Tucker v. State Board of Alcoholic Control , 240 N.C. 177 ( 1954 )

81 S.E.2d 399 (1954) 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 governing body of the City of Concord to hold the municipal primary.

His initial argument may be stated in this fashion: (1) Section 11 of Chapter 716 of the 1947 Session Laws vested in the mayor and the governing body of the City of Concord the authority to hold "The elections * * * provided for officers of said city, and any other election authorized for city purposes". (2) The municipal primary was authorized by the mayor and the governing body for a city purpose. (3) Hence, the municipal primary constituted an "election authorized for city purposes" within the meaning of section 11.

This argument is untenable because it rests on a misconstruction of section 11. When it enacted this section, the legislature did not confer upon the mayor and the governing body of the City of Concord discretionary power to hold elections for city purposes in the absence of affirmative statutory warrant. It merely empowered them to hold the quadrennial election to fill municipal offices required by section 16, and such other elections for such other city purposes as were affirmatively authorized by other statutory provisions.

The petitioner's other argument may be summarized in this way: (1) The power to hold the quadrennial election to fill the municipal offices was granted to the mayor and the governing body of the City of Concord in express terms by section 16. (2) A municipal primary to make prior party nominations of candidates for the municipal offices was necessary to enable the mayor and the governing body to hold the quadrennial election. (3) Hence, the power to hold the municipal primary was necessarily implied in law from the express power to hold the quadrennial election.

This argument cannot be reconciled with the historical circumstances that elections were employed to fill public offices for many generations before nominating primaries were devised, and that nominating primaries had their genesis in express legislative enactments of a comparatively recent date. U. S. v. Gradwell, 243 U.S. 476, 37 S. Ct. 407, 61 L. Ed. 857; U. S. v. O'Toole, D.C., 236 F. 993; State v. Bienstock, 78 N.J.L. 256, 73 A. 530.

The argument is fallacious in other respects. The language of section 16 and contemporary statutory provisions did not disclose any legislative intent that the quadrennial election of 1949 should be a partisan contest between opposing political parties. The argument would be without validity, however, even if the language had been susceptible of that construction. This is true for this simple reason: In the absence of a specific constitutional or legislative regulation on the subject, the law commits the nomination of candidates of political parties for public offices to party caucuses, party conventions, or such other unofficial procedures as party rules may establish. 29 C.J.S., Elections, § 89.

What has been said compels the conclusion that the mayor and the governing body of the City of Concord had no statutory authority to hold the municipal primary of April 12, 1949, and requires an affirmance of the judgment.

Since the occurrences culminating in this proceeding the legislature has made express provision for the future holding of nominating municipal primaries in the City of Concord. 1953 Session Laws, Ch. 1297.

Affirmed.