Saunders v. Gatling
| Decision Date | 30 June 1879 |
| Citation | 81 N.C. 298 |
| Court | North Carolina Supreme Court |
| Parties | R. H. SAUNDERS v. W. J. GATLING |
OPINION TEXT STARTS HERE
CIVIL ACTION tried at Fall Term, 1878, of HERTFORD Superior Court, before Eure, J.
The complaint states substantially that the plaintiff and defendant were candidates for the office of clerk of the superior court of Hertford at an election held on the first Thursday in August, 1878; that the plaintiff received a majority of the lawful votes cast and was duly elected, but the judges of election at one of the precincts refused to count the votes given for plaintiff, and it was alleged that they rejected them unlawfully; that by means of incorrect returns the defendant was wrongfully declared elected and has qualified as clerk of the superior court, and entered upon the discharge of the duties thereof, and is receiving the emoluments of the same to the great damage of the plaintiff. Wherefore the plaintiff demands that he be declared clerk of said court and inducted into office, and that defendant be restrained from acting as such; and asks for judgment for the fees and emoluments of the office. The facts in regard to the alleged irregularities in counting the votes were agreed to by the parties, (but are not material to the point decided by this court,) and upon them His Honor held with the defendant and the plaintiff appealed.
Messrs. D. A. Barnes, J. W. Albertson and J. B. Batchelor, for plaintiff .
Messrs. Gilliam & Gatling, for defendant .
This is an action brought by the plaintiff in his own name against the defendant to determine the question of title to the office of clerk of the superior court for the county of Hertford; and the court is asked to oust the defendant and have the plaintiff inducted, and give him a judgment for the fees and emoluments of the office.
We think the plaintiff has mistaken his remedy, and it is not competent for the court to give him the relief he seeks by this action. Questions as to the title and possession of offices at the common law were determined by the writ of quo warranto which was the appropriate remedy in such cases. It was originally a high prerogative writ issued out of chancery, and was used by the crown of Great Britain unjustly and oppressively upon its subjects, until it was modified and stripped of many of its harsher features by what were called the statutes of quo warranto; and then, after the justices in eyre were displaced by the judges of the superior courts, it fell into disuse and the information in nature of a writ of quo warranto obtained in its stead, and has ever since been the remedy in England and this country by which the title to an office can be established by judicial determination. It is the only appropriate and efficacious remedy, sanctioned by an overwhelming current of authority both in this state and in England. High on Ex. Leg. Rem., §§ 49, 53 and 77; Ex parte Daughtry, 6 Ire., 155; State v. Hardie, 1 Ire., 42. But the original writ of quo warranto, as well as proceedings by information in the nature of quo warranto, has been abolished, C. C. P., § 362; but it is therein provided that the remedies heretofore obtainable in those forms may be obtained by civil actions under the provisions of chapter 2, title 15.
What are these provisions? Section 366 provides “that an action may be brought by the attorney general in the name of the people of the state upon his own information, or upon the complaint of any private party against the parties offending in the following cases:--
1. When any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state; or
2. When any public officer, civil or military, shall have done or suffered an act which by the provisions of law shall make a forfeiture of his office; or
3. When any association or number of persons shall act within this state as a corporation without being duly incorporated.”
By section 368, amended by the act of 1874-'75, ch. 76, it is provided...
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Comm. to Elect Dan Forest v. Emps. Political Action Comm. (EMPAC)
...(holding the statute "seems to contemplate the action as one open upon the complaint of any private party[.]"); Saunders v. Gatling , 81 N.C. 298, 301, ––– S.E.2d –––– (1879) ("It is not merely an action to redress the grievance of a private person who claims a right to the office, but the ......
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State ex rel. Freeman v. Ponder, 105
...or maintain an action of this character in his own name or upon his own authority, even though he be a claimant of the office. Saunders v. Gatling, 81 N.C. 298. The action must be brought and prosecuted in the name of the state by the Attorney-General, G.S. § 1-515; or in the name of the st......
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Barbee v. Bd. Of Com'rs Of Wake County
...Cooper v. Crisco, 201 N.C. 739, 161 S.E. 310. In support of this position, the defendants rely chiefly upon the decisions in Saunders v. Gatling, 81 N.C. 298, and Britt v. Board of Canvassers, 172 N.C. 797, 90 S.E. 1005. The authorities cited are inapposite. The present action is not to try......
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Barbee v. Board of Com'rs of Wake County
...v. Crisco, 201 N.C. 739, 161 S.E. 310. In support of this position, the defendants rely chiefly upon the decisions in Saunders v. Gatling, 81 N.C. 298, and Britt v. Board of Canvassers, 172 N.C. 797, 90 S.E. 1005. The authorities cited are inapposite. The present action is not to try title ......