#### C. F. BOWMAN v. JULIUS POOVY.

(Filed 1 December, 1909.)

1. Taxation — Special Tax — Re-canvass — Elections — Fraud — Evidence, Immaterial.

Upon an issue as to whether the majority of the qualified voters in a certain school district voted in favor of a special school tax, the registrar and judges of election declared one result, and, subsequently, the registrar, and one of the judges of election again canvassed the votes and certified to the county commissioners another result. Held, that evidence to show alleged misconduct in the re-canvass is incompetent.

2. Taxation — Special School Tax — Elections—Non-Residents—Questions for Jury.

In an action to determine the true result of an election held for the purpose of voting a special school tax, it appeared that the result was really to be determined by whether a certain voter living nearest to the dividing line of the district was a qualified voter or not; and the verdict of the jury, upon legal evidence and under a proper charge, having found the location of the line in *387question in favor of defendant’s contention, and thereby established. the fact that the voter was a non-resident, it is conclusive of the question.

Appeal by plaintiffs from Justice, J., May Term, 1909, of Catawba.

The facts are stated in the opinion of tbe Court.

W. A. Self for plaintiffs.

A. A. Whitener and E. B. Gline for defendants.

Clark, C. J.

This is an action to have it judicially determined that at a school-tax election held in District No. 13, in Catawba County, on 11 April, 1908, the majority of the qualified voters did not vote in favor of the said special tax.

The jury find, by consent: (1) That the registrar and judges of election, on the night of the election, counted the ballots and declared the result to be: registered voters, 54; voting for the special tax, 27; against special tax, 26. (2) That on 25 April the. registrar and one of the judges of election again canvassed the votes fend signed the certificate sent to the county commissioners, showing: registered qualified voters, 49 ; votes in favor of the special tax, 25; against special tax, 24; not voting, 1 — and declaring the special tax adopted.

Upon the issues and undisputed facts in this trial, the facts were found to be that there were 47 registered qualified voters, of whom 24 voted in favor of the tax and 23 against.

The exceptions based upon the exclusion of evidence offered to show the alleged misconduct in the recanvass of the vote, and declarations of the poll holders in regard to it, need not be considered. This action being to determine the true result of the election, the only pertinent inquiry is as to what occurred on that day — how many duly qualified electors there were, and how many voted for the special tax. Upon this investigation the result is really determined by the answer to the fourth issue, as to whether C. F. Bowman was a qualified voter or not, as he was nearest the dividing line between District No. 13 and District No. 1, of those who, voting against the tax, were found to be nonresidents. Upon that issue the jury, upon legal evidence and under a proper charge, found as a fact that said line so ran as to sustain the defendant’s contention that said Bowman did not reside in District No. 13 and was not therefore a qualified voter. This, taken in connection with the findings of fact by his Honor, from an inspection of the pleadings, and the undisputed facts, determines the result.

No error.