Cozart v. Fleming

• Citation: 123 N.C. 547,31 S.E. 822
• Court: United States State Supreme Court of North Carolina
• Decision Date: 18 December 1898
• Parties: COZART . v. FLEMING et al.

31 S.E. 822

123 N.C. 547

COZART .

v.FLEMING et al.

Supreme Court of North Carolina.

Dec. 18, 1898.

Elections—Injunctions—Quo Warranto.

1. An action to enjoin newly-elected county commissioners, who had not yet qualified, from declaring a public office vacant, and electing a successor, is properly dismissed as premature.

2. Injunction does not lie to restrain county commissioners from declaring a public office vacant because of an apparent tie vote, where it is an attempt, in effect, to try the title to the office by injunction, which is not permissible.

3. The erroneous action of the county commissioners in declaring an office vacant because of an apparent tie vote, and ordering a new election, does not warrant the granting of an injunction to one of the candidates, since the title to the office can be inquired into by quo warranto even after such a new election.

4. Laws 1895, c. 159, § 7, as amended by Laws 1897, c. 185, provides that any judge of the superior or supreme court may issue a rule on 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 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. Held, that the result of an election as declared by the clerk of the superior court, where made in the manner pointed out by statute, is prima facie correct, and can be questioned only by quo warranto; and hence the clerk, who is functus officio after the declaration of the result, cannot be ordered by a "mandamus" to recount the vote, where it was a tie between two candidates.

5. Code, § 1872, provides that all officers shall continue in their respective offices until their successors have been duly elected and qualified. An election for sheriff resulted in a tie vote between defendant and relator, who was a candidate for re-election. The relator sued to restrain the clerk of the superior court from ordering a new election, and asked for a recount. Both candidates claim the incorrectness of the count, illegal votes, intimidation, etc., but defendant asked for a new election. Held, that the ordering of a new election was properly enjoined until the correct result of the election already had could be determined according to the issue raised by the pleadings, notwithstanding neither of the candidates is in possession of the office by virtue of the election, which was a necessary averment in quo warranto, which has been abolished (Code, § 603), but is not expressly required in the substituted action to try title to an office.

Montgomery, J., dissenting.

Appeal from superior court, Granville county; Timberlake, Judge.

Action by W. S. Cozart against S. A. Flem-tag and others to enjoin the ordering of a new election. From a decree for plaintiff, defendants appeal. Reversed.

A. W. Graham and J. W. Graham, for appellants.

T. T. Hicks, for appellee.

CLARK, J. The clerk of the superior court of Granville 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 reelection, 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 himself and the county, and asking a restraining order against such proceeding, until the proper result of the election already had was ascertained; (4) 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 cast, 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 at tempt to try the title to an office by an Injunction, which is not permissible. Patterson v. Hubbs, 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 a 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 elected and qualified. Code, § 1872.

The court, in view of the provision in section 7, c. 159, of the election law of 1895 (amended by chapter 185, 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 ballots, the clerk reported that the relator had received a majority of eight votes. On a 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 ballots, 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. 111, decided at a time when the tabulation was made by a board of canvassers, instead of bythe 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, 3 S. E. 392, 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 cannot 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. 340; People v. Robertson, 27 Mich. 116; Opinion of Justices, 117 Mass. 599; State v. Donnewirth, 21 Ohio St. 216. 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,...