Groves v. Commissioners of Rutherford County

• Decision Date: 08 December 1920
• Docket Number: 505.
• Citation: Groves v. Commissioners of Rutherford County, 180 N.C. 568, 105 S.E. 172 (N.C. 1920)
• Parties: GROVES v. COMMISSIONERS OF RUTHERFORD COUNTY ET AL.
• Court: North Carolina Supreme Court

105 S.E. 172

180 N.C. 568

GROVES v. COMMISSIONERS OF RUTHERFORD COUNTY ET AL.

No. 505.

Supreme Court of North Carolina

December 8, 1920

Appeal from Superior Court, Rutherford County; Webb, Judge.

Action by J. F. Groves against the Commissioners of Rutherford County and others. Judgment for defendants, and plaintiff appeals. New trial ordered.

Where a registered voter was absent in military service, his father's offer to pay the poll tax without physically tendering the money held a sufficient tender to qualify son as a voter.

Civil action tried upon these issues:

(1) Was Fred Pendergrast a registered qualified voter, with a right to vote in the special school election held on the "Edwards" special tax district, on May 17, 1919? Answer: No.

(2) Was W. C. Mitchum a qualified registered voter, with a right to vote in the special election held in "Edwards" special school tax district on May 17 1919? Answer: No.

(3) Was J. L. Vickers a qualified registered voter, with a right to vote in the special school election held in the "Edwards" special school tax district on May 17 1919? Answer: No.

From the judgment rendered, the plaintiff appealed.

Solomon Gallert, of Rutherfordton, for appellant.

W. C McRorie, of Rutherfordton, for appellees.

BROWN J.

This was an action instituted by plaintiff, in behalf of himself and other taxpayers in the proposed special tax school district to be established in Gilkey township of Rutherford county, said district being known as the "Edwards" school district numbered 14--3, to enjoin the commissioners of Rutherford county from declaring an election held in said district as having adopted the special tax voted upon at said election, and to enjoin said county commissioners from levying said tax.

At said election it appears that there were 23 voters registered, and that on election day, after the polls were opened, the name of W. C. Mitchum, who had registered, was stricken from the registration book by the judges of the election (page 21) thus leaving 22 names on the book. It appears that 12 votes were cast in favor of the special tax, but the vote of Fred Pendergrast, which was admitted to be illegal and so found by the jury, which was cast in favor of said tax, should be deducted from said 12 votes, thus leaving only 11 legal votes having been cast in favor of said tax.

Defendants claim that the vote of J. L. Vickers, who was duly registered, should not be counted against said tax, on the ground that he had not paid his poll tax for the year 1918 on or before the 1st day of May, 1919, and they contend that this vote should be deducted from the registered names of voters, reducing the number of qualified registered voters, as defendants claim, to 21. Plaintiff claims that Vickers' vote should be counted against said tax, because he tendered payment of his poll tax in ample time and the sheriff refused to receive it.

Defendants claim that the name of W. C. Mitchum was properly erased from the registration book, because he was not a resident of the school district when the election was held. Plaintiff claims that the election officers unlawfully and wrongfully erased Mitchum's name from the registration book: (1) Because, he having been regularly registered for said election, the election officers had no right to erase his name; (2) because Mitchum was a resident of said school district and a legally qualified voter therein; and (3) because his name had been erased without notice to him and without his knowledge, approval, or consent, after the polls had been opened and while the election was being held.

With the votes of Vickers and Mitchum both counted as against the tax--neither of them voted and their votes would necessarily count against the tax--the result of the election would be a tie and the tax would be defeated, a majority of the qualified registered voters not having voted for the tax.

1. We are of opinion upon the evidence, if it is believed, that the name of W. C. Mitchum was improperly stricken from the registration books. There was evidence tending to prove that Mitchum had not abandoned his home; that he was temporarily absent on business; that he did not move his personal property; that he took only such as was necessary; that he had taken a logging contract which would keep him absent several months.

Mitchum testified as follows:

"When I moved down to Bostic, it was not my intention to give up my residence in the Edwards school district, not naturally for my temporary job. I rented the land expecting to come back and did not want to lay out. I worked on the logging job from November up until March when shut down and contract not finished. When they were talking of shutting down, I went to Gilkey township and went to the fellow I rented the land to and tried to buy out their grain crop, but they would not sell. After the sawmill shut down, I had to

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