(after stating the facts). Article 16, section 13, of the Constitution provides: ‘ ‘Any citizen of any county, city or town may institute suit in behalf of himself and all others interested to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.”
Section 3966 of Kirby’s Digest provides for injunctions and restraining orders in all cases of illegal or unauthorized taxes and assessments by county, city of other local tribunals, boards or officers.
Under the authority of these provisions, the chancery court has jurisdiction of the subject-matter of this suit, which was to restrain the enforcement of an alleged illegal exaction. In general, courts of equity have no inherent power to try election contests. This is not an election contest, and the proceedings that govern ordinary contests of that character are not applicable. The chancery court has primarily no jurisdiction over such matters. But this is a suit to restrain the enforcement of an alleged illegal exaction. The only warrant for imposing the road tax in question is to be found in the constitutional provision authorizing the tax when a majority of the qualified electors of the county voting at the general election on the subject has voted for the tax. Ordinarily, the question as to whether or not there has been a majority in favor of such tax would have to be determined by the methods and declared by the agents designated for that purpose by the statute. But where it is alleged that there was fraud or mistake, by reason of which the true result was not determined and declared, then a court of chancery would have the power, as incidental to the relief asked, to annul the result of the fraud or correct the mistake. See 15 Cyc. 397e. The Supreme Court of Kentucky in Garvey v. Dulaney, 17 S. W. 1016, 1017, announces the correct rule upon the subject as follows:
“Undoubtedly, it is the general rule, and one necessary to a safe governmental policy, that the chancellor will not, by himself or his commissioner, investigate the legality of votes or purge the poll books, and, if the result of the investigation differs from the return of the judges of election, reverse it. If, however, there has been fraud or mistake upon the part of those conducting an election, special in its nature like this one, equity will at least in such a case permit an investigation, and, if the mistake or fraud appears, grant relief. It is said in McCrary on Elections, page 390, 'cases may, however, arise which do not present the question which of the two persons is entitled to an office, and which are in their nature unlike an ordinary contest. For example, a vote of the people of a county may be taken upon the question of the location or removal of the "county seat, or upon the question of subscribing to the capital stock of a railroad company, or upon subscribing or appropriating money to aid any work of internal improvement, or by the people of a city or town upon the question of adopting a charter, and it may happen that the modes of proceeding provided by statute or the common law for contesting elections or trying the title to an office are altogether inapplicable to the determination of questions of fraud, accident or mistake in the conduct of such election cases. In all such cases equity will afford relief.' The authorities are somewhat conflicting as to the proper limit of the rule, but it should certainly be extended so far that if, in an election like this one, the examining board, through fraud or mistake, make a false return, the court, in the exercise of its equitable powers, may correct the wrong.”
The chancellor correctly determined in this case that the mistake made by the election commissioners in certifying the result of the election on road tax in Lincoln County was a mere clerical error, a mistake of the judges in declaring the result as shown by the ballots and tally sheets. It is not necessary to go behind the returns to ascertain this, but only to have the result declared according to the returns. The error was simply an erroneous declaration of what the returns of the election on the road tax actually showed. In our opinion, it was such a mistake as a court of equity has power to correct in ascertaining whether or not the alleged tax was an illegal exaction. The judgment of the chancery court dismissing the complaint for want of equity was correct, and it is affirmed.