Ingle v. State Bd. Of Elections

• Decision Date: 05 June 1946
• Docket Number: No. 453.,453.
• Citation: 38 S.E.2d 566,226 N.C. 454
• Court: North Carolina Supreme Court
• Parties: INGLE. v. STATE BOARD OF ELECTIONS.

226 N.C. 454

38 S.E.2d 566

INGLE.

v.STATE BOARD OF ELECTIONS.

No. 453.

Supreme Court of North Carolina.

June 5, 1946.

Appeal from Superior Court, Wake County; W. C. Harris, Judge.

Petition by John J. Ingle against State Board of Elections for writ of mandamus to require respondents to proceed in lawful manner to cause petitioner's name to be placed on the official ballot as candidate or nominee of the Republican Party for the office of Associate Justice of the State Supreme Court to be voted on in the general election to be held November 5, 1946. From a judgment denying petitioner's mo tion for judgment on the pleadings, the petitioner appeals, assigning errors.

Affirmed.

Petition for writ of mandamus to require respondents to proceed in lawful manner to cause petitioner's name to be placed on the official ballot as candidate or nominee of the Republican Party for the office of Associate Justice of the Supreme Court of North Carolina to be voted on in the general election to be held November 5, 1946.

The substance of the petition is, that on March 15, 1946, the petitioner duly filed with the State Board of Elections notice of his candidacy for the nomination by the Republican Party as its nominee for the office of Associate Justice of the Supreme Court of North Carolina; that notwithstanding his due compliance with the requirements of law in filing notice of his candidacy, the State Board of Elections, through its Executive Secretary, notified petitioner on March 20, 1946, that his notice of candidacy was defective in that it failed to state for which vacancy he was asking the nomination and that since "it was not a legal filing, the Board could not accept same"; that the Board accordingly rejected and returned to petitioner his written notice and filing fee; that the petitioner and another are the only two candidates of the Republican Party as its nominees for the two vacancies for Associate Justices of the Supreme Court of North Carolina, which are to be filled in the general election to be held on November 5, 1946; that in the discharge of its ministerial duties the State Board of Elections has no discretion in the matter, since the notice was filed in accordance with law, and that petitioner is entitled to be certified by the State Board of Elections as the nominee of the Republican Party for the office of Associate Justice of the Supreme Court of North Carolina and to have his name appear on the official ballot at the ensuing general election. Wherefore, petitioner prays for writ of mandamus to require the respondents to carry out their duties in the premises.

It is further alleged in an amendment to the petition that the action of the respondents in refusing to certify petitioner as the nominee of the Republican Party forthe office aforesaid deprives him of fundamental rights guaranteed by the Constitutions of North Carolina and the United States.

The respondents answered the complaint of the petitioner and denied that he had filed notice of candidacy as required by law. They further set up their version of the facts in "a more complete defense", which may be summarized as follows:

1. That among other State offices to be filled at the general election in November, 1946, are two vacancies in the offices of Associate Justice of the Supreme Court of North Carolina, occurring by reason of the expiration of the terms of office of Associate Justices M. V. Barnhill and J. Wallace Winborne. That the present incumbents of these offices have duly qualified as candidates of the Democratic Party to succeed themselves in their respective offices. No other vacancy on the Supreme Court is to be filled at the forthcoming general election.

2. That under the law governing the selection of party candidates to fill such vacancies, it is provided that candidates of each political party shall file written notice of candidacy and cause the same to be delivered into the hands of the State Board of Elections not later than 6 o'clock P.M. on the tenth Saturday preceding the date of the primary, which closing hour for filing notice of candidacy in the present year was 6 o'clock P.M. Saturday, March 16, 1946.

3. That one minute before the expiration of the filing time, to wit, at 5:59 o'clock P.M. Saturday, March 16, 1946, petitioner's "Notice of Candidacy" and filing fee reached the State Board of Elections through the United States mail, but said notice failed to designate which of the two vacancies the petitioner was asking the nomination as required by G.S. § 163-147.

4. That Herbert F. Seawell, Jr., had theretofore filed notice of candidacy as the nominee of the Republican Party for the vacancy occurring by reason of the expiration of the term of office presently occupied by Associate Justice Winborne. That no other notice of candidacy as nominee of the Republican Party for a vacancy in the office of Associate Justice of the Supreme Court was filed by any person.

5. That upon receipt of petitioner's purported notice of candidacy, the State Board of Elections, by resolution, duly received the same subject to the ruling of the Attorney General of the State as to its legality or sufficiency under the law.

6. Thereafter, the Attorney General, in response to advice sought, ruled that the filing was not in accordance with the statute, and the same was thereupon rejected by unanimous vote of the State Board of Elections.

In answer to the constitutional matters raised by the amendment to the petition, the respondents denied any infringement of constitutional rights.

The petitioner moved for judgment on the pleadings--demanding writ of mandamus as prayed--which was...