Gardner v. City of Reidsville

153 S.E.2d 139, 269 N.C. 581, 1967 N.C. LEXIS 1113
CourtSupreme Court of North Carolina
DecidedMarch 8, 1967
Docket767
StatusPublished
Cited by31 cases

This text of 153 S.E.2d 139 (Gardner v. City of Reidsville) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gardner v. City of Reidsville, 153 S.E.2d 139, 269 N.C. 581, 1967 N.C. LEXIS 1113 (N.C. 1967).

Opinions

BRANCH, J.

Appellees contend that appellant cannot challenge the procedures of the Reidsville election since appellant failed to comply with Rule 19(3) of the Rules of the Supreme Court, 221 N.C. at p. 554. The following is appellant’s assignment of error:

“Plaintiff assigns as error the Court’s signing of the Final Judgment which contained erroneous findings of fact and erroneous conclusions of law; and further assigns as error the Court’s failure to hold that Chapter 650 violates the terms of Article II, Section 29, of the North Carolina Constitution; and its further failure to hold that even under the specific terms of Chapter 650 irrespective of its constitutionality defendants were not entitled to conduct a municipal liquor referendum; and its failure to hold that the establishment of ABC Stores in the City of Reidsville was unauthorized and in violation of law.”

While not in strict compliance with Rule 19(3), plaintiff’s assignments of error are specific and definite. Since the Rules of the Court are made for our convenience and in dispatch of our appellate jurisdiction, Conrad v. Conrad, 252 N.C. 412, 113 S.E. 2d 912, we will consider appellant’s assignment of error as to election procedure.

The question, is raised whether Section 6 of Chapter 650, 1965 Session Laws, prevents the holding of a valid election within three years after the county-wide election of 27 July 1965. The pertinent provision of that section is as follows:

“In the event the County Commissioners of Rockingham County call an election on the question of whether or not Alcoholic Beverage Control Stores shall be established in the county and before an election is held in the City of Reidsville under the provisions of this Act, and if a majority of the voters in the City of Reidsville who vote in the county election vote against establishing liquor stores in Rockingham County, then no election shall be held under the authority of this Act within 3 years after the date of the county election. . . .”
By paragraph 18 of his amended complaint plaintiff alleges:
“XVIII. That as these plaintiffs are advised, believe and so allege, the defendant City of Reidsville had no right or au[585]*585thority to call and hold a city election on the question of establishment of liquor stores, for that in the countywide election held prior to the city election, a majority of the voters of the City of Reidsville voted against the establishment of liquor stores; that, therefore, the election called and held on October 23, 1965, by the City of Reidsville was null and void.”

Defendants by their answer deny these allegations.

Every reasonable presumption will be indulged in favor of the validity of an election. 26 Am. Jur., Elections, § 343, p. 162. This applies as well to a local option election. See 48 C.J.S. Intoxicating Liquors, Contesting Elections, § 87(d), p. 217, where in this regard it is said: “The burden is on one instituting a contest to prove his right to maintain the proceeding and to prove the grounds of his complaint. . . . The usual rules as to the admissibility and the weight and sufficiency of the evidence generally apply to local option election contests.”

An election will not be disturbed for irregularities where it is not shown such irregularities are sufficient to alter the result. Owens v. Chaplin, 228 N.C. 705, 47 S.E. 2d 12; Watkins v. Wilson, 255 N.C. 510, 121 S.E. 2d 861. In the instant case it is stipulated by the parties that, “(I)t is now impossible to ascertain how many of the votes cast in Reidsville Township precincts were cast by persons residing in the City of Reidsville and how many were cast by persons residing outside the City limits.”

Plaintiff contends the burden is on defendants to prove that a majority of the votes cast within the City of Reidsville in the county election was not against the establishment of a city Alcoholic Beverage Control system. In support of this contention, plaintiff cites the rule that the burden of proof lies on the person who wishes to support his case by a particular fact which lies more particularly within his knowledge, or of which he is supposed to be cognizant. Cf. Hosiery Co. v. Express Co., 184 N.C. 478, 114 S.E. 823. However, this rule does not apply here, since there is nothing in the record to show that the city election officials or any of the defendants had any control or influence over or access to the officials who held the county-wide election of 27 July 1965. The contrary is inferred since the first election was a county election and the election under attack is a municipal election.

The prevailing rule is that the burden of proof is on the party holding the affirmative. Wilson v. Casualty Co., 210 N.C. 585, 188 S.E. 102. Although not decisive, we note, in passing, that the only unquestioned vote by the voters in the City of Reidsville resulted in a majority vote “for Alcoholic Beverage Control Stores and Law Enforcement.”

[586]*586Plaintiff depends entirely on the provision of Section 6 of Chapter 650, 1965 Session Laws, and the results of the total votes cast in the six precincts encompassing the City of Reidsville to sustain his allegations. This is not sufficient to meet the burden of proof which he must carry. Furthermore, a careful reading of the section evidences that only where, in the event of a prior election, it is shown the voters within the City of Reidsville voted against the establishment of ABC stores shall a city election be deferred for three years. The clear intent of this provision was to prevent a repetitious election where the probable outcome had already been determined. By stipulation it is admitted the probable outcome of a city election could not be determined from the prior county election. We therefore hold that the city election was authorized by the statute.

The principal question presented for decision is whether the Reidsville Act, Chapter 650 of the 1965 Session Laws, is in violation of Article II, Section 29, of the North Carolina Constitution, which provides:

“§ 29. Limitations upon power of General Assembly to enact private or special legislation.— The General Assembly shall not pass any local, private, or special act or resolution relating to health, sanitation, and the abatement of nuisances; changing the names of cities, towns, and townships; authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys; relating to ferries or bridges; relating to nonnavigable streams; relating to cemeteries; relating to the pay of jurors; erecting new townships, or changing township lines, or establishing or changing the lines of school districts; remitting fines, penalties, and forfeitures, or refunding moneys legally paid into the public treasury; regulating labor, trade, mining, or manufacturing; extending the time for the assessment or collection of taxes or otherwise relieving any collector of taxes from the due performance of his official duties or his sureties from liability; giving effect to informal wills and deeds; nor shall the General Assembly enact any such local, private or special act by the partial repeal of a general law, but the General Assembly may at any time repeal local, private or special laws enacted by it. Any local, private or special act or resolution passed in violation of the provisions of this section shall be void.

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Bluebook (online)
153 S.E.2d 139, 269 N.C. 581, 1967 N.C. LEXIS 1113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-city-of-reidsville-nc-1967.