McPherson v. City Council of City of Burlington

107 S.E.2d 147 (1959) 249 N.C. 569

Clyde McPHERSON and C. B. Moore
v.
CITY COUNCIL OF CITY OF BURLINGTON, N. C.; The City of Burlington, N. C.; H. C. Pollard, Mayor and Member of the City Council of the City of Burlington, N. C.; A. A. Alston, Mayor Pro Tem and Member of the City Council of the City of Burlington, N. C.; Allen B. Cammack, Member of the City Council of the City of Burlington, N. C.; Paul J. Craig, Member of the City Council of the City of Burlington, N. C.; and William Leloudis, Member of the City Council of the City of Burlington, N. C.; and the City of Burlington, N. C.

No. 738.

Supreme Court of North Carolina.

February 25, 1959.

W. D. Madry, W. L. Shoffner, H. Clay Hemric, Burlington, for defendant appellants.

No counsel contra.

DENNY, Justice.

The appellants' first assignment of error is to the failure of the court below to sustain their demurrer ore tenus on the ground that the complaint does not state a cause of action.

The demurrer interposed in the court below was properly overruled. It fails to point out any defect in the complaint which would entitle the defendants to a dismissal of the action. Ledwell v. Proctor, 221 N.C. 161, 19 S.E.2d 234; McIntosh, North Carolina Practice and Procedure, 2nd Ed., Volume 1, Demurrer, section 1195, page 654. Cf. Garner v. Town of Newport, 246 N.C. 449, 98 S.E.2d 505.

The third assignment of error is directed to the failure of the court below to sustain their motion for judgment as of nonsuit at the close of all the evidence.

We note that the court below in denying the motion for judgment as of nonsuit, stated: "The court is of the opinion there is no qualification * * * where there is no oath administered * * * except the form prescribed by statute without the use of a Bible."

It is the duty of a registrar to administer the oath prescribed by law to electors before registering them, but his failure to perform his duty in this respect will not deprive the elector of his right to vote or render his vote void after it has been cast. Quinn v. Lattimore, 120 N.C. 426, 26 S.E. 638, 58 Am. St. Rep. 797; Gibson v. Board of Commissioners, 163 N.C. 510, 79 S.E. 976; Woodall v. Western Wake Highway Commission, 176 N.C. 377, 97 S.E. 226; Davis v. Board of Education, 186 N.C. 227, 119 S.E. 372; Plott v. Board of Commissioners, 187 N.C. 125, 121 S.E. 190; Glenn v. Culbreth, 197 N.C. 675, 150 S.E. 332.

In Gibson v. Board of Commissioners, supra, it is said [163 N.C. 510, 79 S.E. 977]: "* * * a statute prescribing the powers and duties of registration officers should not be so construed as to make the right to vote by registered voters depend upon a strict observance of the registrars of all the minute directions of the statute in preparing the voting list, and thus render the constitutional right of sufferage liable to be defeated, without the fault of the elector, by fraud, caprice, ignorance, or negligence of the registrars * * *. A constitutional or statutory provision that no one shall be entitled to register without first taking an oath to support the Constitution of the state and that of the United States is directed to registrars and to them alone; and if they through inadvertence register a qualified voter, who is entitled to register and vote, without administering the prescribed oath to him, he cannot be deprived of his right to vote through this negligence of the officers."

In the case of Quinn v. Lattimore, supra, the Court said [120 N.C. 426, 26 S.E. 639]:

"It appears that a number of persons were registered by other persons than the regularly appointed registrars, in one instance by the son of the registrar, in the absence of his father; and in another case by Williams, the register of deeds, with whom the registrar had left the registration books. These registrations were irregularly made, and might have been rejected and erased by the registrars. But it would not have been fair for them to have done this without notifying the parties so registered in time for them to have registered again. But, instead of their doing this, they retained these names on their books, which they and the judges of election used on the day of election, thereby ratifying and approving these registrations. And it would now be a fraud on the electors, as well as on the parties for whom they voted, and also upon the State, to reject these votes for this irregularity. These votes cannot be rejected for this reason.

* * * * * *

"* * * A vote received and deposited by the judges of election is presumed to be a legal vote, although the voter may not have complied with the requirements of the registration law; and it then devolves upon the party contesting to show that it was an illegal vote, and this cannot be shown by showing that the registration law had not been complied with. Pain, Elect. § 360. A party offering to vote without registration may be refused this right by the judges for not complying with the registration law. But if the party is allowed to vote, and his vote is received and deposited, the vote will not afterwards be held to be illegal, if he is otherwise qualified to vote. * * * And where a voter has registered, but the registration books show that he had not complied with all the minutiae of the registration law, his vote will not be rejected. * * * If a voter is registered in one township, he has no right to register and vote in another. But, if he is allowed to do so, his vote received and counted, and he is otherwise qualified, and votes at no other place, his vote should not be thrown out on that account. * * * It is the right of parties to have the fairness of elections inquired into for the protection of honest electors. But such legislation is not to be regarded as hostile to the right of a free exercise of the right of franchise, and should receive such construction by the courts as will be conducive to a full and fair expression of the will of the qualified voters. * *"

Likewise, in the case of Woodall v. Western Wake Highway Commission, supra, this Court quoted with approval from McCrary on Elections, 3d Ed., section 216, page 143, the following [176 N.C. 377, 97 S.E. 231]: "In the courts of the country the ruling has been uniform, and the validity of the acts of officers of election who are such de facto only, so far as they affect third persons and the public, is nowhere questioned. The doctrine that whole communities of electors may be disfranchised * * * because one or more of the judges of election have not been duly sworn, or were not duly chosen, or do not possess all the qualifications requisite for the office, finds no support in the decisions of our judicial tribunals."

In McQuillin, Municipal Corporations, 2d Ed., Volume 3, section 12.10, page 76 et seq., it is said: "* * * laws merely regulating the manner of conducting an election are usually regarded as directory, and hence a departure from the mode prescribed will not ordinarily vitiate the election. But whether or not the provisions are mandatory or directory, the rule usually applied is that mere informalities or irregularities in an election which do not affect the result will not invalidate it, for the courts prefer to give effect to the popular will whenever possible," citing State ex rel. De Berry v. Nicholson, 102 N.C. 465, 9 S.E. 545.

There is nothing in the evidence adduced in the trial below to support the view that any person voted in the election involved in this controversy who was not entitled to vote therein, or that any person was prevented from voting, by reason of any act complained of by these plaintiffs, who was entitled to vote.

No challenge on any ground was lodged against any of the 345 persons who registered for this election, either on challenge day or on the day of the election.

Moreover, when Coley R. Mann, who was acting as registrar, and John W. Hockaday and C. H. McPherson, who were acting as judges of the election, counted the ballots cast and declared the results thereof by certificate to the County Board of Elections, such declaration is prima facie evidence of the correctness of the count until rebutted by proper and competent evidence. Quinn v. Lattimore, supra.

Due to the conflict in the official duties of Coley R. Mann as the regular registrar of the North Graham precinct and as registrar of the area involved in the special annexation election, his daughter, Mrs. Ivey, was appointed registrar for one day by the Chairman of the County Board of Elections. G.S. § 163-17. Neither Mrs. Ivey nor her father resided in the area in which the annexation election was held; nevertheless, it would seem that they were at least de facto registrars during the time they served as such, and in the absence of any evidence that the result of the election was affected thereby, their appointments will be deemed irregularities but insufficient to void the election. Woodall v. Western Wake Highway Commission, supra.

We quote with approval what Adams, J., speaking for this Court, said with respect to irregularities in the holding of elections in the case of Plott v. Board of Commissioners, supra [187 N.C. 125, 121 S.E. 194]: "While the alleged irregularities do not vitiate the election, they fairly illustrate the spirit of indifference which characterizes the methods often adopted in the registration of voters. These lax methods, sometimes annoying, are always to be regretted and discouraged. We again refer to them for the purpose of emphasizing the importance of respecting the various statutes defining the qualification of voters, the prerequisites of registration, and the duty of registrars."

The foregoing admonition applies with equal force to county boards of election.

The judgment entered below is set aside and the ruling on the motion for judgment as of nonsuit is

Reversed.