Smith v. City of Wilmington
| Decision Date | 23 December 1887 |
| Parties | SMITH et al. v. CITY OF WILMINGTON et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, New Hanover county; PHILIPS, Judge.
Bill in chancery, filed by appellants, G. H. Smith, J. A. Walker, D G. Worth, and William H. Green, for themselves, and all other tax-payers of the defendant city, against the city of Wilmington, and the mayor and aldermen thereof, to annul and declare void an election held in said city, on August 11 1887, to vote on a proposition to subscribe $100,000 to the capital stock of the the Wilmington, Onslow & East Carolina Railroad Company; and to enjoin defendants from making such subscription. The decree below was for defendants, and plaintiffs appealed.
Geo Davis and T. W. Strange, for plaintiffs.
D. L. Russell, for defendants.
This action is brought by the plaintiffs, tax-payers of the city of Wilmington, and all other like tax-payers who shall join in the same, and contribute to the costs thereof, against that city, and the other defendants, who are the mayor and aldermen thereof, to contest the validity of an election held on the eleventh day of August, 1887, in pursuance of an order made by the said last-mentioned parties, in said city, "for the purpose of ascertaining the will of the qualified voters of this city upon the question of a subscription of $100,000 (one hundred thousand dollars) by the city to the capital stock of the Wilmington, Onslow & East Carolina Railroad Company," as provided and allowed by the charter of that company, under the statute, (Acts 1885, c. 233,§§ 13, 14.) This statute allows "any county, township, city, or town," as therein provided, "to subscribe to the capital stock of said company," if a majority of the legally qualified voters thereof shall vote in favor of the proposition to be voted upon, specifying a fixed amount of such stock to be subscribed for, at an election to be held, as prescribed in this statute, "by persons appointed in the manner that persons are appointed for holding other elections in said county, township, city, or town; and the returns thereof shall be made, and the result declared and certified, as prescribed by law in such other elections." It is further provided by section 14 of the same act, "that if the result of said election shall show that the majority of the qualified voters of the said county, township, city, or town favor subscription to the capital stock of the said railroad to the amount voted for in such election, then said county commissioners, or the proper authorities of said city or town, shall immediately make such subscription to the capital stock of said railroad, payable in cash, or the bonds authorized to be issued under this act." The charter of the city of Wilmington, (Acts 1876-77, c. 192, §§ 3, 5,) provides as follows:
Sec. 3. "That before the first election of aldermen to be held under the provisions of this act, and biennially thereafter before every such election, there shall be a new registration in each of the said wards of the persons qualified to vote in the same; and the first election for aldermen shall be held on the fourth Thursday in March, 1877, and subsequent elections therefor shall be held biennially thereafter on the fourth Thursday of March of the respective years on which the same occurs." Sec. 5. "Every duly-registered person in any ward, continuing to be a resident, bona fide, of such ward, up to and on the day of any such election, shall be entitled to vote in such ward at any election therein, and no other person shall be so entitled."
It appears that in pursuance of application made to them, as allowed by the provision of the charter of the railroad company above named, the mayor and aldermen, defendants, on the fifth of July, 1887, made an order, whereof the following is a copy:
"Be it ordained by the mayor and board of aldermen of the city of Wilmington that an election be held on Thursday, the eleventh day of August, 1887, at the usual polling places of the city, for the purpose of ascertaining the will of the qualified voters of this city upon the question of a subscription of $100,000 (one hundred thousand dollars) by the city to the capital stock of the Wilmington, Onslow & East Carolina Railroad Company.
Every person qualified on the day of election, under existing laws, to vote for aldermen of the city of Wilmington, shall be deemed a qualified elector. All ballots must contain the words 'Subscription' or 'No subscription.' That books be opened for a new registration of the voters of the city at the following places," etc. It further appears "that an entirely new registration of voters was had according to the said ordinance, and on the day of election only sixteen hundred and seventy-six voters had registered," and an election was held as therein directed. It also appears "that on the twelfth day of August, 1887, the said board of aldermen met, and passed the following resolutions, to-wit:
"Whereas, at an election held in this city on Thursday, the eleventh day of August, 1887, in pursuance of an application of the Wilmington, Onslow & East Carolina Railroad Company, and a petition of one-fifth of the qualified voters of this city, and under an ordinance of the mayor and board of aldermen of this city, on the question of a subscription of one hundred thousand dollars to the capital stock of said railroad company by this city, it is ascertained and hereby declared that at said election there were cast for subscription 1,049 votes, against subscription 301 votes, and the registration list shows an aggregate of 1,676 registered voters in this city, therefore, resolved, that the proposition has been adopted by a majority of the registered voters of this city; resolved, that the finance committee of the board of aldermen are authorized to confer with the proper authorities of the Wilmington, Onslow & East Carolina Railroad Company, to the end that the conditions, terms, and stipulations contained in the letter of application of said company to this board shall be carried out, the bonds not to be delivered except at the rate of twenty-five hundred dollars a mile as the road is completed mile by mile." It further appears that the registration under which the election in question was held was 1,676, and there were cast for subscription 1,049, which is a majority of said registration, but is not a majority of the whole number of persons residing in the city who, by law, were entitled to register and vote. On the fourth Monday of March, 1887, less than five months prior to the said election, an election was held according to law for aldermen of the said city, and that immediately before said election, and preparatory thereto, a new registration of the qualified voters of the said city was duly had, according to the requirement of the third section of the act of 1877, to organize a government for the city of Wilmington, above recited, and the number of qualified voters of the city then registered was 2,735, as appears by the registration books. That in the year 1880, preparatory to the general elections of that year, a registration of the qualified voters of New Hanover county was had; and the number of qualified voters then registered for Wilmington township, which comprises precisely the same territory as the city of Wilmington, was 4,275, as appears by the said registry; and that since the year 1880 the population of the said city has been continually increasing. The plaintiffs and other tax-payers appeared before the mayor and aldermen on the twelfth of August, 1887, when they declared the result of the election in question as above stated, and insisted that a majority of the qualified voters of the city had not voted in favor of "subscription," and they protested against their action.
The plaintiffs, in their complaint, demand judgment (1) that the said election held upon the eleventh day of August, 1887, and all actings and doings under the same, be adjudged and declared to be null and void; (2) that the defendants be perpetually enjoined and restrained from making any subscription on the part of the city of Wilmington to the capital stock of the Wilmington, Onslow & East Carolina Railroad Company, and from issuing any bonds of the said city in payment of the same;...
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