Gibson v. Board of Commissioners, 163 N.C. 510 (1913)

Nov. 12, 1913 · Supreme Court of North Carolina

163 N.C. 510

R. D. GIBSON et al. v. BOARD OF COMMISSIONERS OF SCOTLAND COUNTY.

(Filed 12 November, 1913.)

Elections — Registration — Oath of Electors — Duty of Registrar— Right of Electors — Injunction.

It is th(e duty ’of the registrar to administer the oath- to the electors before registration, but bis failure to perform this duty will not deprive the elector of bis right to vote; and where ah election has been held to determine upon the levy of a tax for a public school district, and the registrar has failed in his duty to administer the oath to all of the electors voting in the district, the election will not be held invalid on that account alone, nor will the levying of the tax be restrained.

Appeal by plaintiffs from Webb, Jat June Term, 1913, of SCOTLAND.

This is an action in behalf of'certain citizens and taxpayers' to restrain the levying of a tax for schools in Rockdale Public School District, upon the ground that no legal election .authorizing the tax has been held.

The General Assembly, at its session of 1913, passed an act, which was ratified on 6 March, 1913, creating Rockdale Public School District in Scotland County, and directing an election to be held upon the question of levying a tax to support the schools in said district.

The county commissioners of Scotland County, pursuant to the-'act, ordered the election, and directed that a new registration of voters'be had.

Tbe election was beld, and a majority voted in favor of tbe taz, and tbe vote was properly canvassed and returned, and tbe result of tbe election declared.

At tbe bearing of tbe motion to continue tbe temporary restraining order to tbe bearing, bis Honor found tbe following facts as to tbe registration of voters, wbicb are not disputed:

“Tbat tbe registrar did not administer any oatb to any one of tbe 122 voters whose names were entered in said registration book, but be did examine eacb and every one as to bis qualifications to register for said election.

“Tbat no one of tbe said voters whose names were entered on tbe registration, book offered to be sworn or requested tbe registrar to administer any oatb to him.

“Tbat tbe registrar would have administered an oatb to any or all tbe applicants for registration bad they requested him to do so.

“Tbat no voter within tbe said school district who bad tbe right to register for said election was denied tbe right to register and vote in said election.

“Tbat eacb and every one of tbe 122 voters whose names were entered in tbe registration book bad tbe right to qualify and register for said election.

“Tbat tbe election was beld at tbe time and place designated in tbe order of tbe board of county commissioners.

“Tbat tbe registrar and judges canvassed and judicially determined tbe results of said election and certified tbe same to tbe board of county commissioners at a regular meeting of said ■ board, and tbe said results were by ordei of tbe said board of county commissioners recorded in tbe office of the register of deeds of Scotland County.

“That tbe said results as certified and recorded set forth tbat there were 122 registered electors in said election; tbat of these 65 cast tbeir ballots in favor of tbe school and tbe tax levy, and tbe remaining 57 were counted in tbe results of said election against tbe school and tbe tax levy, and that a majority of tbe qualified electors in said election cast tbeir ballots in favor of-' tbe. school and the tax levy.”

The motion of tbe plaintiffs was denied, the temporary restraining order dissolved, and the plaintiffs excepted and appealed.

Gox ,& Dunn for plaintiffs.

E. II. Gibson and Jonathan Peele for defendant.

Allen, J.

Several irregularities in the registration of voters appear in the record, but counsel for the plaintiffs properly admit that none of them are sufficient to vitiate the election unless the- failure to administer an oath to those offering themselves for registration has this effect.

The question is important, presenting as it does, on one hand the possibility of admitting as voters those not legally qualified, if the requirements of the law are not observed, and on the other, making it possible for registrars, by neglect or fraud, to disfranchise an entire electorate.

In this case there is no evidence of any improper motive on the part of the registrar or of any of the officers connected with the election, but the principle declared cannot be confined to this case, and will be authority in many others.

We have given the question careful consideration, and have concluded, in the interest of a free and full expression of the popular will, to abide by the precedent heretofore established in this Court, and to sustain the election.

In Quinn v. Lattimore, 120 N. C., 426, it was held that the' requirement as to the administration of an oath to the elector before registration was directed to the registrar, and that “Where a registrar of election registers a person entitled, under the Constitution and laws, to vote, but through inadvertence or fraud fails to administer the oath required to be administered, such person shall not be for that reason deprived of his vote.”

It is true that in the Lattimore case all the names on the registration books were not involved, as in this ease; but if the principle is admitted as to one voter, it must logically apply to all.

In 15 Cyc., 307, the author adopts the doctrine of this case, and says: “Statutes prescribing the mode of proceeding of public officers are regarded as directory unless there is something in the statute which shows a different intent. Hence, as a general rule, a statute prescribing the powers and duties of registration officers should not be so construed as to make the right to vote by registered voters depend upon a strict observance by the registrars of all the minute directions of the statute in preparing the voting list, and thus render the constitutional right of suffrage liable to be defeated, without the fault of the elector, by the fraud, caprice, ignorance, or negligence of the registrars; for if an exact compliance by these officers with all statutory directions should be deemed essential to the right of an elector to vote, elections would often fail, and electors would be deprived without their fault of an opportunity to vote. A constitutional or statutory provision that no one shall be entitled to register without first taking an oath to support the Constitution of the State and that of the United States is directed to the registrars, and to them alone; and if they through inadvertence register a qualified voter, who- is entitled to register and vote, without administering the prescribed oath to him, he cannot be deprived of his right to vote through this negligence of the officers.”

We therefore hold that the election was valid, and that the restraining order ought to have been dissolved.

Affirmed.