Gardner v. City of Reidsville, 767

• Citation: 153 S.E.2d 139,269 N.C. 581
• Decision Date: 08 March 1967
• Docket Number: No. 767,767
• Court: North Carolina Supreme Court
• Parties: Thomas L. GARDNER, a Citizen and Resident Taxpayer of the City of Reidsville, on Behalf of Himself and of other Citizens, Residents and Taxpayers of Reidsville, Similarly Affected and Situated, v. CITY OF REIDSVILLE, a Municipal Corporation, Claude S. Burton, Clifford Moore, and James Everette, Members of the Purported City of Reidsville ABC Board.

Page 139

153 S.E.2d 139

269 N.C. 581

Thomas L. GARDNER, a Citizen and Resident Taxpayer of the

City of Reidsville, on Behalf of Himself and of

other Citizens, Residents and Taxpayers

of Reidsville, Similarly

Affected and Situated, v. CITY OF REIDSVILLE, a Municipal Corporation, Claude S.

Burton, Clifford Moore, and James Everette,

Members of the Purported City of

Reidsville ABC Board.

No. 767.

Supreme Court of North Carolina.

March 8, 1967.

Everett, Everett & Everett, Durham, and Allen W. Brown, Raleigh, for plaintiff, appellant.

McMichael & Griffin, Albert J. Post, Reidsville, and Joyner & Howison, Raleigh, for defendants, appellees.

BRANCH, Justice.

Appellees contend that appellant cannot challenge the procedures of the Reidsville election since appellant failed to comply with Rule 19(3) of the Rules of the Supreme Court, 221 N.C. at p. 554. The following is appellant's assignment of error:

'Plaintiff assigns as error the Court's signing of the Final Judgment which contained erroneous findings of fact and erroneous conclusions of law; and further assigns as error the Court's failure to hold that Chapter 650 violates the terms of Article II, Section 29, of the North Carolina Constitution; and its further failure to hold that even under the specific terms of Chapter 650 irrespective of its constitutionality defendants were not entitled to conduct a municipal liquor referendum; and its failure to hold that the establishment of ABC Stores in the City of Reidsville was unauthorized and in violation of law.'

While not in strict compliance with Rule 19(3), plaintiff's assignments of error are specific and definite. Since the Rules of the Court are made for our convenience and in dispatch of our appellate jurisdiction, Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912, we will consider appellant's assignment of error as to election procedure.

The question is raised whether Section 6 of Chapter 650, 1965 Session Laws, prevents the holding of a valid election within three years after the county-wide election of 27 July 1965. The pertinent provision of that section is as follows:

'In the event the County Commissioners of Rockingham County call an election on the question of whether or not Alcoholic Beverage Control Stores shall be established in the county and before an election is held in the City of Reidsville under the provisions of this Act, and if a majority of the voters in the City of Reidsville who vote in the county election vote against establishing liquor stores in Rockingham County, then no election shall be held under the authority of this Act within 3 years after the date of the county election. * * *'

By Paragraph 18 of his amended complaint plaintiff alleges:

'XVIII. That as these plaintiffs are advised, believe and so allege, the defendant City of Reidsville had no right or authority to call and hold a city election on the question of establishment of liquor stores, for that in the countywide election held prior to the city election, a majority of the voters of the City of Reidsville voted against the establishment of liquor stores; that, therefore, the election called and held on October 23, 1965, by the City of Reidsville was null and void.'

Defendants by their answer deny these allegations.

Every reasonable presumption will be indulged in favor of the validity of an election. 26 Am.Jur., Elections, § 343, p. 162. This applies as well to a local option election. See 48 C.J.S. Intoxicating Liquors § 87(d), Contesting Elections, p. 217, where in this regard it is said: 'The burden is on one instituting a contest to prove his right to maintain the proceeding and to prove the grounds of his complaint * * *. The usual rules as to the admissibility and the weight and sufficiency of the evidence generally apply to local option election contests.'

An election will not be disturbed for irregularities where it is not shown such irregularities are sufficient to alter the result. Owens v. Chaplin, 228 N.C. 705, 47 S.E.2d 12; Watkins v. City of Wilson, 255 N.C. 510, 121 S.E.2d 861. In the instant case it is stipulated by the parties that, '(I)t is now impossible to ascertain how many of the voters cast in Reidsville Township precincts were cast by persons residing in the City of Reidsville and how many were cast by persons residing outside the City limits.'

Plaintiff contends the burden is on defendants to prove that a majority of the votes cast within the City of Reidsville in the county election was not against the establishment of a city Alcoholic Beverage Control system. In support of this contention, plaintiff cites the rule that the burden of proof lies on the person who wishes to support his case by a particular fact which lies more particularly within his knowledge, or of which he is supposed to be cognizant. Cf. Skyland Hosiery Co. v. American Ry. Express Co., 184 N.C. 478, 114 S.E. 823. However, this rule does not apply here, since there is nothing in the record to show that the city election officials or any of the defendants had any control or influence over or access to the officials who held the county-wide election of 27 July 1965. The contrary is inferred since the first election was a County election and the election under attack is a Municipal election.

The prevailing rule is that the burden of proof is on the party holding the affirmative. Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102. Although not decisive, we note, in passing, that the only unquestioned vote by the voters in the City of Reidsville resulted in a majority vote 'for Alcoholic Beverage Control Stores and Law Enforcement.'

Plaintiff depends entirely on the provision of Section 6 of Chapter 650, 1965 Session Laws, and the results of the total votes cast in the six precincts encompassing the City of Reidsville to sustain his allegations. This is not sufficient to meet the burden of proof which he must carry. Furthermore, a careful reading of the section evidences that only where, in the event of a prior election, It is shown the voters within the City of Reidsville voted against the establishment of ABC stores shall a city election be deferred for three years. The clear intent of this provision was to prevent a repetitious election where the probable outcome had already been determined. By stipulation it is admitted the probable outcome of a city election could not be determined from the prior county election. We therefore hold that the city election was authorized by the statute.

The principal question presented for decision is whether the Reidsville Act, Chapter 650 of the 1965 Session Laws, is in violation of Article II, Section 29, of the North Carolina Constitution, which provides:

' § 29. Limitations upon power of General Assembly to enact private or special legislation.--The General Assembly shall not pass any local, private, or special act or resolution relating to health sanitation, and the abatement of nuisances; changing the names of cities, towns, and townships; authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys; relating to ferries or bridges; relating to nonnavigable streams; relating to cemeteries; relating to the pay of jurors; erecting new townships, or changing township lines, or establishing or changing the lines of school districts; remitting fines, penalties, and forfeitures, or refunding moneys legally paid into the public treasury; regulating labor, trade, mining, or manufacturing; extending the time for the assessment or collection of taxes or otherwise relieving any collector of taxes from the due performance of his official duties or his sureties from liability; giving effect to informal wills and deeds; nor shall the General Assembly enact any such local, private or special act by the partial repeal of a general law, but the General Assembly may at any time repeal local, private or special laws enacted by it. Any local, private or special act or resolution passed in violation of the provisions of this section shall be void. The General Assembly shall have power to pass general laws regulating matters set out in this section.'

Appellees do not seriously contend that the Act is not local.

In the case of High Point Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650, 142 S.E.2d 697, the Court stated:

'A statute is either 'general' or 'local'; there is no middle ground. * * * Conceivably, a statute may be local if it excludes only one county. On the other hand, it may be general if it includes only one or a few counties. It is a matter of classification. For the purposes of legislating, the General Assembly may and does classify conditions, persons, places and things, and classification does not render a statute 'local' if the classification is reasonable and based on rational difference of situation or condition; "(u) niversality is immaterial so long as those affected are reasonably different from those excluded and for the purpose of the statute there is a logical basis for treating them in a different manner." A law is local, "where, by force of an inherent limitation, it arbitrarily separates some places from others upon which, but for such limitation, it would operate, and where it embraces less than the entire class of places to which such legislation would be necessary or appropriate having regard to the purpose for which the legislation was designed, and where classification does not rest on circumstances distinguishing the places included from those excluded." On the other hand, a law is general "if it applies to and operates uniformly on all the members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law.' * * * Classification must be reasonable and germane to the law. It must be based on a reasonable and tangible distinction and operate the same on all parts of the state under the same conditions and circumstances. Classification must not be...