The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1896-11-10
FUSION TRICK FAILS
The Vote in Pineville Must BE
Counted.
JUDGE FURcHEs DECIDES
Walter Henry Appeals to the
Full Bench.
THE CASE TO BE ARGUED TO-DAY
Suggested That Proper Remedy Can
be Obtained by Quo Warranto Pro-
ceedings if Any Wrong Has
Seen Done.

1Fhe action brought by the fuslonlsts
AZ Mecklenburg county to restrain CLERK
Of Court Morrow from counting precinct
No. 2 of Pinevillc township, and when
was argued before Judge Furches Sat
urday. was decided yesterday. 1t was
aooidod in favor of the Democrats and
against the fusionists, as it was evident
- all who acquainted themselves with
the facts in the case, that the court Wouia
no compelled to do. In rendering his deci-
sion Judge Eurches declared thaJ inc
Clerk was only ministerial ana not
iudicial officer, and recommended tiae
the plaintiffs institute quo Warrahto pro,
eeedings 10 determine whether there had
been any Irregularities in the election III
the precinct complained Of. The OPINION
in full is as follows:
"IJpon full consideration Oh
this matter, / am Of the opinion
that the restraining order heretofore
granted should be vacated, and the mo
tion for an Injunction should be denied.
Rut in thus holding | do not lind that
there had been no Irregularities, lntimlda-
tions. or frauds committed on the election
in precinct No 2, Pineville township. 1t
is not necessary that l should undertake
TO decide these questions, nor do l think
I have the power to do so in this proceed
ing.
"My opinion is that registrars
and INDIES of election should
he residents of the precinct for
which they are appointed. bu'
when they are regularly appointed.
the law presunles they are rightIully ap-
nointed and that they are residents OF
the precinct for which they have been 50
appointed. lie they are not, the law pro-
vides the means by which this may oe
tried and judicially determined.
''That no citizen had the right to under
to take the matter in his own hand, ami
by fraud, violence, intimidation or other
unlawful means attempt to correct such
mistake, if one has been made. Ii this
were allowed, free elections and free gov
ernments would soon be at an end.
"That no citizen had the right TO under
take to correct such mistake, II one had
been made, by officiously running the
township lines, and filing his report with
the board acting in the discharge OF
their duties as registrars or Judges OF
election And if any person by such acts,
or by threats of violence or threats OF
Indictment, or other unlawful means, dld
intimidate such registrars or judges, ana
by such means did interfere with them IN
the lawful discharge of their duty as such
registrars or judges, they have violated
both the criminal and civil law of the
State. And in my opinion, neither the
State nor the individual who may nave
been injured thereby are without remedy.
But it is not in this proceeding.
II am ia full sympathy with what uh-
derstand to be the spirit and meaning OF
the Election Law of 1S93-a free and fair
election. fair and honest count. And
while | would not consider it my duty
to sustain every technical objection that
might be made to the manner of eXecut-
ing this law. if / saw that substantial
Justice had been done, and free express
sion of the qualified voters had been OBJ
tanned. vet ] would feel it my duty to
exert all the powers / nave to prevent
fraud and intimidations of any kind.
Rut ii seems TO me from the atddavits
fled in this proceeding that this trouble
has probably arisen from the fact that
two negroes We're appointed registrars in
This township. And while 1t Is not for me
to say whether they should have been APP
pointed or not, and | do not say whether
they should or should not have been APP
pointed, but / do say that under the Con
stitution and laws of this State the negro
;s a legal elector and is entitled to accept
and hold the Office Of judge or registrar
of election, and to exercise and perform
the duties appertaining TO the same. And
4he time has passed, Gf it ever existed, IN
North Carolina, when he can be illegally
interfered with and prevented from dis
charging his duties as such officer, on that
account.
But it is my opinion that the duties Of
a clerk in tabulating the vote OF an elec-
tion. and in announcing the result, are
ministerial duties. And it is his duty to
tabulate and computate all such votes as
come to him through the regular channel
prescribed by law, unless it shall appear
mon the return itself, that 1t IS IN facf
NOT the return of said precinct, for which
i nurnorts to be. In such case he should
rafuse 10 count it, unless he shall be di-
racfad To do so by IN order of Judge of
the Superior or the Supreme Court
"IJnon an examination OF
certified copy mot objected TO by
plaintif) of the return OF the
election in this precinct to the de
PENDANT, / cannot say tltar it contains
such inherent and patent defects as would
have authorized the clerk to reject it I'M
der the rule have stated; and this being
so it was his dtuy to tabulate and count
the same.
Therefore, the restraining order here
tofore granted in this case is vacated, and
the motion for permanent injunction is
denied.
"That the defendant, J. M. Morrow will
at once proceed to count said vote as the
law directs, and the same as IL no re-
straining order had been issued in this
proceeding. That the defendant will re-
cover his costs of the plaintiff, II. Me
Donald"
Immediately upon the delivery of this
opinion, Mr.. w. II. Henry, who repre-
sents the plaintiffs, gave notice of an APP
peal. The case will be argued before the
full bench to-day.