Bray v. . Baxter , 171 N.C. 6 ( 1915 )

ALLEN, J., dissenting. Quo warranto by the State, on the relation of P. N. Bray, against T. W. Baxter. Judgment for respondent, and the relator appeals. This is a quo warranto for the office of register of deeds of Currituck. At the November election of 1914 the respondent was awarded the certificate of election, and the relator began this action to assert his title to the office. The court referred the matter, and the referee filed his report confirming the title of the respondent, which upon exceptions was affirmed by the judge.

The referee found that the respondent had a plurality of three votes. The referee sustained the action of the canvassing board in throwing out three ballots cast for the relator because there were more names on each of said ballots than the elector had a right to vote for. One of the ballots thus thrown out contained unmarked the names of two persons for the office of recorder of said county, and the other two of said ballots contained unmarked the names of four persons for the office of county commissioner, while there were only three commissioners to be elected.

But none of these ballots had the name of more than one candidate (8) for register of deeds unmarked. The whole of these three ballots were thrown out and not counted. This was error. The three ballots should have been counted for the relator. The referee based his conclusion, which was affirmed by the judge, upon Revisal, sec. 4347, and the decisions in Mitchell v. Alley, 126 N.C. 84, andDeloatch v. Rogers, 86 N.C. 357. But these authorities have no bearing upon this case.

In Mitchell v. Alley the tickets held to be illegal were cast for justice of the peace (no other officer being voted for), and contained the names of four persons for that office, when only three were to be voted for. These were properly thrown out, because it was impossible to determine which three of the four candidates were voted for.

In Deloatch v. Rogers, supra, the question before the Court was whether certain tickets were void which contained the name of an office and a candidate therefor which was not to be voted for at that election. The court held the ticket void upon the ground that the insertion of the superfluous office and name was a "device" which served to distinguish the ticket from the other tickets voted. We question the correctness of that decision, unless it was found affirmatively as a fact that the superfluous name and office were, in fact, a device. But, if correct, it has no application to this case. Here there were no party nominations. All persons desiring to run for the various offices had their names placed on one ticket, and the voters were supposed to scratch out the names of the persons for whom they did not desire to vote. The voters who cast the three tickets in question voted for only one person for register of deeds, the office here in contest, and the fact that these three voters voted for two recorders, when they should have voted for but one, or for four commissioners out of the nine candidates named on the ticket, when they should have voted for only three, ought not to invalidate their votes for register of deeds, and thereby deprive them of their choice for that office for whom they intended to vote and legally voted. The ticket containing candidates for several offices was in reality equivalent to putting into the box, though on one slip, ballots for each of the several offices. An ambiguity, therefore, by voting for too many names for any of the other offices does not invalidate a legal vote for this office.

Revisal, sec. 4347, does not contemplate throwing out the whole ballot. The language of the statute distinguishes between the word "ballot" and the word "ticket." It is the latter that is not to be counted. The ballot is made up of several tickets; each office voted for being a separate ticket on the same ballot.

The relator also excepts because the vote of H. D. Doxey was counted for the respondent. The facts found were that H. D. Doxey lived in the township in which he voted, but was registered and voted in a different precinct in that township; that he was (9) otherwise a qualified elector, and in good faith voted where he did; that in the belief that it was the proper precinct, he had voted at that precinct for a long number of years. Another voter under exactly the same state of facts voted at that box for the relator. Both of these votes were allowed by the referee and approved by the court. To disallow one of these votes would require the disallowance of the other, leaving the result the same. However, they were both properly counted. In Quinn v. Lattimore,120 N.C. 431, it was held that "where qualified voters living near the dividing line of two townships, which line was not definitely located, in good faith registered and voted in the township in which they did not actually reside," but the election was for a county office, the votes should be counted. In this case the township had been divided into precincts, and the voters bona fide voted in the township but in the wrong precinct, for a county officer, and had been so voting at that precinct under a genuine mistake as to the dividing line of the precinct for many years. The vote of Doxey was properly allowed by the referee and court.

The relator also excepted because of the allowance of the vote at North Banks Precinct, which had been received by the county canvassers and held valid by the referee and the judge. It was found as a fact that the election at that precinct was regularly and fairly held; that all who voted at that precinct were qualified as voters, and the names were all on the registration books of 1903 to 1910 or on the 1914 book, and that the old registration book was either lost or misplaced. There were but 34 votes at the precinct, and the registrar, who had been registrar at that precinct for thirty years, except in 1910, testified that he was personally acquainted with all the voters, and that all who voted had been registered and were qualified voters. The "challenge to the array" at North Banks Precinct was properly disallowed.

The only other exception that needs to be noted is to two ballots cast for the respondent which had been thrown out by the canvassers, and not counted for him by the judges of election, because they were torn in two, but which the referee, affirmed by the judge, had reinstated and counted for him. The evidence showed that the voters had simply torn off the top part of these ballots, declining to vote for the first names on the same, but had cast the balance of the ballot intact. They were properly counted.S. v. Spires, 152 N.C. 4.

As the only error found on this appeal is the disallowance of three ballots cast for the relator, this leaves the result a tie. If this had been a town election, the result should be "determined by lot" (Revisal, sec. 2966), and we should have to remand the case for that (10) purpose. This being a county election, it was the duty of the county board of elections to determine which candidate should be elected. Revisal, sec. 4355. The board did decide in favor of the respondent, not as their choice under the statute, but on a canvass of the ballots which erroneously gave the respondent a majority.

We must, therefore, declare that the vote was a tie, and remand the case to the county board of elections, who shall "determine which shall be elected," and not which had been elected, as they have done on an erroneous count of the ballots cast. Each party will pay his own costs on this appeal.

Remanded.

ALLEN, J., dissenting.