State ex rel.Swaringen v. Poplin, 211 N.C. 700 (1937)

June 9, 1937 · Supreme Court of North Carolina

211 N.C. 700

STATE OF NORTH CAROLINA Ex Rel. D. B. SWARINGEN v. LEET POPLIN.

(Filed 9 June, 1937.)

Elections § 18a — Validity of election may be attacked in quo warranto proceedings.

The procedure of quo warranto is available to test the validity of elections upon a proper showing, O. S., 870, and the contention that it is the duty of the county board of elections to determine the matter, and that the unsuccessful candidate is remitted solely to the statutory remedy, N. C. Code, 5923, 5927, 5933, is untenable, the jurisdiction of the Superior Courts never having been relinquished.

Stacy, O. J., and Oonnob, J., concur in result.

Appeal by defendant from Alley, J., at March Term, 1937, of Wilkes.

Affirmed.

This is a quo warranto proceeding to try title to the office of county commissioner of Wilkes County, N. 0. C. S., 869.

The plaintiff obtained leave of the Attorney-General to bring these quo warranto proceedings to try title to the office of county commissioner of Wilkes County, N. O. O. S., 870.

Among other things, it is alleged in the complaint: “That the plaintiff is a resident and citizen of the county of Wilkes and was such resident and citizen on, prior to, and since the general election held in Wilkes County on 3 November, 1936, and was a duly and legally nominated candidate on the Republican ticket for county commissioner of Wilkes County, and voted on in said election, and the defendant Leet Poplin is a resident and citizen of Wilkes County and was such citizen and resident on, before, and since said election, and was a duly nominated candidate for county commissioner of Wilkes County on the Democratic ticket, and voted on in said election. . . . That said election board in Wilkes County knew at the time that it unlawfully, willfully, and fraudulently and with intent to deprive this plaintiff of his office by issuing-said certificate, that plaintiff had received in Rock Creek Township 441 votes, and that either the election officials of said township, the election board, or someone under their control, had unlawfully, willfully, fraudulently, and with, intent to deprive tbis plaintiff of bis office, changed plaintiff’s vote in said township from 441 to 341, and changed the vote of B. C. Brock, candidate for State Senate in said township, in the same manner, and a perusal of the report of said township shows beyond all doubt that this was done, as the sum of 100 votes cast for other candidates of the different political parties was not reflected in the vote for this plaintiff and said B. C. Brock. That the said election board in Wilkes County knew at the time that it unlawfully, willfully, fraudulently, and with intent to deprive this plaintiff of his office by issuing said certificate that the said election officials of Wilkes County had willfully, unlawfully, and fraudulently caused and permitted, as plaintiff is informed and believes, more than 100 voters to register and vote against this plaintiff, who were then upon the day of said election under 21 years of age, and knew that said votes were being illegally cast.”

The defendant demurred to the complaint on the ground that “the complaint does not state facts sufficient to constitute a cause of action.” C. S., 511 (6).

The court below rendered the following judgment: “After hearing the argument of counsel and considering said demurrer and complaint, the court is of opinion that this court has jurisdiction of the action, and that said complaint states a cause of action against the, defendant. It is therefore ordered that said demurrer be and the same is hereby overruled. Felix E. Alley, Judge presiding.”

To the foregoing judgment the defendant excepted, assigned error, and appealed to the Supreme Court.

J. H. Wicleer, Wm. M. Allen, and Chas. G. Gilreath for plaintiff.

W. H. McElwee, Trivette Holshouser, and J. Milton Cooper for defendant.

ClaeksoN, J.

The question for decision is : Does the complaint state facts sufficient to constitute a cause of action? We think so.

The defendant contends that under the law it is the duty of the county board of elections to judicially determine the result of the election from the report and tabulation made by the precinct officials. That the unsuccessful candidate must pursue his statutory remedy, citing N. C. Code, sections 5923, 5927, 5933, and especially C. S., 5923 (15), which reads as follows: “It shall be the duty of the State Board of Elections: (15) ‘To have the general supervision over the primaries and elections in the State, and it shall have the authority to make such reasonable rules and regulations with respect to the conduct of primaries and elections as it may deem advisable: Provided, same shall not conflict with any provisions of the law.’ ”

We think tbe decisions of this Court are contrary to tbe contentions of defendant. In Harkrader v. Lawrence, 190 N. C., 441 (442), speaking to tbe subject, we find: “One of tbe chief purposes of quo warranto or an information in tbe nature of quo warranto is to try tbe title to an office. This is tbe method prescribed for settling a controversy between rival claimants when one is in possession of tbe office under a claim of right and in tbe exercise of official functions or tbe performance of official duties; and tbe jurisdiction of tbe Superior Court in this behalf has never been abdicated in favor of tbe board of county canvassers or other officers of an election. Rhodes v. Love, 153 N. C., 469; Johnston v. Board of Elections, 172 N. C., 162, 167.” S. v. Carter, 194 N. C., 293; Bouldin v. Davis, 197 N. C., 731; Barbee v. Comrs. of Wake, 210 N. C., 717.

In tbe present case fraud is alleged. Tbe courts are open to decide this issue in tbe present action. In Art. I, sec. 10, of tbe Const, of North Carolina, we find it written: “All elections ought to be free.” Our government is founded on tbe consent of tbe governed. A free ballot and a fair count must be held inviolable to preserve our democracy. In some countries tbe bullet settles disputes, in our country tbe ballot.

For tbe reasons given, tbe judgment of tbe court below is

Affirmed.

Stacy, C. J., and CoNNOB, J., concur in result.