Forester v. Town of North Wilkesboro

• Citation: 174 S.E. 112,206 N.C. 347
• Decision Date: 11 April 1934
• Docket Number: 193.
• Parties: FORESTER et al. v. TOWN OF NORTH WILKESBORO et al.
• Court: North Carolina Supreme Court

174 S.E. 112

206 N.C. 347

FORESTER et al. v. TOWN OF NORTH WILKESBORO et al.

No. 193.

Supreme Court of North Carolina

April 11, 1934

Appeal from Superior Court, Wilkes County; Sink, Judge.

Action by F. C. Forester and others, on behalf of themselves and other taxpayers of the Town of North Wilkesboro, against the Town of North Wilkesboro and others. Judgment for defendants and plaintiffs appeal.

Affirmed.

This is a civil action brought by the plaintiffs, who are taxpayers and citizens of the town of North Wilkesboro, which is a school administrative unit under the School Machinery Act of 1933 (Pub. Laws 1933, c. 562), against the defendants, the town of North Wilkesboro and W. P. Kelly, tax collector of the town, restraining the defendants from collecting an alleged special school tax, for the reason, as alleged by the plaintiffs, that the election held for said special school tax in said special school tax unit is void and of no effect and that both the levy and the tax is illegal and void; the chief relief sought in this action is injunctive, praying for a permanent injunction against the defendants enjoining them from the collection of the alleged tax. The plaintiffs applied for and obtained a temporary restraining order, which by consent of the parties under C. S. § 853, was heard by his honor, Judge Hoyle Sink, and from an order dissolving the temporary restraining order, the plaintiffs appealed to the Supreme Court and made exceptions and assignments of error hereafter set forth.

The judgment of the court below is as follows:

"This cause coming on to be heard before His Honor, Hoyle Sink Judge holding the Courts of the 14th Judicial District, and it appearing to the Court by written stipulation between the plaintiffs and the defendants, as provided for in Section 853 of North Carolina Code of 1927, the parties have mutually agreed that the temporary restraining order issued in this cause be heard before His Honor, Hoyle Sink holding the Courts of the 14th Judicial District, at Charlotte, N. C., on Friday, October 27th, 1933, and after the reading of the pleadings and affidavits in this cause, and after argument of counsel for the plaintiffs and defendants, the Court finds as facts:

That a special election was called in the City Administrative school unit for the town of North Wilkesboro on July 4, 1933, by the Board of Town Commissioners, upon a written request filed by all of the members of the Board of Trustees of North Wilkesboro City School Administrative unit; that an election was held for the purpose of voting a special levy to supplement the school funds in said school on August 15, 1933; that notice of said election was duly given in a local newspaper published in the town of North Wilkesboro, as provided by law, and that said notice set forth that on Saturday, July 8th, Saturday July 15th, Saturday July 22, Saturday, July 29, were designated as registration days and that all parties desiring to vote in said election would have to register during this period before he or she would be entitled to cast their ballot in said election; that Saturday, August 12th, 1933, was designated as challenge day; that the registration books for said election closed on the third Saturday instead of the second Saturday before the election; that there were 715 duly qualified electors registered for said special election and that a majority of the duly qualified electors registered for said election cast their vote in favor of the special levy; that the election was fairly and honestly conducted by the election officials; that a Judge and Marker were appointed in favor of the special levy and against the special levy; that the election was conducted and carried on under the law governing general elections and the Australian Ballot system as near as practical; that during the period the registration books were open for registering voters, there were a number of newspaper articles in the local newspapers circulated in the town of North Wilkesboro in favor of the special levy and against the special levy; that the election was widely discussed by the voters of the town of North Wilkesboro; that the registration books were kept open for four consecutive Saturdays and that the closing of the books on the third Saturday instead of the second Saturday before the election did not change the result of the election. That the North Wilkesboro City Administrative Unit was not set up by the State School Commission of North Carolina until after June 15, 1933; that the Board of Trustees of North Wilkesboro City Administrative unit, within a few days after the school commission had set up the North Wilkesboro City Administrative Unit, filed a written request with the Board of Town Commissioners asking the town commissioners to call an election within the corporate limits of the town of North Wilkesboro, which request was not filed until after June 15, 1933.

That the School Machinery Act, Public Laws 1933, provides, that upon written request of the School Trustees of the City...