The Clerk of the Superior Court of Gran-ville County upon tabulating the returns of the recent election for Sheriff of that county, ascertained that there was an equal number of ballots cast for the relator and for his competitor, the defendant Fleming, and was about to proceed to order a new election to be held for that office as required by the statute; whereupon the relator, who was the Sheriff 'of the county and a candidate for re-election, began this action on November 15, 1898, against said Fleming, the Clerk of the Superior Court, and the three newly elected commissioners who had not then qualified (and could not do so till the first Monday in December) alleging in substance:
1. That the count was incorrect, and that upon a recount of the ballots he would be found to have received a majority, and asking the Judge to issue a rule on the Clerk to show cause why he- should not make such recount and declare the correct result.
2. An itemized statement of illegal votes counted for his competitor," and legal votes for himself rejected, intimidation and like matters proper to be inquired into upon a quo warranto.
3. That the Clerk had declared his intention to order a new election,' averring the needless expense thereof to plaintiff and the county, and asking a restraining order against such proceeding, until the proper result of the election already had was ascertained.
*5544. That the newly elected county commissioners would, on their qualification proceed to declare the office vacant and elect a successor, and .asking a restraining order to prevent such action. .
The defendant Fleming answered that he himself had in truth received a majority of the votes ca.st and on a recount should be declared Sheriff, denying all the allegations of the complaint as to the items affecting the result, and also on his part setting out an itemized statement of illegal votes cast for his competitor and legal votes for himself rejected, intimidation, fraud and other particulars proper in a quo warranto, but at the same time averring his willingness to submit the issue again to the arbitrament of the ballot box and objecting to the order for a recount.
The Clerk answered, expressing his willingness to submit to the orders of the Court.
The newly elected commissioners in their answer aver that they had not qualified, had not determined upon any action as to declaring the office, vacant, and asking that the action be dismissed as to them as both premature and without warrant in law. It is well to dismiss this branch of the case here, by saying that their contention was well founded in both particulars. The proceeding as to them was not only premature, but, if it had not been, it would have been in effect an attempt to try the title to an office by an injunction, which is not permissible. Patterson v. Hobbs, 65 N. C., 119. Besides, if the commissioners had assumed to declare the office vacant and elect another, there would have been no resultant damage justifying, an injunction. The title would still be inquired into by quo warranto. The county commissioners should be dismissed with their costs. It is proper, however, to add that the failure of *555a new sheriff to qualify when it is undetermined who is elected, and no certificate has been issued to him, does not authorize a declaration that the office is vacant. The old sheriff holds over until his successor is declared élected and qualified. Code, Section 1872.
The Court, in view of the provision in Section 7 of the Election Law of 1895, -Chapter 159 (amended by Chapter 1S5, Laws (1897) that any Judge of the Superior or Supreme Court may issue a rule upon any. election officer “to show 'cause why he has not performed or shall not perform any specified act or duty required by the election law, or why he or they shall' not perform or execute this Act in any specified way so as to best give effect to the intent and purposes of the election law,” issued the rule as prayed, and on its return ordered the Clerk to make the recount in the presence of the parties and others. . On such recount of the ballot's the Clerk reported that the relator had received a majority of eight votes. On review of the disputed items of this report, the Judge found that the relator had received a majority of two votes, and was entitled to the certificate of election, which he ordered the Clerk to issue, and he issued his mandamus to the county commissioners to induct the relator into office upon giving the bonds and taking the oaths required by law, reserving, however, to the defendant Fleming the right to contest either in this proceeding, or, at his election, in an action of quo warranto — the correctness of the result as affected by the legality or illegality of ballots rejected and received, and the intimidation and fraud alleged in the pleadings, as to which matters he refused to hear evidence at the hearing in Chambers.
His Honor conceived rightly that the title to the office, so far as dependent upon the reception or rejection of *556ballots, intimidation, fraud, etc., could only be determined before a judge and jury in a quo warranto, but he erred in thinking that a contest could be maintained over the certificate which conveys only a prima facie title to the office, subject to the declaration of the «right in a quo warranto proceeding.
If the Clerk had refused or failed to tabulate the result in the manner required by law, he could have been compelled by a rule to perform that duty (Moore v. Jones, 76 N. C., 188). But here the-Clerk had acted and in the mode pointed out by the statute. His declaration of the, result is prima facie correct and can only be questioned in an action of quo warranto. In Swain v. McRae, 80 N. C., Ill, decided ata time when the tabulation was made by a board of canvassers (instead , of by the Clerk as is now the law), it was held that upon their declaration of the result, the board was functus officio and could not be ordered by a mandamus to reassemble and recount the vote, the remedy being by a quo warranto.
In like manner, in Gatling v. Boone, 98 N. C., 573, it is held that the declaration of the result of an election by the board of canvassers “conclusively settles prima facie the right of the person so ascertained to be elected to be inducted into and exercise the office,” leaving the correctness of the result so declared to be investigated upon a quo Warranto. This seems to be generally well settled. Cooley Const. Lim., (6th Ed.) 784, and cases cited in note 6, among which the following cases hold that not only a recount can not be ordered by a court, but if the canvassing board voluntarily recount and give a second certificate to another, such action is a mere nullity — Bowen v. Hixon, 45 Mo., 300; People v. Robertson, 27 Mich., 116; Opinion of Justices, 117 Mass., *557599; State v. Donewirth, 21 Ohio St., 116; Moore v. Jones, supra, does not differ from these. In'that case the board of canvassers having without authority of law gone behind the returns, were ordered to assemble and perform the duty allotted to them of adding up the returns and declaring the result In law, the board has not acted at all.
The clerk having declared the result no longer has any duties in regal’d thereto, which he could exercise either voluntarily or upon the order of a Judge. Besides, the clerk did not have the power in the first instance to count the ballots and declare the result, but merely to add up the various precinct returns legally made and ascertain the result. Section 22 of the Act; Moore v. Jones, supra. In Broughton v. Young, 119 N. C., 915, it was held that the preservation of the ballots is required that “they may be kept as evidence to verify or correct the election, returns when impeached, and that on a quo warranto the ballot boxes might be brought into court and the recount made in the presence of court and jury.” But, in that case, being in regard to a contested seat in the General Assembly, inasmuch as the trial was not viva voce before that body, but the evidence must be taken before a commission, a recount of the ballots was ordered to be made in the presence of the legislative commission appointed to take evidence, since it could not be contemplated that ‘ ‘the Clerks of Cherokee or Dare or other counties should attend with their ballot boxes before the General Assembly in Raleigh, or before the Congressional Committee on elections at Washington.” This was merely to procure evidence to support or impeach the prima facie title of the sitting member, and not for the purpose of authorizing or directing a certificate of election to be issued to the con-. *558testant, should a recount show that he had received a majority of votos. The object was solely to procure evidence for the body that was to determine the title, not to compel nor to permit the clerk to reverse the declaration of the result already made or recall the certificate founded thereon.
So much of this proceeding as sought to have a recount made by the Clerk was without authority of law, and a nullity. If made for the purpose of furnishing evidence, it is not justified by the circumstances, as was the case in Broughton v. Young, supra, since, here the boxes could be opened and the recount readily made in the presence of the jury. . And if for the purpose of changing the result already declared by the Clerk, he, already having performed that duty in the mode prescribed by law, was functus officio. The law does not contemplate a. legal contest over the prima facie certificate The officer charged with the duty of issuing the certificate settles that matter at his peril, if he act corruptly, but conclusively so far as its issuance is concerned.
The only remaining question is whether so much of this action can be sustained as seeks to restrain the holding of a new election till the issue raised by the pleadings is determined whether in truth there was a tie vote. If, as formerly [The Code, 2699) upon a tie vote, the county commissioners, promptly and without expense, determined the result, there could be no foundation for such proceedings as we have here. Their declaration of the result must be in favor of one party, and the other, if so minded, could by a quo warranto have the correctness of the original election determined. But under the present statute we have this anomaly that unless this proceeding lies, neither Cozart nor *559Fleming can bring his quo warranto until a new election, since Fleming is not in office and Cozart is not in by virtue of this election, but merely holding over till his successor is elected and qualified and no more liable to a quo warranto than if some other person had been the former sheriff and was holding over under no claim to the office but merely until the title should he determined between two parties, each of whom claimed the election. Suppose the' incumbent holding over were not one of the candidates, and the plaintiff brought an action against him claiming to he elected, the defendant could do the same, and each would have to make his competitor a party, thus eliminating the “hold over” who has no interest in the result; we have the very action here presented.
Besides, in such election, a third person might he elected, and if the result of the November election can only he contested when one of the two highest candidates at such election is actually inducted into office, there might be no chance to contest at all.
From the averments in the pleadings of both competitors it is almost impossible to believe ( especially in view of the recount, though illegally made) that on a vote of so many thousands there will not be discovered an error of one single ballot in favor of one party or the other, either by inadvertence of the election officers, or the erroneous acceptance or rejection of some ballot, or in some other'particular. On the face of the numerous averments to that effect specifically made by both the parties, and the truth of which must be determined notwithstanding a new election shall be held, it seems a clear right both to the parties themselves and to the public as well, that the expense of an election shall not be incurred when the chances are almost infinitesimal *560that its result will not become a nullity upon the trial of the averments made in these pleadings, averments which would be renewed in a quo ivarranto against the party successful in such new election, since it can have no validity if either party be shovpn to have been truly elected in the election already held.
It is true that this proceeding is an anomalous one, but it arises upon a condition of things which can very rarely occur. If there is no precedent or statute authorizing it, there is neither precedent nor statute forbidding it. It is one of the occasions when the ‘ ‘reason of the thing” calls upon a court to make a precedent. It is not reasonable that an election should be ordered when both parties make numerous specific averments, the correctness of any one of which on either side (unless exactly balanced by sustaining a similar averment of the other party) will render the new election nugatory.
This proceeding is in its essence a quo warranto brought by one contestant. against the other, when neither is in actual possession of the office (under the election) by reason of the fact that upon the declaration of a tie vote, which both seek to impeach, neither can be in possession. They have a right to contest the correctness of the result and have it determined, and the Clerk is a proper party. The injunction against his ordering a new election will be continued to the hearing, when the trial of the issues will determine which of the two parties claiming the office was elected ; or if, by a marvel, it should happen that no majority is ascertained on either side, then the restraining order will be dissolved to the end that an election be held, but the re-reference to the ballot box should not be ordered till the plea iu bar, set up on each side — that the people at the *561ballot box have already declared their will — is disposed of. This action, notwithstanding its unusual feature of not being against one in possession of office, is in its every essence an ‘ ‘action to try the title or right to an office,” since each party asserts his right to the office to which he claims to have been elected and the action will therefore stand for trial at the first term of Granville Superior Court. Code, Sec. 616.
The gist of the action is that the relator was elected and is kept out of office, not by the induction of his competitor, but by an erroneous declaration of a tie vote, which declaration he has a right to contest.
Though for convenience we still speak of an action of ■ quo warranto it must be remembered that action has been specifically abolished {Code, Sec. 603) and we have in fact only a civil action in which the subject matter is a trial of the title to an office. Code, Sec. 616. Usually in such actions there is an allegation that the defendant has usurped and is illegally exercising the duties of the office, but Section 616 does not require such averment, and the facts of this case satisfactorily show why it is not alleged here.
A new election, if there is any truth whatever in the allegations in the pleadings on either side, would damage the parties not only by the expense thereof ; (since the expense of the quo warranto will still have to be undergone) but the candidate defeated in the new election would be put at a serious disadvantage in satisfying a jury that, at the late election in November, he in truth received a majority, however strong the evidence might be. For these reasons to give the parties an unprejudiced trial to determine the result of the November election, and to save the public and the parties a serious ex*562pense which will probably prove to have been unnecessary the injunction against ordering a new election should be continued to the hearing. The injunction in no wise determines the title, but merely preserves the status quo, till the title can be determined. Guillotte v. Poincy, 5 L. R. A., 403.
In granting such injunction there was no error, but in other particulars as above pointed out there was
Error.