Ponder v. Joslin, 314

• Decision Date: 30 September 1964
• Docket Number: No. 314,314
• Citation: Ponder v. Joslin, 262 N.C. 496, 138 S.E.2d 143 (N.C. 1964)
• Parties: Zeno H. PONDER v. William JOSLIN, Chairman of, Warren R. Williams, Joseph E. Zaytoun, Hiram Ward and C. Bruce Hawkins, Members of the North Carolina State Board of Elections.
• Court: North Carolina Supreme Court

Page 143

138 S.E.2d 143

262 N.C. 496

Zeno H. PONDER v. William JOSLIN, Chairman of, Warren R. Williams, Joseph E Zaytoun, Hiram Ward and C. Bruce Hawkins, Members of the North Carolina State Board of Elections.

No. 314.

Supreme Court of North Carolina.

Sept. 30, 1964.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Ralph Moody and Staff Atty. Harold L. Waters, Raleigh, for State Board of Elections.

William J. Cocke, Asheville, and A. E. Leake, Marshall, for plaintiff.

DENNY, Chief Justice.

The plaintiff's first assignment of error challenges the correctness of the order entered by Huskins, J., on 8 August 1964, directing the defendants 'to consider the evidence taken by said State Board of Elections during its investigations conducted in Madison County since 11 June 1964 * * *.'

The plaintiff's second assignment of error challenges the order on the ground that, in effect, it presupposes the authority of the State Board of Elections to go behind the returns certified by the County Board of Elections in Madison County and to ascertain whether or not void, fraudulent or otherwise illegal votes were included in the certified returns to the State Board of Elections by the County Board of Elections in Madison County; and, in effect, recognizes the power of the State Board of Elections to require the Madison County Board of Elections to amend its returns and to declare which candidate, based on the amended returns, is entitled to be certified as the nominee of the Democratic Party for State Senator for the 34th Senatorial District.

These assignments of error will be considered together.

The plaintiff's position is that the State Board of Elections cannot go behind the returns certified to it by a county board of elections; that in such a situation the only duty of the State Board of Elections is to compile and tabulate the returns as certified by the various county boards of election and that this is merely a ministerial duty to be performed pursuant to the provisions of G.S. § 163-138. We do not concur in this view when a protest has been filed challenging the legality of the returns certified by a county board of elections.

In the case of Burgin v. North Carolina State Board of Elections, 214 N.C. 140, 198 S.E. 592, this Court said: 'The fact that after the returns are in, the State Board of Elections is to canvass the returns and 'determine whom they ascertain and declare by the count' (C.S. § 5994, as amended by Pub.Laws 1933, c. 165, § 9) to be nominated or elected is not to be construed as a denial of negation of its supervisory powers, which perforce are to be exercised prior to the final acceptance of the several returns. Nor will the courts undertake to control the State Board in the exercise of its duty of general supervision so long as such supervision conforms to the rudiments of fair play and the statutes on the subject.'

By the enactment of Chapter 165 of the Public Laws of 1933 (now codified as Chapter 163, General Statutes of North Carolina) the General Assembly gave broad supervisory powers to the State Board of Elections.

It would seem that by the enactment of G.S. § 163-10 and other sections of Chapter 163 of the General Statutes, the General Assembly gave the State Board of Elections power to supervise primaries and general elections to the end that, insofar as possible, the results in primary and general elections in North Carolina will not be influenced or tainted with fraud, corruption or other illegal conduct on the part of election officials or others, and we so hold. The people are entitled to have their elections conducted honestly and in accordance with the requirements of the law. To require less would result in a mockery of the democratic processes for nominating and electing public officials.

It is provided in G.S. § 163-10, among other things, that 'It shall be the duty of the State Board of Elections:

'(10) To compel the observance, by election officers in the counties, of the requirements of the election laws, and the State Board of Elections shall have the right to hear and act on complaints arising by petition or otherwise, on the failure or neglect of a county board of elections to comply with any part of the election laws pertaining to their duties thereunder. And the State Board of Elections shall have power to remove any member of a county board of elections for neglect or failure in his duties and to appoint a successor.

'(11) To investigate when necessary or advisable, the administration of election laws, frauds and irregularities in elections in any county, and to report violations of the election laws to the Attorney General or solicitor of the district for further investigation and prosecution. * * *

'(15) To have the general supervision over the primiaries and elections in the State and it shall have the authority to make such reasonable rules and regulations with respect to the conduct of primaries and elections as it may deem advisable: Provided same shall not conflict with any provision of the law.'

We do not construe G.S. § 163-10(11) to limit the authority of the State Board of Elections merely to an investigation of alleged 'frauds and irregularities in elections in any county,' for the sole purpose of making a report of such frauds and irregularities to the Attorney General or solicitor for further investigation and prosecution. The State Board of Elections is a quasi-judicial agency and may, in a primary or election in a multiple county district, investigate alleged frauds and irregularities in elections in any county upon appeal from a county board or upon a protest filed in apt time with the State Board of Elections, and may take such action as the findings of fact may justify, and may direct a county board of elections to amend its returns in accordance therewith. Burgin v. Board of Elections, supra.

Findings of fact and conclusions of law made by the State Board of Elections may be reviewed in an action instituted in the Superior Court of Wake County pursuant to the provisions of G.S. § 143-307. In such action, however, the appellant is not entitled to a jury trial. In Burgin v. North Carolina State Board of Elections, 214 N.C. 324, 199 S.E. 72, this Court said: '* * * (T)he judge of the superior court will proceed to determine as a matter of law on the facts found, without the intervention of a jury, whether complete, legal and final returns from all the counties in the * * * District have been made, filed and accepted, or as a matter of law ought to have been accepted, by the State Board of Elections. If it be made to appear that such returns have been so made, the court shall thereupon dissolve the restraining order * * *, and determine whether upon such returns the plaintiff has shown a clear legal right to the writ of mandamus, and enter judgment accordingly. Unless so shown, plaintiff's application therefor should be dismissed.'

The case of Ledwell v. Proctor, 221 N.C. 161, 19 S.E.2d 234, was a civil action in the nature of a quo warranto to try title to the office of alderman of the town of Sanford. On appeal this Court said: 'In canvassing the returns and judicially determining the result the board of canvassers must pass upon the legality of any disputed ballots. Burgin v. [North Carolina State] Board of Elections, 214 N.C. 140, 198 S.E. 592.

'It follows that the board of elections has authority, judicial in its nature, to examine the returns and decide upon their regularity, correctness and sufficiency, and to accept or reject them. Gatling v. Boone, 98 N.C. 573, 3 S.E. 392; Barnett v. Midgett, 151 N.C. 1, 65 S.E. 441. It constitutes an essential part of the machinery provided by statute for the ascertainment of the successful candidate in an election to which contesting candidates must first resort for the determination and declaration of the results of the election. The returns made by the registrars and judges of election merely constitute a preliminary step and such returns alone do not entitle the apparently successful candidate to the office.'

While returns certified to the State Board of Elections by a county board of elections, nothing else appearing, will be deemed to be prima facie correct, such certification, however, is not conclusive. Ledwell v. Proctor, supra. Returns certified by a county board of elections may be collaterally attacked. Barnett v. Midgett, 151 N.C. 1, 65 S.E. 441.

There is a well defined distinction between a primary election and a regular election, as pointed out in the case of Rider v. Lenoir County, 236 N.C. 620, 73 S.E.2d 913, in which case it is said: 'A primary election is a means provided by law whereby members of a political party select by ballot candidates or nominees for office; whereas a regular election is a means whereby officers are elected and public offices are filled according to established rules of law. In short, a primary election is merely a mode of choosing candidates of political parties, where as a regular election is the final choice of the entire electorate. G.S. §§ 163-117 to 147; 29 C.J.S., Elections, § 1d and e; 36 Words and Phrases [Permanent Edition, Vol. 36,], p. 667 et seq.'

A county board of elections is the proper agency to canvass the returns in a primary for the selection of party nominees for county offices as well as in a general election to fill such offices. G.S. § 163-86; Strickland v. Hill, 253 N.C. 198, 116 S.E.2d 463. However, G.S. § 163-93 provides: 'The State Board of Elections shall...