Allbw, J.
It is well at the outset to have a clear conception of the question for decision, and of the limitations on the power of this Court.
In the first place, we are not trying the title to the office of Congressman.
This is manifest from the fact that Mr. Weaver, the other contestant for the office, is not a party to this action, and if he was, the Court- would be without jurisdiction, because it is provided in the Constitution of the United States, Art. I, sec. 5, that “Each house (Senate and House of Representatives) shall be the judge of the elections, returns, and qualifications of its own members,” thereby withdrawing from the courts and vesting in Congress the.power to pass on the title to the office of Congressman.
Nor is the question before us as to who is entitled to the certificate of election and commission, which but establish the right to the office prima facie, ánd we can make no order in reference to the certificate [803] and commission, because the State Board of Canvassers ascertain and declare the result of an election for Congressman and certify the result to the Secretary of State, who issues a certificate of election, on which the Governor issues a commission; and none of these officers are parties.
The only parties are Mr. Britt, the plaintiff, and the board of canvassers of Buncombe County, the defendant, and the only object of the action is to compel by writ of mandamus the members of the defendant board to reassemble and to certify as the result of the election in Buncombe County that the plaintiff received 4,037 votes for Congress and his opponent 4,328 votes.
That the action is for the remedy by mandamus and not by injunction appears from the prayer of the complaint, which asks that a peremptory mandamus issue from the writ issued by Judge Shaw, which is entitled “alternative mandamus” and is in the form of the writ of mandamus, and by the relief sought, which is not to restore the plaintiff to his previous condition, changed by the wrongful act of the defendant, which is the office of the mandatory injunction, but to compel the defendant to do an act which it has refused to do, which is the function of the writ of mandamus. 3 Pom. Eq. Jut., sec. 1359.
The action was commenced in Buncombe County and the alternative writ of mandamus was issued by Judge Shaw, resident judge of the Twelfth and holding the courts of the Eighteenth Judicial District, returnable before Judge Adams, holding the courts of the Nineteenth District, of which Buncombe County is a part.
"We are of opinion Judge Shaw was without authority to issue the writ, for the reason stated by Clark, C. J., in Moore v. Moore, 131 N. C., 371, that “Under our rotating system the judge holding by rotation the courts of a district has, during the six months he is assigned thereto, the sole jurisdiction therein,- just as the resident judge had when there was no rotation, except in the cases otherwise specifically, provided by statute; and these exceptions in civil cases are restricted to restraining orders and injunctions to the hearing and appointment of receivers. Habeas corpus proceedings are an exception, also, but this is a prerogative writ.”
We will not,' however, rest our decision on this ground, but as no motion was made to quash the writ before Judge Adams, and as the action itself was properly constituted, will deal with it as if an original application for the writ had been made before Judge Adams.
The gravamen of the complaint is that the defendant, the board of canvassers, met on 9 November, 1916, and then and there canvassed the returns and then and there found and declared that the plaintiff had received in Buncombe County 4,037 votes, and that Zebulon Weaver [804] received 4,325 votes, and tbat tbe said board bad refused to announce, certify, and proclaim said canvass and result.
Tbe defendant denies tbat tbe result was ascertained or declared on 9tli November, and alleges tbat there was an adjournment on tbat day because of tbe fact tbat tbe returns from three precincts were not present and tbat it took no final action until an adjourned meeting on 17th November, at which time it completed the canvass of all tbe returns from tbe county and ascertained tbe result to be tbat the plaintiff received 4,043 votes and bis opponent Weaver 4,353 votes, and tbat they duly certified tbe same to tbe proper officers.
Judge Adams has found tbe fact, thus in controversy, with the defendant, and bis finding is conclusive upon us, as tbe statute regulating applications for mandamus (Rev., sec. 824), after providing for tbe return of tbe summons, says: “At which time tbe court, except for good cause shown, shall proceed to bear and determine tbe action, both as to law and fact: Provided, tbat when an issue of fact is raised by tbe pleading, it shall be the duty of tbe court, upon tbe motion of either party, to continue tbe action until said issue of fact can be decided by a jury at tbe next regular term of tbe court.”
The statute vests tbe judge before whom tbe summons is returnable with tbe power to determine tbe fact, unless there is a demand for a jury trial; and as tbe plaintiff has made no such demand, wa’ must accept tbe fact as established, for tbe purposes of this appeal, that tbe defendant board did not ascertain and declare tbe result of tbe vote on 9 November, 1916, and tbat it did so on 17 November, 1916, and when we do so tbe plaintiff’s action must fail because tbe fact upon which it rests has been found against him.
We not only have no power to reverse tbe findings of fact, but we have no authority to find additional facts, if inclined to do so, as the application for mandamus is “legal and not equitable” (26 Cyc., 141), and the power of this Court to review evidence and find facts is restricted under tbe present Constitution to appeals from “judgments final as well as interlocutory, which are exclusively equitable in their nature, and which a court of equity as a distinct and separate tribunal could alone formerly render.” Young v. Rollins, 90 N. C., 134.
If, however, we dealt with the question as the record stood before tbe return to' tbe certiorari and without tbe specific finding against tbe plaintiff as to what occurred on 9th November, can we cause the board to reassemble and make return and certify tbe result as tbe plaintiff claims it to be?
In tbe first place, if we eliminate the fact found against tbe plaintiff as to what occurred on 9th November, mandamus is not tbe appropriate remedy for settling any conflicting claims in tbe pleadings.
[805] “Mandamus cannot be employed for tbe purpose of settling conflicting claims to an office. It is no part of its functions to determine contested elections. ... A defense is sufficient wbicb sets up that after the canvass another than the relator was declared elected, received the certificate of election, and qualified by taking the oath of office, notwithstanding a claim by the relator that he was properly elected, for when it becomes necessary to go beyond the returns and to consider questions touching the legality of the election, or of fraud, illegal voting, or the like, then mandamus is not the proper remedy, and it is necessary to resort' to quo warranto or to such statutory proceeding as may be provided.” 9 R. C. L., 1153 et seq.
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Allbw, J.
It is well at the outset to have a clear conception of the question for decision, and of the limitations on the power of this Court.
In the first place, we are not trying the title to the office of Congressman.
This is manifest from the fact that Mr. Weaver, the other contestant for the office, is not a party to this action, and if he was, the Court- would be without jurisdiction, because it is provided in the Constitution of the United States, Art. I, sec. 5, that “Each house (Senate and House of Representatives) shall be the judge of the elections, returns, and qualifications of its own members,” thereby withdrawing from the courts and vesting in Congress the.power to pass on the title to the office of Congressman.
Nor is the question before us as to who is entitled to the certificate of election and commission, which but establish the right to the office prima facie, ánd we can make no order in reference to the certificate [803] and commission, because the State Board of Canvassers ascertain and declare the result of an election for Congressman and certify the result to the Secretary of State, who issues a certificate of election, on which the Governor issues a commission; and none of these officers are parties.
The only parties are Mr. Britt, the plaintiff, and the board of canvassers of Buncombe County, the defendant, and the only object of the action is to compel by writ of mandamus the members of the defendant board to reassemble and to certify as the result of the election in Buncombe County that the plaintiff received 4,037 votes for Congress and his opponent 4,328 votes.
That the action is for the remedy by mandamus and not by injunction appears from the prayer of the complaint, which asks that a peremptory mandamus issue from the writ issued by Judge Shaw, which is entitled “alternative mandamus” and is in the form of the writ of mandamus, and by the relief sought, which is not to restore the plaintiff to his previous condition, changed by the wrongful act of the defendant, which is the office of the mandatory injunction, but to compel the defendant to do an act which it has refused to do, which is the function of the writ of mandamus. 3 Pom. Eq. Jut., sec. 1359.
The action was commenced in Buncombe County and the alternative writ of mandamus was issued by Judge Shaw, resident judge of the Twelfth and holding the courts of the Eighteenth Judicial District, returnable before Judge Adams, holding the courts of the Nineteenth District, of which Buncombe County is a part.
"We are of opinion Judge Shaw was without authority to issue the writ, for the reason stated by Clark, C. J., in Moore v. Moore, 131 N. C., 371, that “Under our rotating system the judge holding by rotation the courts of a district has, during the six months he is assigned thereto, the sole jurisdiction therein,- just as the resident judge had when there was no rotation, except in the cases otherwise specifically, provided by statute; and these exceptions in civil cases are restricted to restraining orders and injunctions to the hearing and appointment of receivers. Habeas corpus proceedings are an exception, also, but this is a prerogative writ.”
We will not,' however, rest our decision on this ground, but as no motion was made to quash the writ before Judge Adams, and as the action itself was properly constituted, will deal with it as if an original application for the writ had been made before Judge Adams.
The gravamen of the complaint is that the defendant, the board of canvassers, met on 9 November, 1916, and then and there canvassed the returns and then and there found and declared that the plaintiff had received in Buncombe County 4,037 votes, and that Zebulon Weaver [804] received 4,325 votes, and tbat tbe said board bad refused to announce, certify, and proclaim said canvass and result.
Tbe defendant denies tbat tbe result was ascertained or declared on 9tli November, and alleges tbat there was an adjournment on tbat day because of tbe fact tbat tbe returns from three precincts were not present and tbat it took no final action until an adjourned meeting on 17th November, at which time it completed the canvass of all tbe returns from tbe county and ascertained tbe result to be tbat the plaintiff received 4,043 votes and bis opponent Weaver 4,353 votes, and tbat they duly certified tbe same to tbe proper officers.
Judge Adams has found tbe fact, thus in controversy, with the defendant, and bis finding is conclusive upon us, as tbe statute regulating applications for mandamus (Rev., sec. 824), after providing for tbe return of tbe summons, says: “At which time tbe court, except for good cause shown, shall proceed to bear and determine tbe action, both as to law and fact: Provided, tbat when an issue of fact is raised by tbe pleading, it shall be the duty of tbe court, upon tbe motion of either party, to continue tbe action until said issue of fact can be decided by a jury at tbe next regular term of tbe court.”
The statute vests tbe judge before whom tbe summons is returnable with tbe power to determine tbe fact, unless there is a demand for a jury trial; and as tbe plaintiff has made no such demand, wa’ must accept tbe fact as established, for tbe purposes of this appeal, that tbe defendant board did not ascertain and declare tbe result of tbe vote on 9 November, 1916, and tbat it did so on 17 November, 1916, and when we do so tbe plaintiff’s action must fail because tbe fact upon which it rests has been found against him.
We not only have no power to reverse tbe findings of fact, but we have no authority to find additional facts, if inclined to do so, as the application for mandamus is “legal and not equitable” (26 Cyc., 141), and the power of this Court to review evidence and find facts is restricted under tbe present Constitution to appeals from “judgments final as well as interlocutory, which are exclusively equitable in their nature, and which a court of equity as a distinct and separate tribunal could alone formerly render.” Young v. Rollins, 90 N. C., 134.
If, however, we dealt with the question as the record stood before tbe return to' tbe certiorari and without tbe specific finding against tbe plaintiff as to what occurred on 9th November, can we cause the board to reassemble and make return and certify tbe result as tbe plaintiff claims it to be?
In tbe first place, if we eliminate the fact found against tbe plaintiff as to what occurred on 9th November, mandamus is not tbe appropriate remedy for settling any conflicting claims in tbe pleadings.
[805] “Mandamus cannot be employed for tbe purpose of settling conflicting claims to an office. It is no part of its functions to determine contested elections. ... A defense is sufficient wbicb sets up that after the canvass another than the relator was declared elected, received the certificate of election, and qualified by taking the oath of office, notwithstanding a claim by the relator that he was properly elected, for when it becomes necessary to go beyond the returns and to consider questions touching the legality of the election, or of fraud, illegal voting, or the like, then mandamus is not the proper remedy, and it is necessary to resort' to quo warranto or to such statutory proceeding as may be provided.” 9 R. C. L., 1153 et seq.
This is a well considered statement, supported by numerous authorities, that the courts cannot on application for mandamus inquire into questions of fraud, illegal voting, illegality of the election, and the like, and that resort must be had by the aggrieved party to the action of quo warranto to try the title to the office, or, in this case, to the House of Representatives.
“Mandamus is a proceeding to compel a defendant to perform a duty which is owing to the plaintiff, and can be maintained only on the ground that the relator has a present clear legal right to the thing claimed, and that it is the duty of the defendant to render it to him. If it appears from the complaint that two persons are claiming the same duty adversely to each other, against a third party, the writ does not lie (Tom. L. D., title “Mandamus,” 3 Bun., 1452), and that for the plain reason that the title must be decided between them before the defendant can know to whom the duty or thing is due.” Brown v. Turner, 70 N. C., 103.
This last statement by Judge Bymim and concurred in by Pearson, O. Jin a contest over office, is very pertinent, and if sound as a legal proposition would alone justify a refusal to grant the prayer of the plaintiff, because it is there stated that the writ of mandamus will not lie if-two persons are claiming the same duty adversely to each other against a third party, and on the facts as they appear to us, Mr. Britt and Mr. Weaver are claiming the same duty adversely to each other from the defendant board of canvassers, a third party, and there is reason and justice in the rule because otherwise relief may be had by mandamus, which would seriously affect the rights of another, when he has had no opportunity to be heard, and this action fitly illustrates it, as the plaintiff is asking that the board of canvassers take action, which may determine whether he of Mr. Weaver shall have the certificate of election, when Mr. Weaver is not a party to the action and cannot be heard.
[806] There is also much conflict of opinion as to the power to compel a board which has adjourned, to reassemble, but the weight of authority seems to be that this can be done for the mere purpose of requiring it to complete its labors, but that it cannot be done to compel it to reconsider its action (S. ex rel. Hudson v. Pigott, 24 A. and E. Anno. Cases, and extensive note), and on the facts found by the judge, the defendant board has performed its duties and certified the result.
If, however, mandamus is the proper remedy, and if the defendant board is not functus officio, and can be reassembled, what can the board be required to do?
The authorities are practically unanimous to the effect that the court has the power to compel officers to perform a ministerial duty, but that where the officer is vested with discretionary power, the court cannot control or interfere with his action.
The authorities are collected and the question fully discussed in the opinion by Justice Hoke in Board of Education v. Comrs., 150 N. C., 122, where he says: “It is recognized doctrine that the writ of mandamus is the appropriate remedy to enforce the performance of duty on the part of county officials, when the duty in question is peremptory and explicit, but that such a writ will not be granted to compel the performance of an act involving the exercise of judgment and discretion on the part of the officer to whom its performance is committed. In some of the books the principle is stated in this way: that the writ is only allowable when the duty is mandatory and the act sought to be coerced is ministerial in its nature; and while expressions are sometimes found that the performance of a duty to some extent discretionary will be controlled by this writ when it clearly appears that an officer has acted capriciously, ap examination of these authorities will, we think, disclose that in cases involving the exercise of official discretion the order of the court in actions for mandamus has always been restricted to compelling an officer to act in a given case, and will never undertake to direct him as to how he shall act.”
Mr. Justice Walker in Edgerton v. Kirby, 156 N. C., 347, says: “If a public officer fails to perform his legal duty to the public, mandamus will lie to compel him to do so, if it is a mandatory one, but not to control the exercise of a discretion given to him, for it is the nature of a discretion in certain persons that they are to judge for themselves, and, therefore, no court can require them to decide in a particular way or review their judgment by way of appeal, or by any proceeding in the nature of an appeal, since the judgment of the persons to whom the discretion is confided by law would not then be their own, but that of the court under whose mandate or compulsion they gave it. Attorney-General v. Justices of Guilford, 27 N. C., 315; [807] Barnes v. Comrs., 135 N. C., 27. . . . As to the power of a court of general jurisdiction to issue a mandamus for the purpose of controlling the discretion of a public officer, the case of U. S. v. Seaman, 17 How. (U. S.), 225, and Gaines v. Thompson, 7 Wallace, 347, may-well be consulted, for they state the doctrine with clearness and accuracy. They deny the power where there is a discretion left to the officer as to how he will perform the duty, and so we have held. . . . This author (Tapping Mandamus) says that in no case does the writ lie To compel a tribunal, judicial or administrative, to render any particular judgment or decision, or to set aside one already rendered, but only to enforce the performance of a ministerial or mandatory duty. The writ is appropriate to compel subordinate courts or bodies (or even individuals, in a restricted class of cases)' to proceed and determine matters pending before them and properly within their cognizance or jurisdiction, but it cannot compel them to do that which the- law leaves them to decide according to their best judgment and discretion. Tapping, 35, 36. The plaintiff must try other ordinary remedies before he resorts to this unusual writ of compulsion.”
The ease of Johnston v. Board of Elections, ante, 162, is an instance of the exercise of the jurisdiction by the courts to compel the performance of a purely ministerial duty by mandamus. In that case the plaintiff Johnston and the defendant Pate were opposing candidates for the nomination as a member of the House of Representatives at a primary election. The election was held, the result tabulated, declared, published, and filed with the proper officers; there was no allegation of fraud or irregularity in the election, and it was held in an action to which Pate was a party that the board of elections could be compelled to perform the ministerial duty, involving the exercise of no. judgment or discretion, of placing his name on the party ticket.
We turn, then, to the election law for the purpose of seeing what powers are vested in the county board of canvassers and what duties are imposed upon it, and we find by Revisal, sec. 4350, it is required to open and canvass and judicially determine the returns, stating the number of legal ballots cast in each precinct for each officer, the name of each person voted, for, and the number of votes given to each person for each different office, and to sign the same, and that it is vested with power and authority to judicially pass upon all facts relative to the election and to judicially determine and declare the result of the same, and to send for papers and persons and examine the same.
This section clearly vests the board with discretionary power and imposes the duty of exercising its judgment, and, if so, we cannot, upon an application for a mandamus, interfere with the exercise of its judgment and discretion, nor can we review its judgment except in an [808] action to try tbe title to tbe office by quo warranto, which, as we have seen, is not applicable to tbe office of Congressman.
If tbe matter was properly before ns and we bad jurisdiction to decide it, we would bold as to tbe congressional ticket, which has only one name on it, that all unmarked ballots ought to be counted for tbe respective candidates, because tbe purpose of tbe election is to ascertain tbe will of tbe voter, and tbe marking of the ballot can only serve a useful purpose in ascertaining this will when there are more names than one upon a ballot.
Tbe statute was evidently copied from a statute requiring tbe names of all the candidates to be on one ballot, and tbe requirement as to marking was for tbe purpose of identifying and indicating tbe choice of tbe voter, and while such provisions are usually held to be mandatory, “tbe doctrine of all tbe cases is that tbe intention of tbe voter, as gathered from tbe ballot itself or other surrounding circumstances of a public character, is to control.” 15 Cyc., 362.
Tbe voter is interested in tbe question as well as the candidate, and when his will is expressed, it ought not to be set aside on light grounds, and no one can doubt what bis purpose, and intention was when be voted a congressional ticket with only one name on it.
We would also bold that what are referred to as additional or .supplemental returns ought not to have been considered, if, as tbe plaintiff contends, they were made up after tbe registrar and pollholders bad fully performed their duties, and without calling tbe registrar and poll-holders together in a body.
If they bad tbe right to act at all, they could only do so in a regular meeting called for that purpose, and when all were present or bad an opportunity to attend.
We have carefully considered tbe contentions of tbe parties and are of opinion that tbe judgment must be affirmed.
We have not discussed tbe charges and counter-charges of illegal and wrongful conduct, because their consideration properly belongs to another tribunal.
Tbe courts are slow to interfere' with tbe action of officers appointed by law to conduct elections and to declare tbe result, and will not do so except in extreme cases and wl^en the duty is clear, because 'if tbe jurisdiction is once recognized they may by injunction restrain tbe bolding of an election and prevent an expression of tbe popular will, or. after tbe election is held may delay tbe declaration of tbe result or defeat it.
Affirmed.