Duke v. Brown

• Decision Date: 18 April 1887
• Citation: Duke v. Brown, 96 N. C. 127, 1 S. E. 873 (N.C. 1887)
• Court: North Carolina Supreme Court
• Parties: DUKE v. BROWN, Tax Collector.

96 N.C. 127

1 S.E. 873

DUKE

v.BROWN, Tax Collector.

Supreme Court of North Carolina.

April 18, 1887.

Appeal from superior court, Durham county.

Batchelor & Devereux, for plaintiff.

W. W. Fuller, John Manning, and Graham & Ruffin, for defendant.

SMITH, C. J.

In the recent case of Riggsbee v. Durham, 94 N. C. 800, it was held that the enactment by the general assembly for the maintenance of a graded school in the town of Durham(Acts 1881, c. 231) was unauthorized by and in violation of the constitution of the state in its essential and connected provisions, and that the taxes contemplated by it could not be enforced.At the session of 1885 was passed an act which authorizes, upon an approving popular vote of a majority of those who may vote, the issue of bonds in the aggregate not exceeding $15,000, and the obtaining a loan upon them by the commissioners of Durham, to be expended “in the purchase and erection of suitable grounds and buildings for the Durham graded or public schools for white children,” under the control and direction of the graded school committee.Chapter 87, Priv.Acts 1885.

The election provided for was held, and of the whole number of votes cast (370) there were given 245 for and 125 against the proposed loan, while the number of registered voters was 607, more than double the number of the favoring voters.The election being, however, in accordance with the statute, the result was declared, and reported in writing by the inspectors of election to the board of commissioners of the town, who proceeded to dispose of the bonds; and to provide for the payment of interest, and a fund to meet the obligations at maturity, on August 4, 1885, levied a tax of eight cents upon “the $100 of real and personal property,” and (as we suppose, for such is the statutory requirement) 30 cents on each poll.The section (3) imposing this duty contains a proviso “that the tax collected from the colored population of the town shall be applied for the benefit of the public schools for colored children, as now provided by law in said town.”

The present action on behalf of the tax-payers against the defendant, the officer charged with the collection of the taxes and engaged in doing so, is to arrest his action, upon the twofold ground that the purposes and objects of the law, by reason of its race-discriminating features, are repugnant to the constitution; and, further, that there have not voted a “majority of the qualified voters” of the town giving sanction to the loan, as required by article 7, § 7, thereof.

It is unnecessary to renew the discussion found in the case cited, and in Puitt v. Commissioners Gaston Co., disposed of at the same term, (94 N. C. 709;) and we are content to pass upon the sufficiency of the last objection, the result of a non-compliance with the constitutional mandate, which is alike disregarded in the statute and in the action of the commissioners under it.We have at the present term, in Southerland v. Town of Goldsborough, ante, 760, modified somewhat the definition given by RODMAN, J., in Chester & L. N. G. R. Co. v. Commissioners Caldwell Co.72 N. C. 486, to the term “qualified voters, “ as used in article 7, § 7, by confining it to those whose competency has been passed on in their admission to registration, as prima facie proof of the number; and, of course, this list being open to correction for deaths, removals, and other causes subsequently occurring, and perhaps for intrinsic disqualifications existing at the time of registration, and error in admitting their names to the list.

...