Glenn v. Culbreth

• Decision Date: 13 November 1929
• Docket Number: (No. 258.)
• Citation: 150 S.E. 332,197 N.C. 675
• Parties: GLENN et al. v. CULBRETH et al.
• Court: North Carolina Supreme Court

150 S.E. 332

(197 N.C. 675)

GLENN et al.

v.CULBRETH et al.

(No. 258.)

Supreme Court of North Carolina.

Nov. 13, 1929.

Appeal from Superior Court, Wake County; Midyette, Judge.

Action by George M. Glenn and others against E. E. Culbreth and others. From the judgment, plaintiffs appeal. Affirmed.

The plaintiffs, alleging that they were residents and voters of the city of Raleigh, instituted an action against the defendants, commissioners of the city of Raleigh, and joined as defendants the registrars of said city. The plaintiffs alleged that a primary election was to be held in Raleigh on April 22 for the purpose of choosing commissioners for said city and a judge of the city court, said primary to be followed by the general election in the city, to be held on the first Monday of May, 1927.

The plaintiffs based their cause of action upon the following contentions:

(a) That the-defendants, commissioners of the city of Raleigh, were candidates to succeed themselves, and unlawfully attempted to select registrars favorable to their candidacy.

(b) That the defendants unlawfully and illegally printed certain blank cards containing space for the name of the voter, and placed such cards in the hands of employees of the city to procure signatures to such cards which were then to be taken to the registrars and placed upon the registration books.

(c) That names of voters have been put upon the registration books unlawfully in all precincts.

. (d) That the registrars were not sworn and qualified according to law.

(e) That the registrars have permitted third persons to place names on the registration books.

(f) That applicants for registration had not been sworn as required by law.

(g) That names of voters had been placed on the books by request over the telephone.

Upon such allegations plaintiff prayed that the defendants and officers and employees of the city be restrained from using said registration, and that a writ of mandamus issue.

A temporary injunction was issued, and the cause was heard by Midyette, J., on April 12th.

The defendants filed answer, denying fraud or duress, and alleging that the primary was held in accordance with the charter of the city of Raleigh, same being chapter 59, Private Laws of 1913. Affidavits were filed by the parties, and after hearing the evidence the court rendered judgment, the pertinent portions of which are as follows:

"This cause coming on to be heard before His Honor, G. E. Midyette, Judge holding the Courts of the 7th Judicial District, by exchange, at Chambers in the City of Raleigh, N. C, on this April 12, 1929, upon a hearing from the citation served upon the defendants in said cause, the same having been made returnable for the 16th of April, 1929, at 9:30 o'clock A. M.; but upon motion of the defendants the Court, in its discretion, upon notice, having shortened the time for said hearing, and the cause having been reset for a hearing on the 12th day of April, 1929, at 7:30 o'clock P. M., and the said hearing being heard upon the complaint, answer and affidavits filed herein, and upon the argument of counsel, and the plaintiffs by permission of the Court, having subpoenaed each and everyone of thedefendant registrars then and there to appear and bring with them the registration books of the several precincts of the City of Raleigh in the hands of the several defendant registrars; and having heard the complaint, reply and the affidavits of the plaintiffs and the affidavits and answer of the defendants, and the Court being of the opinion that the matters and things in controversy were largely ones of law, but found as a fact: "That the registration books for said primary election do not close until midnight April 13, 1929, and that the registration books complained of are open for challenge against any voters whose names appear thereon that may not be properly or legally registered, and that such remedy is open to the complainants or any other interested persons; and if further appearing to the Court that only one other day is now open for registration of voters, as provided in the Charter of the City of Raleigh; and the Court being of the opinion that it is not proper or necessary to continue the restraining order heretofore made against the defendants prohibiting them from the matters and things set out in the original order;

"And it further appearing to the Court, and it being found as a fact, that the defendant Commissioners have regularly and properly called said election, and have forthwith duly appointed registrars and provided them with...