Ex Parte Daughtry , 28 N.C. 155 ( 1845 )

The case was as follows: Rufus K. Speed and the present (156) relator were opposing candidates at the election for clerk for the county court of Gates in August, 1845. Speed received a majority of the votes, and was returned by the sheriff as elected. Some days before court the relator served on Speed a written notice that at the next county court he would contest his election and move the court to set it aside, because fifteen persons, therein named, had voted in the election who were not entitled to vote. Accordingly, the relator appeared and opposed Speed's admission into office on the ground stated in the notice. But the court held that the ground was insufficient, and adjudged that if the facts were as stated by the relator the court could not therefore avoid the election. The relator then offered to prove that some illegal votes had been given in the election for Speed, and that they amounted in number to so many that if they were deducted from the whole number of votes given to Speed, and, also, if all the illegal votes which it might be made to appear had been given to the relator were deducted from the whole number given to the relator, then of the remaining and good votes given at said election Speed would not have the majority, but the relator would. But the court refused to hear the evidence thus offered by the relator, because he had given notice that he would contest the election upon a different ground, and Speed had no reason to expect the latter objection would be taken, and could not be supposed to be prepared to oppose the application by evidence on his side, and, thereupon, the court admitted Speed into office.

At the next Superior Court the relator moved for a certiorari, which was refused. He then moved for a mandamus to the county court, commanding them "to purge the polls of the illegal votes which had been given in the said election, and to declare, after such purging of the polls, who was duly elected." That was also refused, and the relator appealed. The Court concurs with his Honor that it was right to refuse both motions. There was no ground for a certiorari. The county court is constituted the tribunal to determine contested elections of clerk, and the decision cannot be reviewed on appeal and the matter gone into de novo. The State is, indeed, not concluded where the county court admits one who was not elected, or had not the requisite qualifications; and an inquiry may be instituted touching those matters byquo warranto. But it is not the proper subject of an appeal, nor for acertiorari in the nature of an appeal to bring up the case in order that the judge of the Superior Court may in a summary way, as the county court did, decide the election. Nor ought the mandamus to have gone. The relator does not show yet that he was elected and is improperly kept out of office. It is nothing to him, as a private person, whether Speed is qualified or not, or why the court has admitted him. That is no injury to the relator's rights. It may be true that, upon a scrutiny, it might appear that the relator had a majority of the good votes. But that possibility does not entitle him — supposing a mandamus a proper remedy at all, in such a case — to ask for this extraordinary and remedial writ. He merely says the county court would not inquire into the fact. That may be admitted to have been wrong in the county court. But that alone will not authorize a proceeding of this sort unless the relator goes further and makes it appear upon his oath, when he makes the application, that if the county court had made the inquiry, or if it should be made now, there is good reason to expect that it would result in showing that the relator, and not Speed, was in fact and law elected, and, therefore, that the decision was actually to his prejudice. The writ was, therefore, properly refused, upon the supposition that the (158) county court ought, at the time, to have heard the evidence. But the Court is far from thinking that the county court did err. That court may reasonably adopt such rules for proceeding in such cases as will bring the facts fully out on both sides on which the election depended, and, therefore, should guard against surprise by the one party on the other. When the relator took, as the opposing candidate, one ground of objection to the election of the person returned, it would be a complete surprise if he were allowed to abandon that and put it upon another. The county court might, of their own accord, have gone into the other inquiry; and their not doing it may be a good reason for the public to complain; and in a regular proceeding the undue election and admission of Speed may be insisted on, and then that person can take issue on the alleged objection, and meet it by proof. But as the court must have some one to attend to the public business as clerk, it was necessary to make a decision at that term; and, as between these two persons, as parties to that contest, and in reference to their several personal rights, the court acted properly in holding down the relator, who had given notice, to the particular points which he had selected, and to which exclusively he pointed the attention of the other candidate. If, in truth, the relator, and not Speed, was elected, the decision of the court on the point specified might not conclude the relator upon a quo warranto; and, at all events, the court could not err in deciding on the points raised by the relator, and leaving him to his remedy by that proceeding, in which issues might be taken to the country on the several facts, which would establish the election of the one or the other of these parties.

It can hardly be necessary to add that the admission of an illegal vote does not necessarily vitiate an election, for it may have been for the relator himself. The number of illegal votes given to the person (159) returned must be so great as, after deducting them, will not leave him a majority of good votes: and then the election is not voided, but that person is turned out and the other person, who had the majority of good votes, admitted.

PER CURIAM. Affirmed.

Cited: Patterson v. Murray, 53 N.C. 279; Saunders v. Gatling,81 N.C. 300; Riggsbee v. Durham, 99 N.C. 350.