February 20, 1997
Mr. Kenneth R. Newbold Chairman Duplin County Board of Elections
P.O. Box 975 Kenansville, North Carolina 28349-0975
Re: Advisory Opinion; Stacey Britt District Fire Tax Election; N.C. Gen. Stat. §§ 69-25.1 & 69
25.4
Dear Chairman Newbold:
Your letter dated February 3, 1997, was forwarded to me by the State Board of Elections. They have requested that we provide a response to your questions. I understand the facts of your situation to be that on January 21, 1997, your Board conducted a fire district election to determine whether a new tax should be imposed on residents of the Stacey Britt area. Those residents currently receive fire services from the Warsaw Volunteer Fire Department. Residents of Warsaw pay a town tax to cover these services but residents of the Stacey Britt area do not. The election was called by the Board of County Commissioners pursuant to N.C. Gen. Stat. § 69
25.1 after a petition signed by more than 35% of the resident landowners in the Stacey Britt area requested that an election on a special tax be held.
The election on January 21, 1997, resulted in a tie vote. Your Board has certified this result, but you ask for an advisory opinion on (1)whether a tie vote means the tax was rejected, and (2)whether and under what conditions a new election on the issue of a tax may be held. These issues are addressed below:
Consequence of a Tie Vote
North Carolina General Statute § 69-25.4 states:
"If a majority of the qualified voters voting at said election vote in favor of levying and
collecting a tax in said district, then the board of county commissioners is authorized and
directed to levy and collect a tax in said district in such amount as it may deem necessary
…."
(Emphasis supplied.)
The North Carolina Supreme Court has quoted with approval language stating "it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or a plurality of the legal votes cast in the election." State ex rel Duncan v. Beach, 294 N.C. 713 (1978)(quoting 29 C.J.S., Elections § 243). Since this fire district tax election resulted in a tie vote, it did not receive a majority vote and must be considered as having been defeated. There is no provision in the statute for a new vote in case of a tie and there is clear language in N.C. Gen. Stat. § 69-25.4 that approval of the majority of those voting is required before a tax may be imposed. The tax must be deemed to have been rejected.
Requirements for a New Election
North Carolina General Statute § 69-25.1 states: "If the voters reject the special tax under the first paragraph of this section, then no new election may be held under the first paragraph of this section within two years on the question of levying and collecting a special tax under the first paragraph of this section in that district, or in any proposed district which includes a majority of the land within the district in which the tax was rejected."
The statute clearly states that no new election may be held for two years on levying a tax after a vote has rejected a tax in that district. The only procedure available under the statute for calling a election is the petition procedure. Thus, new petitions would need to be completed in order to call a new election two years from January 21, 1997.
Ann Reed Senior Deputy Attorney General Administrative Division
Susan K. Nichols
Special Deputy Attorney General Elections Section