Rodwell v. Harrison

• Decision Date: 03 March 1903
• Citation: 43 S.E. 540,132 N.C. 45
• Parties: STATE ex rel. RODWELL v. HARRISON.
• Court: North Carolina Supreme Court

43 S.E. 540

132 N.C. 45

STATE ex rel. RODWELL v. HARRISON.

Supreme Court of North Carolina

March 3, 1903

Appeal from superior court, Halifax county; George A. Jones, Judge.

Quo warranto by the state, on the relation of T. O. Rodwell against Thomas N. Harrison, to oust respondent from the office of mayor of the town of Littleton. From a judgment for respondent, relator appeals. Affirmed.

E. L Travis, Walter E. Daniel, and Thos. N. Hill, for appellant.

CONNOR J.

The General Assembly, by chapter 171 of the Private Laws of 1893 amended the charter of the town of Littleton. The third section of said act provides "that there shall be on the first Monday in May, 1893, and on the first Monday in May annually thereafter, elected a mayor and seven commissioners for said town, who shall hold their offices until their successors are qualified." This act was amended by chapter 193 of the Private Laws of 1901, providing for the appointment of a board of elections and of judges of elections, poll holders, and prescribing the time, method etc., of registration, etc. Section 3 of the act of 1893 was not amended or in any way referred to in this act. An election was held on the first Monday in May, 1900, and on the first Monday in May, 1901, at both of which elections the defendant received a majority of the votes cast, and was duly declared elected, and inducted into office. On the first Monday in May, 1902, an election was held in said town, at which the plaintiff received a majority of the votes cast, and was duly declared elected, and qualified by taking the oath of office. He demanded possession of said office of the defendant, who refused to surrender the same. This action was begun on the 13th day of October, 1902, for the purpose of ousting the defendant and putting the plaintiff into the possession of said office.

The General Assembly, at the session of 1901, passed an act entitled "An act to provide for the holding town and city elections and special elections in counties and townships" (chapter 750, Pub. Laws 1901). "Section 1. That all elections held in any city or town in this state shall be held under the following rules and regulations, except as otherwise provided in the charter of such city or town." Sections 2 to 18, inclusive, prescribe rules and regulations for holding such elections. Section 19 provides that "in all cities and towns an election shall be held on Tuesday after the first Monday in May, 1901, and biennially thereafter (except as to the city of Fayetteville) for such other officers as the charter of such city or town shall provide for, and any provision to the contrary in any charter of any city or town is hereby expressly repealed." This act was ratified March 15, 1901. The time for holding elections in Littleton was fixed by section 3 of chapter 171 of the Private Laws of 1893. The "rules and regulations" for holding such election were prescribed by chapter 193 of the Private Laws of 1901. The effect of section 19 of chapter 750 of the Private Laws of 1901 was to repeal section 3 of chapter 171 of the Acts of 1893, and to fix the time of holding said election on the Tuesday after the first Monday in May, 1901, and biennially thereafter. Loughran v. Hickory, 129 N.C. 281, 40 S.E. 46. The election, therefore, held on the first Monday in May, 1902, under which the plaintiff claims title to the office of mayor, was invalid. The defendant was elected on the first Monday in May, 1900, and was entitled to hold said office until his successor was duly elected and qualified. We are not called upon to pass upon the validity of the election held on the first Monday in May, 1901. This may be likewise invalid; but unless the plaintiff has been duly elected and qualified, he cannot maintain his action.

This construction which we put upon the several acts referred to would entitle the defendant to judgment, but the plaintiff says that the General Assembly, at its present session, has declared that the election held on the first Monday in May 1902, is "legal and valid." He calls our attention to an act ratified on the 20th day of February, 1903, entitled "An act to regulate elections in the town of Littleton North Carolina." This act is in the following words: "Whereas on the first Monday in May, 1902, an election was held in the town of Littleton for mayor and town commissioners of said town in accordance with the provisions of chapter 193 of the Private Laws of 1901; and whereas it has been questioned whether said election should have been held under said chapter 193 of the Private Laws of 1901, or under the general law, chapter 750 Private Laws 1901; and whereas it was the intention of the General Assembly of 1901 by the passage of said chapter 193 Private Laws of 1901 to except the town of Littleton from said general act and that its election should be held under and regulated by said special act and not under the general law: Now therefore, The General Assembly of North Carolina do enact:--Section 1. That the election for mayor and commissioners for...