Rigsbee v. Town of Durham

• Decision Date: 14 November 1887
• Citation: 3 S.E. 749,98 N.C. 81
• Parties: RIGSBEE v. TOWN OF DURHAM.
• Court: North Carolina Supreme Court

3 S.E. 749

98 N.C. 81

RIGSBEE v. TOWN OF DURHAM.

Supreme Court of North Carolina

November 14, 1887

Appeal from superior court, Durham county; SHEPHERD, Judge.

Batchelor & Devereux and R. C. Strudwick, for plaintiff.

W. W Fuller, J. S. Munning, and Graham & Ruffin, for defendant.

DAVIS J.

This is an appeal from an order made by SHEPHERD, J., at chambers, in Hillsboro, on the twelfth day of August, 1887, dissolving a restraining order theretofore granted, in the cause pending in the superior court of Durham county. Chapter 86 of the acts of 1887 authorizes the board of commissioners of the town of Durham to submit to the "qualified" voters of said town "whether a tax shall be annually levied therein for the support of the schools in said town provided for by the act." The act prescribes the manner in which the election shall be held; "and, if a majority of the votes cast shall be in favor of such tax, the same shall be levied and collected by the town authorities, under the same rules and regulations under which other town taxes are levied and collected," etc.

The plaintiff, who is a tax-payer of the town of Durham, alleges that this act is unconstitutional upon its face, in that it contravenes article 7, § 7, Const., in allowing a majority of the votes cast, instead of requiring a majority of the qualified voters, to determine the result of the election and he alleges that notwithstanding the said act is unconstitutional and void, the commissioners of the town of Durham ordered an election to be held in pursuance of its terms, at which election it is alleged a majority of the qualified voters did not vote in favor of said tax. It is further alleged, in substance, that notwithstanding a majority of the qualified voters of the town of Durham did riot vote in favor of said and establishing the graded school provided for in the act, the board of commissioners of said town appointed a committee, who, after refusing to hear any evidence to the contrary, or permitting an opportunity to the plaintiff to be heard, and, without hearing any evidence reported that one hundred and ___ voters, whose names appeared on the registration book, were not qualified voters of the town, and that the vote cast in favor of the said tax and school was a majority of the qualified voters of the town of Durham; whereupon the commissioners declared that the said act had been ratified by a majority of the qualified voters of the town of Durham, whereas, as alleged by the plaintiff, there were 983 registered voters of said town, of whom only 410 voted for ratification. The plaintiff further alleges that notwithstanding the act was void upon its face, and notwithstanding it was not ratified by a majority of the qualified voters of the town, the board of commissioners have provided to appoint the defendants (naming them) a school committee of the town of Durham, and are threatening to place on the tax-list and have collected the tax provided for by the act, and carry out the provisions of the act to the irreparable injury of the plaintiff and other tax-payers of said town. The plaintiff asks that the act of the legislature be declared unconstitutional, and the action of the commissioners null and void; that they be enjoined, etc.

The defendants answer, admitting the passage of chapter 86 of the Acts of 1887, and deny that it is unconstitutional; they also deny the other material allegations of the complaint; and say, in substance, that the election complained of was regularly and duly held, in accordance with the provisions of the act, on the fourth day of April, 1887; "and on the day following said election, to-wit, the fifth day of April 1887, the inspectors of election certified and reported to the commissioners of said town that at said election 411 votes were cast and counted 'for school,' and 151 votes were cast and counted 'against school;' and on the said fifth of April, 1887, at a meeting of said commissioners to enable them to declare truly the result of said election as directed by said act, a committee of their body was appointed to revise the registration book of said town used at said election, and report to the full board the number of qualified voters of said town at said election. Said committee reported that they had examined the book of registration, and that the total number of names therein was 980, and of said number of names there were 180 names of persons included who were not, on the fourth of April, 1887, qualified voters of said town by reason of deaths, removals, and other disabilities; and they therefore reported that they found and reported 800 to be the correct number of qualified voters on the fourth of April, 1887; that said report was adopted by the full board; and it was thereupon officially declared by the board as the result of said election that a majority of the votes cast at said election was 'for school,' and that the aforesaid 410 votes as aforesaid 'for school' was a majority of all the qualified voters of the town at said election." They further say that before the meeting of the board of commissioners on the fifth of April, "at the instance of the mayor of the town, commissioners Parrish and Mackey, together with the town attorney, chief of police, registrar of election, and other citizens of the town, met in the mayor's office to examine the registration books, and to hear and consider and make inquiry, with the view of ascertaining the correct number of qualified voters; that each name was canvassed, and a list only of those known to be dead or removed, or otherwise disqualified, was made upon the personal knowledge of some one or more present at said meeting; that said list contained 180 names of persons on the registration book who were not qualified voters of the town of Durham, and who did not vote in said election; that the names of registered voters whose qualifications were in doubt were not included in said...