SMITH, C. J., dissenting. (Perry v. Whitaker, 71 N.C. 475; Southerland v. Goldsboro, 96 N.C. 49; Duke v. Brown, ibid., 127; McDowell v. Construction Co., ibid., 514, and Wood v. Oxford, 97 N.C. 227, cited.) The action is brought by the plaintiffs, taxpayers of the city of Wilmington, and all other like taxpayers who shall join in the same and contribute to the costs thereof, against that city and the other defendants, who are the mayor and aldermen thereof, to contest the validity of an election held on 11 August, 1887, in pursuance of an order made by the said last mentioned parties, in the said city "for the purpose of ascertaining the will of the qualified voters of this city upon the question of a subscription of $100,000 (one hundred thousand dollars) by the city to the capital stock of the Wilmington, Onslow and East Carolina Railroad Company," as provided and allowed by the charter of that company, the statute (Acts 1885, ch. 233, secs. 13, 14).
7. Where in such case, it was made to appear, that since the appeal was taken, the bonds had been delivered; It was held, that it was immaterial. (Norment v. Charlotte, 85 N.C. 387; Southerland v. Goldsboro, ante, 49; Duke v. Brown, ante, 127; Perry v. Whitaker, 71 N.C. 475; VanBokkelan v. Canaday, 73 N.C. 198; Heilig v. Stokes, 63 N.C. 612; Coates v. Wilkes, 92 N.C. 376; Harrison v. Bray, 92 N.C. 488; Turner v. Cuthrell, 94 N.C. 239; Blackwell v. McElwee, 94 N.C. 425; cited and approved. Smallwood v. Newberne, 90 N.C. 36; Simpson v. The Commissioners, 84 N.C. 158; Cain v. The Commissioners, 86 N.C. 8; cited and distinguished. Reiger v. The Commissioners, 70 N.C. 319; commented on).
Forester v. N. Wilkesboro, 206 N.C. 347, 174 S.E. 112; Murphy v. Greensboro, 190 N.C. 268, 129 S.E. 614. The form of the action, or the appropriateness of the proceeding, is sanctioned by a long line of decisions, of which the following may be cited as illustrative: Hill v. Skinner, 169 N.C. 405, 86 S.E. 351; Clark v. Statesville, 139 N.C. 490, 52 S.E. 52; Jones v. Comrs., 107 N.C. 248, 12 S.E. 69; Rigsbee v. Durham, 99 N.C. 341, 6 S.E. 64; Rigsbee v. Durham, 98 N.C. 81, 3 S.E. 749; McDowell v. Const. Co., 96 N.C. 514, 2 S.E. 351; Smith v. Wilmington, 98 N.C. 343, 4 S.E. 489; Wood v. Oxford, 97 N.C. 227, 2 S.E. 653; Smallwood v. New Bern, 90 N.C. 36; Perry v. Whitaker, 71 N.C. 475. "Where a taxpayer shows prima facie that an illegal tax is about to be levied by the county authorities, . . . courts of equity will restrain such abuse of power at his instance" — Avery J., in Vaughn v. Comrs., 118 N.C. 636, 24 S.E. 425. Title to office is properly triable by information in the nature of quo warranto, because the prerogatives of sovereignty are at stake, Ames v. Kansas, 111 U.S. 449, but not so in an action to test the validity of a tax sought to be levied, even with popular approval.
But if the irregularities are so great that the election is not conducted in accordance with law, either in form or substance, and there are matters of substance that render the result uncertain, or where they are fraudulent and the result is made doubtful thereby, the returns should be set aside. But in Perry v. Whitaker, 71 N.C. 475, there is a strong intimation of the Court that an election held in the manner of this one should not be disturbed. Justice Reade there said: "In our case, no registration books were opened at all. This might not have worked any wrong, if every person otherwise qualified had been allowed to vote without regard to registration.
And we put our decision upon the ground that the act here restrained is not the act which the Legislature contemplated." Perry v. Whitaker, 71 N.C. 475. Howell v. Howell, 151 N.C. 575, to which we were referred by plaintiff's counsel, does not militate against our view, but a careful reading of it will disclose that it sustains what we have said, for Justice Manning puts the decision squarely on the ground that plaintiffs in that action could not, by injunction, assail the election because the board of education had not acted discreetly in indorsing the petition and establishing the school district, nor because in other respects they may not have exercised their judgment or discretion very wisely.
Acts 22nd Leg., p. 196; Prestwood v. Barland (Ala.), 9 South. Rep., 223; Perry v. Whittaker, 71 N.C. 475; The People v. Canady, 73 N.C. 198; McDonald v. Rutherford County, 2 So. E. Rep., 351; The City of Fort Worth v. Davis, 57 Tex. 225. After the creation in 1889 of Justice Precinct No. 3, there was left of the Massey voting precinct about 1500 acres of land in Justice Precinct No. 1, upon which resided several legal voters.
Very certainly, an election like that in question might be contested by taxpayers affected by it for sufficient cause. Perry v. Whitaker, 71 N.C. 475, 477; Smallwood v. New Bern, 90 N.C. 36; McCormac v. Comrs., ib., 441; Caldwell v. Comrs., ib., 453; Bradshaw v. Comrs., 92 N.C. 278; McNair v. Comrs., 93 N.C. 370; McDowell v. Construction Co., 96 N.C. 514; Goforth v. Construction Co., ib., 536; Wood v. Oxford, 97 N.C. 227; Riggsbee v. Durham, 98 N.C. 81; Riggsbee v. Durham, 99 N.C. 341. But such contest must be begun within a reasonable period of time next after the result of the election has been declared, and, ordinarily, before any authorized action has been taken in pursuance of it, whereby rights of parties may have accrued.
So much of said act as gives to each of the first and second wards, with 400 voters each, a representative of three aldermen, and to the third ward with 2, 800 votes, also a like representative of three aldermen, violates the fundamental principles of our Constitution, and is void. (The cases of Perry v. Whitaker, 71 N.C. 475, and Jacobs v. Smallwood, 63 N.C. 112, cited and approved.) CASE AGREED, tried before Kerr, J., at Spring Term, 1875, NEW HANOVER Superior Court.