Barrett v. City of Fayetteville

248 N.C. 436 | N.C. | 1958

Denny, J.

The defendant assigns as error the findings that nine of the twelve persons whose names were placed on the original petition by someone other than by the persons named should be counted as valid signatures, and that 90 names appearing on the original petition requesting a referendum should be counted.

Each one of the nine persons referred to above filed an affidavit with the City Council of the City of Fayetteville on 11 October 1956 setting forth that his or her name was signed to the petition in opposition to the annexation of the area involved by the City of Fayetteville, by his wife or her husband, as the case might be, in his or her presence, and at his or her instruction, direction, and request; that at the time of signing and at the present time, he or she did and does regard and adopt such signatures as his or her own; that the affidavit was given for the purpose of having the City Council of the City of Fayetteville count his or her signature in checking said petition.

In 80 CJS., Signatures, section 6, page 1291, et seq., it is said: “Generally, a signature may be made for a person by the hand of another, acting in the presence of such person, and at his direction, or request, or with his acquiescence, unless a statute provides otherwise. A signature so made becomes the signature of the person for whom it is made, and it has the same validity as though written by him.”

In this jurisdiction it is permissible for one to sign his name by himself “or sign by the adoption of his name as written by another, or he may make his mark, even though he may not be able to write himself.” Lee v. Parker, 171 N.C. 144, 88 S.E. 217. But the signature, if written by another, must be made at the request or with the consent of the person whose signature it purports to be. Lee v. Parker, supra.

Likewise, in S. v. Abernethy, 190 N.C. 768, 130 S.E. 619, Stacy, C. J., speaking for the Court, said: “Not only may the signature be anywhere, unless otherwise provided by statute, but it is also permissible in the absence of an enactment controlling the matter, for the maker either to sign the instrument by affixing his own signature, or to adopt a signature written for him by another.” See also Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902, 12 LRA 205.

In light of the pleadings, stipulations, affidavits, and minutes of the City Council of the City of Fayetteville, as appear of record, the findings to the effect that the respective names of the nine persons whose names had been signed to the original petition requesting a referendum, by another, should be counted, thereby making a total of 90 names on the petition which should be counted, are amply supported by the evidence and such findings, as well as the conclusions of law based thereon, must be upheld.

Thus it appears that the area in controversy cannot be annexed by the City of Fayetteville unless and until a majority of the qualified voters in the area proposed to be annexed cast their ballots in favor of such annexation in an election called and conducted as prescribed by statute. Rheinhardt v. Yancey, 241 N.C. 184, 84 S.E. 2d 655.

The judgment of the court below is

Affirmed.