Plott v. Board of Commissioners

Adams, J. For the purpose of providing better school advantages in Waynesville Township, the General Assembly, at the session of 1923, passed a public-local act which was to become effective when ratified by a majority of the qualified voters of the township (P.-L. L. 1923, ch. 350) ; but the appellants say that the act has not been approved and is not in force, and that the election which they attack was held under the provisions of the codified laws relating to public schools. Public Laws 1923, ch. 136. The appeal will be treated upon this assumption. The action was brought to contest the validity of an election held in Waynesville Township on 28 July, 1923, to determine whether a special tax should be levied to supplement the school fund and whether bonds should be issued for the purpose of acquiring sites and improving and erecting school buildings. The plaintiffs obtained an order restraining the levy of the tax and the issuance of the bonds and appealed from his Honor’s refusal to continue the temporary order to the final hearing. The' first and second exceptions are so clearly -untenable as to require no discussion, and the third relates to the legal effect of the first finding of facts and may be considered in connection with exceptions taken to the several conclusions of law. Exceptions 4-9 concern the facts as found or the failure to find additional facts. On appeal from an order refusing or continuing an injunction to the hearing, the facts as found by the lower court, while not conclusive, are entitled to just arid adequate consideration. In Hyatt v. DeHart, 140 N. C., 270, the Court [131] said r “Ordinarily tbe findings of fact by the judge below are conclusive on appeal. While this is not true as to injunction eases, in which we look into and review the evidence on appeal, still there is the presumption always that the judgment and proceedings below are correct and the burden is upon the appellant to assign and show error.” Jones v. Boyd, 80 N. C., 258; Evans v. R. R., 96 N. C., 47; Burns v. McFarland, 146 N. C., 382; Davenport v. Comrs., 163 N. C., 147; Peters v. Highway Com., 184 N. C., 30; School Com. v. Board of Education, 186 N. C., 643. From inspection of the record we find that the facts set out in the judgment are supported by the evidence and we see no substantial reason for declining to concur in the facts as found; and in the absence of a request for additional facts an exception that other findings should have been made is generally not available to the appellants. Dell School v. Peirce, 163 N. C., 424. If, however, the additions on which the appellants insist were incorporated in the judgment by this Court the result would not be changed. The appellants excepted to the second and third conclusions of law which involve the regularity and legality of the election. They insist that the law prescribing the way in which electors may register was not followed; that several persons whose names were registered were not allowed to vote; that names were registered when the required oath was not administered; that the age of the elector was frequently omitted from the registration, and that these and other irregularities vitiated the election. On the other hand there was evidence tending to show that no voter was registered to whom the oath had not been administered unless the registrar was satisfied that he was entitled to vote; that of those who were not sworn .some did not vote while others voted against the bond issue and the tax, and that the oath was administered in all cases in which there was any reasonable doubt of the applicant’s eligibility. On these questions the affidavits were apparently conflicting, but the judge below concluded that the irregularities were committed by the registrars, not by the voters.; that there was no evidence to indicate that any one who voted was not entitled to registration or whether those alleged to have been improperly registered or denied registration voted or would have voted for or against the proposed measures, or whether the result of the election would probably have been reversed had the law been consistently observed. In other words, his Honor held that the appellants had failed to show that the result of the election would have been otherwise if the alleged irregularities had not occurred. We approve this conclusion. In Davis v. Board of Education, 186 N. C., 233, holding that a mere irregularity in registration will not vitiate an election, the Court said.: “The mere irregularity of an election-officer who has neither rejected a [132] qualified voter nor admitted one who was disqualified, is ordinarily overlooked as the failure to comply with a directory provision; but it is otherwise if the irregularity is caused by the agency of a party who seeks to obtain a benefit for himself. DeBerry v. Nicholson, supra. Instances of the disregard by an election officer of directory provisions which ordinarily will not deprive the elector of his right to vote are an improper method of administering an oath or failure to administer it, providing ballots slightly beyond the required size, certifying the count made not by but in the presence of the officers of election, and other irregularities not affecting the result of a fair expression of the popular will. Newsome v. Earnheart, supra; DeBerry v. Nicholson, supra; Roberts v. Calvert, 98 N. C., 581; Hampton v. Waldrop, 104 N. C., 453; Quinn v. Baltimore, 120 N. C., 426; Hendersonville v. Jordan, 150 N. C., 35; Gibson v. Comrs., 163 N. C., 511; Hill v. Skinner, 169 N. C., 409.” No complaint having been filed, the motion to continue the restraining order was heard on affidavits and record evidence. To entitle them to an injunction it was incumbent upon the appellants not only to set out specific allegations as a basis of relief, but to produce evidence which if accepted would show at least an apparent right to the relief' demanded. Even where injunctive relief is not merely ancillary to the relief sought but is itself the principal relief a prima facie case must be shown. Craycroff v. Morehead, 67 N. C., 422; Riggsbee v. Durham, 98 N. C., 81; Jones v. Comrs., 107 N. C., 248, 265; Porter v. Armstrong, 132 N. C., 66; Jones v. Lassiter, 169 N. C., 750; Woodall v. Highway Com., 176 N. C., 388; Peters v. Highway Com., supra, 32. Herein the appellants have failed. They have produced no evidence as to the sentiment of the electors on the questions proposed except in remote and general terms and no evidence from which we can reasonably infer that the irregularities complained of turned the election. True, there is evidence that a majority of the voters residing outside the original taxing districts voted against the proposed bonds and tax, but there is no suggestion that their ballots were not included in those returned by the judges of election in opposition to both measures. The exceptions relating -to the irregularities in the election and those taken to the second and third conclusions of law must therefore be overruled. The exception to the first conclusion of law is based on the contention that the resolution adopted by the board of education on 17 May, 1923, did not create a special-taxing district, but in legal effect merely combined two taxing districts with territory in which no tax had been voted, and that such consolidation was unlawful. The Court has decided, it is true, that where a school-taxing district has been established its boundaries may not be enlarged or extended so as to include [133] an adjacent nontaxing district without tbe approval o£ a majority of the qualified voters of tbe nontaxing territory. C. S., 5530; Perry v. Comrs., 183 N. C., 387; Hicks v. Comrs., ibid., 394; Vann v. Comrs., 185 N. C., 168. But we do not concur in tbe argument tbat tbe resolution undertakes to enlarge tbe taxing districts dr to consolidate taxing and nontaxing districts without a vote of tbe outlying territory contrary to tbe decisions just cited. In tbe public school law as amended since these decisions were rendered a special school-taxing district is defined as a territorial division of a county embracing more than one school district in which special taxes for schools may be voted, and a township is declared to be a territorial division or a special school-taxing district. P. L. 1923, ch. 136, secs. 3 and 234. The county board of education is authorized to define or describe the boundary lines of special districts and to approve petitions for election when endorsed by the school boards of a majority of districts within the special taxing district. Secs. 219 et seq., 235 et seq. “If a majority of the qualified electors in the special school-taxing district shall vote in favor of the special school tax, then it shall operate to repeal all school taxes theretofore voted in any local tax or special charter district located within said special school-taxing district, except such taxes as-may have been voted in said local tax or special charter district to pay the interest on bonds and to retire bonds outstanding. But the county board of education shall have the authority to assume all indebte<fness, bonded and otherwise, of said local tax or special'charter district and pay all or a part of the interest and installments out of the revenue derived from the rate voted in the special school-taxing district: Provided, the revenue is sufficient to equalize educational advantages and pay all or a part of the interest and installments on said bonds.” The provision concerning the repeal of all school taxes previously voted is similar to that of section 4 in the act which was considered in Coble v. Comrs., 184 N. C., 342. There it is said: “When" the boundaries are thus prescribed, a majority of the qualified voters residing in the taxing territory may determine the question of levying a tax and issuing bonds, even when the tax, as in this case, is not, in the constitutional sense, a necessary expense. The principle is analogous to that of an extension of the boundaries of a municipal corporation in which the annexed territory must share the burdens of the entire municipality (Dillon on Municipal Corporations, vol. I, sec. 106), or to the extension of the boundaries of a county, by means of which the inhabitants of the new territory may be taxed, not only to pay their proportionate part of the existing indebtedness of the county from which the new territory is taken, when such liability is retained by legislative action, but the indebtedness likewise of the county to which it is annexed, [134] unless otherwise provided, whether then existing or thereafter contracted. That is, tax districts may be created without special regard to the will, wish, or convenience of the people who inhabit them. Dare v. Currituck, 95 N. C., 190; S. c. (Currituck v. Dare), 79 N. C., 566; Comrs. v. Bullard, 69 N. C., 18; Cyc., 185-220, et seq.” Indeed, we think substantially all the questions embraced in the tenth exception were considered in that case and further discussion would result in needless repetition. Retention of the taxes voted in the taxing districts to pay the interest on the bonds outstanding or to retire them meets the requirement of Article I, sec. 10 of the Constitution of the United States. Port of Mobile v. Watson, 116 U. S., 289, 29 Law. Ed. 620; 10 Fed. Sts. (2d Anno. Ed.), 993, 994; Coble v. Comrs., supra. While the alleged irregularities do not vitiate the election they fairly illustrate the spirit of indifference which characterizes the methods often adopted in the registration of voters. These lax methods, sometimes annoying, are always to be regretted and discouraged. We again refer to them for the purpose of emphasizing the importance of respecting the various statutes defining the qualification of voters, the prerequisites of registration, and the duty of registrars. No error appearing, the judgment of the lower court is Affirmed.