Weaver v. Morgan, 232 N.C. 642 (1950)

Nov. 22, 1950 · Supreme Court of North Carolina

232 N.C. 642

W. B. WEAVER, JR., v. B. F. MORGAN, Sheriff of RANDOLPH COUNTY, and All Other Law Enforcement Officers of RANDOLPH COUNTY.

(Filed 22 November, 1950.)

1. Appeal and Error* § 6c (2)—

Exceptions and assignments of error to the findings of fact must point out specifically and distinctly the alleged errors, and an exception “to the foregoing findings of fact” is a broadside exception and is insufficient to challenge the sufficiency of the evidence to support the findings or any one of them.

2. Same—

An exception to the signing of the judgment presents only the question whether error of law appears on the face of the record, and is insufficient to bring up for review the findings of fact.

8. Appeal and Error § 29—

Exceptions in the record not set out in appellant’s brief are deemed abandoned. Rule 28.

4. Elections § 1—

The requirement that a petition for an election on the question of prohibiting the sale of beer and wine in a county shall be signed by 15% of the registered voters of the county who voted for Governor in the last general election, is held to refer to the total number of votes cast for Governor in .such election and does not require that each signer of the petition should have personally voted for a gubernatorial candidate in such election. G.S. 18-124 (b).

5. Appeal and Error § 28—

The grouping of cases cited in the brief does not authorize the use of the names of such cases throughout the brief without giving the citation of such cases. Rule 28.

Appeal by plaintiff from Sharp, Special Judge, at May Term, 1950, of RANDOLPH.

Civil action to restrain the sheriff, and all other law enforcement officers of Randolph County, from enforcing the law against the sale of beer and wine in said county, for that the election held 25 March, 1950, on the question of the sale of beer and wine was, and is invalid for matters to which the findings of fact made by the court hereinafter shown relate.

Plaintiff alleges in his complaint that he is a resident, citizen and taxpayer of Randolph County, North Carolina, and is duly licensed by the United States Government, the State of North Carolina, the county of Randolph, and the city of Randleman to engage in, and is engaged in selling wine and malt beverages in said county, and that he is one of a general class of approximately fifteen licensed malt beverages dealers in said county, and that be brings this action in behalf of himself and others of the class named similarly situated, and engaged in the business of selling wine and malt beverages.

The cause was heard in Superior Court upon (1) complaint of plaintiff, used as an affidavit, (2) oral testimony, (3) affidavits, and (4) admissions and argument of counsel. Thereupon the court entered judgment in which substantially these findings of fact were made, to portions of which, indicated within parentheses, plaintiff excepts — the numbering being inserted:

1. That in March, 1948, John G. Prevette, R. A. Gaddis and Zell Brown were appointed members of the Board of Elections for Randolph County, and each took the oath of office on 10 April, 1948, and, acting as such Board of Elections, conducted the two primary elections, and the general election in 1948, and two special elections in 1949, and their right to exercise the powers of such Board was not challenged prior to 23 January, 1950.

2. That on 19 January, 1950, a petition, purporting to be drawn under General Statutes 18-124, requesting an election on the question of the sale of beer and wine in Randolph County, and consisting of 344 pages and containing 3,620 signatures, was presented to the Board of Elections of said county, constituted as set forth in preceding paragraph; that thereupon the Board of Elections employed the services of Miss Iola Lowdermilk and approximately twenty-five paid helpers to check the petition; (“that the checking was done under the instruction and general supervision of the Board of Elections of Randolph County but the actual work was done by the paid checkers who consulted from time to time with one or more members of the Board of Elections”) ; (This is covered by assignment of error #1) ; that on 21 January, 1950, the Board determined (1) that 15,824 persons voted for Governor in the 1948 general election; (2) that fifteen per cent of this number is 2,374; (3) that the petition contained more than 2,374 signatures of registered voters of Randolph County; and (4) that the petition was legally sufficient and met the requirements of the law; that thereupon the Board called a beer and wine election as provided by General Statutes 18-124 for 25 March, 1950, and duly advertised the election as required by law, and opened the registration books for the registration of new voters as required by law, keeping them open on two Saturdays, to wit: 25 February, 1950, and 4 March, 1950, under its supervision.

3. That on 23 January, 1950, plaintiff in this action called upon the said members of the Board of Elections to resign on the ground that each of them had vacated his office on the Board by reason of subsequent qualification in another office, and on 2 February, 1950, W. F. Betts and others instituted a quo warranto action to remove each of the members of said Board, and on 8 March, 1950, by judgment of court, Brown and Gaddis were removed as members of tbe Board, — Brown, because of double office bolding, and Gaddis, because be was at tbe time a candidate for office of justice of tbe peace; (and “that there was no appeal from this judgment in tbe quo warranto proceeding”) ; (This is covered by assignment of error #2).

4. Thereafter on 9 March, 1950, tbe chairman of tbe State Board of Elections appointed T. E. Bulla and Albert Taylor to fill tbe offices from which Brown and Gaddis bad been removed, and on 10 March, 1950, they, Bulla and Taylor, took tbe oath of office as members of tbe Board of Elections of Randolph County; tbat thereafter, tbe Board, as then constituted, voted to proceed, without interruption, with tbe beer and wine election which bad been called for 25 March, 1950, — taking over in its entirety tbe machinery and personnel which bad been set up and appointed by tbe Board as formerly constituted, — without additional oaths being taken by precinct officials; tbat tbe registration books were kept open on 11 March, 1950, under orders and direction of tbe Board as tbe third Saturday, and tbe legal requirements of challenge day were duly observed on Saturday, .18 March, 1950.

5. That in all but 8 of tbe 31 precincts in Randolph County tbe registration books purport to show what persons voted in tbe 1948 general election, — but in tbe 8 tbe registration books did not so show, however tbe poll books did. Tbat in tbe checking of petition in January, 1950, tbe Board as then constituted bad counted every petitioner registered in these 8 precincts as having voted in tbe 1948 general election, and, because of this, the Board, as newly constituted, ordered a recheck of tbe petition as to these 8 precincts, using tbe poll books, and re-employed Miss Iola Lowdermilk and ten of tbe original checkers to do tbe re-cheeking ; tbat this rechecking was done under tbe direction of the Board, and under tbe supervision of tbe chairman, who although not personally present during tbe entire time consumed in checking, (“be was frequently present and consulted with reference to said checking”) ; (This is covered by assignment of error #3); tbat at tbe completion of tbe recheck, Miss Lowdermilk certified to tbe Board (“and tbe Board found as a fact”) tbat tbe total number of signatures on tbe original beer and wine petition was 3,620; (Tbe clause in parenthesis is covered by assignment of error #4) ; tbat tbe number of signers on said petition legally registered and who personally voted in tbe 1948 general election was 2,464; tbat tbe number of signatures on tbe petition of persons regularly registered but who bad not themselves voted in tbe 1948 general election was 571; tbat 426 persons who were not registered for tbe 1948 general election bad signed tbe petition; tbat 4 signatures were duplications; tbat 29 were illegible; and that 126 signatures appearing were not counted because there was reason to believe they were not genuine.

6. That the election which had been called upon the petition presented to the Board of Elections on 19 January, 1950, and for which the advertisement was begun by the Board as then constituted and was completed by the Board as newly constituted, was held on 25 March, 1950, and every qualified voter in Eandolph County had a fair and ample opportunity to register and vote in said election; that no fraud or irregularities occurred on election day; that the results of said election, which were correctly canvassed, were duly certified by the Board of Elections to the clerk of Superior Court of Eandolph County on 27 March, 1950, as follows: 753 for, and 7,924 against the legal sale of wine; and 783 for, and 7,856 against the legal sale of beer.

7. That in paragraph 4 of the affidavit of J. E. Trazzare there are listed 303 names which in his opinion were written by the same person, of which number 45 were not counted as valid by the Board of Elections in passing upon the sufficiency of the petition, and the court adopts same as its finding of fact, with the exception of (35 named persons, none of whose signatures the court finds were written by the same person) ; (This is covered by assignment of error #5) ; that the names of five named persons were duplications; that the names of two others are in the same handwriting, and that another is not a registered voter.

8. (That in checking the petition and in holding the said election the Board of Elections of Eandolph County acted in good faith). (This is covered by assignment of error #6).

The court held: (1) That the requirement of General Statutes 18-124 (b) that “15 per cent of the registered voters of the county that voted for Governor in the last election” shall sign the petition requesting a beer and wine election refers to the total number of votes east for Governor in the last general election and does not necessarily mean that the persons who signed the petition must be the identical persons who cast votes for Governor in said election; (2) that the petition bn which the election held on 25 March, 1950, was called, fully complied with the requirements of General Statutes 18-124; and (3) that to meet these requirements it is not necessary to count any signatures contested by the plaintiff in this action.

Also the court held: (1) That every ruling of the Board and holding upon the validity of said petition is frima facie correct and the burden is upon plaintiff to establish facts to the contrary; (2) that this presumption of validity is not overcome solely by evidence that certain signatures (a large majority of same being signatures of persons within the same family) are in the same handwriting; and (3) that the petition requesting the election contained 3,029 valid signatures.

And the court further held: (1) That the petition on which the election of 25 March, 1950, was called was, in all respects, legally sufficient; (2) that it was the legal duty of the Board of Elections of Randolph County to call said election upon the presentation of said petition; and (3) that said election is in all respects legal and valid.

Therefore the court held that plaintiff is not entitled to an order restraining the sheriff of Randolph County from enforcing the law prohibiting the sale of wine and beer in Randolph County after the expiration of 60 days from the date of election, and that plaintiff’s application is denied.

The record on appeal shows that: “To the foregoing findings of fact and judgment, the plaintiff enters exceptions.” And plaintiff appeals to the Supreme Court and assigns error.

Ottway Burton for pilaintiff, appellant.

Ferree & Gavin for defendants, appellees.

WiNBORNE, J.

The exception in the case in hand is “to the foregoing-findings of fact and judgment.” This, as to findings of fact, is a broadside exception. It fails to point out and designate the particular findings of fact to which exception is taken, and it is insufficient to challenge the sufficiency of the evidence to support the findings, or any one or more of them. Vestal v. Machine Co., 219 N.C. 468, 14 S.E. 2d 427.

When it is claimed that findings of fact made by the trial judge are not supported by evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged errors. Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351, and cases cited; also Paper Co. v. Sanitary District, ante, 421; Johnson v. Barham, ante, 508.

In the absence of proper exceptions to the finding of fact on which a judgment is based, an exception to the signing of the judgment is insufficient to bring up for review the findings of fact. Fox v. Mills, 225 N.C. 580, 35 S.E. 2d 869; Burnsville v. Boone, supra.

However, in the grouped assignments of error plaintiff has set out specific portions of the findings of fact to which exceptions are there stated. But these are apparently abandoned, since they are not brought forward in the appellant’s brief filed in this Court. “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.” Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, p. 562.

Nevertheless, a reading of the record fails to show error in the findings of fact to which the above assignments of error relate.

Tbe remaining portion of tbe exception is to tbe judgment, and tbe assignment of error based tbereon. These present only tbe question as to whether, on tbe facts found, error in matters of law appears upon tbe face of tbe record. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E. 2d 15; Terry v. Coal Co., 231 N.C. 103, 55 S.E. 2d 926, and cases cited.

And tbe assignment of error as stated in tbe grouping of assignments of error is “to tbe bolding of tbe court that tbe petition and election was in all respects legal and valid and that a person only has to be a registered voter of Eandolpb County to be a valid petitioner, and that tbe plaintiff has not established a prima facie case to entitle him to a restraining order, tbe plaintiff excepts, and to tbe judgment signed in this matter.” Thus tbe challenge to validity of tbe election is expressly limited to and focused upon tbe point that tbe trial court erred in respect of tbe ruling as to who is a valid petitioner within the meaning of General Statutes 18-124 (b), which is subsection b of Section 1 of Chapter 1084 of 1947 Session Laws of North Carolina. This is tbe sole question. This statute pertains to petitions requesting that an election be held for tbe purpose of submitting to tbe voters of tbe county tbe question of whether or not wine or beer or both shall legally be sold therein, and provides that tbe county board of elections, “upon presentation to it of a petition signed by fifteen per cent (15%) of tbe registered voters of tbe county that voted for governor in tbe last general election requesting” such an election, shall call it for tbe purposes above stated.

Tbe court below held that the words “15 per cent of the registered voters of tbe county that voted for governor in tbe last géneral election,” as used in tbe statute refers to tbe total number of votes cast for Governor in tbe last general election, and not necessarily tbe identical persons who cast votes for Governor in said election. This appears to be tbe fair and reasonable meaning of tbe statute.

Since tbe election laws of this State provide for a secret ballot, it would be impossible for a county board of elections to determine bow or whether any particular voter voted for Governor in tbe last general election. Hence, it is inconceivable that tbe General Assembly intended to do a vain thing.

Indeed, tbe findings of fact hereinabove stated show not only that tbe number of signers on tbe petition in question who were legally registered, but that tbe number of tbe signers who personally voted in tbe 1948 general election exceeded fifteen per cent of tbe number of votes then cast for Governor.

It is noted that appellant debates, in bis brief, various other questions of law in respect of matters of law in tbe judgment from which appeal is taken. And while not presented by tbe assignments of error, a reading of the facts, in the light of pertinent statutes and decisions of this Court fails to show error upon the face of the record.

Attention is directed to the fact that in brief filed here, appellant groups on one page all cases cited, and in the text of the brief does not give the volume and page of any case cited, but follows each with the word “supra,” thereby necessitating a checking with the list of grouped cases to find where any case is reported. This is not a compliance with Rule 28 of the Rules of Practice in the Supreme Court. 221 N.C. 544, at page 562.

Upon full consideration of the case as presented, error is not made to appear in the judgment from which appeal is taken.

Affirmed.