Owens v. Chaplin

• Decision Date: 07 April 1948
• Docket Number: No. 22.,22.
• Court: North Carolina Supreme Court
• Parties: OWENS. v. CHAPLIN.

47 S.E.2d 12

228 N.C. 705

OWENS.

v.CHAPLIN.

No. 22.

Supreme Court of North Carolina.

April 7, 1948.

Rehearing Denied June 4, 1948.

See 48 S.E.2d 37.

Appeal from Superior Court, Tyrrell County; R. Hunt Parker, Judge.

Civil action in the nature of a quo warranto to try title to office of clerk of superior court by the State, by its Attorney General, on the relation of Delmar C. Owens, against C. R. Chaplin. From the judgment, the defendant appeals.

Reversed.

This is a civil action in the nature of a quo warranto to try title to the office of Clerk of the Superior Court of Tyrrell County for the four year term commencing on the first Monday in December, 1946.

The relator, Delmar C. Owens, as the Republican candidate, and the defendant, C. R. Chaplin, as the Democratic nominee, sought election to the office in controversy at the general election on November 5, 1946. The Tyrrell County Board of Elections met at the courthouse of the county at the appointed day after the election and opened the returns of the several precincts of the county, canvassed the votes cast in the county, judicially determined that 686 votes were cast for the defendant and that 666 votes were given for the relator, and officially declared the defendant elected to the office of Clerk of the Superior Court of Tyrrell County. Within ten days thereafter, the Chairman of the Tyrrell County Board of Elections furnished to the defendant a certificate of election under his hand and seal, and on the first Monday in December, 1946, the defendant qualified as Clerk of the Superior Court of Tyrrell County, and ever since has been discharging the duties of the office and enjoying its fees and emoluments.

This action was brought by the relator, upon the leave of the Attorney General, on December 23, 1946, after he had exhausted administrative machinery before the Tyrrell County Board of Elections and the State Board of Elections.

As made out by the complaint, the claim of the relator to the office in controversy may be summarized as follows: According to the official canvass of the vote by the Tyrrell County Board of Elections, the defendant was elected by a majority of 20. But such was not the true and lawful result of the election. More than 20 illegal votes were cast and counted for the de fendant, and but for such illegal votes, the official canvass would have shown the relator's election. The relator is entitled to have the illegal votes rejected by the court. As the exclusion of the illegal votes would show that the relator received a majority of the legal votes cast for candidates for the office and would thus change the result of the election, the relator is entitled to the entry of a judgment ousting the defendant from the office and putting the relator in possession of it.

The validity of the relator's claim was denied by the answer of the defendant.

All of the issues in the action were referred to Honorable Kemp D. Battle for trial by the written consent of the parties. The relator presented to the referee the depositions or personal testimony of 53 witnesses, including virtually all of the persons alleged to have cast illegal ballots for the defendant. The defendant, however, insisted that the testimony adduced by the relator was insufficient to support his claim, and refrained from offering any testimony in his own behalf. Mention will hereafter be made in the opinion of such of the testimony as may be necessary to an understanding of the matters at issue on this appeal.

The report of the referee as modified and confirmed by the judge found that 37 illegal votes were cast and counted for the defendant, and concluded that the relator had been elected to the office in question by a majority of 17. Judgment was entered thereon on application of the relator adjudging that the defendant be ousted from the office of Clerk of the Superior Court of Tyrrell County, and that the relator be put in possession of it. The defendant thereupon appealed to this Court upon exceptions duly preserved to practically all the findings of fact, conclusions of law, and rulings made below.

R. Clarence Dozier, of Elizabeth City, Willis Briggs, of Raleigh, and H. S. Ward and John A. Wilkinson, both of Washington, for relator-appellee.

Ehringhaus & Ehringhaus, of Raleigh, for defendant-appellant.

ERVIN, Justice.

The official certificate of election constituted prima facie evidence that the defendant was entitled to the office of Clerk of the Superior Court of Tyrrell County, and imposed on the relator the burden of establishing the grounds of his complaint. Jones v. Flynt, 159 N.C. 87, 74 S.E. 817; Rodwell v. Rowland, 137 N.C. 617, 50 S.E. 319; Boyer v. Teague, 106 N.C. 576, 11 S.E. 665, 19 Am.St.Rep. 547; Roberts v. Calvert, 98 N.C. 580, 4 S.E. 127. The referee and the judge have found that the relator has successfully met this burden. Their findings of fact are binding upon us if they are supported by evidence. Lindsay v. Brawley, 226 N.C. 468, 38 S.E.2d 528; Thigpen v. Trust Co., 203 N.C. 291, 165 S.E. 720.

As modified and confirmed by the judge, the report of the referee contains findings to the effect that 35 of the 37 persons alleged to have cast illegal ballots in favor of the defendant were disqualified to vote in Tyrrell County because of non-residence.

The qualifications of voters in this State are established by the Constitution. It is therein provided as a prerequisite to the right to vote that an elector "shall reside in the State of North Carolina for one year and in the precinct, ward or other election district in which he offers to vote four months next preceding the election." N.C.Const, Art. VI, section 2. It has been held by this Court without variation that residence within the purview of this constitutional provision is synonymous with domicile, denoting a permanent dwelling place, to which the party, when absent, intends to return. Hannon v. Grizzard, 89 N.C. 115; Boyer v. Teague, supra; Groves v. Commissioners of Rutherford County, 180 N.C. 568, 105 S.E. 172; Gower v. Carter, 195 N.C. 697, 143 S.E. 513. This constitutional provision applies primarily to an incoming person who is not permitted to exercise political rights until after he has been in the State and the voting precinct for the prescribed periods, and is not designed to disfranchise a citizen of the State when he leaves his home and goes into another State or into another county of this State for temporary purposes with the intention of retaining his home and of returning to it when the objects which call him away are attained. Hannon v. Grizzard, supra.

It appears that each of the 35 persons now under consideration was registered in the precinct in Tyrrell County in which his ballot was cast in the election of 1946, and that he had his legal residence in such precinct within the meaning of Article VI, section 2, of the Constitution at the time his name was placed upon the registration books. It is a well settled principle that when once established, a domicile is never lost until a new one is acquired. Hannon v. Grizzard, supra; Groves v. Commissioners of Rutherford County, supra; 29 C.J.S., Elections, § 19. It follows that each of these 35 persons was entitled to vote in Tyrrell County at the time in controversy unless he had changed his domicile at some time subsequent to his registration and prior to the election.

It is well established that "to effect a change of domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence at another place, or within another jurisdiction, coupled with the intention of making the last acquired residence a permanent home." In re Fin-layson, 206 N.C. 362, 173 S.E. 902, 903; In re Martin, 185 N.C. 472, 117 S.E. 561.

The relator called virtually all of the 35 persons now under consideration to the stand for the avowed purposes of establishing that they had changed their domiciles from Tyrrell County to another state or to other counties in this State between the times of their respective registrations and the election of November 5, 1946. We have studied with extreme care the testimony of these witnesses and all of the other evidence in the 275 page record, and have reached the conclusion that the testimony is sufficient to sustain the findings that four of these persons, namely, J. H. Beck, Dewey Jones, Blanche Jones, and Fred Patrick, were non-residents of Tyrrell County on November 5, 1946, but that there is no evi-dence in the record to support the findings of non-residence with respect to the other 31 persons who are alleged to have lost their domiciles in Tyrrell County. Un-controverted testimony offered by the relator shows that each of these 31 persons had a permanent residence in the precinct of Tyrrell County wherein his ballot was cast within the purview of Article VI, section 2, of the Constitution; that he left his home in Tyrrell County and went to another state or to another county in this State for temporary purposes; that he intended at all times to return to Tyrrell County when the temporary objects which had called him away were attained; and that he had at no time any intention of making the other state or the other county in this State his permanent home.

It is apparent that undue stress was placed in the hearing below upon the fourth and sixth rules prescribed by the legislature for the guidance of registrars and judges of election in determining the residence of a person offering to register or vote. G.S. § 163-25, subsections d and f. The meaning of the term "residence" for voting purposes, as used in Article VI, section 2, of the Constitution of North Carolina, is a judicial question. It cannot be made a matter of legislative construction. This is true because the legislature cannot prescribe any qualifications for voters different from those found in the organic law. Van Bokkelen v. Canaday, 73 N.C. 198, 21...