McPherson v. City Council of City of Burlington

• Decision Date: 25 February 1959
• Docket Number: No. 738,738
• Citation: 107 S.E.2d 147,249 N.C. 569
• Parties: Clyde McPHERSON and C. B. Moore v. CITY COUNCIL OF CITY OF BURLINGTON, N. C.; The City of Burlington, N. C.; H. C. Pollard, Mayor and Member of the City Council of the City of Burlington, N. C.; A. A. Alstion, Mayor Pro Tem and Member of the City Council of the City of Burlington, N. C.; Allen B. Cammack, Member of the City Council of the City of Burlington, N. C.; Paul J. Craig, Member of the City Council of the City of Burlington, N. C.; and William Leloudis, Member of the City Council of the City of Burlington, N. C.; and the City of Burlington, N. C.
• Court: North Carolina Supreme Court

Page 147

107 S.E.2d 147

249 N.C. 569

Clyde McPHERSON and C. B. Moore v. CITY COUNCIL OF CITY OF BURLINGTON, N. C.; The City of Burlington, N. C.; H. C. Pollard, Mayor and Member of the City Council of the City of Burlington, N. C.; A. A Alstion, Mayor Pro Tem and Member of the City Council of the City of Burlington, N. C.; Allen B. Cammack, Member of the City Council of the City of Burlington, N. C.; Paul J Craig, Member of the City Council of the City of Burlington N. C.; and William Leloudis, Member of the City Council of the City of Burlington, N. C.; and the City of Burlington, N. C.

No. 738

Supreme Court of North Carolina.

Feb. 25, 1959

W. D. Madry, W. L. Shoffner, H. Clay Hemric, Burlington, for defendant appellants.

No counsel contra.

DENNY, Justice.

The appellants' first assignment of error is to the failure of the court below to sustain their demurrer ore tenus on the ground that the complaint does not state a cause of action.

The demurrer interposed in the court below was properly overruled. It fails to point out any defect in the complaint which would entitle the defendants to a dismissal of the action. Ledwell v. Proctor, 221 N.C. 161, 19 S.E.2d 234; McIntosh, North Carolina Practice and Procedure, 2nd Ed., Volume 1, Demurrer, section 1195, page 654. Cf. Garner v. Town of Newport, 246 N.C. 449, 98 S.E.2d 505.

The third assignment of error is directed to the failure of the court below to sustain their motion for judgment as of nonsuit at the close of all the evidence.

We note that the court below in denying the motion for judgment as of nonsuit, stated: 'The court is of the opinion there is no qualification * * * where there is no oath administered * * * except the form prescribed by statute without the use of a Bible.'

It is the duty of a registrar to administer the oath prescribed by law to electors before registering them, but his failure to perform his duty in this respect will not deprive the elector of his right to vote or render his vote void after it has been cast. Quinn v. Lattimore, 120 N.C. 426, 26 S.E. 638, 58 Am.St.Rep. 797; Glbson v. Board of Commissioners, 163 N.C. 510, 79 S.E. 976; Woodall v. Western Wake Highway Commission, 176 N.C. 377, 97 S.E. 226; Davis v. Board of Education, 186 N.C. 227, 119 S.E. 372; Plott v. Board of Commissioners, 187 N.C. 125, 121 S.E. 190; Glenn v. Culbreth, 197 N.C. 675, 150 S.E. 332.

In Gibson v. Board of Commissioners, supra, it is said [163 N.C. 510, 79 S.E. 977]: '* * * a statute prescribing the powers and duties of registration officers should not be so construed as to make the right to vote by registered voters depend upon a strict observance of the registrars of all the minute directions of the statute in preparing the voting list, and thus render the constitutional right of sufferage liable to be defeated, without the fault of the elector, by fraud, caprice, ignorance, or negligence of the registrars * * *. A constitutional or statutory provision that no one shall be entitled to register without first taking an oath to support the Constitution of the state and that of the United States is directed to registrars and to them alone; and if they through inadvertence register a qualified voter, who is entitled to register and vote, without administering the prescribed oath to him, he cannot be deprived of his right to vote through this negligence of the officers.'

In the case of Quinn v. Lattimore, supra, the Court said [120 N.C. 426, 26 S.E. 639]:

'It appears that a number of persons were registered by other persons than the regularly appointed registrars, in one instance by the son of the registrar, in the absence of his father; and in another case by Williams, the register of deeds, with whom the registrar had left the registration books. These registrations were irregularly made, and might have been rejected and erased by the registrars. But it would not have been fair for them to have done this without notifying the parties so registered in time for them to have registered again. But, instead of their doing this, they retained these names on their books, which they and the judges of election used on the day of election, thereby ratifying and approving these registrations. And it would now be a fraud on the electors, as well as on the parties for whom they voted, and also upon the State, to reject these votes for this irregularity. These votes cannot be rejected for this reason.

* * * * * *

'* * * A vote received and deposited by the judges of election is presumed to be a legal vote, although the voter may not have complied with the requirements of the registration law; and it then devolves upon the party contesting to show that it was an illegal vote, and this cannot be shown by showing that the registration law had not been complied with. Pain, Elect. § 360. A party offering to vote without registration may be refused this right by the judges for not complying with the registration law. But if the party is allowed to vote, and his vote is received and deposited, the vote will not afterwards be held to be illegal, if he is otherwise qualified to vote. * * * And where a voter has registered, but the registration books show that he had not complied with all the minutiae of the registration law, his vote will not be rejected. * * * If a voter is registered...