State ex rel. Barlow v. Benfield

• Decision Date: 29 March 1950
• Docket Number: No. 306,306
• Citation: State ex rel. Barlow v. Benfield, 231 N.C. 663, 58 S.E.2d 637 (N.C. 1950)
• Court: North Carolina Supreme Court
• Parties: STATE ex rel. BARLOW et al. v. BENFIELD.

Page 637

58 S.E.2d 637

231 N.C. 663

STATE ex rel. BARLOW et al. v. BENFIELD.

No. 306

Supreme Court of North Carolina.

March 29, 1950

Martin & Carpenter, Lenoir, for plaintiffs-appellants.

L. M. Abernethy, Granite Falls, and Max C. Wilson, Lenoir, for defendant-appellee.

DEVIN, Justice.

The judgment of nonsuit was improvidently entered. It was made to appear from the admissions in the answer and the evidence offered by the relators that July 1, 1949, the defendant was elected by the Board of Commissioners of Granite Falls as chief of police of that town, which office he is now holding, and that defendant is not a qualified voter therein. It was also admitted that relators are residents, qualified voters, and taxpayers of Granite Falls.

The office of chief of police of an incorporated town, as Granite Falls is admitted to be, is a public office. Foard v. Hall, 111 N.C. 369, 16 S.E. 420. The relators had a right to institute this action for the cause set out in the complaint. Bouldin v. Davis, 197 N.C. 731, 150 S.E. 507; Midgett v. Gray, 158 N.C. 133, 73 S.E. 791. The statute, G.S. § 160-25, provides that 'No person shall be mayor, commissioner, intendant of police, alderman or other chief officer of any city or town unless he shall be a qualified voter therein.' This statute, said Chief Justice Clark in Foard v. Hall, supra, 'embraces the office of chief of police.' [ 111 N.C. 369, 16 S.E. 422.]

The judgment of nonsuit must...