McDonald v. Morrow

• Decision Date: 22 December 1896
• Citation: 26 S.E. 132,119 N.C. 666
• Parties: McDONALD v. MORROW, Clerk.
• Court: North Carolina Supreme Court

26 S.E. 132

119 N.C. 666

McDONALD v. MORROW, Clerk.

Supreme Court of North Carolina

December 22, 1896

Proceeding by E. McDonald, under the election law, against J. M. Morrow clerk. From the order entered by an associate justice of the supreme court, McDonald appeals. Affirmed.

The following is the opinion of Associate Justice FURCHES:

"Upon a full consideration of this matter, I am of the opinion that the restraining order heretofore granted should be vacated, and the motion for an injunction should be denied. But in thus holding I do not find that there had been no irregularities, intimidations, or frauds committed on the election in precinct No. 2, Pineville township. It is not necessary that I should undertake to decide these questions, nor do I think that I have the power to do so in this proceeding. My opinion is that registrars and judges of elections should be residents of the precinct for which they are appointed. But when they are regularly appointed, the law presumes they are rightfully appointed, and that they are residents of the precincts for which they have been so appointed. If they are not, the law provides the means by which this may be legally tried and judicially determined. No citizen or voter has the right to take the matter in his own hands and, by fraud, violence, intimidations, or other unlawful means, attempt to correct such mistake, if one has been made. If this were allowed, free elections and free governments would soon be at an end. No citizen had the right to undertake to correct such mistake, if one had been made, by officiously running the township lines, "and filing his report with the board," acting in discharge of their duties as registrars or judges of election. And if any person, by such acts or by threats of violence, or threats of indictment, or other unlawful means, did intimidate said registrars or judges, and by such means did interfere with them, in the lawful discharge of their duty as such registrars or judges, they have violated both the criminal and civil law of the state; and, in my opinion, neither the state, nor the individuals who may have been injured thereby, are without remedy. But it is not in this proceeding. I am in full sympathy with what I understand to be the spirit and meaning of the election law of 1895,--a free and fair election, and fair and honest count. And while I would not consider it my duty to sustain every technical objection that might be made to the manner of executing this law, if I saw that substantial justice had been done, and a fair expression of the qualified voters had been obtained, I would feel it my duty to exert all the powers I have to prevent fraud and intimidations of any kind. But it seems to me, from the affidavits filed in this proceeding, that this trouble has probably arisen from the fact that two negroes were appointed registrars in this township. And while it is not for me to say whether they should have been appointed or not, and I do not say whether they should or should not have been appointed, yet I do say that, under the constitution and laws of this state, the negro is a legal elector, and is entitled to accept and hold the office of judge or registrar of elections, and to exercise and perform the duties appertaining to the same. And the time has passed (if it ever existed), in North Carolina, when he can be illegally interfered with, and prevented from discharging his duties as such officer, on that account. But it is my opinion that the duties of a clerk, in tabulating the vote of an election and in announcing the result, are ministerial duties. And that it is his duty to tabulate and compute all such votes as come to him through the regular channel prescribed by law, unless it shall appear upon the return itself that it is in fact not the return of said precinct for which it purports to be. In such case he should refuse to count it, unless he shall be directed to do so by an order of a judge of the superior or supreme court. Upon an examination of a certified copy (not objected to by the plaintiff) of the return of the election in this precinct to the defendant, I cannot say that it contains such inherent and patent defects as would have authorized the clerk to reject it, under the rule I have stated. And, this being so, it was his duty to tabulate and count the same. Therefore the restraining order heretofore granted in this case is vacated, and the motion for a permanent injunction is denied. The defendant, J. M. Morrow, will at once proceed to count said vote as the law directs, and the same as if no restraining order had been issued in this proceeding. The defendant will recover his costs of the plaintiff. McDonald."

Plaintiff appeals to the full bench.

W. R. Henry, for appellant.

Burwell Walker & Cansler and Maxwell & Duls, for appellee.

FURCHES J.

This is an appeal by plaintiff from the rulings, findings, and judgment of FURCHES, J., in a proceeding instituted before him under chapter 159 of the Acts of 1895, known as the "Election Law." And upon consideration of the case on appeal, the court, without any division, are of the opinion that the rulings and opinion of the court below are correct, and should be affirmed, if the court had the jurisdictional power to entertain and decide the matter. This being so, we adopt the opinion of the court below as the opinion of this court, for the discussion of the matters of fact and law involved, except as to a constitutional question raised on the argument by a member of the court.

There is no question but what the act, in plain and unmistakable terms, authorized any judge of the superior court or justice of the supreme court to do what was done by one of the justices of the supreme court in this proceeding. This is admitted. But it is contended that this act is unconstitutional and void,--if not void in toto, that it is at least unconstitutional and void so far as it relates to the justices of the supreme court. And, as we understand, article 4, §§ 2, 8, 11, 12, are relied on as sustaining the contention that it is unconstitutional; that the legislature had no power to pass the act giving to judges and justices of the supreme court any such jurisdiction, and the act, or that part of it, is void for this reason. Congress legislates by virtue of the powers granted in the constitution of the United States, and cannot or should not legislate outside of these granted powers. But the powers of the legislature of North Carolina are just the reverse of the powers of congress. The powers of the legislature are inherent, being derived from the people whom it represents; and it has the power to pass any proper act of legislation that it is not prohibited from passing by the constitution. It then necessarily follows that, unless the legislature is prohibited by the constitution from passing this act, it had the power to do so.

Article 4, § 2, of the constitution of North Carolina is as follows: "The judicial power of the state shall be vested in a court for the trial of impeachments, a supreme court, superior courts, courts of justices of the peace, and such other courts inferior to the supreme court as may be established by law." Article 4, § 8, provides that the supreme court shall have jurisdiction to review, upon appeal, any decision of the courts below, and the jurisdiction of said court over issues of fact and questions of fact shall be the same they were before the constitution of 1868, and it shall have power to issue any remedial writs, necessary to give it a general supervision and control over the proceedings of the inferior courts. The eleventh section provides "that the judges of the superior courts shall reside in the districts for which they are elected, and shall preside in the courts of the different districts," etc., without prescribing any duty they are to perform. The twelfth section provides "that the general assembly shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it, as a co-ordinate department of the government, but the general assembly shall allot and distribute that portion of this power and jurisdiction, which does not pertain to the supreme court, among the other courts prescribed in this constitution, or which may be established by law, in such manner as it may deem best; provide also a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers, of all the courts below the supreme court, so far as the same may be done without conflict with other provisions of this constitution."

These are the provisions of the constitution relied on, as we understand, to maintain the contention that this act is unconstitutional. We must confess our inability to see it. The second section certainly does not do so. It refers to the whole judicial power as a co-ordinate department of the government, and in doing so it refers to the courts mentioned in the constitution and such other courts inferior to the supreme court as may be established by law. But it does not undertake to distribute this power among the courts. There is no prohibition in this section. The eighth section establishes the supreme court as a court of appeals. It does not in terms prohibit it from exercising other...