Gower v. Carter

• Decision Date: 28 September 1927
• Docket Number: 99.
• Citation: 139 S.E. 604,194 N.C. 293
• Parties: GOWER v. CARTER.
• Court: North Carolina Supreme Court

139 S.E. 604

194 N.C. 293

GOWER v. CARTER.

No. 99.

Supreme Court of North Carolina

September 28, 1927

Appeal from Superior Court, Johnston County; Harris, Judge.

Action in the nature of quo warranto by the State of North Carolina on the relation of F. G. Gower, against C. W. Carter, to try title to the office of Mayor of the Town of Clayton. Judgment for defendant, and plaintiff appeals. Reversed.

Whether certain voter in mayoralty election was domiciled in another town and voted for defendant in quo warranto held for jury.

Parker & Martin, of Smithfield, and Paul D. Grady, of Kenly, for appellant.

W. H Lyon, of Smithfield, and R. Roy Carter and J. W. Bailey, both of Raleigh, for appellee.

CLARKSON J.

This is a civil action, in the nature of quo warranto, to try the title to the office of mayor of the town of Clayton, Johnston County.

In Harkrader v. Lawrence, 190 N. C., at page 442, 130 S.E. 35, it is said:

"This is the method prescribed for settling a controversy between rival claimants when one is in possession of the office under a claim of right and in the exercise of official functions or the performance of official duties; and the jurisdiction of the superior court in this behalf has never been abdicated in favor of the 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 ."

Defendant in his brief says:

"The official returns in the election for mayor of Clayton showed 238 votes for F. G. Gower and 239 votes for C. W. Carter. The latter was declared elected. F. G. Gower brought the action, alleging that certain votes counted for C. W. Carter were illegal. It is conceded that plaintiff produced evidence tending to show that Joseph Romanus was not a qualified voter, and that he voted for C. W. Carter. This makes a tie. But a tie is not resolved by an action in the nature of quo warranto-the statute provides otherwise. C. S.§ 2671. The burden therefore was upon contestant, Gower, to show one more illegal vote for C. W. Carter."

The plaintiff in his complaint charges that of the 239 votes cast for defendant, C. W. Carter, 15 were illegal voters, and gives the names of each and why they were not entitled to vote. It is admitted on the record that Josephus Romanus, who was born in Lebanon, near Jerusalem, was not a naturalized citizen and not entitled to vote.

For a decision of the case, it is only necessary to consider the vote of Eloise Sparger. The evidence is as follows:

J. B. Sparger testified as follows:

"Lives in Mount Airy, has a daughter named Eloise Sparger, she is at Mount Airy, and is too sick to attend court, she was served with a subpoena to be here. He has lived at Mount Airy for 60 odd years, his daughter was born and reared at Mount Airy. She is 22 or 23 years old. She went to Clayton to teach school. Last year was her first year.

Q. Did she have any other purpose in going to Clayton, except to teach school? (Defendant objects; sustained; and plaintiff excepts.) She had not taught school before last year, but had attended school.

Q. When she is not engaged in teaching school or attending school, where does she stay and make her home? (Defendant objects; sustained; and plaintiff excepts.) She stayed in Clayton about nine months, went there about the beginning of the school and left immediately after the school closed. She came home to Mount Airy about June 1st, she spends her vacations at my home in Mount Airy. She spends her time at my home except when she is away visiting, teaching school, or going to school. I had heard her state for whom she voted in the Clayton election."

The above questions were competent.

D. M. Price testified as follows:

"That he stayed around the polls at the election in Clayton on May 3d, nearly all day; he saw Eloise Sparger go to the polls and vote; she took her ticket for mayor from the Carter pile, got her ticket off the Carter pile. He saw her put it in the box."

Cross-examination:

"He was at the house where the election was being held when she voted. There was a pile of tickets for each of the two men running for mayor. He did not look to see whether there were any Carter tickets in the Gower pile, or any Gower tickets in the Carter pile. There were not supposed to be any. He saw the sort of ticket she actually got, saw her when she took it up and saw C. W. Carter's name on it; he was not there all day, but was there the biggest part of the day."

Const. N.C. art. 6, § 2, in part says:

"Qualifications of Voters. He shall reside in the state of North Carolina for one year, and in the precinct, ward, or other election district, in which he offers to vote four months next preceding election: Provided, that removal from one precinct, ward or other election district to another in the same county shall not operate to deprive any person of the right to vote in the precinct, ward or other election district from which he has removed until four months after such removal," etc.

Sec. 3. "Voters to be Registered. Every person offering to vote shall be at the time a legally registered voter as herein prescribed and in the manner hereafter provided by law, and the General Assembly of North Carolina shall enact general registration laws to carry into effect the provisions of this article."

C. S. § 2654, in part is as follows:

"Registration of Voters. It shall be the duty of the board of commissioners of every city and town to cause a registration to be made of all the qualified voters residing therein, under the rules and regulations prescribed for the registration of voters for general elections."

C. S. § 2665: "All qualified electors, who shall have resided for four months immediately...