Perry v. Whitaker

8 Citing cases

  1. Smith v. Wilmington

    98 N.C. 343 (N.C. 1887)   Cited 4 times

    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).

  2. McDowell v. the Construction Co.

    2 S.E. 351 (N.C. 1887)   Cited 14 times

    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).

  3. Barbee v. Comrs. of Wake

    210 N.C. 717 (N.C. 1936)   Cited 10 times

    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.

  4. Hill v. Skinner

    86 S.E. 351 (N.C. 1915)   Cited 16 times
    In Hill v. Skinner, 169 N.C. at p. 412, it is held: "The ultimate conclusions from the authorities is thus stated in A. E. Enc. (2 ed.), at pp. 755, 767: The general principles to be drawn from the authorities are, that honest mistakes or mere omissions on the part of the election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not avoid an election, unless they affect the result, or at least render it uncertain.

    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.

  5. Gill v. Commissioners

    160 N.C. 176 (N.C. 1912)   Cited 28 times
    In Gill v. Comrs., 160 N.C. 176, it was held that women were not "freeholders" in the purview of this act; but subsequently the General Assembly, ch. 22, Laws 1915, enacted as follows: "In all cases where a petition by a specified number of freeholders is required as a condition precedent to ordering an election to provide for the assessment or levy of taxes upon realty, all residents of legal age owning realty for life or a longer term, irrespective of sex, shall be deemed freeholders within the meaning of such requirement."

    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.

  6. Ex Parte White

    33 Tex. Crim. 594 (Tex. Crim. App. 1894)   Cited 12 times

    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.

  7. Jones v. Commissioners

    12 S.E. 69 (N.C. 1890)   Cited 21 times
    In Jones v. Comrs., 107 N.C. 248, Merrimon, C. J., after discussing several sections of the Constitution says: "We are therefore of opinion that the equation and limitation of taxation established by the Constitution (Art. V, sec. 1) applies only to taxes levied for the ordinary purposes of the State and counties"; and this language is quoted and approved by Hoke, J., in Perry v. Comrs., 148 N.C. 524.

    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.

  8. The People of N.C. ex rel. Van Bokkelen v. Canaday

    73 N.C. 198 (N.C. 1875)   Cited 26 times
    Holding it to be "too plain for argument" that the General Assembly's malapportionment of election districts "is a plain violation of fundamental principles"

    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.