150 S.E. 507 | N.C. | 1929
The relator alleges that he is a resident, taxpayer, and qualified voter in Ward No. 2, in the city of High Point; that the defendant is a resident and citizen of High Point; that the Attorney-General has granted the relator leave to bring this action; that an election of councilmen was held in the city on 7 May, 1929, the two candidates in Ward No. 2 being the defendant and T. C. Johnson; that although Johnson received a majority of the votes cast in the election, the registrar and judges of election declared the defendant elected to the office; and that the defendant has unlawfully assumed to qualify and has usurped the office and is unlawfully receiving the fees and emoluments.
The defendant demurred ore tenus to the complaint on the following grounds: 1. The charter of the city (sec. 31, subsec. 5) is a public act and the courts must take judicial notice of its provisions, among which is this: "It (the city council) shall be the judge of the qualification and election of its members, and shall have authority to recount the votes for any of its members and to correct the result which may have been declared in the event notice of a contest shall be duly given." 2. The city council is a quasi-judicial body, having sole jurisdiction of this inquiry, or, in any event, primary jurisdiction, and that the Superior Court has no jurisdiction until the plaintiff has prosecuted his cause before the city council. 3. That the complaint fails to state a cause of action in that it does not allege that the plaintiff prosecuted his cause before the city council before instituting this action.
The demurrer was overruled and the defendant excepted and appealed.
The relator does not allege that he is entitled to the office or to any of its emoluments; but this allegation is not essential to the maintenance of the action. A civil action in the nature of quo warranto may be brought by the Attorney-General in the name of the State upon his own information or upon the complaint of a private party. C. S., 869, 870. A relator need not be a contestant for the office, but he must be a citizen and taxpayer within the jurisdiction over which an incumbent of the contested office exercises the functions prescribed by law. Foard v. Hall,
The charter of the city of High Point provides, not only that the city council shall be the judge of the qualification and election of its members, but that the charter shall be deemed a public act, judicial notice of which shall be taken in all courts without the necessity of pleading the act or reading it in evidence.
This is a proceeding in the nature of quo warranto, instituted in the Superior Court without reference to the prosecution of any asserted remedy before the city council or any allegation of an application to the city council to adjudge the election. The appellant contends that by virtue of the charter the trial court was affected with judicial notice of these facts, and that the right of the city council to judge of the election and qualification of its members excludes or ousts the jurisdiction of the Superior Court.
On this point we are referred by the appellant to Britt v. Board ofCanvassers,
This doctrine has no application to the point in question. But the appellant contends that there is no common-law jurisdiction in any courts under the Code of Civil Procedure to try title to an office and that the existing remedy is purely statutory, quo warranto and information in the nature of quo warranto having been abolished. C. S., *734
869. The writ of quo warranto was a common-law process. It was an original writ in the nature of a writ of right prosecuted at the suit of the king against one who usurped or claimed franchises or liberties to inquire of what right he claimed them. It fell into disuse and was supplied or superseded by an information in the nature of quo warranto which in its origin was "a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise as to oust him, or seize it for the crown." 3 Bl., 263. It was subsequently applied to the purposes of trying the civil right, and was a "part of that mass of remedies for wrongs which was brought over to this country by the early English settlers. 22 R. C. L., 656; 32 Cyc., 1412; Ames v. Kansas,
There can be no doubt that the Superior Court has jurisdiction of actions to try the title to an office. 1 Rev. Sts., ch. 97; Rev. Code, ch. 95; Battle's Rev., 234; Code, secs. 603, 616; Revisal 1905, secs. 826, 833; C. S., sec. 869, et seq. It was said in Saunders v. Gatling,
Affirmed.