. Lockhart, ibid., 451, in the last view taken of this case, are substantially “on all fours” with this one, and sufficiently so to control our decision of it. In those cases the ballots read “Stock law” or “No stock law,” and we held that they were impliedly ballots for “Tax” or “No tax,” as the statute, under which the election was held, provided that a tax should be levied to pay for a county fence of the majority voted for a free range territory, or no stock law. There is nothing in the contention that a separate election should have been held in the territory not embraced in the old district, as that territory was consolidated with them into one school district and the election was ordered to be held in the new territory to be known as Gray’s Creek Township. The entire township was to be established as a single school district, and the vote was to be taken accordingly. Those of the township who did not reside in the former 'school-tax districts were as much entitled to vote freely and unreservedly upon the question as those who did. If we should undertake to review the judge’s findings of fact, our conclusion would be the same as his. It is perfectly plain that the voters of the proposed new school district were thoroughly aware that they were voting for the school tax. All of them so testified, or nearly all. There was not, even “in effect,” anything, done which discriminates against those in the three districts untaxed under the former law, nor which allowed those in the two taxed districts to levy a tax upon -those in the other districts, which they themselves did not have to pay. The case of Comrs. v. Lacy, State Treasurer, 174 N. C., 141, does not apply. The election was held in the township as one entire school district, every voter having an equal right with the others to cast his vote, and thereby to express his will. There was no suggestion of fraud or other irregularity. If any one failed to exercise his right to vote it was his own fault, and he has only himself to blame, and- must abide the result. The other exceptions were formal, and, if not so, are untenable. ¥e affirm the judge’s ruling, because there is no error therein, and it will be so certified. Affirmed.