State Ex Rel. Barnett v. Midgett

Supreme Court of North Carolina

State Ex Rel. Barnett v. Midgett

65 S.E. 441, 151 N.C. 1, 1909 N.C. LEXIS 176

CourtSupreme Court of North Carolina

DecidedSeptember 8, 1909

StatusPublished

Cited by5 cases

This text of 65 S.E. 441 (State Ex Rel. Barnett v. Midgett) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Barnett v. Midgett, 65 S.E. 441, 151 N.C. 1, 1909 N.C. LEXIS 176 (N.C. 1909).

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Opinion

MANNING, J.,

after stating the facts: It was contended before us that the Legislature, by section 4350, Eevisal, created the board of canvassers an inferior court, whose decisons are judgments, having all the conclusiveness and finality of judgments, and protected from attack or review, except possibly by some kind of appeal, certiorari or some other writ, and that an action in the nature of quo warranto, such as this is, to try the title to the office of the clerk of the Superior Court, would not lie, because it would be a collateral attack upon the final judgment of" the board of canvassers of the county. This argument was rested upon the word “judicially,” used in the statute.

*3 That tbis word cannot be given such meaning in tbis statute bas been decided by this Court in Gatling v. Boone, 98 N. C., 573, and Roberts v. Calvert, 98 N. C., 583. Tbe meaning and effect of tbe same word, used in tbe amendments to section 2694, Code 1883, subsequently adopted and embraced in section 4350, Revisal, cannot be enlarged to support tbe contention of tbe defendant or bis Honor’s ruling. Tbe only amendment to section 2694, Code, is tbe following, viz.: “Tbe said board shall bave power and authority to judicially pass upon all facts relative to tbe election, and judicially determine and declare tbe result of tbe same, and they shall bave power and authority to send for papers and persons and examine the same.” ' “It is a mistaken notion that such limited exercise of judicial power is conclusive.” “No such jurisdiction is conferred, and the board of canvassers is not adapted to such purpose.” Gatling v. Boone, supra.

The extent and tbe effect of tbe determinations of tbe board of canvassers Or other election officers have been declared in that case and other cases determined by this Court. Roberts v. Calvert, 98 N. C., 583; State v. Cooper, 101 N. C., 684; Gatling v. Boone, 101 N. C., 64; Boyer v. Teague, 106 N. C., 576; Cozart v. Fleming, 123 N. C., 547.

That a civil action in tbe nature of quo warranto is tbe appropriate remedy, and that tbe correctness of the result of the election declared by tbe board of canvassers can be investigated in such action, has also frequently been decided by this Court. Lyon v. Commissioners, 120 N. C., 237; Cozart v. Fleming, supra, and cases cited above.

Therefore the ruling of bis Honor is erroneous, the judgment is reversed and the plaintiff is entitled to a new trial.

Reversed. New trial.

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MANNING, J.,

after stating the facts: It was contended before us that the Legislature, by section 4350, Eevisal, created the board of canvassers an inferior court, whose decisons are judgments, having all the conclusiveness and finality of judgments, and protected from attack or review, except possibly by some kind of appeal, certiorari or some other writ, and that an action in the nature of quo warranto, such as this is, to try the title to the office of the clerk of the Superior Court, would not lie, because it would be a collateral attack upon the final judgment of" the board of canvassers of the county. This argument was rested upon the word “judicially,” used in the statute.

*3 That tbis word cannot be given such meaning in tbis statute bas been decided by this Court in Gatling v. Boone, 98 N. C., 573, and Roberts v. Calvert, 98 N. C., 583. Tbe meaning and effect of tbe same word, used in tbe amendments to section 2694, Code 1883, subsequently adopted and embraced in section 4350, Revisal, cannot be enlarged to support tbe contention of tbe defendant or bis Honor’s ruling. Tbe only amendment to section 2694, Code, is tbe following, viz.: “Tbe said board shall bave power and authority to judicially pass upon all facts relative to tbe election, and judicially determine and declare tbe result of tbe same, and they shall bave power and authority to send for papers and persons and examine the same.” ' “It is a mistaken notion that such limited exercise of judicial power is conclusive.” “No such jurisdiction is conferred, and the board of canvassers is not adapted to such purpose.” Gatling v. Boone, supra.

The extent and tbe effect of tbe determinations of tbe board of canvassers Or other election officers have been declared in that case and other cases determined by this Court. Roberts v. Calvert, 98 N. C., 583; State v. Cooper, 101 N. C., 684; Gatling v. Boone, 101 N. C., 64; Boyer v. Teague, 106 N. C., 576; Cozart v. Fleming, 123 N. C., 547.

That a civil action in tbe nature of quo warranto is tbe appropriate remedy, and that tbe correctness of the result of the election declared by tbe board of canvassers can be investigated in such action, has also frequently been decided by this Court. Lyon v. Commissioners, 120 N. C., 237; Cozart v. Fleming, supra, and cases cited above.

Therefore the ruling of bis Honor is erroneous, the judgment is reversed and the plaintiff is entitled to a new trial.

Reversed. New trial.

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65 S.E. 441, 151 N.C. 1, 1909 N.C. LEXIS 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-barnett-v-midgett-nc-1909.

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