Hill v. Skinner
| Decision Date | 29 September 1915 |
| Docket Number | 317. |
| Citation | 86 S.E. 351,169 N.C. 405 |
| Parties | HILL v. SKINNER, MAYOR, ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Durham County; O. H. Allen, Judge.
Bill by John Sprunt Hill against B. S. Skinner, Mayor, and the Board of Aldermen, of the City of Durham. From a judgment for plaintiff, defendants appeal. Reversed, and injunction dissolved.
Where the result could not have been otherwise, a failure to give the required notice of registration is no ground for vacating the result; it appearing that a fair election was held and voters were not deprived of their right of suffrage.
Where it was not shown that any voters were deprived of their rights or that a longer period of registration would have affected the result, the closing of the books before time held not ground to set aside the election.
Plaintiff sought to enjoin the defendants, as mayor and aldermen of the city of Durham, from issuing bonds of said city in the sum of $500,000 and from levying any tax for the payment of the principal or interest thereof, for the purpose of providing a municipally owned system of waterworks under Private Laws of 1913, c. 336, or any other supposed authority of law. An election was held in said city, at which the question of issuing the said bonds was submitted to the people, in accordance with an order of defendants at a regular meeting of the municipal council on February 14, 1914, requiring that an election for said purpose should be held on April 21, 1914, and at the same time a new registration for the said election was ordered. It is not disputed that due and formal notice of the election was given, but the plaintiff attacks the validity of the election upon two grounds: (1) That 30 days' notice of the time for opening and closing the registration books and of the places of registration was not given. (2) That the registration books were not kept open and accessible to the voters of the city for 20 days as required by law. There were 1,322 voters who registered for the election, and 988 votes were cast, of which 826 were in favor of the bond issue, and 162 against it. It appears from the affidavit of Geo. W Woodward, clerk of the board of aldermen, who examined the records of the city for the information he gave, that only twice have so many votes been cast at such an election, and both of those elections occurred a year after the one in question, viz.: At the school bond election, May 2, 1905, the total vote was 1070; at the election on the commission form of government, April 21, 1913, it was 919; but at the election of aldermen, May 7, 1913, it was only 448, and at the same kind of election, May 5, 1915, it was 572, and at the elections in the city since May, 1905, it has varied, at times, considerably, between 448 as the lowest, to 1070 as the highest, vote cast. The qualified voters at the water bond election, April 21, 1914, numbered 1,197, or 125 short of the registered vote, and at the new charter election March 17, 1915, they numbered 1,448. There was evidence before the judge, who heard the case, that two active and opposing leaders in the water bond election of April, 1915 and in the canvass preceding it, which was warmly and zealously conducted, had, some time before the day of the election, obtained, from the tax books in the hands of the deputy sheriff of the county, with his assistance, two accurate lists of all the qualified voters of the city, which embraced those who had paid their taxes and those exempt from taxation, and one of those lists showed the number of qualified voters to be 1,392. Upon investigation, Mr Brogden, who favored the bond issue and who got one of the lists, found that it included the names of some persons who had died and of others who had removed their residences from Durham, and of others who were not entitled to vote for other reasons. It was afterwards agreed between Mr. Brogden and the other gentlemen, who opposed the bond issue, by way of estimate only, that the qualified voters of the city did not exceed 1,300 in number. The campaign for and against the bonds, it appears from the proof, was carried on with unusual activity, and unabated ardor and zeal; each side endeavoring to poll its full vote, and searching constantly for those who had become of age since the time for listing taxes had expired, and for any persons exempt from taxation and whose names therefore did not appear on the tax books. Meetings were held by one, if not both, factions, to find the voters and bring them to the polls, and no pains seems to have been spared in the effort to obtain a full vote. The rivalry was great, if not intense, and by the efforts of the two bodies, who were working for different results but for a large vote, it seems that every available voter was not only notified of the registration and election, but was urged to qualify himself and cast his vote at the election. We cannot read the evidence without being convinced that every voter had actual, as well as formal, notice of the election, and actual notice of the registration and a full opportunity to cast his vote for or against the issue of bonds, had he so desired. There is ample evidence that the question was thoroughly advertised in the two daily newspapers with urgent appeals to the voters to register and vote, owing to the great importance of the result to the city, and this was done continuously and long before the day of election. There is other evidence which, taken by itself, shows that 826 voters represented a majority of the electorate, and this may safely be taken as the fact.
There is a class of evidence tending to show, and we find the fact so to be, that from February 17, 1915, to April 21, 1915, both dates inclusive, the election was thoroughly, though informally, advertised, and many articles were published which called public attention to it, and the passage of the measure was warmly advocated. These articles appeared from day to day in the Durham Sun and the Morning Herald, newspapers published daily in the city, and discussed the merits of the question "pro and con." The issues of February 17, 1915, announced the decision of the board of aldermen to order the election on the third Tuesday of April, which was the 21st day of that month, and also stated that a new registration had been ordered for the election. We insert this extract from the complaint:
"Notice of said new registration was published for the first time in the Durham Daily Sun on March 20, 1914, and the first time in the Morning Herald on March 21, 1914; that the registration books for said election were open on Friday, the 3d day of April, 1914, and closed on Saturday, the 11th day of April, 1914, at 9 o'clock p. m.; and that the 30 days' notice of said new registration by advertisement in some newspapers was not given as required."
The notice of the registration was ordered to be given on the 18th day of March, 1915, and was published as above stated; but, as a part of the election notice, and in it the places of registration, names of registrars and judges of election, and the first day of registration, April 3, 1915, were clearly stated. The notice further set forth that the books for registration would be kept open from 9 o'clock a. m., on each day, Sunday excepted, and except on Saturdays, when they would be closed at 9 o'clock p. m. The books were finally closed on Saturday, April 11, 1915, at 9 o'clock p. m.
The learned judge, after hearing the evidence and argument of counsel, but without finding any facts, held that the injunction prayed for should be granted, and a judgment to that effect was entered, whereupon the defendants appealed.
J. L. Morehead and W. B. Guthrie, both of Durham, and P. C. Graham and Victor S. Bryant, of Durham, for appellants.
R. P. Reade and E. J. Hill, both of Durham, for appellee.
WALKER, J. (after stating the facts as above).
The law does not provide for notices of an election and the registration of voters, a preliminary thereto, as mere idle ceremonies, to be given or not as may suit the whims or convenience of those who may have the calling and conduct of the election and its machinery in charge, but it is intended to be a serious and important part of the procedure under which the election is called and held, and is not to be neglected or omitted, under any circumstances, by those to whom has been intrusted the duty of complying with the law. It is always to be considered as an essential to a regular election, and not as a mere nonessential, which will have no weight with the courts in deciding as to the validity of an election, for the contrary is true. But the object of notice both of the election and the registration, is to afford an opportunity to every qualified voter to express his opinion on the question submitted to the people for their approval or disapproval, and if the notice is not given, as required by the law, and it further appears that, by reason of the omission, this fair opportunity has not been given to the voters, the election will be declared as void, if thereby the result would be materially affected. While so far as the officers are concerned, who are charged with the duty of giving the notice, the requirement, as to notices, is imperative, yet it will be regarded, otherwise, as directory, if the result would not be changed by a departure from the provisions of the statute. The law looks more to the substance than to the form, and if it appears that a clear majority of the qualified voters have cast their votes in favor of the proposition submitted to them, and that there has been a fair and full opportunity for all to vote, and that there has been no fraud, and the election is in all respects free from taint of...
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