#### STATE OF NORTH CAROLINA, on the Relation of B. RAY COHOON, v. ROBERT L. SWAIN.

(Filed 18 October, 1939.)

1. Elections § 19—

In an action to recover possession of a public office, tbe complaint alleging tbe election of relator, tbe issuance of a certificate of election to bim by tbe county board of elections, relator’s qualification as provided by statute, and the refusal of defendant to surrender tbe office, states a cause of action and defendant’s demurrer *ore tenus*to tbe complaint is properly overruled.

2. Same—

The statutory certificate of election is *prima facie*proof that tbe person therein designated is entitled to tbe office specified upon bis qualification, and is conclusive until reversed or adjudged to be void in a proper proceeding by a court of competent jurisdiction, and such certificate and evidence of qualification is sufficient to overrule defendant’s motion to nonsuit in relator’s action for possession of tbe office.

3. Pleadings § 8—

A plea by denial simply controverts tbe 'material allegations of the complaint and puts plaintiff to proof; while a plea in confession and avoidance sets up new matter, which is matter not appearing in tbe complaint, constituting an affirmative defense, O. S., 519, and such new matter must be properly alleged in order to give notice that it will be used.

4. Elections § 19 — Mere denial by defendant of issuance of certificate of election to relator does not entitle defendant to attack legality of election.

In this action for possession of a public office, plaintiff relator alleged, and offered supporting evidence, that be had been elected, that certificate of election bad been issued to him by the county board of elections, and that be bad duly qualified for tbe office, but that defendant bolding over after tbe expiration of his term of office, refused to give up possession. Defendant merely denied tbe material allegations of tbe complaint. *Held:*Tbe answer merely put relator to formal proof of tbe matters alleged, and evidence in support of defendant’s contention that irregular and illegal ballots bad been cast in tbe election was properly excluded in the absence of supporting allegation, irregularity and illegality in tbe election being new matter constituting an affirmative defense which must be alleged in order to give notice that it will be used.

Appeal by defendant from *Carr, J.,*at April Term, 1939, of Tyrrell.

No error.

Civil action instituted by plaintiff, elected sheriff for the term beginning the first Monday in December, 1939, to recover the physical possession of the office, hooks, etc., from the defendant, the sheriff for the preceding term, who is holding over.

*318The defendant was appointed in 1937 to fill the unexpired term of the sheriff who died. Said term expired on the first Monday in December, 1938. He and the relator were rival candidates for said office in the general election of 1938. The several registrars and judges of election in the various polling precincts in said county counted and canvassed the vote and duly made returns thereof to the county board of elections of Tyrrell County. When the county board of elections met to canvass the vote the defendant challenged the returns of the precinct election officials and demanded an investigation. Pursuant thereto the county board of elections set a date for and held a hearing. As a result thereof the said board determined and declared that the relator had received the highest number of legal votes cast in said election for said office and had been elected to same and so certified, as required by law. Thereupon, the defendant appealed to the State Board of Elections. The State Board of Elections set a date for and held a hearing in which the parties and counsel appeared. Upon said hearing the said board dismissed the appeal of the defendant and affirmed the finding of the county board of elections, and so certified to said county board, and the county board issued and delivered to the relator a certificate of election. Thereafter, on the first Monday in December, 1938, the relator presented his certificate of election to the county board of commissioners, took and subscribed the oath of office before the clerk of the Superior Court of Tyrrell County, and tendered to the board of commissioners the statutory bonds with good and sufficient sureties, which were received, approved and accepted by the board of commissioners of Tyrrell County. Having thus duly qualified for the office of sheriff, as required by statute, the relator made demand upon the defendant to turn over to him said office, together with the property and effects of the same, which the defendant refused to do. Thereupon, the relator, with leave of the Attorney-General of the State of North Carolina, instituted this action to compel the defendant to forthwith surrender to him the said office, together with the books, property and effects of the same.

The defendant, in his answer, entered a general denial of the several allegations contained in the complaint. He did not allege any fraud or irregularity in the conduct of the election or in the counting of the ballots. He denied the issuance to the relator of a certificate of election but made no affirmative attack thereon.

When the case came on for trial, after the plaintiff had offered evidence tending to support the allegations of his complaint, the defendant tendered evidence for the purpose of showing that certain absentee ballots were illegally cast- and counted, sufficient in number, as he contends, to change the result of the election. He likewise offered evidence which, he contends, will tend to show the illegality of such ballots. On objec*319tion, this evidence was excluded and the defendant excepted. Issues were submitted to the jury as follows:

“1. Is the relator, B. Eay Cohoon, the duly elected and qualified sheriff of Tyrrell County for the term beginning 5 December, 1938, as alleged in the complaint?

“2. Is the respondent wrongfully in possession of said office, its property and effects, as alleged in the complaint?”

The court in its charge instructed the jury that if it believed the evidence, found the facts to be as the testimony tended to show and so found by the greater weight of the evidence, it should answer each issue “Yes.” Upon the verdict of the jury in favor of the relator in accord with the charge the court entered judgment, to which the defendant excepted and appealed.

*McMullan & McMullan and W. L. Whitley for relator, appellee.*

*M. B. Simpson, Sam S. Woodley, and John H. Hall for defendant, appellant.*

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,*
      *32080 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 *321notice, 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.