Norment v. City of Charlotte

• Decision Date: 31 October 1881
• Citation: Norment v. City of Charlotte, 85 N. C. 387 (N.C. 1881)
• Court: North Carolina Supreme Court
• Parties: W. S. NORMENT and others v. CITY OF CHARLOTTE.

85 N.C. 387

W. S. NORMENT and others

v.CITY OF CHARLOTTE.

Supreme Court of North Carolina.

October Term, 1881.

MOTION by plaintiffs for injunction to restrain collection of certain tax, heard at Chambers in Charlotte on the first day of November, 1880, before Seymour, J.

By the act of March 22d, 1875, the board of aldermen of Charlotte were authorized, upon the application of ten voters resident in each of the wards into which the city is divided, to order an election and ascertain the sense of the qualified voters therein upon the submitted proposition to establish and maintain by taxation a system of graded schools.An election was accordingly held under the directions of the act, on the first Monday in June, 1880, whereat were cast eight hundred and sixteen votes, all with a single exception in favor of the measure.There was no new or revised registration made in contemplation of the election, and the books contain the names of one thousand, six hundred and seventy nine voters, of which those voting are not a numerical majority; and before declaring the result, upon a suggestion that the lists were inaccurate and did not truly represent the number of resident voters at the time of the election, the board appointed a committee of their number to examine and revise the lists and make report thereof.The committee performed this duty and reported a correction by the erasure of one hundred and thirty-three names from the registry, and a majority of all the qualified voters of the city to have voted in favor of a graded school.The report was received and adopted, and the result of the vote declared.Thereupon a tax of one-tenth of one per cent. on the value of property, and thirty cents on the poll, was levied, and the tax list placed in the hands of the city marshal for collection pursuant to the requirements of the law.The present suit, instituted by the plaintiff on behalf of himself and other tax-payers, seeks to restrain the collection of the tax thus imposed, on the ground that a majority of the legal voters, as conclusively determined by the registrar's books, and not open to disproof, have not sustained the proposition submitted to them, and that consequently the tax is unauthorized and illegal.Upon the hearing of the application for a temporary restraining order, affidavits were offered by the defendants showing errors in the registry, and reducing the number of voters as therein contained, from deaths, removals, and other causes, to an extent that leaves the votes cast for the school in excess of a majority of the whole, and His Honor finds therefrom as a fact that a majority of the entire number of qualified voters in the city had voted in favor of the school.The restraining order was refused and the plaintiffs appeal.

Messrs. Wilson & Son, for plaintiffs .

Messrs. Burwell & Walker, for defendant.

SMITH, C. J., after stating the facts.

The appeal presents one, and upon its contingent solution a second question for determination.

1.Is a majority of all the voters necessary under the act, or is a majority of those voting sufficient?

2.If a majority of all the qualified voters is required, is the registry conclusive of the number, or may parol proof be heard in revision and correction?

The answer to the first enquiry has not been consistent in the adjudications in this state, nor in those made elsewhere, as to the interpretation to be put upon language, similar to that used in our statute, requiring the sanction of the electors to be first given to a proposed measure of legislation.In Reiger v. Commissioners of Beaufort,70 N. C., 319, in construing an enactment declaring that “it shall be lawful for the commissioners of the town of Beaufort to subscribe by their agent for such an amount of stock,” in the Beaufort Steam Ferry Boat Company previously incorporated, “as they shall be authorized to subscribe by a majority of the voters of said town qualified to vote for commissioners, whose sense of subscribing a particular amount shall be previously ascertained by opening a poll for that purpose,” &c., PEARSON, C. J., speaking for the court, says: “We incline to the opinion that the construction contended for, to-wit, there must be a majority of all the voters of said town, qualified to vote for commissioners, is too narrow, for the act goes on to provide ‘whose sense of subscribing a proposed amount shall be previously ascertained by opening a poll for that purpose after advertisement,’ &c.The meaning of which is that all of the voters of the town, who do not choose to attend at the poll are to be taken as assenting to the result of the election according to the votes actually polled.”

In the subsequent case of Railroad Co. v. Caldwell,72 N. C., 486, the constitutional...