Penland v. Bryson City

• Decision Date: 02 July 1930
• Docket Number: 625.
• Parties: PENLAND et al. v. BRYSON CITY et al.
• Court: North Carolina Supreme Court

154 S.E. 88

199 N.C. 140

PENLAND et al. v. BRYSON CITY et al.

No. 625.

Supreme Court of North Carolina

July 2, 1930

Appeal from Superior Court, Swain County; Schenck, Judge.

Action by W. G. Penland and others against the town of Bryson City and others. Judgment for defendants, and plaintiffs appeal.

No error.

This is a civil action brought by the plaintiffs against the defendants for the purpose of having chapter 67 of the Private Laws of the General Assembly of North Carolina passed at the Session of 1927, and chapter 215, Private Laws of the General Assembly of North Carolina, Session 1927, declared unconstitutional and void, and an election held under said acts attempting to enlarge the town limits of the town of Bryson City declared null and void, and for a permanent injunction enjoining the defendants from collecting town taxes within the territory described in the complaint in this action.

At the close of all the evidence defendants renewed their motion theretofore made at the close of plaintiff's evidence to dismiss the action and for judgment as of nonsuit. Motion denied; defendants excepted. Upon the conclusion of all the evidence, and following the ruling of the court for judgement as of nonsuit, the parties, plaintiffs and defendants, agreed that the issues theretofore tendered by the court should be answered as appears in the record, as if answered by the jury, and, upon said issues being so answered, defendants tendered to the court the following judgment, which the court signed:

"This cause coming on for hearing at this the October Term, 1929 of Swain County Superior Court before Honorable Michael Schenck, Judge presiding, and a jury, and same being heard upon the following issues, to-wit:

"1. On what day was the election mentioned in the several Acts set forth in the pleadings called and held? Answer: Tuesday, the 19th day of April, 1927.

"2. Did the ballots furnished and voted at said election have printed upon them 'Official ballot on City Proposition, City of Bryson City,' and bear the facsimile of the City Clerk? If not, what was printed on said ballots? Answer: No, there was printed on such ballots the following words and figures, to-wit: "( ) For Ratification. () Against Ratification.'

"3. Were booths, or a booth, furnished to be used by the voters in marking their ballots? Answer: No.

"4. Were there adjoining rooms to the court room, where the election was held, that could be used as a place for marking tickets, and if so, how many? Answer: Yes, two such rooms.

"5. Were guard rails placed around the polling place and ballot boxes? Answer: No, except the bar rail of the Court Room.

"6. Were persons admitted or allowed by the election officials about the ballot boxes while voters were casting their votes, other than the voters and election officials? Answer: Yes.

"7. Were two watchers appointed by the City Governing body of Judges of Election to attend the polling place to assist the voters? Answer: Yes.

"8. Where persons permitted or allowed to electioneer by the election officers in the court room where said election was being held about the polling place and was such electioning carried on during the time when the ballots were being cast at said election? Answer: No.

"9. Does the description of land included in section 1, chapter 215, Private Laws of 1927, include land not included in the description of land set forth in Section 1 of chapter 67, Private Laws of 1927? Answer: Yes.

"10. Were any of the voters, who voted in the election held April 19, 1927, in the Town of Bryson City, interfered with or prevented from voting a free ballot, and if so, how many? Answer: No.

"That after all the evidence, which had been offered by the plaintiffs and the defendants, counsel representing the plaintiffs and defendants agreed that said issues should be answered by the jury as set forth above.

"That all the aforesaid issues were answered, by consent of the parties, plaintiffs and defendants, through their attorneys, with the same force and validity as if the jury empanelled in said cause had answered same. And the Court being of the opinion that the election in question, held on the 19th day of April, 1927, in the Town of Bryson City, was in all respects valid: It is, therefore, on motion of Edwards & Leatherwood, Counsel for defendants, considered, ordered, adjudged and decreed that the plaintiffs take and recover nothing by this action, and that the same be dismissed; that the restraining order heretofore issued by the Court be, and the same is hereby, in all respects, dissolved, and that the defendants have and recover of the plaintiffs their cost in this action to be taxed by the Clerk of this Court."

To the signing of the foregoing judgment, the plaintiffs excepted and assigned error. Plaintiffs tendered judgment, the court below refused to sign same, and plaintiffs excepted, assigned error, and appealed to the Supreme Court.

The other facts will be set forth in the opinion.

Moody & Hall, for appellants.

Edwards & Leatherwood, of Bryson City, for appellees.

CLARKSON J.

The General Assembly of North Carolina passed an act to incorporate the town of Charleston in Swain county, N.C. It was passed in accordance with article 2, § 14, of the Constitution of N. C., and ratified February 3, 1887, c. 11, Private Laws of N.C. 1887. In 1889 the name was changed by the General Assembly from Charleston to Bryson City. Chapter 4, Public Laws 1889. The original size of the old town was around 500 acres-- "one-half mile from the Court House in all directions." An act was passed by the General Assembly of North Carolina to enlarge the corporate limits of the town Of Bryson City, and to provide for an election. Chapter 67, Private Laws of 1927. The enlarged town comprises about 2,600 acres. This act was passed in accordance with article 2, § 14, of the Constitution. This act said: "That the corporate limits of the town of Bryson City, Swain County, formerly Charleston, as defined by section two of chapter eleven, Private Laws of one thousand eight hundred and eighty-seven, be and the same are hereby extended so as to include all of the territory and property within the following boundary (describing same)." This act included the old boundaries.

After the passage of the above act, at the same session another act was passed to correct the boundaries, chapter 215, Private Laws of 1927, by striking out the description of the boundary in the former Act and inserting in lieu thereof a new description, but the description in both acts included the old town limits. The description in the latter took in a little more territory. Section 3, c. 67, of the 1927 act, supra, provides that "said election shall be held and conducted as near as may be as other general elections, and the same shall be held on Tuesday, April eighteenth, Nineteen Hundred and Twenty-Seven"; that at the time said election was held all elections held in the county of Swain, including county, town, and municipal elections, were required to be held under the Australian ballot system, as provided by chapter 606, Public Local Laws, enacted by the General Assembly of North Carolina at its session of 1917, entitled "An act to provide the Australian ballot," said act being amended by chapter 175, Public Local Laws of 1921, by adding the word "Swain" after the word "Henderson," and before the word "and" in line 2 of section 43--A, chapter 606.

Chapter 67 of the Private Laws of 1927, above, authorized the board of aldermen of the town of Bryson City to call an election for the purpose of submitting to the qualified voters residing within the boundary the question of acceptance or rejection of the provisions of the act, and that the same shall be held on Tuesday, April 18, 1927. Also provided for the appointment of a registrar and two judges to hold said election, and provided for the kind of ballots to be prepared by the election officials. The board of aldermen of said town, pursuant to said act of the General Assembly, called said election to be held at the courthouse in Bryson City on Tuesday April 19, 1927, and pursuant to said act and said notice said election was held on Tuesday, April 19th, with the following result: "Total number of registered voters as shown by poll book--602; total number of votes cast--547; total number for ratification--317; total number against ratification--230." The governing body of said town gave notice of result, and declared that the said act of the General Assembly so ratified declared to be in effect from the said date.

The plaintiffs contend: (1) That chapter 215 of the Private Laws of 1927, the act to correct the boundaries, is unconstitutional, in that same was not passed in accordance with article 2, § 14, of the Constitution of North Carolina. We cannot so hold under the facts and circumstances of this case. (2) The plaintiff contends that the election held pursuant to chapter 67 of the Private Laws of 1927 was invalid. We cannot so hold.

In regard to the first proposition: The facts are to the effect that the town of Charleston was incorporated by the General Assembly of 1887. This act was passed in compliance with article 2, § 14, Constitution of North Carolina; the boundaries of the town included about 500 acres. The General Assembly of 1889 changed the name to Bryson City. The General Assembly of 1927 passed the act to enlarge the boundaries to about 2,600 acres. This act was passed in compliance with article 2, § 14, Constitution of North Carolina. This act struck out the section in reference to the boundaries which were set out in the act incorporating the town in 1887, and inserted in lieu thereof the new boundaries, which included the old boundaries making the new...