Woodall v. Western Wake Highway Commission

• Decision Date: 06 November 1918
• Docket Number: 258.
• Parties: WOODALL ET AL. v. WESTERN WAKE HIGHWAY COMMISSION.
• Court: North Carolina Supreme Court

97 S.E. 226

176 N.C. 377

WOODALL ET AL. v. WESTERN WAKE HIGHWAY COMMISSION.

No. 258.

Supreme Court of North Carolina

November 6, 1918

Appeal from Superior Court, Wake County; Stacy, Judge.

Action by L. B. Woodall and others against the Western Wake Highway Commission. From judgment for defendant, plaintiffs appeal. No error.

Legislature in its discretion, had power to create a road tax district to work only one highway, as by Pub.Loc.Laws 1917, c. 68.

This action was brought by the plaintiffs to enjoin the issuance of $130,000 of bonds authorized by an election held on the 27th day of February, 1917, pursuant to the provisions of chapter 68 of the Public Local Laws of 1917, creating the Western Wake Highway District. The act provides that the bonds shall be issued if a majority of those voting at the election approve it. The act was duly passed in accordance with article 2, § 14, of the Constitution.

It was a new registration, and 379 were registered at the two precincts of Cary and Method. Of this number 231 voted for bonds, and 133 voted against bonds, and 15 did not vote. In the complaint, and several amendments which were filed thereto, the plaintiffs alleged that 104 of those who voted for bonds were disqualified. It appears that none of these voters was challenged on the day of the election or prior to the election.

The defendants in their answer alleged that of those who voted against highway improvements quite a number were disqualified, and the plaintiffs in open court admitted that of these attacked by the defendants 7 were disqualified, and deducted these 7 from those who voted against bonds, leaving 126 votes cast against bonds.

If we deduct all the 104 votes attacked by the plaintiffs, and voting for bonds, from the total vote cast for bonds, it leaves 127, which is one majority of the votes cast, so that upon the final count it seems that a majority of one voted for bonds. This is set out fully in a part of the judge's charge to which there is no exception, and under the charge and the evidence the jury found, in answer to the second issue, that the election was carried by a majority of the qualified voters voting. The plaintiffs say that, if this is conceded, the construction of the highway was not a necessary expense, and that therefore the bonds could not be legally issued unless they were carried by a majority of the registered qualified voters.

To meet this contention of the plaintiffs the court submitted to the jury the third and fourth issues, and the jury found, in answer to the third issue, that the election was carried by a majority of the registered qualified voters, and in answer to the fourth issue that this majority was 17. Of the 104 voters of the majority who were attacked by the plaintiffs, the defendants admitted that 57 of them were disqualified for various reasons, and denied that the balance of 47 were disqualified. During the progress of the trial the defendants admitted that of the 47 the evidence had shown 4 to be disqualified, to wit, Donnie Crump, Jerry Hogan, Madison McCoy, and H. H. Waddell, leaving 43 voters in controversy, who were attacked by the plaintiffs, and the qualifications of these 43 were submitted to the jury to be determined by them. In addition to the 7 who voted against bonds and who were admittedly disqualified, the defendants attacked 13 others who voted against bonds, and 4 who were registered but did not vote. Of this number the defendants during the progress of the trial and after the evidence was introduced, admitted that the disqualifications of 4 had not been shown, but the defendants contended that certain others (naming them) were disqualified, all of these voting against bonds except 2, who did not vote. The qualifications of these voters who were attacked by the defendants were submitted to the jury to determine under the evidence and charge of the court. The plaintiffs' brief discusses only the exceptions relating to the qualifications of all of the voters whose right to vote was attacked either by the plaintiffs or the defendants, and raised several issues in the case. Of these there were 11, 4 of whom voted against the issuing of bonds, and their qualifications were denied by the defendants, and the remaining 7 voted for bonds, and their votes attacked by the plaintiffs.

As the jury found that the election was carried by a majority of 16 of the registered qualified vote, it is apparent that, even if the appellants should be right in their contention as to all 11 of said voters, there would still be a majority of such vote in favor of the bonds. It may therefore be unnecessary to consider these exceptions, but we will presently refer to them to some extent.

The following are the several grounds upon which the plaintiffs allege in their complaint and amendments thereto that the act in question, and the election held thereunder, are invalid:

(1) The plaintiffs contend in paragraph 6 of their original complaint that in order for the bonds to be lawfully issued, and the levy of a tax to be authorized, it is necessary that a majority of all the qualified voters of the district should have approved the same.

(2) It is next contended by the plaintiffs, in section 9 of their complaint, that the act is invalid for the following reasons (a) The Legislature could not create this road district and include the incorporated town of Cary, when the road to be improved comes only to the corporate limits of the town. (b) The Legislature cannot create a road tax district to work only one highway in the district. (c) The Legislature cannot pass an act creating a special road district, and in said act direct that a highway already improved should be further improved. (d) The Legislature cannot pass an act authorizing the board of commissioners of the town of Cary to appoint judges and poll holders of the election. (e) The Legislature had no power to pass an act authorizing the levy of taxes and the issuance of bonds by a special tax district upon the vote of a majority of those actually voting at the election called thereunder.

(3) In paragraph 11 of the original complaint it is alleged that the act is invalid for the reason that no provision is made for advertising the sale of the bonds and calling for bids, and for selling the bonds to the highest bidder, but that the highway commissioners are given power and authority to negotiate and sell the bonds at such price, at or above par, as they, in their discretion, may deem best.

(4) In the amendment to the complaint, which was filed on April 3d, it is alleged that the act is invalid because the constitutional amendments which were adopted at the election of 1916 took effect in November of that year.

(5) In the amendment to the complaint filed before the referee, on April 14th, it is alleged that the names of many persons were improperly placed upon the registration books of the road district, because the registrars did not administer the oath to them, and did not see some of the persons, but the names of the latter were handed by others to the registrars, who then entered the names on the registration books.

The following verdict was returned by the jury:

"(1) Was the act creating the Western Wake County Highway District passed in accordance with article 2, section 14, of the Constitution? Answer: Yes. (Answered by consent.)

(2) Was a majority of the qualified votes cast in the special election held on February 27, 1917, 'For Highway Improvement'? Answer: Yes.

(3) Did a majority of the registered qualified voters resident is said Western Wake County Highway District vote 'For Highway Improvement' in the special election held on February 27, 1917? Answer: Yes.

(4) If so, by what majority of the registered qualified vote was said election carried? Answer: Sixteen.

(5) Was the election in said district conducted by the officials with such utter disregard of the requirements of law as to render same null and void? Answer: No."

Judgment upon the verdict, and plaintiffs appealed.

Manning & Kitchen of Raleigh, for appellants.

Robt. W. Winston, J. Crawford Biggs, R. N. Simms, A. Jones & Son, and Douglass & Douglass, all of Raleigh, Templeton & Templeton, of Cary, and Jones & Bailey, of Raleigh, for appellee.

WALKER, J. (after stating the facts as above).

We will now discuss the exceptions urged by the plaintiffs to the validity of the act and the election in the order we have stated them.

First. Is it necessary that the issuance of the bonds in question should be approved by a majority of all the qualified voters in the district?

The act under consideration provides that the bonds shall not be issued unless a majority of those in the district who are qualified and vote at the election shall decide in favor of them. The answer to this question depends upon whether the improvement of the public roads of a special road district in a county is a necessary expense, for, if it is, the Constitution does not require that the question should be submitted to the voters of the district at all, but the Legislature, in creating a special road district, may provide that the bonds shall be issued (1) without a vote of the people (2) only after a majority of those voting have voted for the issuance of the bonds, or (3) only after a majority of all the qualified voters of the district have voted for the bonds, and in either contingency the bonds are valid obligations of the district, provided the statute creating the road district has been enacted by the Legislature in accordance with article 2, § 14, of the Constitution, which provides that a taxing bill shall be passed on three several days, and the ayes and noes be recorded in the journal of each house upon the second and third readings, which is...