Harris v. . Miller

SciiENCK, J. The appellants’ assignments of error assail the judgment of Clement, J., for that (1) the ballots which it authorized and directed to be canvassed were illegal and void, and (2) that said ballots were cast in contempt of court, and (3) for that the election officials failed to furnish valid ballots, and (4) that no legal ballots were cast, and those who presented themselves to vote were denied legal ballots, and (5) that the election officials closed the polls shortly after midday and left the polling place. *749 His Honor found no facts, and it does not appear from the record that he was requested so to do. There would, therefore, be a presumption that he found the facts to be as alleged in the answer, since he entered judgment in favor of the defendants. However, in injunction proceedings, this Court has the power to review on appeal the findings of fact by the court below, when the appellant has assigned and shown error. Scott v. Gillis, 197 N. C., 223. Clark, C. J., in Peters v. Highway Commission, 184 N. C., 30, says: “In injunction proceedings we can review the evidence.” While we at all times desire to give due weight and consideration to the findings of fact of the judge of the Superior Court, and hesitate in this ease to depart from the facts presumed to have been, but not actually, so found, our understanding of the facts as gleaned from the record, more especially from the orders of Daniels, J., from which no appeal was perfected, precludes our approval of such findings as will support the judgment entered. It appears that 57 ballots adjudged to be illegal were cast, that no other ballots were cast, and that legal ballots were denied those who presented themselves to vote, and that many of the 400 registered voters who came to the polling place were denied the privilege of voting, and that the polls were open for voting less than two hours. Under these, and other circumstances that appear from the record, we think it was error to authorize and direct the canvassing of the ballots and the declaring of the results of the election. We hold there was no valid election, and that the judgment of the Superior Court should be reversed. Reversed. Devin, J., took no part in the consideration or decision of this case.