#### J. B. RIDDLE et al. v. CUMBERLAND COUNTY et al.

(Filed 10 November, 1920.)

1. Schools — School Districts — Taxation—Statutes— Elections— Approval of Voters — Constitutional Law.

Under the provisions of Consolidated Statutes, sec. 5626, the board of commissioners of a county may form special school-tax districts without regard to township lines, and provide for a levy of a tax, when submitted to and approved by a majority of the voters in accordance with the statute.

2. Same — Ballots.

Under a statute which sets out a form of ballot to be used at an election, the use of such form is directory and not mandatory, unless the statute so declares, this matter being within the discretionary power of the Legislature; and the forms prescribed by Consolidated Statutes, sec. 5626, “for special tax” and “against special tax” in an election for the formation of a special school-tax district, will not render the election invalid when a free and fair opportunity has been afforded the voters therein to express their will at the polls, and from the order calling the election and the notice thereof, and from the special facts and circumstances, it appears that the result of the election was in favor of the tax, though voted for upon forms of ballots reading “for” or' “against consolidated schools” of a certain territory within the township.

3. Elections — Schools—Special Districts — Taxation—Voters.

Where school-tax districts already exist within the territory embraced by a proposed new district'to be created for the entire township under the provisions of Consolidated Statutes, sec. 5626, the majority vote of the proposed new district will control the result of the election fairly and freely held, and the contention that a separate election should have been held in the territory not embraced in the old districts is without merit.

Appeal by plaintiffs from Guión, J., at Fall Term, 1920, of Cumber-LAND.

Tbe action was brought to enjoin tbe levy of a school tax in Gray’s Creek Township. A restraining order was granted, and the cause came on before Judge Guión for final hearing, whereupon, after considering *322tbe evidence and finding tbe facts, tbe judge dissolved tbe restraining order and directed tbe commissioners to proceed witb tbe levy of tbe tax. Tbe following facts were found by tbe judge:

“Tbis cause coming on to be beard at tbe time and place agreed on by counsel for tbe bearing under tbe restraining order heretofore issued by bis Honor, C. C. Lyon, and being beard upon tbe complaint and answer herein, and tbe exhibits and affidavits, and tbe oral testimony of D. L. Downing, register of deeds and ex officio clerk of tbe board of commissioners of Cumberland County, tbe court finds tbe facts to be as follows:

“1. That a petition signed by one-fourth of tbe freeholders of Gray’s Creek Township, Cumberland County, North Carolina, asking for a special school tax for tbe entire township, duly indorsed and recommended by tbe board of education of Cumberland County to tbe board of commissioners of said county, was duly filed witb said commissioners, considered, and favorably acted upon by them on 7 June, 1920, and an election ordered thereunder to be held on 7 July, 1920, and then and there at tbe said meeting N. H. Jones was appointed as registrar, and Frank Marsh and H. T. Budd as judges.

“2. That tbe said clerk of tbe board of commissioners was not present when tbe petition was acted upon by tbe board of commissioners, and that tbe petition did not actually come into bis bands until on or about 21 September, 1920.

“3. That tbe said petition and action thereon were regular and sufficient,. and that sufficient notices were posted, giving notice of said election, and also proper and sufficient advertisement was published in tbe Fayetteville Observer, a newspaper published in said county.

“4. That pursuant to tbe order and notice, tbe election was held on 17 July, 1920, at which election 126 qualified voters voted a ballot 'For consolidated schools, Gray’s Creek Township,’ and 35 qualified voters voted a ballot 'Against consolidated schools, Gray’s Creek Township,’ and that there were 183 voters in said township qualified for tbe said election.

“5. That tbe said vote was canvassed by tbe election officers, tbe result declared, and a report made to tbe commissioners of Cumberland County and accepted by them, as appears in tbis record.

“6. That 108 of tbe qualified voters of Gray’s Creek Township fully understood tbe proposition before them to be for a special tax as- appears by affidavits herein; that they were not deceived or misled by tbe wording of tbe ballots, -which ballots read, 'For consolidated schools, Gray’s Creek Township,’ and 'Against consolidated schools, Gray’s Creek Township,’ and that tbe election was a free and fair expression of tbe will of tbe people on tbe proposition of tax or no tax for tbe township for school purposes.

*323“I. That said township bas bad for several years two special-tax school districts, and three nonspecial-tax school districts, the said five districts comprising the entire township.

“8. That less than one-fourth of the freeholders of the nonspecial-tax districts signed the petition for the election, and less than a majority of the qualified voters of the nonspecial-tax districts voted ballots reading, ‘For consolidated schools, Gray’s Greek Township,’ and that the freeholders signed the petition and the qualified voters voted at the election without regard to school district lines. •

“9. That a majority of the qualified voters of said township voted at said election for consolidation, which they understood carried with it a special tax for school purposes, in accordance with the petition for and notice of the said election, and the court so finds.

“It is now, therefore, ordered, adjudged, and decreed that the said election be, and the. same is hereby declared valid and sufficient to authorize, and does authorize, the levy and collection of a special tax, as asked for in the petition; that the restraining order heretofore issued in this cause be, and the same is hereby dissolved; that it is the duty of the said commissioners of Cumberland County to levy tax, and they are hereby so directed to do, and it is further decreed that the defendants go hence without day and recover their costs of the plaintiffs and their sureties. O. H. GuioN, Judge ”

To the foregoing judgment plaintiffs excepted and appealed to the Supreme Court.

The petition for the election, which was filed with the board, with the order thereon, and the notice of the election, all being mentioned in the judgment of the Court, are as follows:

To the board of County commissioners of ■ Cumberland County, North Carolina:

We, the undersigned freeholders constituting one-fourth of the freeholders in Gray’s Creek Township, Cumberland County, North Carolina, most respectfully petition your honorable board for an election to ascertain the will of the qualified voters within Gray’s Creek Township, said county and State, whether there shall be established a special school-tax district in and for and comprising Gray’s Creek Township, said county and State, as the boundaries of said township are now constituted, with the annual tax of not more than 30 cents nor less than 10 cents on the one hundred dollars valuation of property under the valuation ordered by the General Assembly of North Carolina at its session in 1919, or subsequent valuations, and not more than 90 cents and not less than 30 cents on the poll, for the purpose of supplying the public school fund *324fpr said district and maintaining a bigh school as may be required by law. And whether the said township school district, through its proper school officials or authority, shall issue and sell bonds in an amount not exceeding $25,000 to run for a period of twenty years, the proportionate parts thereof being payable annually during the said term, and the tax levy to be sufficient hereunder to pay the interest and maturing bonds from year to year, the proceeds of said bonds to be paid to the proper school authorities of the said district for the purpose of erecting proper building or buildings fpr a public school under the law, rules and regulations governing the same, and for the purpose of purchasing a site for said buildings and the equipment of the said schoolhouse and buildings, and such accessories and transportation equipment as the governing authorities may deem necessary, and upon the voting of the said tax and sale of the bonds of Gray’s Creek Township, then the existing tax in and for King Hiram and Gray’s Creek districts in the said township shall automatically cease, and not be levied thereafter,. such vote repealing the existing tax provided for in'said districts,, but a failure of the said vote hereby petitioned for shall not disturb or repeal the said existing tax, or existing school district boundaries within the said township. (Here the names of petitioners are set forth.)

Petition was filed and following order made: Ordered that a special election be held in Gray’s Creek Township for the purpose of a special school tax on 17 July, 1920.

Notice of ElectioN.

Notice is .hereby given that the Cumberland County board of commissioners have called a special election to be held in Gray’s Creek Schoolhouse, in Gray’s Creek Township, on 17 July, to ascertain the will of the people of that territory comprising Gray’s Creek Township lying and being in the county of Cumberland, as to whether there shall be levied a special tax of not more than 30 cents on the one hundred dollars valuation of property and 90 cents on the poll, and not less than 10 cents on the hundred dollars valuation of property and not less than 30 cents on the poll to supplement the funds apportioned to said district according to the acts of the Legislature of 1911.

It is further ordered that Neill Jones be and he is hereby appointed registrar for said election, and it is further ordered that Frank A. Marsh and Tom Budd be and they are hereby appointed judges of said election. It is further ordered that a new registration shall be made, and that the election shall be held under the general laws of 1901, and all acts amendatory thereof as near as may be, and that returns shall be made to the board of Cumberland commissioners at their next'regular meeting. (Duly signed)

*325Plaintiffs assigned tbe following errors :

1. Tbe court erred in rendering tbe judgment and decree set out in tbe record.

2. Tbe court erred in dissolving tbe temporary restraining order, and refusing to continue tbe same until tbe final bearing.

3. Tbe Court erred in finding as a fact tbat one hundred and eight of tbe voters in said election fully understood tbat they were voting for a special tax for Gray’s Creek Township, when tbe record shows conclusively tbat they did not vote for such tax, but voted only for “Consolidated schools, Gray’s Creek Township,” and such a ballot carries with it a conclusive presumption contrary to tbat of special tax.

4. Tbe court erred in finding as a fact tbat a majority of tbe qualified voters of Gray’s Creek Township understood tbat their vote for consolidation carried with it a special tax for school purposes, for tbe same reasons set out in tbe third assignment of error.

5. Tbe court erred in.adjudging tbat said election was valid and sufficient to authorize tbe levy and collection of said tax, and to bis ordering and directing tbe commissioners to levy and collect tbe same. ■ 6. Tbe court erred in directing a special school tax to be levied in tbe three nonspecial school-tax districts of said township, as less than one-fourth of whose freeholders signed tbe petition for said election, and less than a majority of whose qualified voters voted in said election “For consolidated schools, Gray’s Creek Township,” tbe voters in tbe said township as a whole having been allowed to vote, including those in tbe two special school-tax districts, same being equivalent to voting a tax on others tbat they do not have to pay themselves, tbe new territory being tbe only district tbat tbe election, in effect, required tbe levy of any additional tax upon, with tbe “automatic” discontinuance of tbe tax in tbe same amount in tbe two old special-tax districts.

Bullard & String-field for plaintiffs.

Sinclair & Bye and Oates & Herring for defendants.

"Walker, J.,

after stating tbe case: It is provided by statute tbat special-tax districts may be formed by the county board of education in any county, without regard to township lines under tbe conditions which are therein set forth. Consol. Statutes, sec. 5526. Those conditions refer altogether to tbe levy of a tax to provide a supplementary fund for tbe support of schools in tbe district, and this tax is not to be levied unless approved by a majority of voters at an election to be held to ascertain tbe will of tbe people, residing in tbe proposed district, with regard to it. Machinery is provided for bolding tbe election, and it is required tbat tbe ballots to be used shall have printed or written on them *326“For special tax” and “Against special tax.” There is no provision that the use of such ballot shall be essential to the validity of the election, or that it shall be void if they were not used, but the statute simply designates what kind of ballots shall be used by the voters to express their choice. The provision of the statute, under the facts and circumstances of this case, where the form of the ballots cannot affect the merits, should be considered as directory and not mandatory. There is no intimation in the law that a failure to comply with it in this respect should render the election void. It was merely a convenient form of ballot designated to express the will of the qualified voters upon the question submitted to them, and the ballots used by them and the surrounding circumstances show clearly and unmistakably what their intention was, so that no doubt whatever can exist as to it. If the statute' expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statutes must so hold, whether the particular act in question goes to the merits or affects the result of the election or not. Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, the statute provided that certain acts or things shall be done within a particular time, or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory, if they do, and directory if they do not, affect the actual merits of the same.

This is the rule gathered by an able text-writer from the authorities (McCrary on Elections, secs. 187 to 190, both inclusive), and has been more than once adopted and approved by this Court. Briggs v. City of Raleigh, 166 N. C., 149-154. It has been held by us that statutes prescribing rules for conducting popular elections are designed chiefly for the purpose of affording an opportunity for the free and fair exercise of the right to vote.' Such rules are directory, not jurisdictional or imperative. Only the forms which affect the merits are essential to the validity of an election or the registration of an elector. This is, of course, subject to the rule as to the imperative or mandatory character of the statutory requirement. DeBerry v. Nicholson, 102 N. C., 465. When it has been found as a fact by the lower court that every qualified voter has had a fair and ample opportunity to register and vote, an election declaring for a special school tax will not be held invalid because of an irregularity not pertaining to the merits. This was substantially said in Younts v. Comrs., 151 N. C., 582. It was held in Briggs v. City of Raleigh, supra, that an irregularity in the conduct of an election which does not deprive a voter of his rights or admit a disqualified person to vote, which casts no uncertainty on the result, and which was *327not caused by tbe agency of one seeking to derive a benefit from tbe result of tbe election, will be overlooked when tbe only question is wbicb vote was greatest. Tbe same principles are applicable to tbe rules regulating tbe registration of electors. Tbis liberal rule of tbe law relating to elections, where not forbidden by tbe language of tbe particular statute of a mandatory character, is thus stated and applied in Hawes v. Miller, 56 Iowa, 395, at 396-397: “These county-seat elections are governed by tbe same rules that are applicable to tbe election of officers. In canvassing votes of electors their intentions must be ascertained from their ballots, wbicb must be counted to accord with such intentions. If tbe ballots express such intentions beyond a reasonable doubt it is sufficient, without regard to technical inaccuracies, or the form adopted by tbe voter to express bis intentions. Of course tbe language of a ballot is to be construed in tbe light of all facts connected with tbe election; thus, tbe office to be filled, tbe names of tbe candidates voted for, or tbe subject contemplated in tbe proposition submitted to tbe electors, and tbe like, may be considered to aid in discovering the intentions of tbe voter,” citing S. v. Cavers, 22 Iowa, 343; Cattell v. Lowry et al., 45 Iowa, 478; Carpenter v. Ely, 4 Wis., 438; The People v. Matteson, 17 Ill., 167; The People v. McManus, 34 Barb., 620; The State ex rel. v. Elwood, 12 Wis., 552; Railroad Co. v. Bearss, 39 Ind., 600; State ex rel. Phelps v. Goldthwait, 16 Wis., 146. In tbe construction of statutes regulating elections, it is important to keep in mind two recognized principles: (1) Tbe legislative■ will is tbe supreme law under tbe Constitution, and tbe Legislature may prescribe tbe forms to be observed in tbe conduct of ’ elections, and provide that such method shall be exclusive of all others; (2) since tbe first consideration of tbe State is to give effect to tbe expressed will of tbe majority, it is directly interested in having each voter cast a ballot in accordance with tbe dictates of bis individual judgment. Eecognizing tbe principle first above stated, tbe courts have uniformly held that when tbe statute expressly or by fair implication declares any act to be essential to a valid election, or that an act shall be performed in a given manner and in no other, such provisions are mandatory and exclusive. 15 Cyc., 317. Tbe vital and essential question is, if tbe statute be not mandatory in its terms, in wbicb case a failure to comply with it is fatal, whether noncompliance with it or a mere irregularity will avoid an election, if it does not affect tbe merits. Our decisions, and those of other States upon tbe same question, are to tbe effect that it will not in tbe specified instances.

We have discussed tbe question very fully in Hill v. Skinner, 169 N. C., 405, and Hill v. Lenoir Co., 176 N. C., 572, and as to at least one feature of tbe question in Reade v. Durham, 173 N. C., 668. In *328the last ease we permitted the time when the recent constitutional amendments should take effect and be in force to be determined by something that did not appear on the ballots, and in the other case we disregarded irregularities and matters of form which did not affect the merits or ■the substance. It was required, in a special act, or charter, that election ballots were required to be of a certain kind, without declaring that those which were not of that kind should be void, and excluded from the count, and this Court held that, as there was no such declaration as that above stated in the statute, ballots of a different kind, cast in an election held under the statute were a mere irregularity, which did not exclude them from being included in the count of votes. Wright v. Spires, 152 N. C., 4. The Court said in R. R. v. Comrs., 116 N. C., at pp. 568-569: “We think the object of all elections is- to ascertain fairly and truthfully the will of the people — the qualified voters. That registration, notice of elections, pollholders, judges, etc., are all parts of the machinery provided by law to aid in attaining the main object — the will of the voters; and should not be used to defeat the object which they were intended to aid. This being so, it is held that a substantial compliance with the provisions of the statute, under which the election is held, is sufficient. . . . They have no power to issue the bonds demanded by plaintiff, unless a majority of the qualified voters voted for the subscription. But, having the power to submit the question, a substantial compliance with the formalities of the statute in submitting the question to the people, if there was no fraud practiced, and no design in doing so to impose on the people and get them to do what they would not have done if there had been a literal compliance with the terms of the statute in submitting the question, is sufficient. And if a majority of the qualified voters of the county voted for the subscription, it is the duty of defendant to issue the bonds.”

In this case it appears that in the order calling the election, and in the notice thereof, it was stated clearly and distinctly what was the question submitted to the voters, it being whether or not a tax of thirty (30) cents on property and ninety (90) cents on the poll should be levied for a particular school purpose. We have seen that the wording of a ballot is to be read and considered in the light of all the facts and circumstances connected with the election, and the subject contemplated in the question submitted to the voters, so as to discover or determine the intention of the voters, or what they meant when they cast their ballots. Thus considered, it cannot be successfully questioned that a large majority of those qualified to vote cast their ballots in favor of the levy .of the tax, though the form of the ballots was for the consolidation of the separate 'districts into one. The phraseology of the statute was such that a vote for consolidation was in effect one for the levy of the tax, for the one *329could not exist without the other — they must coexist. The case, therefore, is even stronger in favor of the validity of the election than some of those we have cited. Faison v. Comrs., 171 N. C., 411, and Keith v. Lockhart, ibid., 451, in the last view taken of this case, are substantially “on all fours” with this one, and sufficiently so to control our decision of it. In those cases the ballots read “Stock law” or “No stock law,” and we held that they were impliedly ballots for “Tax” or “No tax,” as the statute, under which the election was held, provided that a tax should be levied to pay for a county fence of the majority voted for a free range territory, or no stock law.

There is nothing in the contention that a separate election should have been held in the territory not embraced in the old district, as that territory was consolidated with them into one school district and the election was ordered to be held in the new territory to be known as Gray’s Creek Township. The entire township was to be established as a single school district, and the vote was to be taken accordingly. Those of the township who did not reside in the former 'school-tax districts were as much entitled to vote freely and unreservedly upon the question as those who did. If we should undertake to review the judge’s findings of fact, our conclusion would be the same as his. It is perfectly plain that the voters of the proposed new school district were thoroughly aware that they were voting for the school tax. All of them so testified, or nearly all.

There was not, even “in effect,” anything, done which discriminates against those in the three districts untaxed under the former law, nor which allowed those in the two taxed districts to levy a tax upon -those in the other districts, which they themselves did not have to pay. The case of Comrs. v. Lacy, State Treasurer, 174 N. C., 141, does not apply. The election was held in the township as one entire school district, every voter having an equal right with the others to cast his vote, and thereby to express his will. There was no suggestion of fraud or other irregularity. If any one failed to exercise his right to vote it was his own fault, and he has only himself to blame, and- must abide the result.

The other exceptions were formal, and, if not so, are untenable.

¥e affirm the judge’s ruling, because there is no error therein, and it will be so certified.

Affirmed.