Davis v. Board of Education of Beaufort County

• Decision Date: 10 October 1923
• Docket Number: 18.
• Citation: 119 S.E. 372,186 N.C. 227
• Parties: DAVIS ET AL. v. BOARD OF EDUCATION OF BEAUFORT COUNTY ET AL.
• Court: North Carolina Supreme Court

119 S.E. 372

186 N.C. 227

DAVIS ET AL. v. BOARD OF EDUCATION OF BEAUFORT COUNTY ET AL.

No. 18.

Supreme Court of North Carolina

October 10, 1923

Appeal from Superior Court, Beaufort County; Connre, Judge.

Action by O. F. Davis and others against the County Board of Education of Beaufort County and others. From a judgment of dismissal, plaintiffs appeal. Error.

While there is no universal rule for determining whether a statute is imperative or directory, except that it depends on the scope and object, a statute prescribing how a new power granted by it shall be exercised or making compliance a condition precedent to the exercise of a special privilege is generally held mandatory, and a statute affecting the public interest or claims de jure of third persons or promoting justice is practically always so construed; the word "shall" being construed as mandatory wherever public policy favors such meaning.

On petition duly filed as provided in Public Laws Ex. Sess 1920, c. 87, the board of county commissioners ordered an election to be held on December 19, 1922, at the upper Pungo schoolhouse, in Pungo school district No. 1, on the two questions whether a special tax of not more than 30 cents on the $100 valuation of property should be levied annually to supplement the school fund and whether bonds not exceeding $20,000 should be issued for the purpose of erecting enlarging, altering and equipping school buildings and acquiring the necessary land and an annual tax levied sufficient to pay the bonds as they matured. W. A. Respass was registrar, and W. J. Hodges and N.W. Paul were judges of election. At the close of the polls, the election officers counted the votes and made returns to the board of county commissioners. The board judicially passed upon the returns and found as a fact that there were 137 registered voters in the election and that 72 votes were cast for the special tax and 71 for the bond issue. Whereupon the board adjudged that the election was duly carried in favor of the tax and the bonds.

The purpose of the action is to have the election declared void and to restrain the bond issue and the levy of the special tax. The following verdict was returned:

(1) Were the 5 persons named in the complaint registered on the 9th day of December, 1922, after sunset as alleged in the complaint? Answer: No.

(2) Were the 5 persons named in the complaint registered at the store of W. A. Respass and registered after the registration books had been closed? Answer: No.

(3) Were the 7 absentee voters' ballots unlawfully cast in favor of the bond issue and the special school tax as alleged in the complaint? Answer. No.

Judgment was rendered dismissing the action, from which the plaintiffs appealed.

J. D. Paul and Small, MacLean & Rodman, all of Washington, N. C., for appellants.

Stephen C. Bragaw and Lindsay C. Warren, both of Washington, N. C., for appellees.

ADAMS J.

"No county, city, town or other municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied or collected by any officers of the same except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein." Con. art. 7, § 7. Since this section applies to a taxing school district and since "a majority of the qualified voters" means a majority of the registered voters, the judicial declaration of the board of commissioners that the election was carried in favor of levying the special tax and issuing the bonds can be sustained only in case a majority of the registered voters cast their ballots in support of the propositions submitted, and as the plaintiffs have attacked the result of the election as determined by the commissioners it is made necessary to ascertain from the record whether a majority of the registered voters supported the proposed measures. Wood v. Oxford, 97 N.C. 228, 2 S.E. 653; Clark v. Statesville, 139 N.C. 490, 52 S.E. 52; Smith v. School Trustees, 141 N.C. 150, 53 S.E. 524, 8 Ann. Cas. 529; Williams v. Commissioners, 176 N.C. 554, 97 S.E. 478; Dickson v. Brewer, 180 N.C. 403, 104 S.E. 887.

It is admitted that the number of registered voters was 137. The returns show that 72 votes were cast for the special tax and 71 for the bond issue. But the plaintiffs contend that 12 votes, or 7 at any rate, should be deducted from those counted as favorable to both propositions and that if the deduction be made the election failed. This contention demands consideration of the questions involved in the second and third issues.

In regard to the matters embraced in the second issue the plaintiffs' exceptions are without merit. His honor fairly presented to the jury the question whether the names of the five persons referred to were registered after the books had been closed, and the controversy on this point was resolved against the plaintiffs. The mere fact that their names were registered as a matter of convenience a half-mile from the polling place did not vitiate the registration if it was otherwise valid. The registrar was not required to be always at the designated place of registration, and there is no pretension that his temporary absence deprived any qualified voter of his right to register. De Berry v. Nicholson, 102 N.C. 465, 9 S.E. 545, 11 Am. St. Rep. 767; Younts v. Commissioners, 151 N.C. 583, 66 S.E. 575. The objection that he left the polling place and permitted these five persons to register at his store is met by the decision in Newsom v. Earnheart, 86 N.C. 395, in which Chief Justice Smith said:

"The third exception is to the irregular manner of registration, in that, while the notice to the voters desiring to register directed them to the residence of the registrar, the books were kept and the registering actually conducted at his store some three hundred yards distant. This irregularity does not in our opinion vitiate the registration made and the election held in accordance with it. It appears that word was left at the house for every elector, who might there apply to have his name registered, to be advised of the change of place, and while it does not appear, nor is it suggested that a single elector who applied failed to be registered, it is in proof that the registration was full and the books were kept open on the day of election, to enable all who had not been before, then to have their names entered. Every substantial object of the law has been attained, and a deviation from the directions of the law, in the course pursued, while by no means to be encouraged in those charged with its execution, ought not to be allowed to avoid the election and neutralize its results."

In reference to the questions included in the third issue, the plaintiffs alleged that the registrar cast 7 votes of absentees, who were then in the district, in support of the special tax and the bond issue when the voters had not complied with the provisions of the statute; that the pretended right to cast the ballots was the alleged physical inability of the voters to attend the election for the purpose of voting in person; that all spectators were excluded from the polling place just before the return envelopes used by the absent electors were opened in order that a secret session might be held; and that as to these votes the right of challenge was done away with. It is upon these grounds that the appellants impeach the sufficiency of the seven votes so cast, and insist that they be declared illegal and deducted from the number adjudged to have been cast for the tax and the bonds.

The question whether these votes were legal is presented by exception to his honor's refusal to instruct the jury to answer the third issue, "yes," upon the admitted facts and by exception to the following charge:

"The only question is whether or not the failure of the election officials to require a certificate from a physician or an affidavit that the person so offering to vote was physically unable to attend the election renders their ballots unlawful. I instruct you that if you find the facts to be that each of these seven persons whose ballots they accepted were physically unable to attend in person and vote at the election; that each placed the ballots in an envelope and sealed them and sent the envelopes down to the registrar, and that the registrar opened the envelopes and took therefrom the ballots and submitted them to the judges of election; and that the judges of election accepted the ballots and placed them in the ballot box--then I instruct you that notwithstanding the fact there was no physician's certificate or affidavit, that these ballots were lawfully cast, and therefore you will answer the third issue, 'No.' If, however, you find that these persons were not physically unable to be present on that day, then you will answer the issue 'Yes.' "

The statutes providing how absent electors may vote were passed by the General Assembly of 1917 primarily to enable those engaged in the military service to cast their votes by mailing them to the proper officials, and in 1919 they were amended so as to include voters physically unable to attend the election and vote in person. P. L. 1917, c. 23; P. L 1919, c. 322; Jenkins v. Board of Elections, 180 N.C. 169, 104 S.C. 346, 14 A. L. R. 1247; ...