Town Of Hendersonville v. Jordan

• Decision Date: 22 December 1908
• Citation: 63 S.E. 167,150 N.C. 35
• Court: North Carolina Supreme Court
• Parties: TOWN OF HENDERSONVILLE . v. JORDAN.

63 S.E. 167

(150 N.C. 35)

TOWN OF HENDERSONVILLE .

v.JORDAN.

Supreme Court of North Carolina.

Dec. 22, 1908.

1. Municipal Corporations (§ 867^*) — Expenditures—Street Improvements—"Necessary Expense."

The expense of maintaining the streets of a town in a proper manner is a "necessary expense, " within Const, art. 7, § 7, forbidding a municipality to contract a debt, etc., except for a necessary expense, without a popular vote.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1841; Dec. Dig. § 867.*

For other definitions, see Words and Phrases, vol. 5, pp. 4715, 4716.]

2. Elections (§ 198*) — Conduct of Elections — Statutory Provisions Controlling.

Under Revisal 1905, §§ 2944-2907, tit. 7, "Elections in Towns, " § 2944, providing that all elections in cities or towns shall be held under certain rules, and excepting certain towns, but not the town of Hendersonville, the election law in title 7 and the charter of the town of Hendersonville (Priv. Laws 1901, p. 216, c. 97), when not inconsistent therewith, control the manner of holding elections in that town.

[Ed. Note.—For other cases, see Elections, Dec. Dig. § 198.*]

3. Elections (§ 49*) — Officers — Election Judges—Number.

Under Revisal 1905, § 2958, requiring the board of election commissioners of a town to appoint two judges of election, of certain qualifications, only two judges are required.

[Ed. Note.—For other cases, see Elections, Dec. Dig. § 49.*]

4. Elections (§ 55*)—Registration—Qualifications of Registrar.

Even if a statute required the registrar in town elections to be a freeholder, that a registrar was not a freeholder would be a mere irregularity, which would not affect the result of the election, if not in fact prejudicial.

[Ed. Note.—For other eases, see Elections, Cent. Dig. § 48; Dec. Dig. § 55.*]

5. Elections (§ 201*) — Conduct — Polling Places—Establishment.

Revisal 1905, § 2940, providing that, if a town is not divided into wards, there shall be as many polling places as may be established bythe governing body of the town, the polling places may be fixed by the governing authorities.

[Ed. Note.—For other cases, see Elections, Cent. Dig. §§ 176, 177; Dec. Dig. § 201.^*]

6. Elections (§ 201*) — Conduct — Polling Places—Establishment.

The fixing of the polling places is an essential part of an election, and they should be established and fully advertised.

[Ed. Note.—For other cases, see Elections, Cent. Dig. §§ 176, 177; Dec. Dig. § 201.*]

7. Municipal Corporations (§ 918*)—Bonds —Popular Vote—Requisites.

Under the direct provisions of the charter of the town of Hendersonville (Priv. Laws 1901, p. 216. c. 97). the issue of bonds by the town shall be determined by a majority of those voting on the proposition, so that a majority of the qualified electors was not necessary to authorize the issue.

TEd. Note.—For other cases, see Municipal Corporations, Cent. Dig. 1919-1923; Dec. Dig. § 918.*]

8. Elections (§ 229*)—Count of Votes—Errors—Effect of Illegal Votes.

The result of an election will not be disturbed because of illegal votes received or legal votes tendered, unless the aggregate of such votes would change the result of the election.

[Ed. Note.—For other cases, see Elections, Cent. Dig. § 201; Dec. Dig. § 229.*]

Appeal from Superior Court, Haywood County; Ferguson, Judge.

Action by the Town of Hendersonville against J. H. Jordan. From a judgment for plaintiff, defendant appeals. Affirmed.

It appeared that defendant had prepared, ready for delivery, $18,000 of corporate bonds, for the purpose of raising money to pave certain streets and sidewalks of the town, the issue having been sanctioned and approved by the voters of the town, at an election held to determine this question; that defendant had made an offer to buy the bonds at a specified price, and, the offer having been accepted by plaintiff, defendant resists compliance, alleging that the bond issue is invalid. The court held that the proposed issue of bonds was legal and valid, and gave judgment for plaintiff, whereupon the defendant excepted, assigning error as follows:

"Exception No. 1. That the court should have held that the law required that there should be three judges, as provided by section 1, c. 97, p. 216, Priv. Laws 1901, appointed to hold the election, and that bis honor's holding that two judges were sufficient is error, to which ruling the defendant excepted.

"Exception No. 2. That the court erred in holding that it was not necessary for the registrar of voters for said election to be a freeholder, to which ruling the defendant excepted.

"Exception No. 3. That the court erred in holding that the law did not require said election to be held in the county courthouse, and that the same was lawfully and regularly held at the town hall, where the mayor holds his court, to which ruling the defendant excepted.

"Exception No. 4. That the court erred in holding that it was sufficient at said election for the majority of the qualified voters who voted at said election to carry the proposition and authorize the improvements specified in the proposition, and the court should have held that it was necessary for a majority of the qualified voters of said town to approve said proposition, to this ruling of the court defendant excepted."

The facts established presented the questions indicated in these assignments of error by defendant.

W. A. Smith, for appellant.

McD. Ray and Busbee & Busbee, for defendant.

HOKE, J. (after stating the facts as above). In Commissioners of Hendersonville v. C. A. Webb & Co., 148 N. C.—, 61 S. E. 670, the court held: "The decisions of this state sanction the position that the costs of maintaining the, streets, to the extent and in the manner required for the well ordering and good government of a town, is a necessary expense, and that an indebtedness incurred for such a purpose does not come under the prohibition of section 7, art. 7, of the Constitution, which forbids a municipality to contract a debt, pledge its faith, or loan its credit, etc., except for the necessary expenses thereof, without a vote of the people. Fawcett v. Mt. Airy, 134 N. C. 125, 45 S. E. 1029, 63 L. R. A. 870, 101 Am. St. Rep. 825." And, this being true, the question presented will be determined chiefly by the construction and effect of the statutes applicable to the case. And in reference to the manner of holding municipal elections, canvassing the returns, and declaring the result, etc., the general law as to municipal elections (Revisal 1905, § 2944) provides: "That all elections held in any city or town shall be held under the following rules and regulations, except in the cities of Charlotte and Fayetteville, and the town of Shelby, N. C, and in towns in certain enumerated counties"—the town of Hendersonville not being included in the exception. This general law, therefore (Revisal 1905, §§ 2944-2967, tit. 7, "Elections, " etc.), and the charter of the town, as contained in Priv. Laws 1901, p. 216, c. 97, when it is not inconsistent with the general law, contain the statutory regulations controlling the matter. Wharton v. City of Greensboro, 146 N. C. 356, 59 S. E. 1043. Referring, then, to these provisions of the statute, it appears that this election was properly held under the charge and supervision of a registrar and two judges, instead of three, and that the registrar is not required to...