Overton v. Mayor and City Com'rs of City of Hendersonville, 35

• Decision Date: 09 November 1960
• Docket Number: No. 35,35
• Court: North Carolina Supreme Court
• Parties: A. J. OVERTON, Jack Johnson, Paul Perry, C. F. Jervis, Mrs. W. P. Chaney, Miss Myrtle Bennett, Miss Audrey Saunders, Luther Tweed and Glenn Morgan, on behalf of themselves and all other citizens and qualified voters of the City of Hendersonville, v. MAYOR AND CITY COMMISSIONERS OF the CITY OF HENDERSONVILLE, to wit, Mayor A. V. Edwards, 1. E. Johnson, Tom Clark, Ben Foster, and Roy Williams, Commissioners; Raymond P. English, Registrar; Frank Waldrop and 1. B. Hughes, Judges; and 1. T. Olsen, John F. McLeod, Jr., and Melvin S. Hatch, Commission; and M. J. Worley, R. B. Shealey and Hugh Whisnant, Constituting The Board of Elections of the City of Hendersonville.

Page 808

116 S.E.2d 808

253 N.C. 306

A. J. OVERTON, Jack Johnson, Paul Perry, C. F. Jervis, Mrs.

W. P. Chaney, Miss Myrtle Bennett, Miss Audrey Saunders, Luther Tweed and Glenn Morgan, on behalf of themselves and all other citizens and qualified voters of the City of Hendersonville, v. MAYOR AND CITY COMMISSIONERS OF the CITY OF HENDERSONVILLE,

to wit, Mayor A. V. Edwards, 1. E. Johnson, Tom Clark, Ben

Foster, and Roy Williams, Commissioners; Raymond P. English,

Registrar; Frank Waldrop and 1. B. Hughes, Judges; and 1. T.

Olsen, John F. McLeod, Jr., and Melvin S. Hatch, Commission;

and M. J. Worley, R. B. Shealey and Hugh Whisnant,

Constituting The Board of Elections of the City of Hendersonville.

No. 35

Supreme Court of North Carolina.

Nov. 9, 1960

Don C. Young and Lamar Gudger, Asheville, for plaintiffs.

Arthur B. Shepherd, R. L. Whitmire, L. B. Prince, Hendersonville, for defendants.

DENNY, Justice.

The only question for determination on this appeal is whether or not the court below committed error in allowing the motion of the defendants for judgment as of nonsuit.

The evidence tends to show that approximately eight hundred additional persons were registered while the registration books were open, for the special election held on 2 March 1960. The regular registration books of the City of Hendersonville were used and a new registration for the special election was not ordered.

The evidence offered below in support of the allegations in paragraph 13 of the complaint, to the effect that more than 350 of the persons registered for the special election were not administered oaths as required by law and that more than 200 of these persons were nonresidents of the City of Hendersonville, is in substance as follows: Paul Perry, one of the plaintiffs herein and one of the duly appointed and sworn watchers for the dry forces, testified that he challenged 176 voters, practically all of whom were Negroes. Of this 176, he named 41 who were challenged on the sole ground that the oath was not administered to them by the registrar at the time they were registered. Four were challenged but no reason given. One voter was challenged on the ground that he did not have an oath administered to him at the time he registered and that he stated he could not read or write, another on the ground that he did not know who registered him and that he was not administered the oath at the time he registered. Twenty-one others were challenged on the ground that they were registered by Ben Israel or some person other than Raymond P. English, the registrar, and on the further ground that the oath was not administered to them at the time they were registered. This accounts for 68 of the 176 challenged voters by Paul Perry for the dry forces. There is no evidence tending to show on what ground the remaining 108 voters were challenged. Furthermore, there is no evidence tending to show that any person was challenged on the ground that he was not a resident of the City of Hendersonville or on the ground that such challenged voter was not registered.

M. F. Toms testified that on 1 March 1960, Raymond P. English, the registrar, came by his office; that upon inquiry Mr. English informed him that he had registered about 800 new people for this special election and that he administered the oath to about one-half of them at the time of their registration; that he had registered all of them except about thirty, and these were registered by Chief Powers and his (the registrar's) wife at his request. Chief Powers is a brother-in-law of English. The witness further testified that he got the impression that the thirty persons were registered by Powers and Mrs. English at times when Mr. English was at lunch.

No evidence whatever was offered in support of the allegation contained in paragraph 14 of the complaint with respect to the lack of authority of the Mayor and City Commissioners to call the election on account of the defective petitions or otherwise. Neither does the record disclose any evidence tending to support the allegation in said paragraph to the effect that the resolution passed by the Mayor and the City Commissioners calling the election did not comply with certain statutory requirements.

The evidence does not support the allegation of paragraph 15 of the complaint to the effect that 150 names were placed on the registration books by persons other than Raymond P. English, the registrar. The evidence tends to show that at most not more than thirty persons were registered by persons other than the registrar. Moreover, there is no evidence to support the further allegations in said paragraph to the effect that hundreds of persons were registered who did not possess the necessary educational qualifications to vote or who were also otherwise disqualified to vote.

The evidence adduced in the trial below does not tend to support the allegations in paragraph 16 of the complaint, to the effect that the election officials entered into a plan and conspiracy with James A. Stutts and Ben Israel pursuant to which scheme the said James A. Stutts and Ben Israel brought to the polling place in the City of Hendersonville on election day hundreds of persons who were not qualified to vote, many of whom were nonresidents of the City of Hendersonville, and many of whom were not registered for said special election. Neither does the evidence tend to support the allegations in subparagraph (a) of paragraph 16 to the effect that James A. Stutts, a nonresident, entered within the polling place and enclosure thereof on numerous occasions and there talked with voters singly and in groups, attempting to influence them to vote for the sale of beer and wine.

In the hearing below, A. B. Rhoads, the first witness for the plaintiffs, testified that he spent practically the whole day at the voting place on the day of this special election. 'I saw Mr. Waldrop (one of the judges) pick up a voter and go with him into the booth as many as a dozen times or more. I was there practically the whole day. * * * That was the day of the big snow, one of the heaviest snows we've ever had here and it snowed all day long. I never saw Mr. Stutts on the inside of the voting enclosure at all. I never saw Mr Israel on the inside of the voting enclosure.'

The evidence in support of subparagraph (b) of paragraph 16, to the effect that James A. Stutts paid money to numerous voters after they had allowed Frank Waldrop to mark their ballots, tends to show that on some three or four occasions Stutts did give money to prospective voters. He was seen to drop a fifty-cent piece on the floor and a colored man to whom he was talking picked it up and put it in his pocket. On another occasion he was observed giving a colored man what looked to be a dollar bill. At another time he was observed giving coins to three colored men. On still another occasion Stutts was told by a colored boy that certain folks were out in his car but refused to vote until they were paid what they were promised; that Stutts gave him some bills and said: 'Now, if that's not enough to take care of you, see Mr. Ben Israel.'

The allegation in subparagraph (c) of paragraph 16, to the effect that Ben Israel brought to the polling place more than one hundred persons whom he knew to be nonresidents of the City of Hendersonville and not qualified to vote, is not supported by the evidence. Further allegations in subparagraph (c), to the effect that if the more than one hundred persons which Israel brought to the polling place would take a ballot from the elections officials and hand it to Frank Waldrop without asking any questions, the said Ben Israel and the said James A. Stutts would pay to said persons money, give them whiskey, or give them orders for chickens or other produce, are not supported by the evidence. The evidence does disclose that many persons were brought to the polling place by Ben Israel, and that after Stutts talked to them outside the polling enclosure he would place them in the voting line and give a signal to Mr. Waldrop by a nod or wink and Waldrop would go into the booth with the voter after he had been given a ballot, and that Waldrop would mark the ballot, and on many occasions the voter would not accompany him into the booth. Part of the time Waldrop would return the marked ballot to the voter and the voter would put it in the ballot box. But in many instances Mr. Waldrop would deposit the ballot himself. Grover Redden, one of the sworn watchers for the dry forces, testified that Mr. Waldrop assisted at least a hundred voters in this way. The evidence further tends to show that these voters did not request Mr. Waldrop to assist them in marking their ballots.

The evidence with respect to the allegation in subparagraph (e) of paragraph 16, to the effect that Stutts and Israel issued and delivered to more than 150 persons who came to the polling place, slips of paper authorizing the bearer thereof to pick up a chicken or procure whiskey at Israel's store and that Israel honored the certificates, does not support the allegation. There was evidence, however, tending to show that three certificates were given to two voters; that each certificate called for the delivery of a chicken by presenting the same at Ben Israel's place of business, but the record does not reveal any evidence that the slips or orders entitled the bearer thereof to any whiskey or that any whiskey was delivered to anyone by Israel or anyone else in exchange for these orders for chickens.

M. A. Butler testified that he had previously lived in Hendersonville and had registered for a previous election in Hendersonville, but that he was not a resident of the City of Hendersonville at the time of the special election; that he voted therein as a consequence of a conversation with Ben Israel. This witness further testified that about two hours after he voted, Ben Israel gave him two slips of paper, each one for a chicken, signed '...