Tucker v. State Bd. of Alcoholic Control

• Decision Date: 28 April 1954
• Docket Number: No. 449,449
• Citation: 81 S.E.2d 399,240 N.C. 177
• Court: North Carolina Supreme Court
• Parties: TUCKER, v. STATE BOARD OF ALCOHOLIC CONTROL et al.

Page 399

81 S.E.2d 399

240 N.C. 177

TUCKER, v. STATE BOARD OF ALCOHOLIC CONTROL et al.

No. 449

Supreme Court of North Carolina.

April 28, 1954

Webster S. Medlin, Concord, for petitioner-appellant.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. Claude L. Love, and Max O. Cogburn, Member of Staff, for the respondents-appellees.

ERVIN, Justice.

There is no inherent power in any governmental body to hold an election for any purpose. In consequence, an election held without affirmative constitutional or statutory authority is a nullity, no matter how fairly and honestly it may be conducted. Corey v. Hardison, 236 N.C. 147, 72 S.E.2d 416; Rodwell v. Harrison, 132 N.C. 45, 43 S.E. 540; Van Amringe v. Taylor, 108 N.C. 196, 12 S.E. 1005, 12 L.R.A. 202, 23 Am.St.Rep. 51; 18 Am.Jur., Elections, Section 100; 29 C.J.S., Elections, § 66.

In the very nature of things, the result of the local option election held in Cabarrus County on February 21, 1949, was not invalidated under subsection (f) of G.S. § 18-124 by the holding of the municipal primary in the City of Concord within the ensuing sixty days if the municipal primary was a legal nullity. This being so, the appeal poses this problem for solution: Did the mayor and the governing body of the City of Concord have affirmative constitutional or statutory authority to hold the municipal primary?

It is apparent that they had no constitutional warrant for their action. It is likewise apparent that they had no statutory authority for their action unless such authority can be found in the provisions of the Charter of the City of Concord embodied in Sections 11 and 16 of Chapter 716 of the 1947 Session Laws of North Carolina. We quote these sections in inverse numerical order.

'Sec. 16. On Tuesday after the first Monday in May, 1949, and on the corresponding Tuesday every four years thereafter, there shall be elected at large of and by the qualified voters of said city a mayor and one member of the board of aldermen, and in each of said wards there shall be elected separately of and by the qualified voters therein one alderman for each ward; and the aldermen so elected shall constitute the board of aldermen of said city, and each of said officers so elected shall hold office for four years, or until his successor is duly elected and qualified: Provided, that no person shall have the right to vote at any election held in said city unless he shall have been a bona fide resident of the ward in which he proposes to register and vote, according to the requirements and provisions of the General Election Law of the State of North Carolina.'

'Sec. 11. The elections herein provided for officers of said city, and any other election authorized for city purposes, shall be called, held, conducted and concluded under the direction of the mayor and governing body by election officials designated and appointed by them for that purpose, in manner and form in every respect and detail as nearly as may be and under the same provisions of law and practice as nearly as may be as elections for county officers are held and conducted, and under the general laws relating to such elections in North Carolina in force at the time of such city election, including all the penalties prescribed for the violation of such law: Provided, that when any certain duties are prescribed under the general election law to be done and performed by State or county officials unknown to municipal corporations, which are likewise required to be done and performed in such city election, then and in that case such duties shall be done and performed by the city officer or officers whose office and duties bear the greatest analogy to those of the officer named in the general election law for whom such duty is prescribed; for example, chief of police to sheriff, city clerk to Clerk of the Superior Court.'

The petitioner advances a two-fold argument to support his theory that these sections conferred statutory authority upon the mayor and the...