The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-12-14
The Supreme Cour Thinks
One Unnecessary.
A QUESTION FOR A JURY
THE CONTEST BETWEEN FLEM-
ING AND COZART.
80rA CLAM TIT OFFICES or S4CqiFf
If Ora vile Suprior Court finds hat here's
no lection hen New Election VIII be
Ca LED. Peeding 4eari G Old
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sher.f Viii tfoId nver.

herff Viii 4old Eyer.
The Supreme court yesterday handed
down its decision of the case of Cozart
against Fleming, an election case, in
volving the title TO the uflicc of sheriff of
Granville county.
The recent election for sheriff in Gran
vile county resulted in a tie vote. and
the clerk of court decided that there WAS
no election, and a new election must be
ordered. Thereupon suit was brought
By Cozart, the Populist candidate, ask
ing that the clerk be restrained from
ordering new election. He also Pc
titioned for new count. alleging various
irregularities in the election. The re-
straning order asked for was granted
by Judge Timbcrake. returnable Novem-
Der 1. 1898. When the case came on
for hearing the clerk reported that on Ii
recount Cozart had come out two votes
ahead. and upon that Judge Undertake
declared Cozart elected sheriff.
From this decision an appeal was
taken by Fleming, the Democratic can
the Supreme court Fleming based his
appeal on the ground that the recount
was mere matter of evidence TO 90
before the jury on the trial of the case
and that Judge Undertake had no juris
diction to make the order declaring Co
cart elected.
And this is the view the Supreme
court takes of the matter, Judge Mont
gomery dissenting.
Judge Clark, writing the opinion Of thL
court. says:
His Honor conceived rightly that the
title to the office. SO far as dependent
upon the reception or rejection of bal
lots. intimidation. fraud, etc. could only
be determined before judge and jury
in a quo warranto, but he erred III
thinking that contest could be main
tanned over the certificate which con-
veys only prima facie title to office,
subject to the declaration of the right
in a quo warranto proceeding.
IF the clerk had refused or failed 10
tabulate the result in the manner re-
CURED by law. he could have been COM
PEELED By rule to perform that duty.
But here the clerk ,had acted and in
the mode pointed out by the statute.
His declaration of the result IS prIma
facie correct and can only be questioned
in an action of quo warranto.
1.-THE clerk having declared the result
no longer has any duties in regard
thereto, which he could exercise either
voluntarily or upon the order of judge
Besides, the clerk did not have the pow
er in the first instance to count the bal
lots and declare the result, but merely
to add up the various precinct returns
legally made and ascertain the result.
1.-THE only remaining question is
whether so much of this acton can be
sustained as seeks to restrain the hold
ing of q new election till the issue
raised by the rleadings is determined
whether in truth there was Il tie vote.
O.
From the averments in the pleadings
of both competitors it is almost imposs-
bic to believe land especially in view OF
the recount. though illegally made) that
on vote of SO many thousands there
will not he discovered an error of one
single ballot in favor Of one party or the
other, either by inadyertence of the
election officers. or the erroneous ac-
ceptance or rejection of some ballot, or
in some other particular. On the face
Of the numerous averments to that eff
feet specifically made by both parties,
and the tuth Of which must be determ-
ined notwithstanding a new election
shall he held. it SENS q clear right both
to the parties themselves and to the
public as well, that the expense OF an
election shall not be incurred when the
chances are almost infinitesimal that its
result will not become nullity upon
the trial of the averments made in these
pleadings, averments which would be re-
newed in a quo warranto against the
party successful in such new election,
since ii can have no validity if either
party he shown to have been truly
elected j thu election already held. y
''This proceeding is in it's essence
quo warranto brought by one contestant
against the other, when neither is in ac-
tual possession of the office (under the
election) by reason of the fact that upon
the declaration of tie vote. when
both seek to impeach, neither can be
in possession. They have a right to
contest the correctness of the result
and have it determined. and the clerk
is proper party. The injunction
against his ordering new election will
be continued to the hearing, when the
trial of the issues will determine which
of the two parties claiming the office
was elected; or if, by marvel, 1t should
happen that no majority is ascertained
on either side. then the restraining or
der will be dissolved to the end that
an election be held, but the preference
to the ballot box should not be ordered
till the plea in bar, set up on each side
that the people at the ballot-box have
already declared their willis disposed
of. This action, notwithstanding its UNI
usual feature of not being against one
in possession Of office, is in it's every
essence an action to try the title or right
to an office since each party asserts
his right to the office to which he
claims to have been elected and the ac-
ton will therefore stand for trial at the
first term Of Granville Superior court
1.-THE INJUNCTION in no wise determ-
ines the title but merely preserves the