State Ex Rel. Cohoon v. Swain

Barnhill, J. The defendant interposed a demurrer ore tenus to the complaint. Exception to the judgment of the court overruling the demurrer cannot be sustained. The complaint alleges the election of the relator, the issuance of a certificate of election, his qualification as provided by statute and the refusal of the defendant to surrender the office. These averments are the essentials of his cause of action. Nor can the exception to the refusal of the court to enter judgment of nonsuit be sustained. The certificate of election issued to the successful candidate is an official document having legal import and effect. It* is authorized and required by statute and it proves prima facie the pertinent facts stated therein. Roberts v. Calvert, 98 N. C., 580. The declaration of election as contained in the certificate conclusively settles prima facie the right of the person so ascertained and declared to be elected to be inducted into, and exercise the duties of the office. Gatling v. Boone, 98 N. C., 573; Cozart v. Fleming, 123 N. C., 547; Harkrader v. Lawrence, 190 N. C., 441; Lyon v. Commissioners, 120 N. C., 237; Rhodes v. Love, 153 N. C., 468. “The law contemplates and intends generally that the result of an election as determined by the proper election officials shall stand and be effective until it shall be regularly contested and reversed or adjudged to be void by a tribunal having jurisdiction for that purpose.” S. v. Cooper, 101 N. C., 684; Bynum v. Comrs., 101 N. C., 414; S. v. Jackson, 183 N. C., 695; Jones v. Flynt, 159 N. C., 87. “The certificate of election is not subject to attack except in a civil action in the nature of a quo warranto proceeding. Gatling v. Boone, supra; Cozart v. Fleming, supra; Swain v. McRae, *320 80 N. C., 111. Tbe evidence offered by tbe relator was amply sufficient to defeat tbe motion to nonsuit. Tbe defendant further assigns as error tbe refusal of tbe court below to admit evidence in respect to alleged irregular and illegal ballots cast in tbe election tending to sbow tbat certain votes bave been wrongfully and fraudulently counted for tbe relator. Tbe defendant, in bis answer, denies tbe election of tbe relator and tbe issuance of a certificate of election. He likewise denies tbat tbe relator took and subscribed tbe required oatb and filed tbe statutory bonds wbicb were approved and accepted by tbe county board of commissioners. He alleges and asserts no fact wbicb would challenge or tend to invalidate tbe certificate of election or impeach tbe due qualification and induction into office of tbe relator. Tbe answer must contain any new matter relied on by the defendant as constituting an affirmative defense. C. S., 519. Setting forth new matter as a defense is an affirmative pleading on the part of the defendant and the facts should be alleged with the same clearness and conciseness as in the complaint. McIntosh, sec. 461. Tbe defendant merely denies the existence of a certificate of election. He raises no issue in bis pleadings as to its validity. Tbe certificate proved prima facie the pertinent facts stated in it and puts the burden on him who alleges the contrary to prove it clearly. Roberts v. Calvert, supra. But the defendant made no allegations and asserts no fact in bis answer wbicb challenges the correctness or truth of the facts recited in the certificate. Tbe plea by denial simply controverts the material allegations of the complaint and forces the plaintiff to prove them; and new matter as a defense is a plea in confession and avoidance. It confesses the validity of the plaintiff’s claim, except for the matters alleged to avoid it. New matter as a defense means tbat it does not appear in the complaint and it must, therefore, be pleaded in order to give notice tbat it will be used. McIntosh, sec. 461. Upon tbe production of tbe certificate of election tbe defendant, in fact, became tbe complaining party under tbe contentions be now makes, tbat is, be undertakes to assert tbat tbe certificate is invalid for irregularities in tbe election and in tbe votes cast, and tbat be is tbe duly elected candidate. He is in possession of the office bolding over after bis term expired. He denies tbat tbe relator bolds a certificate of election and has duly qualified for office. If be wished to proceed further and to controvert tbe validity of tbe certificate on tbe ground of illegality in tbe election or in tbe casting or counting of votes, and to affirmatively assert bis right to tbe office for tbe new term under tbe election, be was required to allege tbe essential facts in respect thereto so as to put tbe relator on *321 notice, as to tbe nature of bis defense. If it was bis desire to impeach tbe election for irregularities in tbe manner in wbicb it was conducted or in respect to votes improperly cast and counted so as to show that be was tbe successful candidate, it was bis duty to plead tbe same and be cannot offer evidence thereof in tbe absence of such plea. In regard to tbe admissibility of tbe evidence impeaching tbe election and tbe certificate of election without supporting allegation, this seems to be a case of first impression in this Court. We have found no ease, and none has been called to our attention, in wbicb tbe point has been raised heretofore. Perhaps this is due to tbe fact that the unsuccessful candidate is tbe one who ordinarily institutes tbe action. While tbe defendant relies on Smith v. Lee, 171 N. C., 260, that case is not in point. There tbe vote was a tie. No certificate of election was issued. Tbe relator alleged that tbe election officials bad failed to count tbe vote of one Powell, wbicb, if counted, would give him a majority. Tbe defendant denied tbe right of Powell to vote and affirmatively pleaded that tbe election was void. He likewise cites S. v. Jackson, 183 N. C., 695. In that case tbe defeated candidate was tbe relator and expressly alleged in bis complaint fraud and misconduct on tbe part of tbe pollholders, registrars, and judges of election. Likewise, in all other cases we have examined where evidence of fraud or illegality was admitted, there was allegation of such either in tbe complaint or tbe answer. There being no plea of illegality or fraud in tbe answer, we are of tbe opinion that tbe court below properly excluded tbe tendered evidence. Strictly speaking, this is not an action to try title to office. Tbe relator, having received a certificate of election and having duly qualified, instituted tbe action against tbe defendant, tbe sheriff during tbe preceding term who was bolding over under tbe law until bis successor was duly elected and qualified, to compel tbe defendant to forthwith “surrender tbe said office to him, together with tbe books, property and effects of tbe same, and that be be compelled to account for and pay over to tbe relator any and all sums wbicb may have come into bis bands since tbe qualification of tbe relator as aforesaid.” Nowhere in tbe pleadings is it asserted that tbe defendant was elected or is entitled to tbe office for tbe current term. He has never attempted to qualify therefor - and is simply bolding over until bis successor qualifies. He denies tbe issuance of tbe certificate of election and that tbe relator has been inducted into office. These are tbe only issues raised by tbe pleadings. Tbe defendant has elected to simply require tbe relator to formally prove bis right as defendant’s successor. No error.