Sykes v. Belk

• Decision Date: 12 December 1969
• Citation: 278 N.C. 106,179 S.E.2d 439
• Parties: Thomas H. SYKES, Albert T. Pearson and Jimmy W. Patton, as Representatives of Citizens of Charlotte, North Carolina Who Oppose Appropriation of the Proceeds of
• Court: North Carolina Supreme Court

Page 439

179 S.E.2d 439

278 N.C. 106

Thomas H. SYKES, Albert T. Pearson and Jimmy W. Patton, as Representatives of Citizens of Charlotte, North Carolina Who Oppose Appropriation of the Proceeds of December 12, 1969 Bond Referendum in Other Than Manner Authorized by the Voters v. John M. BELK, Mayor of Charlotte, North Carolina and Fred Alexander, Joe D.Withrow, Jerry Tuttle, Milton Short, Jim Whittington, S. R. Jordan and JohnThrower, Members of Charlotte City Council.

No. 52.

Supreme Court of North Carolina.

March 10, 1971.

Gene H. Kendall, Charlotte, for plaintiffs.

Henry W. Underhill, Jr., and W. A. Watts, Charlotte, for defendants.

BRANCH, Justice:

Plaintiffs' principal contention is that on 12 December 1970 the voters of the City of Charlotte did not approve the issuance of bonds for a civic center at any place other than the 'Brevard Street' site, because the bond issue was approved on the basis of misleading representations made in public speeches and through the news media by certain defendants and others (including the 'Citizens Bond Information Committee' appointed by the Mayor) that the civic center would be located on the 'Brevard Street' site.

Plaintiffs do not attack the election for failure to meet procedural requirements; neither do they contend that the ordinance, the notice of election, the ballot, or any formal action of the City Council invalidated the election.

This case presents a question of first impression as to whether misrepresentations made during a campaign for a special election vitiate the election.

Art. VII, § 6, of the North Carolina Constitution provides:

'No county, city, town, or other municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied or collected by any officers of the same except for the necessary expenses thereof, unless approved by a majority of those who shall vote thereon in any election held for such purpose.'

The construction, acquisition and operation of an auditorium is not a necessary expense, and the voters of the municipality must therefore approve a bond issue for such purpose. Greensboro v. Smith, 241 N.C. 363, 85 S.E.2d 292.

Some jurisdictions, usually because of statutory and constitutional provisions, require that the ballot specifically state the purpose for which the bond proceeds will be used. Johnson v. City of Muskogee, 194 Okl. 513, 153 P.2d 118; Schnoerr v. Miller, 2 Ohio St.2d 121, 206 N.E.2d 902; Borin v. City of Erick, 190 Okl. 519, 125 P.2d 768; Henson v. School District, 150 Kan. 610, 95 P.2d 346. In those jurisdictions the courts prohibit the expenditure of any funds except for the purposes specifically stated in the ballot.

North Carolina is one of the jurisdictions which permit the use of a broad and general ballot in bond elections. The statutory provisions as to the ballot require only that,

'A ballot shalll be furnished to each qualified voter at said election, which ballot may contain the words 'for the ordinance authorizing $_ _ bonds (briefly stating the purpose), and a tax therefor,' and 'against the ordinance authorizing $_ _ bonds (briefly stating the purpose), and a tax therefor,' with squares in front of each proposition, in one of which squares the voter may make an (X) mark, but this form of ballot is not prescribed.' G.S. § 160--387(e).

Similarly, the ordinance authorizing a bond sale and calling a special election must state the purpose in only 'brief and general terms.' G.S. § 160--379(b).

In most jurisdictions which permit the use of such broad and general referendum ballots, in determining whether there have been misrepresentations sufficient to void the bond election, the courts have consistently looked to the notice of election, the ballot, and the ordinance authorizing the issuance of bonds, i.e., matters which constitute official proceedings in connection with the bond issue.

The official ballot in Sooner State Water, Inc. v. Town of Allen, 396 P.2d 654 (Okla. 1964) submitted to the voters concerned only the issuance of $30,000 in bonds for acquiring and maintaining a water works system. A public letter from members of the City Council made some misrepresentations, but the misrepresentations were not made as a result of official board action. Holding that the misrepresentations did not void the election, the Oklahoma Supreme Court stated:

'We are of the opinion that this case is comparable to the case of Reid v. City of Muskogee, 137 Okl. 44, 278 P. 339. The first paragraph of the syllabus reads:

'Inducements held out or promises made by a so-called 'citizens' committee' for the purpose of influencing voters in a municipal bond election are without any legal effect, and amount to no more than campaign argument which the voter could accept or not, and such inducements so offered, even if relied upon by the voters, do not constitute bribery, nor in any wise affect the validity of bonds otherwise legally voted.'

'* * * (W)e hold that campaign arguments presented in speeches, pamphlets or newspaper advertisements made by committees, organizations or individuals, which arguments have no official status, cannot be used as a basis for voiding an election. Misrepresentations sufficient to void an election must have an official origin, i.e., appear in some phase of the bond proceedings. Neither is it sufficient that such misrepresentations be made by some city official speaking or acting in his individual capacity, and when such misrepresentations constitute no part of the official proceedings. It is beyond the realm of reason that the validity of bond issues, regularly adopted by a vote of the people, should depend upon the character of campaign speech or advertisement initiated by some individual or group acting in an unofficial capacity.'

In the case of Detroit United Railway v. City of Detroit, 255 U.S. 171, 41 S.Ct. 285, 65 L.Ed. 570, the City of Detroit, pursuant to its charter, pased an ordinance for the acquisition, ownership, maintenance and operation by the City of a street railway system, and submitted the proposition to the voters, who adopted this action by the required majority. The plaintiff attacked the actions of the City on the ground that the voters were misled by the fraudulent conduct of officials of the City in their effort to obtain its property by misrepresentations in a circular, and otherwise, as to the purpose and effect of the vote to be taken upon the question of acquiring the transportation system. The court, upholding the dismissal of plaintiff's bill in the District Court, stated:

'We think that the court below correctly held that the motives of the officials, and of the electors acting upon the proposal, are not proper subjects of judicial inquiry in an action like this so long as the means adopted for submission of the question to the people conformed to the requirements of the law. * * *

'* * * We are of opinion that this so-called official information, no complaint being made of it before the election, cannot vitiate the election when the same was had upon a submission within the authority of the city under its charter and the ordinance passed in the form shown.'

In Public Service Co. v. City of Lebanon, 221 Ind. 78, 46 N.E.2d 480, it is stated:

'Another proposition relied on by the appellant as ground for an injunction in its favor in case No. 27837, and for denying the appellee's application for an injunction in cause No. 27793, is that the purchase of the appellant's electric system was never authorized by the voters of the City of Lebanon, as required by § 48--7201, Burns' 1933. To sustain this contention it was established that in the campaign that immediately preceded the special election at which the proposal of purchase was submitted to the voters of said city, the mayor, common council and board of public works represented to the public in newspaper advertisements and handbills that not to exceed $150,000 would be expended to purchase said utility. No official commitment was made in the proceedings of the city council as to the amount of money that might be expended on said undertaking and the question submitted to the voters by the ballot used at said election contained no such limitation. It has not been charged that the election was void or that the voters were coerced Under these circumstances it cannot be judicially declared that the election was not effectual to accomplish the purpose contemplated by the statute under which it was held. The courts may not go behind the result of an election to ascertain the persuasions that motivated the voters. (Citations omitted).'

In Harrison v. Board of County Com'rs, 68 Idaho 463, 198 P.2d 1013, it is stated:

'On the question of whether the circulation of misinformation will invalidate an election, the rule is stated in Dillon on Municipal Corporations, 5th Edition, Section 213, Page 430, as follows:

"Inducements in the way of statements and representations made to influence a voter, although false and fraudulent, will not invalidate the election if it does not appear that by force and fraud the voter was compelled to vote in a way he did not wish to vote.'

'Misrepresentations by public officials and others will not vitiate an election * * *.'

In Mills v. San Francisco Bay Area Transit District, 261 Cal.App.2d 666, 68 Cal.Rptr. 317, the voters approved a bond issue for the funding of a rapid transit system. The ballot was in general form and described only in the most general terms the purpose of 'acquiring, constructing, and operating a rapid transit system.' Neither the resolution calling that bond election, the ballot, nor the notice of election specified the location of any station. However, a report was prepared by certain experts employed by the board which did mention a specific location of the station. Preceding the election the public was referred to this report. After the voters approved the bond issue, the Transit District decided to...