Smallwood v. City of Newbern

• Citation: 90 N.C. 36
• Court: United States State Supreme Court of North Carolina
• Decision Date: 28 February 1884
• Parties: J. W. SMALLWOOD and others v. CITY OF NEWBERN.

90 N.C. 36

J. W. SMALLWOOD and others

v.CITY OF NEWBERN.

Supreme Court of North Carolina.

February Term, 1884.

MOTION for injunction heard at Fall Term, 1883, of CRAVEN Superior Court before Shepherd, J.

The complaint states, in substance, that the defendant is a municipal corporation, the powers of which being vested in a mayor and city council, as provided by the private acts of 1879, ch. 42, amended by the act of 1883, ch. 117, entitled “An act to establish graded schools in Newbern”; that the plaintiffs are citizens and tax payers of the defendant city, and a tax of twenty cents has been assessed upon every one hundred worth of their property to establish graded schools in the city, which the defendant threatens to collect; that defendant's powers of taxation are restricted by its charter, and that assessed, as aforesaid, is in excess of its powers of taxation; that said tax was not authorized by a vote of a majority of the qualified voters in the city, and the same is wrongfully assessed and cannot be legally collected. Wherefore, the plaintiffs ask for an injunction restraining its collection, &c.

The defendant, admitting some of the plaintiffs' allegations and denying others, relies mainly upon the said act of 1883, and states that an election was held on the 7th of May, 1883, to determine whether the said assessment should be made in aid of the said schools, and that according to the returns of the same, the result was declared according to law that a majority of the qualified voters of the city voted “for schools,” and in favor of the assessment of said tax. Wherefore, the defendant asks that the action be dismissed.

In affidavits of plaintiffs, it is denied that a majority of the qualified voters, registered at and for said election, voted in favor of the tax; and that the same was never so declared as a fact by the authorities of the city; and it was also stated that there were many irregularities at said election--one affiant presenting himself at the polls and being refused the privilege of voting, and the poll-holders saying that the registration books had not been revised, &c.

The cause coming on to be heard on the pleadings and affidavits of both parties, it was adjudged that the motion for injunction be refused. From this judgment the plaintiffs appealed.

Mr. W. W. Clark, for plaintiffs .

Messrs. H. R. Bryan and Nixon, Simmons & Manly, for defendant .

MERRIMON, J.

In view of the verified complaint, answer, affidavits and the case settled upon appeal for this court, we think the court below properly refused to grant the injunction prayed for.

The principal ground of the application for an injunction restraining the defendant from collecting the taxes mentioned in the complaint is, that the result of the vote required to be taken by the statute (Acts 1883, ch. 117, §1) was not fairly and truly ascertained and declared by the proper authorities, and that, in fact, a majority of the qualified voters of the city of Newbern did not vote “for schools.”

We have carefully examined and considered the statute cited, the verified pleadings and the affidavits both for the plaintiffs and for the defendant, and are satisfied that the vote was taken substantially as the statute directs, and that the mayor and council of the city of Newbern ascertained and declared the result of the same, and entered a declaration of such result upon the minutes or records of their proceedings, wherein they declared that a majority of the qualified voters voted “for schools,” and that the result of the election was in favor of the assessment of taxes for the purpose of supporting graded schools as allowed by the statute.

It is admitted by the plaintiff that the mayor and council held an election as directed by the statute, but he insists that they had no authority to ascertain and declare the result; and, further, that if they had such authority, they did not ascertain the result fairly and truly. He does not point out in the complaint, nor does he suggest in his affidavit, how and by whom the result of the vote should have been ascertained; but we infer he means to insist that the inspectors of the regular city election, required to be appointed under THE CODE, §§3788, 3789, ought to have ascertained, declared and certified the result. This is the strongest...