McLean v. Durham County Board of Elections
| Decision Date | 23 September 1942 |
| Docket Number | 737. |
| Citation | 21 S.E.2d 842,222 N.C. 6 |
| Parties | McLEAN v. DURHAM COUNTY BOARD OF ELECTIONS. |
| Court | North Carolina Supreme Court |
Petition for mandamus to require defendant to print petitioner's name on the official ballot for the November, 1942, election.
On May 23, 1942, plaintiff, a registered and qualified voter of Durham County, was selected by the Republican party of said county as its candidate for Clerk of the Superior Court of Durham County. The nomination was by the convention method.
Plaintiff's name, together with those of the other nominees so selected was certified by the proper officers of the convention to the County Board of Elections May 27, 1942. On May 29, 1942, the County Board of Elections, by letter, refused to accept such certificate, denied plaintiff's right to have his name printed on the official ballot and asserted its purpose not to do so, assigning as its reason therefor that plaintiff had failed to comply with essential provisions of the State Primary Law. Thereupon, plaintiff filed his petition for a writ of mandamus.
The plaintiff never filed notice of his candidacy or paid any filing or other fee. Nor has he signed a pledge to abide by the result of the primary. His name was certified to the Board more than five weeks after the final date for filing notice of candidacy and paying the filing fee as fixed by statute.
The defendant appeared and demurred to the complaint and the amended complaint for that they do not state facts sufficient to constitute a cause of action for a writ of mandamus in that it is not alleged that plaintiff filed notice of his candidacy with the County Board of Elections of Durham County and paid the filing fee required of candidates for the office of Clerk of the Superior Court of Durham County, or that he has otherwise complied with the law applicable to Durham County governing the nomination of candidates for county offices in primary elections; and that it affirmatively appears on the face of plaintiff's pleadings that he was nominated by a method not permitted by the law applicable to Durham County.
When the cause came on to be heard on the demurrer the court below entered its order sustaining the demurrer and denying the writ of mandamus. Plaintiff excepted and appealed.
A. A McDonald, of Durham, for appellant.
R. P Reade, of Durham, for appellee. B. Patton, Asst. Atty. Gen for State Board of Elections, amicus curiae.
While plaintiff challenges the correctness of the judgment of the court below on a number of grounds, the primary and decisive question presented is this: May a candidate for county office be nominated by his political party in a manner other than that prescribed by the State Primary Law when such primary law is applicable?
Our original Primary Law was adopted in 1915. Ch. 101, P.L.1915. Various sections thereof have since been amended. In 1929 the General Assembly made provision for the use of the Australian Ballot "in all elections and in all primaries held in North Carolina." Ch. 164, P.L., 1929. This act also repealed certain sections of the 1915 act and amended other sections. The acts and the amendatory acts are all brought forward and codified in Michie's unofficial North Carolina Code of 1939. For convenience and brevity the pertinent sections of that publication are cited.
Plaintiff not only asserts that the 1915 Act is unconstitutional but also that, in effect, it was repealed by the 1929 Act.
Repeals by implication are not favored. Bunch v. Com'rs, 159 N.C. 335, 74 S.E. 1048; Carolina Discount Corp. v. Landis Motor Co., 190 N.C. 157, 129 S.E. 414; State v. Kelly, 186 N.C. 365, 119 S.E. 755; Story v. Board of Com'rs, 184 N.C. 336, 114 S.E. 493; Hammond v. City of Charlotte, 205 N.C. 469, 171 S.E. 612; and the presumption is always against implied repeal. State v. Perkins, 141 N.C. 797, 53 S.E. 735, 9 L.R.A.,N.S., 165. Statutes on the same subject are to be reconciled if this can be done by giving effect to the fair and reasonable intendment of both acts. Guilford County v. Estates Administration, 212 N.C. 653, 194 S.E. 295; or by reasonable construction of the statutes. State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9. Repeal by implication results only when the statutes are inconsistent, Kearney v. Vann, 154 N.C. 311, 70 S.E. 747, 749, Ann.Cas.1912A, 1189; necessarily repugnant, Guilford County v. Estates Administration, supra; utterly irreconcilable, State v. Epps, 213 N.C. 709, 197 S.E. 580, or wholly and irreconcilably repugnant; Kelly v. Hunsucker, 211 N.C. 153, 189 S.E. 664.
The Australian Ballot Law, Ch. 164, P.L.1929, does not purport to supersede and replace the Primary Law, Ch. 101, P.L., 1915, but merely to write into the former law a progressive and desirable improvement. It contains abundant internal evidence that no repeal, except as therein expressly provided, was intended. It is merely amendatory of and supplementary to the 1915 Act, providing for the Australian Ballot and regulating the use thereof.
Just as the concepts of the direct primary and the secret ballot are consistent so, we think, are the laws providing for these mechanics of elections when construed according to the accepted rules of statutory construction.
As the Australian Ballot Law did not repeal the Primary Law and as the two acts deal with the same subject matter, they must be construed in pari materia. Phillips v. Slaughter, 209 N.C. 543, 183 S.E. 897.
Plaintiff's contention that he is entitled to have his name printed on the official ballot is bottomed on the provisions of section 5, Ch. 164, P.L.1929; Michie's section 6055(a5) which, in part, reads: "The ballots printed for use under the provisions of this chapter *** shall contain the names of all candidates who have been put in nomination by any primary, convention, mass meeting, or other assembly of any political party in this State, or have duly filed notice of their independent candidacy." This language is substantially all-inclusive. Standing alone and unrelated to any other section or provision of the primary and election law it must be said to furnish a sound basis for plaintiff's contention. Are there other related provisions which so modify this language as to deny plaintiff his right to have his name appear on the official ballot?
The Primary Law, Michie's, section 6018, et seq., provides an exclusive method for the nomination of candidates for State and county offices. It regulates the nomination for State offices (1) by a political party; (2) of an independant candidate; and (3) to fill a vacancy caused by the death of a candidate. It is made applicable to nominations for county offices and provides that a candidate must file a notice of candidacy and sign a pledge to abide by the results of the primary § 6022, § 6034. He must likewise pay a filing fee equal to 1% of the...
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