State Ex Rel. McMullan v. Allen

DeviN, J. The demurrer challenges the sufficiency of the complaint to state a cause of action on the ground that it does not affirmatively appear therein that the plaintiff is entitled to the office of commissioner of the town of Lumberton, or that he was wrongfully ousted therefrom. It is a familiar rule that in the consideration of a demurrer, on the ground here interposed, the facts alleged in the complaint will be deemed admitted, and the allegations will be construed liberally in favor of the pleader. Adams v. Cleve, 218 N. C., 302, 10 S. E. (2d), 911. The facts alleged in the complaint are substantially these: The plaintiff was a member of the board of town commissioners of Lumberton for the third ward, having been elected in May, 1939, for a term of two years. In accord with the applicable provisions of the town charter (ch. 343, Private Laws 1907) a primary was held the last Tuesday in April, 1941, to nominate candidates for commissioner, and in said primary the plaintiff was a candidate and received a plurality of the votes cast for commissioner in the third ward. On the first Monday in May (5 May) following, in accord with the charter, an election for mayor and commissioner was duly held, and the plaintiff received eight votes for said office and no votes were cast contra. Thereafter, on 13 June, 1941, a resolution was adopted by the board of commissioners, over the protest of the plaintiff, declaring the defendant Barnes commissioner of the third ward, and thereby ousting the plaintiff. It further appeared from the complaint that on 1 May, 1941, the board of commissioners had attempted, over the objection of the plaintiff, to call another primary for the selection, of a candidate for commissioner of the third ward, to he held 8 May, but it is alleged the charter contains no provision for a second primary, and that the date attempted to be set for the second primary was subsequent to the date of the general election wherein the plaintiff had been duly elected. The charter provides that the term of a town commissioner shall be two years and until his successor is elected and qualified. C. S., 3205. For the purposes of the demurrer the facts alleged must be taken to be true. Hence, it appears that the plaintiff was duly elected to the office he claims on 5 May, 1941, and that though he received only eight votes, there were no votes for any other person, and that, if for any reason, which does not appear, the election was void, he would hold over *530 until bis successor was elected and qualified. There was no vacancy, such as contemplated in the charter, which would empower the board to elect a successor. The complaint does not show any ground upon which the plaintiff could have been legally ousted. Procedure by action in the nature of quo warranto would seem to be the proper method to determine the title to the office in controversy. Ellison v. Raleigh, 89 N. C., 125; Harkrader v. Lawrence, 190 N. C., 441, 130 S. E., 35; Osborne v. Canton, 219 N. C., 139, 13 S. E. (2d), 265. The judgment overruling the demurrer is Affirmed.