Moore v. . Jones , 76 N.C. 182 ( 1877 )

This proceeding was commenced by a petition to His Honor, Justice Reade, for the writ of habeas corpus. After the matter was opened before him it was agreed on both sides to treat the petition as one for a writ ofcertiorari in the nature of an appeal. The certiorari was granted and thus the case is in this Court as upon appeal from the ruling of His Honor Judge Watts.

Judge Watts issued an alternative mandamus requiring the defendants the Commissioners of the County of Granville, to count the vote of the Township of Henderson in making out the vote for County officers, or show cause, c. The Commissioners made return to His Honor that they had not counted the vote of Henderson Township for the reason that admitting the return of the Judges of Election for said Township was in due form, still the Commissioners were satisfied that no election had been held in said Township according to the requirements of the law and set out many irregularities and violations of law in respect thereto. His Honor held the return insufficient and issued a peremptory mandamus at Oxford, in the County of Granville. From this ruling the case now constituted before us is an appeal.

The question is, was it the duty of the County Commissioners merely to count the vote of the several Townships according to the returns made by the Judges of Election, or did the County Commissioners have power to go behind the returns and judge of the validity of the election as held in the respective Townships?

The statute provides, "Returns shall be made by the Judges of Election from all of the precincts to the County Commissioners, who shall proceed toadd the number of votes returned, and the person having the greatest number of votes. shall be deemed duly elected. Bat. Rev. ch. 52 § 21.

"To add the number of votes returned," is a ministerial act. This statute is so plain, that "he who runs may read."

How the Commissioners derived power to act judicially and go behind the return of the Judges of Election, we are at a loss to conceive.

In regard to members of the General Assembly, it is provided, "each House shall be the judge of the qualification and election of its members." But the person who presents the certificate of his election takes the seat subject to the future action of the body of which he is prima facie a member.

In regard to County Officers, it is provided, (C. C. P. ch. 17. § 366,) "an action may be brought by the Attorney General in the name of the people of the State, c., when any person shall usurp or intrude into or unlawfully hold any public office."

It is clear that the Commissioners have nothing more to do than to add up the returns made by the Judges of Election in the several Townships; and thereupon the law declares the person having the greatest number of votes, "shall be deemed duly elected," subject to an investigation to be made by the Courts, in an action in the name of the Attorney General, c. as to the validity of the election, c.

It is said this action may be protracted until the term of office expires and the remedy will amount to nothing. That is so, but it is no ground to support the position that such is not the law or to authorize the Court to depart from it, whatever force it may be entitled to as a reason for changing the law, provided a better plan can be devised.

In direct analogy: a seat in a Convention, or in either House of the General Assembly, is contested, the person having the certificate of election is prima facie entitled and takes the seat; but it sometimes happens, owing to the complicity of the case or some other cause, that a conclusion is not arrived at before an adjournment sine die. Here there is a wrong for which no adequate remedy is provided. It is "ours" to declare the law, not to make it.

It is apparent that the defendants in assuming a right to go behind the return of the Judges of Election appointed for Henderson Township and to decide upon the validity of the election in that Township, acted without authority and against the law.

There is no error in the ruling of His Honor, and it is now here ordered by this Court, that the defendants Jones, Cole, Williams, Hunt and Wyche, the Board of Commissioners for the County of Granville, forthwith add the return made by the Judges of Election for the Township of Henderson, to the vote for the officers of the County and certify the election accordingly; and upon failure to do so immediately on the service of a copy of this judgment, each of them so refusing will be attached for contempt and held in close custody, that is in jail, until this order be obeyed and a return of perfect obedience be made to the Judge of the District.

The Clerk will issue a copy of this judgment together with an order of arrest and close imprisonment of the members of the Board who refuse obedience.

The irregularity of His Honor's having required the Commissioners of Granville County to appear before him at Franklinton, was not urged by the defendants as a ground of demurrer and was waived, or was cured by the fact that His Honor went to the town of Oxford to receive the return. This is adverted to, lest it might grow into precedent, that a Judge may issue a writ of mandamus in any County within his District and require County officers to answer to the writ wheresoever he may choose to consider "his chambers" to be within the counties comprised in his District.

PER CURIAM. Judgment accordingly.