Hill v. . Skinner

AlleN, J.,

dissenting: The authorities in this State go very far in sustaining elections when there is no evidence of fraud, and properly so, but it has not yet been held that an election is valid when a new registration has been ordered and no notice of the registration has been published, and when full opportunity has not been given to all electors to register.

As said by Associate Justice Walicer, in the opinion of the Court, “The law does not provide for notices of an election and the registration of voters, a preliminary thereto, as mere idle ceremonies, to be given or not as may suit the whims or convenience of those who have the calling and conduct of the election and its machinery in charge, but it is intended to be a serious and important part of the procedure under which the election is called and held, and is not to be neglected or omitted, under any circumstances, by those to whom has been intrusted the duty of complying with the law. It has always to be considered as an essential to a regular election, and not as a mere nonessential which will have no weight with the courts as to the validity of an election, for the contrary is true.”

Speaking to the same point, and discussing the necessity of complying with the law as to registration, Chief Justice Merrimon said in Smith v. Wilmington, 98 N. C., 349 : “To render it effectual — to make it serve the purpose of the law — it must be made by the proper officers, in the way and manner and at the times prescribed by law. The statutory regulations in such respects are not simply directory; they are in their substance mandatory as well; they do not simply imply discretion in those authorities charged with the execution of them, and, moreover, to allow the exercise of such discretion in respect to a matter essential, affecting the rights of individuals and the public of great moment, *417 might — would, no doubt, oftentimes — lead to private and public wrong, and serious confusion”; and again, in Van Amringe v. Taylor, 108 N. C., 198 : “The ascertainment of the popular will or desire of the electors under the-mere semblance of an election unauthorized by law is wholly without legal force or effect, because such election has no legal sanction. In settled, well regulated government the voice of the electors must be expressed and ascertained in an orderly way prescribed by law. It is this that gives order, certainty, integrity of character, dignity, direction, and authority of government to the expression of the popular will. An election without the sanction of the law expresses simply the voice of disorder, confusion, and revolution, however honestly expressed. Government cannot take notice of such voice until it shall in some lawful way take on the quality and character of lawful authority. This is essential to the integrity and authority of government. An essential element of a valid election is that it shall be held by lawful authority, substantially as prescribed by law. It is not sufficient that it be conducted honestly; it must as well have legal sanction. The statutory provisions and regulations in respect to public elections in this -State must be observed and prevail, certainly in their substance. Otherwise, the election will be void, and so treated. Therefore, the contention that if the election in question was simply conducted fairly and honestly it was valid, is unfounded.”

These decisions are not in conflict with the North Carolina cases commented on in the- opinion of the Court, and all may be reconciled upon the ground that while the courts will not set aside elections because of slight deviations from statutory requirements, which have not -affected the result, the directions of the statute must be substantially complied with or the election will have no legal effect; and if this is the law, I do not think a notice of a new registration published for fifteen days is a substantial compliance with a statute requiring it to be published thirty days, or that keeping the registration books open for eight days is a substantial compliance with a statute requiring twenty days; and that is the case before us.

The importance of compelling obedience to the restrictions imposed by the General Assembly is growing each year. The luxuries of one age become the necessities of the next, and no one can foresee what may be included in the class of expenses called necessaries within the near future. The tendency towards large bond issues for public improvements is also increasing, and the bond issue .in this case amounts to one-half million of dollars. Only a few years ago it was held by this Court that debts created for sewerage, for waterworks, and for electric lights were not for necessary expenses, and that they must be approved by the people at the polls; but these decisions have been reversed, and now the gov- *418 eming authorities of a city may issue bonds in large amounts for these purposes without consulting the people who have to pay them.

The only safeguard left is that, although the debt is for necessaries, the General Assembly may require an election to be held, and may prescribe the rules and regulations for conducting it; and I do not think it wise to destroy or minimize this protection.

A different question might be presented if the bonds had been issued and were in the hands of innocent holders, but no harm can come when, as in this ease, no rights have accrued, in requiring the question of issuing the bonds to be again submitted to the people at an election held according to law.

If eight days is a substantial compliance with a statute requiring twenty, where shall we stop? Will it be held that five days, or three days, or no days at all are sufficient ? Has not the elector who is opposed to a bond issue the right to rely upon the law and to refuse to participate in an election illegally held ?

Hoke, J., concurs in the dissenting opinion.