McDowell v. Massachusetts & Southern Construction Co.

(after stating the facts.) There is error in the first conclusion of law upon which the Court founded its judgment denying the motion for an injunction. It seems to have been governed by what was said — not decided — in Reiger v. Commissioners, 70 N. C., 319, and commented upon in Norment v. Charlotte, 85 N. C., 387. The interpretation suggested in the former case by the late Chief Justice Peah-SON, of the phrase, “ a majority of the qualified voters of the county, city, town, or other municipal corporation,” is not the correct one, as has been expressly decided at the present Term, in the cases of Southerland v. Goldsboro, ante, and Duke v. Brown, ante.

In the latter case, the Chief Justice says that the term “ qualified voters,” as used in Art. YII, §7, of the Constitution, must be construed as embracing “ those whose competency has been passed on in their admission to registration, as prima facie proof of the number, and of course this list being-open to correction for deaths, removals and other causes sub*530sequently occurring, and perhaps for inherent disqualifications existing at the time of registration, and errors in admitting their names to the list.”

An essential requisite of a qualified elector — voter—is, that he shall be registered as such. The Constitution (Art. VI., §§1, 2,) in prescribing the qualifications of electors, declares that the General Assembly shall, from time to time, provide “ for the registration of all electors; and no person ■shall be allowed to vote without registration.”

The obvious purpose of this provision, is to ascertain who are entitled to vote, and to facilitate the exercise of the elective franchise by citizens so entitled, and to prevent unlawful voting, fraud, and confusion in all elections by the people.

A lawful registered elector^ and only he, is a qualified voter in the sense of the Constitution; and, also in the sense •of all statutes, nothing to the contrary appearing. Who were the qualified voters at a particular election, were those, and only those, who were then lawfulty registered. Hence, when an election for any purpose is required to turn and depend upon the vote of a majority of the qualified voters •of a county, city, town or other municipal corporation, and the election has been held, it becomes necessary to look to the registration books of the election to ascertain who were, and the whole number of the registered — “ qualified voters” —at the election, subject to just scrutiny. It seems to us that the interpretation we have thus given to “ qualified voters,” is the necessary as well as the reasonable one.

We may add in this connection, that while the registration of electors is thus essential and very important, opportunity must be offered to all persons eligible to become qualified voters, to register as such, next before each election, as prescribed by law. The law encourages electors to vote, and it provides and intends that each person eligible shall have opportunity to qualify himself to that end, before an approach*531ing election. And. if such, opportunity shall be withheld or denied, on purpose, by accident, or by inadvertence, such denial would vitiate and render void the election, certainly if such denial should materially affect the result. Perry v. Whitaker, 71 N. C., 475; VanBokkelan v. Canaday, 73 N. C., 198.

Nor do we think the second conclusion of law upon which the Court based its judgment, correct. Accepting it as true, that the commissioners of Rutherford county did ascertain and declare the result of the election in question properly and sufficiently — and this by no means appears to be certain — their action in that respect, while it could not be attacked collaterally, was not conclusive, and it might be questioned and contested in an action brought directly for that purpose. It cannot be, that such a determination and exercise of authority by county commissioners, in respect to matters frequently involving questions and rights of great moment, are final and absolutely conclusive. There is certainty no statute that so provides, and the spirit and principle of law in regard to the settlement and determination of the rights of parties and the public, plainly imply the contrary.

The counsel for the appellants in their brief, cited and relied upon Smallwood v. New Berne, 90 N. C., 36. That case is not like, but very different from the present one. It decided that the decision of the mayor and commissioners of the city of New Berne could not be attacked collaterally in an action to restrain the collection of taxes, as was attempted to be done; but the Court said: “If the plaintiff was dissatisfied with the action of defendants in ascertaining the result of the vote in the respect mentioned, he ought, at the proper time, to have brought his action to question the truth and justice of their decision of the matter, and had the same reversed, declared irregular and void, or property modified. There was a remedy, but that remedy cannot be had in an action like this.” Nor did this Court say, or in*532tend to say to the contrary, in Simpson v. Commissioners, 84 N. C., 158; Cain v. Commissioners. 86 N. C., 8; and Norment v. Charlotte, 85 N. C., 387. These cases decide that the decision of the county commissioners in ascertaining the result of an election, cannot be contested collaterally, in an action to prevent the collection of taxes, made necessary by the result of such election. They do however, suggest a remedy that might have been invoked at the proper time.

The chief and leading purpose of this action, is to contest directly the regularity and validity of the election in question, including the ascertainment and declaration of the result thereof by the county commissioners. The plaintiff seeks to have the election adjudged void for the causes alleged, and prays for incidental equitable relief by injunction pending the action, and a perpetual injunction, &c. We can see no reason why this is not competent, although we need not now decide conclusively any question in this respect. It is true, the plaintiff did not bring his action at once after the result of the election was declared, or purported to be declared, to contest its validity, but it was not necessary that he should do so, until some action was about to be taken in pursuance of it. It might be, that the county authorities, seeing the election was irregular and void, would so treat and disregard it, in which case, an action to have it declared void would be unnecessary. It seems that the plaintiff gave notice of his purpose to bring his action, when, and as soon as it became necessary, and that he did bring it promptly after the commissioners manifested their purpose to act upon the result of the election. There is no statutory provision that requires such elections to bo contested at once after they take place, and in a particular manner. It was therefore sufficient for the plaintiff to bring his action within a reasonable period, and in the ordinary method.

Now, the plaintiff alleges in his- verified complaint, that the defendant county commissioners did not cause the elec*533tion mentioned to be held at the written request of one fifth of the qualified voters of the county named, but at the request of a less number; that no notice of the election was given; that the registration books for electors were not opened next before the election as required by law, in consequence of which many persons eligible to be electors did not have opportunity to register as such, and did not do so, and hence did not vote; that many of these persons would have voted against the subscription in question, if they had had opportunity to do so; that a majority of the qualified voters of the county did not vote in favor of “transfer” and “subscription;” that the result of this election was not ascertained and declared in the manner required by law, or at all; that, nevertheless, the defendant county commissioners undertook to subscribe for one hundred thousand dollars of the capital stock of the defendant railway company, and placed in the hands of the defendant Coxe, as trustee, one hundred thousand dollars of the bonds of the county to pay for such stock; that the defendant commissioners threaten to levy a tax on the taxable property of the tax-payers of that county to raise money to pay interest that may come due upon such bonds, and to provide a sinking fund to pay the principal thereof; that the defendants, each and all of them, had notice that a majority of the qualified voters of the county did not vote in favor of such subscription, and also notice of the irregularities and defects in the election as alleged; that the defendant Coxe is not a bona fide holder of the bonds so placed in his hands; that the election was held in August, 1883, but no steps were taken in pursuance of it, until in March, 1886; and that the defendants, knowing of the plaintiff’s purpose to bring this action, covertly caused the bonds mentioned to be partially executed in said county, and clandestinely sent to Philadelphia, in the State of Pennsylvania, where they were finally executed, &c., &c.

*534Unquestionably, the plaintiff alleges a cause of action. The defendants admit some of the material allegations, but they deny that the election was in any material respect affected by irregularities — certainly not by such as rendered it void; and they insist, that the subscription for the capital stock mentioned, was legally and properly made, and also,, that the bonds were in all respects legally issued, and passed into the hands of bona fide holders of them for value, and without notice of the alleged irregularities or defects in the issue of them.

As is our duty in such cases, we have carefully examined the affidavits and documentary evidence produced in support of and against the motion for an injunction. It is not necessary- — -perhaps proper — that we shall analyze it here, or make any formal findings of the facts. It is sufficient to say, that we are fully satisfied that the evidence tends strongly to prove the material allegations of the plaintiff, and we do-not hesitate to decide that the Court ought to have granted an injunction as prayed for, pending the- action, and until the hearing upon the merits. Heilig v. Stokes, 63 N. C., 612; Coates v. Wilkes, 92 N. C., 376 ; Harrison v. Bray, Ibid., 488; Turner v. Cuthrell, 94 N. C., 239; Blackwell v. McElwee, Ibid., 425.

Since the argument before us, the counsel for the appellees have presented for our consideration, an affidavit, in which it is stated that the bonds of the county of Rutherford, mentioned in the pleadings, have, since this appeal was taken, been delivered by the defendant trustee to the defendant the Massachusetts and Southern Construction Company, and it and the defendant the Rutherford Railway Construction Company have in all things and respects-complied with their part of the contract, likewise’ mentioned in the pleadings, &c.

If this be true, and the facts could be brought before us in some appropriate way, it could not affect the chief pur*535pose of this action, which is, to have determined the validity or invalidity of the election in question. The defendants, other than the defendant commissioners, are properly made parties, merely for the purpose of enabling the plaintiff to obtain equitable relief by injunction against them, to prevent all the defendants from doing, under and in pursuance of what is alleged to be an invalid election, such things as might, and probably would, create complication that might prove injurious to the county named and the plaintiff, if the election should be declared void. The purpose is not to settle and determine the defendants’ rights, other than the defendant county commissioners, except incidentally and to a limited extent, by the exercise of the power of restraint by injunction. Whatever the defendants have thus done, has certainly been done with notice of this action, and whatever is embraced by it; and they have proceeded at their peril.

There is error. To the end that an injunction pending the action may be granted, as demanded by the motion in the action for that purpose, let this opinion be certified to the Superior Court according to law. It is so ordered.

Error. Reversed.