AVERY, J., dissenting.
This proceeding is brought under chapter 159, Laws 1895, being "An act to revise, amend and consolidate the Election Laws of North Carolina," to compel the Clerk of Buncombe County to comply with the provisions of the act in appointing judges of election.
It is alleged and admitted that the plaintiff is a resident and qualified voter in Buncombe County, and that the defendant is the Clerk of the Superior Court of said county. It is alleged and admitted that Hal W. Ayer is the chairman of the People's Party, which party voted more than thirty thousand votes in 1892, and that as such Chairman he had the right to designate to the defendant the names of persons to be appointed judges of the election to be held in (651) November, 1896. And it is alleged and admitted that he failed to make this designation on or before the first Monday in October, 1896, which was 5 October, but did so on or about 13th of said month. And it was alleged by the defendant that, receiving no list from said Ayer, Chairman as aforesaid, he proceeded to make said appointments, as it was his duty under said act to do.
Upon the hearing of this case the defendant's counsel contended that, defendant having received no list from said Ayer on 5 October, it was his duty to proceed to make said appointments without such list, and without regard to what party the appointees should belong, so that he observed the other qualifications contained in said act. And Mr. Davidson stated that, being called upon for his opinion by the clerk, he so advised him. But it was contended that, notwithstanding the opinion of Mr. Davidson, the clerk (the defendant) had in fact observed the distinctions between the different political parties; and as he had
received lists from the chairmen of the Democratic and Republican parties, which he observed, that he did appoint one Populist from each precinct except four, namely, 1st and 2d precincts of Reem's Creek, Avery's Creek and Black Mountain precincts.
It was also contended that, these parties having been lawfully appointed, the Court had no right to remove the incumbents and to fill or cause their places to be filled by other persons. It was further insisted that the plaintiff Harkins, was a Republican and Chairman of the Republican Executive Committee of Buncombe County, and therefore he had no right to bring and maintain this proceeding.
This statement of facts presented the questions of law arising (652) thereon and the contention of the parties.
This act, ch. 159, sec. 7, Laws 1895, gave to Mr. Ayer, as Chairman of the People's party, the right to designate to the defendant the names of the persons to be appointed judges of election for his party in Buncombe County. Had this been done on or before the first Monday in October the defendant would have had no discretion, and it would have been his duty to make the appointments as designated. He would then have been but the agent provided by law to carry out the will of Mr. Ayer.
But, as he received no such list from Mr. Ayer on or before the first Monday in October, it then became his duty to make such appointments, observing the requirements of the law for such judges, one of which is that they must be members of the People's Party, if there are such in the township. This is clearly shown to be the spirit and intention of the law, and is clearly manifested by the language used in giving the clerks this power, to wit, that if "The chairmen of the State Executive Committees or either of them, shall have failed to recommend persons so qualified for said appointments, then the clerk shall appoint suitable persons, havingall the requisite qualifications herein described, without such recommendations."
It seems to me that there can be no doubt but that this language includes the requirement that the person appointed shall belong to the political party for which he may be appointed. But this does not prevent the clerk from selecting from the persons otherwise qualified of the political party for which he is making the appointment.
This is a public law, intended for the whole people, and the whole people are interested in the correct interpretation and enforcement of the same. I therefore fail to see anything in the objection to Mr. Harkins bringing and prosecuting this proceeding. I am informed (653) that Judge Hoke took the same view of this law that I have taken in the Salem case, which was recently before him. There, as I understand, the Clerk, not having received the list from
Mr. Ayer, appointed a Republican registrar for the People's Party. The Chairman of the Democratic County Committee applied for and obtained a rule on the Clerk; the Republican was removed and a member of the People's Party appointed. I may not be entirely correct in stating the facts of the case before Judge Hoke, but I state them as I have heard them. If I have stated the facts correctly and his ruling, I agree with him. If it should be that I am mistaken as to the facts and ruling in the case referred to, it will not affect my own decided opinion of the law as above expressed.
This act (sec. 7) provides "that the Judges of the Supreme and Superior Courts shall exercise general supervisory power over the Clerks in the execution and performance of all the powers, duties, directions and requirements of this act." This I construe to give me the power to inquire into the manner in which the Clerk has discharged his duty, and, if I find that he has not discharged it according to law, to overrule and correct him, and if I find that he has made appointments in violation of the law, to declare them void, and to require appointments to be made in accordance with the law, and to sustain his appointments where they have been made according to law.
I have now declared the law bearing on the case as I understand it. And this brings me to a consideration of disputed facts, which have given me much more trouble than the questions of law involved. And it seems strange to me that a man possessing the other requisite qualifications for a judge of an election should not have sufficient prominence among his neighbors for them to determine to what political party he belonged. But such seems to be the case (654) here.
While there are reasons for me to suppose that the defendant acted under a misapprehension of his rights in making these appointments (Mr. Davidson's advice), I shall give him the benefit of the presumption that he did right in making these appointments, unless it appears otherwise from the evidence or from his admissions, and that the burden (outside of admissions) is upon the plaintiff; that, acting under this rule, I find that C. B. Leonard, appointed for the first precinct, town of Asheville, W. W. Owensby for the second precinct, W. D. Justice for the fourth precinct, and G. W. Freeman are Populists; they so swear; and I give them credit for knowing to what party they belong and for swearing the truth, although there is evidence before me tending to show that W. D. Justice is now Chairman of the Democratic Club in Asheville. I also find under this presumption that W. M. Jones is a Populist, although there is evidence showing that he is now one of the city Aldermen of Asheville and was elected
as a Democrat. At this time when there are so many changes, I do not think this proves that he is not a Populist now; and I find upon the direct testimony of W.H. Wilson, corroborated by that of H.S. Harkins and not contradicted by any evidence, that W. P. Brown, J. M. Ingles, C. C. McCathey, W. P. Kilpatrick, N. A. Miller, R. V. Wolfe, Jas. Reese, W. C. Penland, James Patton (or Jos. Patton, whichever it may be), C. C. Murray, G. W.
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AVERY, J., dissenting.
This proceeding is brought under chapter 159, Laws 1895, being "An act to revise, amend and consolidate the Election Laws of North Carolina," to compel the Clerk of Buncombe County to comply with the provisions of the act in appointing judges of election.
It is alleged and admitted that the plaintiff is a resident and qualified voter in Buncombe County, and that the defendant is the Clerk of the Superior Court of said county. It is alleged and admitted that Hal W. Ayer is the chairman of the People's Party, which party voted more than thirty thousand votes in 1892, and that as such Chairman he had the right to designate to the defendant the names of persons to be appointed judges of the election to be held in (651) November, 1896. And it is alleged and admitted that he failed to make this designation on or before the first Monday in October, 1896, which was 5 October, but did so on or about 13th of said month. And it was alleged by the defendant that, receiving no list from said Ayer, Chairman as aforesaid, he proceeded to make said appointments, as it was his duty under said act to do.
Upon the hearing of this case the defendant's counsel contended that, defendant having received no list from said Ayer on 5 October, it was his duty to proceed to make said appointments without such list, and without regard to what party the appointees should belong, so that he observed the other qualifications contained in said act. And Mr. Davidson stated that, being called upon for his opinion by the clerk, he so advised him. But it was contended that, notwithstanding the opinion of Mr. Davidson, the clerk (the defendant) had in fact observed the distinctions between the different political parties; and as he had
received lists from the chairmen of the Democratic and Republican parties, which he observed, that he did appoint one Populist from each precinct except four, namely, 1st and 2d precincts of Reem's Creek, Avery's Creek and Black Mountain precincts.
It was also contended that, these parties having been lawfully appointed, the Court had no right to remove the incumbents and to fill or cause their places to be filled by other persons. It was further insisted that the plaintiff Harkins, was a Republican and Chairman of the Republican Executive Committee of Buncombe County, and therefore he had no right to bring and maintain this proceeding.
This statement of facts presented the questions of law arising (652) thereon and the contention of the parties.
This act, ch. 159, sec. 7, Laws 1895, gave to Mr. Ayer, as Chairman of the People's party, the right to designate to the defendant the names of the persons to be appointed judges of election for his party in Buncombe County. Had this been done on or before the first Monday in October the defendant would have had no discretion, and it would have been his duty to make the appointments as designated. He would then have been but the agent provided by law to carry out the will of Mr. Ayer.
But, as he received no such list from Mr. Ayer on or before the first Monday in October, it then became his duty to make such appointments, observing the requirements of the law for such judges, one of which is that they must be members of the People's Party, if there are such in the township. This is clearly shown to be the spirit and intention of the law, and is clearly manifested by the language used in giving the clerks this power, to wit, that if "The chairmen of the State Executive Committees or either of them, shall have failed to recommend persons so qualified for said appointments, then the clerk shall appoint suitable persons, havingall the requisite qualifications herein described, without such recommendations."
It seems to me that there can be no doubt but that this language includes the requirement that the person appointed shall belong to the political party for which he may be appointed. But this does not prevent the clerk from selecting from the persons otherwise qualified of the political party for which he is making the appointment.
This is a public law, intended for the whole people, and the whole people are interested in the correct interpretation and enforcement of the same. I therefore fail to see anything in the objection to Mr. Harkins bringing and prosecuting this proceeding. I am informed (653) that Judge Hoke took the same view of this law that I have taken in the Salem case, which was recently before him. There, as I understand, the Clerk, not having received the list from
Mr. Ayer, appointed a Republican registrar for the People's Party. The Chairman of the Democratic County Committee applied for and obtained a rule on the Clerk; the Republican was removed and a member of the People's Party appointed. I may not be entirely correct in stating the facts of the case before Judge Hoke, but I state them as I have heard them. If I have stated the facts correctly and his ruling, I agree with him. If it should be that I am mistaken as to the facts and ruling in the case referred to, it will not affect my own decided opinion of the law as above expressed.
This act (sec. 7) provides "that the Judges of the Supreme and Superior Courts shall exercise general supervisory power over the Clerks in the execution and performance of all the powers, duties, directions and requirements of this act." This I construe to give me the power to inquire into the manner in which the Clerk has discharged his duty, and, if I find that he has not discharged it according to law, to overrule and correct him, and if I find that he has made appointments in violation of the law, to declare them void, and to require appointments to be made in accordance with the law, and to sustain his appointments where they have been made according to law.
I have now declared the law bearing on the case as I understand it. And this brings me to a consideration of disputed facts, which have given me much more trouble than the questions of law involved. And it seems strange to me that a man possessing the other requisite qualifications for a judge of an election should not have sufficient prominence among his neighbors for them to determine to what political party he belonged. But such seems to be the case (654) here.
While there are reasons for me to suppose that the defendant acted under a misapprehension of his rights in making these appointments (Mr. Davidson's advice), I shall give him the benefit of the presumption that he did right in making these appointments, unless it appears otherwise from the evidence or from his admissions, and that the burden (outside of admissions) is upon the plaintiff; that, acting under this rule, I find that C. B. Leonard, appointed for the first precinct, town of Asheville, W. W. Owensby for the second precinct, W. D. Justice for the fourth precinct, and G. W. Freeman are Populists; they so swear; and I give them credit for knowing to what party they belong and for swearing the truth, although there is evidence before me tending to show that W. D. Justice is now Chairman of the Democratic Club in Asheville. I also find under this presumption that W. M. Jones is a Populist, although there is evidence showing that he is now one of the city Aldermen of Asheville and was elected
as a Democrat. At this time when there are so many changes, I do not think this proves that he is not a Populist now; and I find upon the direct testimony of W.H. Wilson, corroborated by that of H.S. Harkins and not contradicted by any evidence, that W. P. Brown, J. M. Ingles, C. C. McCathey, W. P. Kilpatrick, N. A. Miller, R. V. Wolfe, Jas. Reese, W. C. Penland, James Patton (or Jos. Patton, whichever it may be), C. C. Murray, G. W. Curtin, Jesse Williams, H.C. Blankenship, H.J. Miller, George Harris, R. P. Lewellyn, J. W. Bowling, Jas. Foster, W. E. Pounder and William Gaddy are not Populists; that finding, as I do, that C. B. Leonard, W. M. Owensby, W. D. Justice, J. N. Jones and G. W. Freeman are Populists, (655) and holding, as I do, that where the defendant (the clerk) complied with the law in making the appointments, the parties so appointed are rightfully in and entitled to hold their offices, the same are by me affirmed.
But as to W. P. Brown, J. M. Ingles, C. C. McCathey, W. P. Kilpatrick, N. A. Miller, R. V. Wolfe, James Reese, W. P. Penland, James or Joseph Patton, C. C. Murray, G. W. Justice, Jesse Williams, H.C. Blankenship, J. W. Bowling, R. J. Miller, Geo Harris, R. P. Lewellyn, Jas. Foster, W. E. Pounder and W. Gaddy not being members of the People's Party, I hold and declare they were not lawfully appointed and are not entitled to hold and exercise the functions and to perform the duties of said offices to which they were so wrongfully and unlawfully appointed, and that they are hereby removed from said offices to which they have been wrongfully and unlawfully appointed; and said offices, to which they have been so appointed, are declared to be now vacant.
It is admitted in defendant's answer that he has made no appointment of judges for the Populist Party for the first and second precincts of Reem's Creek, and none for Avery's Creek and Black Mountain precincts. So, the offices of judges for the Populists for these four precincts are, by the admission of defendant's answer, found and declared to be vacant as to the People's Party.
There has been some evidence before me intended to show that the People's Party of Buncombe County are satisfied with defendant's appointments. I can not consider such evidence. I have no right or power to consider such evidence as this. My duty is to find what the Clerk did and declare the law arising thereon. When this is done, my duty is done.
There is some evidence introduced intended to show that (656) some of the parties designated by Hal W. Ayer, as State Chairman of the Populist Party, are Republicans. But I have nothing to do with this matter; it is not before me. I do not say
but that, under proper proceedings against a State Chairman, this matter might be inquired into. Neither do I say that it could. I give no opinion as to that. But what I am deciding and what I do decide is that when the State Chairman makes his designation, within the time provided by the statute for him to do so, then the Clerk has no discretion, and it is his duty to make the appointments as designated; that, if there are any appointments made by the clerk, not especially noticed herein, they are affirmed.
ORDER: It is therefore considered, adjudged and ordered that the defendant, J. L. Cathey, as Clerk of the Superior Court of Buncombe County, proceed at once to fill the vacancies now existing in the offices of judges of election on the part of the People's Party, for precincts No. 3, No. 6, No. 7 and No. 8 in the city of Asheville, these offices being declared by me to be now vacant, and that he proceed at once to fill the places for which the following persons were appointed by him, and whose offices are now declared vacant, and for the respective precincts for which they were appointed, to wit: W. P. Brown, J. M. Ingles, C. C. McCathey, W. P. Kilpatrick, N. A. Miller, R. V. Wolfe, James Reese, W. C. Penland, James or Joseph Patton, C. C. (or J. C.) Murray, G. W. Justice, Jesse Williams, H.C. Blankenship, A. J. Miller, J. W. Bowling, George Harris, R. P. Lewellyn, James Foster, W. E. Pounder and William Gaddy.
And the clerk will also proceed at once to fill the vacancies now existing in the 1st and 2d precincts of Reem's Creek and in Avery's Creek and Black Mountain precincts. (657)
And as these offices are now vacant, and it being admitted that he has now in his possession a list of names furnished him by Hal W. Ayer, State Chairman of the People's Party, for the various precincts, he will forthwith and without delay proceed to fill said vacancies by appointing the persons so named and designated by the said Hal W. Ayer as Chairman aforesaid; and if the said Hal W. Ayer shall have failed to name and designate names for any one or more of said precincts, he will at once proceed to appoint and fill the same for the People's Party. Such appointees of his, if it shall be necessary for him to make of persons not designated by said Ayer, shall have the other qualifications provided by said Act of 1895.
And he will make known to me, at chambers, at the Supreme Court Building in the city of Raleigh, N.C. at 12 o' clock m., on 29 October, 1896, how and in what manner he has observed, kept and obeyed this order and judgment. This 26 October, 1896.
The plaintiff will recover his costs of defendant.
D. M. FURCHES, Associate Justice Supreme Court, N.C.
The Sheriff of Buncombe County, N.C. will execute this order forthwith upon its receipt by delivering a copy of the same to J. L. Cathey, Clerk of the Superior Court of Buncombe County, N.C. and make due return thereof to me forthwith. This 26 October, 1896. D. M. FURCHES, Associate Justice Supreme Court, N.C.
From this order the defendant appealed to the full bench.
The Court being of the opinion that the opinion, findings and judgment of the Court below were correct and should be affirmed if the Act of 1895, ch. 159, known as "The Election Law," is constitutional;
And it having been decided in the case of McDonald v. Morrow, post, 666, that said Act is constitutional, therefore, adopting the decision of the constitutional question in McDonald v. Morrow and the opinion of the trial court in the discussion of the other matters involved in the case as the opinion of this Court, the judgment appealed from is affirmed.