State Ex rel.Swaringen v. Poplin

Supreme Court of North Carolina

State Ex rel.Swaringen v. Poplin

191 S.E. 746, 211 N.C. 700, 1937 N.C. LEXIS 184

CourtSupreme Court of North Carolina

DecidedJune 9, 1937

StatusPublished

Cited by7 cases

This text of 191 S.E. 746 (State Ex rel.Swaringen v. Poplin) 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.Swaringen v. Poplin, 191 S.E. 746, 211 N.C. 700, 1937 N.C. LEXIS 184 (N.C. 1937).

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Opinion

ClaeksoN, J.

The question for decision is : Does the complaint state facts sufficient to constitute a cause of action? We think so.

The defendant contends that under the law it is the duty of the county board of elections to judicially determine the result of the election from the report and tabulation made by the precinct officials. That the unsuccessful candidate must pursue his statutory remedy, citing N. C. Code, sections 5923, 5927, 5933, and especially C. S., 5923 (15), which reads as follows: “It shall be the duty of the State Board of Elections: (15) ‘To have the general supervision over the primaries and elections in the State, and it shall have the authority to make such reasonable rules and regulations with respect to the conduct of primaries and elections as it may deem advisable: Provided, same shall not conflict with any provisions of the law.’ ”

*702 We think tbe decisions of this Court are contrary to tbe contentions of defendant. In Harkrader v. Lawrence, 190 N. C., 441 (442), speaking to tbe subject, we find: “One of tbe chief purposes of quo warranto or an information in tbe nature of quo warranto is to try tbe title to an office. This is tbe method prescribed for settling a controversy between rival claimants when one is in possession of tbe office under a claim of right and in tbe exercise of official functions or tbe performance of official duties; and tbe jurisdiction of tbe Superior Court in this behalf has never been abdicated in favor of tbe board of county canvassers or other officers of an election. Rhodes v. Love, 153 N. C., 469; Johnston v. Board of Elections, 172 N. C., 162, 167.” S. v. Carter, 194 N. C., 293; Bouldin v. Davis, 197 N. C., 731; Barbee v. Comrs. of Wake, 210 N. C., 717.

In tbe present case fraud is alleged. Tbe courts are open to decide this issue in tbe present action. In Art. I, sec. 10, of tbe Const, of North Carolina, we find it written: “All elections ought to be free.” Our government is founded on tbe consent of tbe governed. A free ballot and a fair count must be held inviolable to preserve our democracy. In some countries tbe bullet settles disputes, in our country tbe ballot.

For tbe reasons given, tbe judgment of tbe court below is

Affirmed.

Stacy, C. J., and CoNNOB, J., concur in result.

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ClaeksoN, J.

The question for decision is : Does the complaint state facts sufficient to constitute a cause of action? We think so.

The defendant contends that under the law it is the duty of the county board of elections to judicially determine the result of the election from the report and tabulation made by the precinct officials. That the unsuccessful candidate must pursue his statutory remedy, citing N. C. Code, sections 5923, 5927, 5933, and especially C. S., 5923 (15), which reads as follows: “It shall be the duty of the State Board of Elections: (15) ‘To have the general supervision over the primaries and elections in the State, and it shall have the authority to make such reasonable rules and regulations with respect to the conduct of primaries and elections as it may deem advisable: Provided, same shall not conflict with any provisions of the law.’ ”

*702 We think tbe decisions of this Court are contrary to tbe contentions of defendant. In Harkrader v. Lawrence, 190 N. C., 441 (442), speaking to tbe subject, we find: “One of tbe chief purposes of quo warranto or an information in tbe nature of quo warranto is to try tbe title to an office. This is tbe method prescribed for settling a controversy between rival claimants when one is in possession of tbe office under a claim of right and in tbe exercise of official functions or tbe performance of official duties; and tbe jurisdiction of tbe Superior Court in this behalf has never been abdicated in favor of tbe board of county canvassers or other officers of an election. Rhodes v. Love, 153 N. C., 469; Johnston v. Board of Elections, 172 N. C., 162, 167.” S. v. Carter, 194 N. C., 293; Bouldin v. Davis, 197 N. C., 731; Barbee v. Comrs. of Wake, 210 N. C., 717.

In tbe present case fraud is alleged. Tbe courts are open to decide this issue in tbe present action. In Art. I, sec. 10, of tbe Const, of North Carolina, we find it written: “All elections ought to be free.” Our government is founded on tbe consent of tbe governed. A free ballot and a fair count must be held inviolable to preserve our democracy. In some countries tbe bullet settles disputes, in our country tbe ballot.

For tbe reasons given, tbe judgment of tbe court below is

Affirmed.

Stacy, C. J., and CoNNOB, J., concur in result.

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191 S.E. 746, 211 N.C. 700, 1937 N.C. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-relswaringen-v-poplin-nc-1937.

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