State v. Allen

• Decision Date: 31 December 1841
• Citation: 2 Ired. 183,24 N.C. 183
• Court: North Carolina Supreme Court
• Parties: STATE v. GEORGE ALLEN AND OTHERS.

2 Ired. 183

24 N.C. 183

STATE

v.GEORGE ALLEN AND OTHERS.

Supreme Court of North Carolina.

December Term, 1841.

It seems that no Court has the power to issue a writ, pending a dispute between competitors for a public office, to prohibit those, who are de faeto in possession of the office, from exercising the functions thereof.

If any Court has the power, it should never exercise it, except in a very clear case, peremptorily calling for an immediate remedy.

If a writ of prohibition can be issued, it should only be after notice to the parties to be affected, and affidavits verifying the suggestions, upon which the writ is granted.

This was an appeal from the judgment of his Honor Judge MANLY, at the Fall Term, 1841, of Buncombe Superior Court of Law, dismissing a Writ of prohibition which had issued against the defendants from the last term of that Court. The facts are sufficiently stated in the opinion of this Court.

J. G. Bynum for the State , in support of the writ of prohibition, cited the following authorities: King v Justices of Dorset, 15 East. 594. 1 Mad. Rep. 76, Jacob Hall's case. King v Belton, 5 Mad. Rep. 143. Selby v York, Hardwich, 359.

Iredell for the defendants , contra contended that there was no precedent for a writ of prohibition against one holding a public office, to prohibit him from exercising its functions, and that no Court had such a power.

2dly. It the Court had such power, they could not issue the writ without notice to the party affected or a rule to shew cause, and here there was none. Com. Dig. Tit. Prohibition, H. 1.

3dly. If the Court had such power, they could only exercise it upon affidavits or proof verifying the suggestions on which the writ was prayed. Com. Dig. Tit. Prohibition, H. 1. 1 Wms. Saunders, 136, note 1. Bac. Ab. Tit. Prohibition, E. Godfrey v Llewellyn, 2 Salk. 549. Harrison's Dig. Tit. Inferior Courts, s. 111, subd. 2. Cator v Burton, Cowp. 330. Paxton v Knight, 1 Bur. 307, 314. Jefferson v Bishop of Durham, 1 Bos. & Pull. 105.

4thly. That the facts alleged in the suggestions, upon which the writ issued, were not in themselves a sufficient ground for the writ, supposing the writ could issue.

5thly. Even if the prohibition had been properly granted, yet upon the coming in of the answers and accompanying affidavits, it should have been dismissed-- they denying the suggestions and there being no counter proof.

GASTON, J.

The case now before us has grown out of the dispute respecting the location of the seat of justice in Henderson county, which has already more than once been brought under our notice. See State v King & others, 4 Dev. & Bat. 521. State v Jones & others, 1 Ire. 129. And Same v Same, 1 Ire. 414.

The Legislature, at its last session, in the hope of putting an end to this harrassing controversy, passed an act (Acts of 1840, ch. 53) by which it was declared that the question of location should be decided by the qualified freeholders of the county; that for this purpose an election should be held, on the last Thursday of January 1841, in each of the election precincts of the County, to take the ballots or suffrages of the freemen of the County on the question; that if the point selected by the majority of the voters should be nearer to the Buncombe Turnpike Road than to the French Broad River, George Allen, Andrew Maxwell Jr. David Rees, John Davis and James Spaun, should be the commissioners to procure the land and lay off the town for the seat of justice; but if the point selected by the majority should be nearer to the River than the Road, then Martin Gash, David Miller, John Hightower, Isaac Glarnier and Col. John Clayton should be the commissioners to execute these duties. To insure impartiality and fairness in the election it was, among other things, enacted, that the sheriff should appoint two judges for each election precinct, the one from the Eastern and the other from the Western section of the County, who should be sworn to conduct the election fairly and according to the usual manner of conducting elections in this State; that the sheriff and two commissioners, to be by him selected ten days before the election, should, from a comparison of the returns from all the precincts, ascertain and pronounce the point having the greatest number of votes; and that the sheriff should thereupon notify the persons, who according to that result, were appointed commissioners, and swear them to discharge faithfully the duties by the act imposed. The election was had, the sheriff and the two commissioners by him appointed, upon a comparison of the returns from all the precincts, pronounced that a certain point upon the Road had received a majority of the votes of all the qualified voters in the County; the sheriff notified the first named set of commissioners thereof, and they took the prescribed oath of office and entered upon the performance of its duties. At the April Term, 1841, of the Superior Court of Buncombe, an information in the nature of a quo warranto was filed, wherein it was charged that the sheriff, disregarding the provisions of the act and fraudulently contriving and intending to obtain a majority of votes in favour of a point near the Road, did at one of the Precincts, called the Flat-Rock precinct, appoint three judges to conduct the election thereat; of whom two, viz. Benjamin King and Meredith Freeman, were from the Eastern and one only, viz. Joseph E. Patton from the Western section of the County--that “many persons at the election for said precinct tendered their votes to the two Judges, Patton and Freeman, who rejected the same upon the ground that they were not qualified voters,”--that “especially one Berry Fowler tendered his vote to the said judges Patton and Freeman, and the same was rejected by them, but was afterwards received by King, the other judge,” and was counted in the enumeration of the votes polled at that precinct. The information further set forth that the original return made out and signed by the judges of the Clear Creek election precinct was lost, and “that a fraudulent copy thereof was substituted in its place contrary to the true intent and meaning of the said act.” It averred, that if all the votes given at the Flat-Rock election, or all those given at the Clear Creek election had been rejected, a clear majority of the votes was cast in favour of a point on the River, and insisted, that because of the matters charged, the elections at Flat-Rock and Clear Creek, and the returns of the polls thereat were altogether illegal, and the votes there taken ought to have been altogether rejected by the sheriff and commissioners of the election; that it should have been declared that the point on the River had received the majority of votes; and that the second named set of commissioners should have been admitted into the office so as aforesaid usurped by the first named set of commissioners. The information prayed that due process of law might issue against the said usurping commissioners and the sheriff, requiring of them to make answer thereto.

Upon the filing of this information, it was ordered by the Court that a writ of prohibition pendente lite should issue, and also that writs of subpœna should issue to the parties defendants in said information. A writ of prohibition thereupon issued, returnable to the October Term, 1841, of said Court, directed to the said commissioners, Allen and others by name, strictly commanding them to surcease from exercising any of the functions of commissioners under the said act, until the further order of the Court, and also a writ summoning the said persons and Robert Thomas (the sheriff) to answer the matters charged in the information. At the return term of these writs, Allen and the rest of the first named commissioners filed their answer on oath, wherein they stated that upon comparing the returns from all the election precincts, the sheriff and the commissioners for that purpose duly appointed ascertained and declared, that a point on the Road had received a majority of upwards of one hundred votes, and that respondents, on being notified thereof, and that on them had devolved the office of commissioners under the act of Assembly, took the oaths of office and entered upon the performance of its duties. They stated their firm conviction that a decided...