Wilmington, O. & E.C.R. Co. v. Onslow County Com'rs

• Decision Date: 19 March 1895
• Citation: 21 S.E. 205,116 N.C. 563
• Parties: WILMINGTON, O. & E. C. R. CO. v. BOARD OF COM'RS OF ONSLOW COUNTY.
• Court: North Carolina Supreme Court

21 S.E. 205

116 N.C. 563

WILMINGTON, O. & E. C. R. CO. v. BOARD OF COM'RS OF ONSLOW COUNTY.

Supreme Court of North Carolina

March 19, 1895

Appeal from superior court, Lenoir county; Boykin, Judge.

Action of mandamus by the Wilmington, Onslow & East Carolina Railroad Company against the board of commissioners of Onslow county. From a judgment of nonsuit, plaintiff appeals. Reversed.

A. M Waddell and N. J. Rouse, for appellant.

M. DeW. Stevenson, for appellee.

FURCHES J.

This action is for a mandamus to compel defendant to issue to plaintiff $30,000 in coupon bonds, under an act of the legislature of 1885, c. 233, as amended by the act of 1887 c. 89, in which plaintiff contends that defendant submitted the question under said acts to the qualified voters of Onslow county, and that a majority of the qualified voters of said county voted in favor of "subscription," thereby authorizing and making it the duty of defendant to issue said bonds to plaintiff. This demand is resisted upon the ground that plaintiff has no right to said bonds, and that defendant is not authorized to issue the same; and defendant alleges that the election held on the 24th day of January, 1888, was irregular, in that the act of 1887 required said election to be held within 40 days, which was not done; that it does not appear that 30 days' notice of said election was given, as the law required; that a new registration was ordered, which was contrary to law, and therefore void; that a majority of the qualified voters of Onslow county did not vote to issue said bonds, and, if they did so vote, it has never been so declared by defendants, and they now refuse so to declare, and to issue said bonds. It is too clear for argument that defendant has no authority to issue the bonds demanded in plaintiff's complaint, unless a majority of the qualified voters of Onslow county have by their vote given, in pursuance of law, authority to defendant to do so. Const. N.C. art. 7, § 7. And on the other hand, it seems clear to us that if a majority of the qualified voters of said county, at an election held under and pursuant to law, have voted for the issue of said bonds, then it is the duty of defendant to issue the same, and the court will compel defendant to do so. Then it is not denied that the acts of 1885 and 1887, supra, authorized the holding of an election, and it is not denied that an election was held under said acts for the purpose of determining the question whether said bonds should be issued or not. This much is undisputed ground. But defendant says, although this is true that said election was held in pursuance of said acts, it was not held according to the requirements of said acts; that said acts required that said election should be held within 40 days from the date of the order of defendant calling the same, and this election was not held within 40 days from the date of the order of defendant calling the same, and is therefore void. But plaintiff, in reply to this, says that time was not of the essence; that being the will of qualified voters, and where it is not shown that there was fraud or design in postponing the election, it will not vitiate or make the election illegal and void (Board of Sup'rs of Fulton county v. Mississippi & W. R. Co., 21 Ill. 338; People v. Cook, 14 Barb. 259; Coles Co. v Allison, 23 Ill. 437); that the time mentioned in the act was not mandatory, but only directory (Grady v Commissioners, 74 N.C. 101). But defendant says, if said election is not void for the reason that it was not held within the time mentioned, there was a new registration of voters ordered, which vitiates and renders said election void, and cites Smith v. Wilmington, 98 N.C. 343, 4 S.E. 489. But, upon examination of this case, we find it is put expressly upon the charter of Wilmington, which provided that there should not be a new registration of voters ordered oftener than once in every two years, and it was shown there had already been one registration during that year; while the general law (Code,§ 2675), which applies to the case now under consideration, expressly provides that the county commissioners may order a new registration before any election, and Chief Justice Smith so states in his dissenting opinion in the case of Smith v. Wilmington, supra. But defendant again says it is not shown that said election had been advertised for 30 days, as the law requires. But, when defendant admits there was an election held under defendant's directions and management, the law will not be so unjust to defendant as to presume that defendant did not perform the duties required by law; but, on the other hand, it will presume it did its duty. But defendant again says, if said election is not void for any of the reasons above stated, it was necessary that the commissioners should pass upon and declare the result of said election; that this has never been done, and they do not propose to do so; and cite Claybrook v. Commissioners, 114 N.C. 453, 19 S.E. 593, as authority for this position. But, upon examination of this case, we find that it holds that if the commissioners...