
    J. W. BROWN v. T. W. COSTEN, C. W. HUDGINS, and W. M. SPARKMAN, COUNTY BOARD OF ELECTIONS OF GATES COUNTY.
    (Filed 18 September, 1918.)
    1. Elections — Primaries—Courts—Jurisdiction.
    In the absence of express statutory provision, the courts of the State have no jurisdiction to interfere with political parties in the choice of their candidates for office, nor to regulate or control the methods and agencies by which they are selected, except by appropriate legal remedies to enforce the performance of plainly ministerial duties or the protection of clearly defined legal rights existent and conferred usually by the Constitution and legislation applicable to the subject.
    2. Same — County Boards of Election — Statutes.
    Under the provisions of our primary law (chapter 101, Laws of 1916), the right of a voter to cast his ballot therein depends not only upon his legal status, but upon the good faith of his intent to affiliate with the party holding the primary, and his right in the latter respect is left to the determination of the registrar and judges of election, without power vested in the courts to supervise or control their action; and, this being an indeterminate political right, the decision of the county board must be considered final,, so far as the courts are concerned, when the primary has been held in all respects in accordance with the provisions of the statute.
    3. Same — Injunction.
    Where a primary has been held in accordance with the provisions of the statute (chapter 101, Laws of 1915), the courts have no jurisdiction to supervise or review the action of the local board of elections upon the question of whether a certain number of voters were qualified as to their party affiliation, etc., to vote thereat; and temporary injunction against its tabulating and publishing the ballots as returned by the registrars and poll-holders of the various townships, and declaring the nominee of the primary, is properly dissolved.
    ActioN beard on return to preliminary restraining order and by consent, before Whedbee, Jdecision being filed at July Term, 1918, of Gates .
    Tbe action was to set aside tbe results of a legalized primary for Gates County and restrain tbe defendants, tbe County Board of Elections, from tabulating and publishing the results of same, in so far as it affected tbe selection of tbe Democratic candidate for sheriff; plaintiff, one of the contestants for tbe nomination, claiming that on tbe returns as certified by tbe poll-holder's, bis opponent, one C. M. Lawrence, was selected as tbe nominee, and that this result was brought about chiefly because tbe registrar and judges of election at several of tbe voting precincts bad wrongfully and willfully refused to receive tbe votes of a good number of qualified voters, and whose purpose was to vote for plaintiff as tbe Democratic nominee.
    
      Tbe nature of plaintiff’s claim for relief is set forth in bis verified complaint, as follows: “That if tbe Election Board of Gates County are permitted to tabulate and publish said ballots as returned by tbe registrars and poll-holders of tbe various townships and declare tbe said C. M. Lawrence is the nominee of tbe primary for sheriff under tbe existing facts and conditions, tbe injury to this plaintiff will be irreparable, and be is without remedy, save in a court of equity.” The prayer for judgment being that tbe primary election for tbe irregularities and errors herein set out be declared null and void, and for such other relief as tbe court may deem just.
    On the bearing there was judgment that the restraining order be dissolved, that the results of the primary be forthwith tabulated and declared pursuant to the statute, and the costs taxed against plaintiff.
    From which said judgment plaintiff, having duly excepted, appealed.
    
      B. 0. Bridger and 8. Brown Shepherd for plaintiff.
    
    
      Aydletb, Simpson & Saiwy'e'r, A. P. Godwin, and T. W. Gosten for defendants.
    
   Hoke, J.

Chapter 101, Laws 1915, purports to provide for a legalized primary, by which the recognized political parties of the State may select their candidates by choice of the loona fide party voters.

In section 31 the statute is made to apply to any and all political parties who had candidates for State offices at the general election of 1914, and, in addition, any other political party described as such in a declaration signed by 10,000 legal voters of the State and filed with the State Board of Elections thirty days before the time fixed for State officers to file notices of their candidacy. And a qualified voter at such primary is said to be one who is a qualified voter of the State or who will become one on or before the next general election, and who has “declared and had recorded on the registration book (in a column provided for the purpose) that he affiliates with the political party in whose primary he proposes to vote, and is in good faith a member thereof, meaning that he intends to affiliate with the political party in whose primary he proposes to vote, and is in good faith a member thereof.” Statute, secs. 5 and 11.

Provision is also made, both in the. general law of elections, made a part of the act when not inconsistent with the terms of same, and in the statute itself, that the qualifications of any elector proposing to vote, and his good faith as to his declared intent to affiliate with the party, may be challenged, and it is made the duty of the registrars and judges of the election to determine whether or not the elector has a right to vote in the primary. Statute, secs. 3 and 11.

In tbe present case it appears from tbe allegations of plaintiff’s complaint that on 1 June of tbe present year tbe primary was duly entered upon, in wbicb tbe plaintiff and C. M. Lawrence were opposing candidates for sheriff; that tbe registrars and judges of election for tbe various precincts were duly appointed for tbe proper bolding of said primary ; tbat, having duly qualified, tbe votes were deposited in tbe various boxes under tbe supervision and according to tbe rulings of these officials; tbat at tbe close of tbe election, tbe votes having been correctly tabulated were duly certified to tbe county board of elections, etc., and tbat if tbe county board is permitted to tabulate and compile said returns, as tbe law requires, it will show tbat plaintiff’s opponent, C. M. Lawrence, has received tbe nomination.

On these averments, admitted by tbe defendants to be true, it is proposed by plaintiff to stay further action by tbe county board and declare tbe primary void on tbe affidavits of certain applicants, 65 or 10 in number, tbat they attended tbe primary for tbe purpose of voting for plaintiff and “offering to affiliate with tbe Democratic party by voting for its candidates in-tbe primary, and by voting for its nominees at tbe next general election, and they were wrongfully, willfully, and knowingly denied tbe privilege of voting by tbe registrar and judges conducting tbe primary.”

■ If we were permitted to, enter on tbe investigation contemplated in tbe present action, tbe relief sought by plaintiff could not be awarded, for the reason tbat bis allegations of fact are not sufficiently sustained. In several of tbe precincts wbere tbe larger proportion of tbe illegalities are said to have occurred, there are affidavits of tbe registrar and at least one of tbe judges and others tbat no applicant was refused tbe right to vote, except when on being questioned, as provided by tbe statute, it appeared tbat they were not members of tbe Democratic party and did not in good faith intend to affiliate with such party. Apart from this, there is no allegation nor claim tbat these rejected applicants bad caused their purpose to affiliate with tbe Democratic party to be written on tbe registration books as tbe statute requires (sections 5 and 11), nor tbat they bad been denied tbe right to do so 'by tbe primary officials or others. Nor does it anywhere definitely appear tbat tbe reception of tbe votes in controversy would have changed the result as disclosed by tbe returns. DeBerry v. Nicholson, 102 N. C., 465.

"But we are of opinion tbat tbe inquiry suggested by these pleadings and tbe evidence is not open to tbe courts, nor have they any jurisdiction to pursue or determine it.

It is tbe recognized position in this country tbat courts of equity or courts in tbe exercise of general equitable principles have no power to interfere with political parties in tbe choice of their candidates nor to regulate or control the .methods and agencies by which they are selected. Time out of mind, courts, in the exercise of these principles, have been restricted to the administration and adjustment of property as distinguished from political rights, and the well-considered authorities on the subject are to the effect that, in the absence of express statutory provision, neither courts of law or equity have jurisdiction in causes of the latter character except by appropriate legal remedies to enforce the performance of plainly ministerial duties or the protection of clearly defined legal rights existent and conferred usually by the Constitution and legislation applicable to the subject. Britt v. Canvassing Board, 172 N. C., 797; In re Sawyer, 124 U. S., 200; Hunt v. Hoffman, 125 Minn., 249; U. S. Voting Machine Co. v. Hobson, 132 Iowa, 38; Shoemaker v. City of Des Moines, 129 Iowa, 244; Walls v. Brundidge, 109 Ark., 250; Fletcher v. Tuttle, 151 Ill., 41; City of Dallas v. Street Ry., 105 Texas, 337; Greene v. Mills, 69 Fed., 852.

As said by Associate Justice Phillips in City of Dallas v. Street Ry., supra, “Elections belong to the political branch of the government, and the general rule is that they are beyond the control- of judicial power.” And it may be added that the free and untrammelled exercise of these political rights, being the very base and buttress of popular government, ■even express legislation on the subject should be so drawn that the constitutional right of the citizen to vote for the candidate of his choice should always be most carefully safeguarded.

This being in our view the correct position, plaintiff's right to relief must depend upon the proper construction of the primary law, and on perusal of its provisions, it is clear, we think, that the Legislature did not and did not intend to vest the courts with power to enter on an investigation of this character, but has referred the question chiefly involved, the right of an applicant to vote in the primary, to the decision of the election boards at the various precincts. Under the statute, the right so to vote has been made to depend not only on the applicant’s status as a legal voter, but on the good faith of his intent to affiliate with the party holding the primary, and, having provided for the selection of the registrar and judges, that they act under the sanction of an official oath, made them indictable for willful neglect or failure to perform their duties properly; and, further, that at the request of the chairman of any political party, the local board shall select some elector of that party to attend and witness the conduct of the primary as an additional guarantee of fair play, the Legislature may have concluded that these local boards were the best tribunal that could be devised to determine the qualifications of a proposed voter. And it may have considered, too, that, in the effort to obtain the general sense of party voters as to a candidate through a legalized primary, it was entirely imprac-tieable under any court procedure now existent to enter on an extended investigation of tbis nature involving disputed questions of law and fact witb tbe constitutional right of appeal and bave tbe same ended so as to ascertain and announce tbe rightful candidate in time for tbe general election.

Whatever may bave been tbe reason moving to tbis enactment, tbe statute in express terms provides (section 11) that whenever the right of a proposed elector to vote is challenged on tbe ground that be does not affiliate witb such party or does not in good faith intend to support tbe candidates nominated, it shall be tbe duties of tbe registrar and judges of election to determine whether or not tbe elector has a right to vote; and, having so provided and conferred no power on tbe court to supervise or control their action and in tbe phase as now presented, tbis being an indeterminate political right, tbe decision of the local board must be considered as final in so far as its effect upon tbe result of tbe primary is concerned, and it has therefore been properly adjudged that plaintiff is not entitled to any relief within tbe scope and purpose of bis present suit.

Tbe ballots having been deposited in boxes prepared for tbe purpose, under tbe supervision and rulings of tbe registrar and judges-at tbe different voting precincts, tbe law requires these officials at tbe close of tbe primary to count tbe same and certify a correct return of tbe vote .to tbe county and State boards of elections, respectively, tbis according to tbe nature of tbe offices, and-these boards are directed to tabulate and publish tbe results, which results when published shall ascertain and determine tbe regular party candidate. The only provision of tbe law which authorizes or permits an examination or correction of these returns appears in section 27 of tbe act as follows:

“That when, on account of errors in tabulating returns and filling out blanks, tbe result of an election in any one or more precincts cannot be accurately known, tbe county board of- elections and tbe State board of elections shall be allowed access to tbe ballot boxes in such precincts to make a recount and declare tbe results, which shall be done under such rules as tbe State board of elections shall establish to protect tbe integrity of tbe election and tbe rights of tbe voters.”

A power, it will be noted, that arises to these boards only “when, on account of errors in tabulating returns or filling out blanks,” tbe result of tbe election cannot be ■ accurately known, and confers no authority on tbe courts, assuredly, to investigate and pass upon tbe methods or manner in which tbe primary may have been conducted.

Tbe suggestion that tbe act incorporates certain provisions of tbe general election law which might affect tbe interpretation is without significance, for in all cases where tbis occurs tbe statute itself contains provision that the reference shall only prevail when not inconsistent with the terms of the primary law, the controlling provisions of which are as heretofore shown. In support of the right to maintain his action, we were cited by plaintiff to Johnston v. Board of Elections, 172 N. C., 162, but the ease does not support his position. In that case, the primary having been conducted pursuant to law and the result declared, showing that plaintiff Johnston was entitled to the nomination, the court entertained an application for a writ of mandamus compelling the election board to place the name of plaintiff upon the party ticket, this being a clearly defined legal right expressly conferred by statute, and the writ being the appropriate common-law remedy available in such cases.'

Speaking to the question in J ohnston’s case, the Court said: “While ordinarily courts may control political parties in the selection of their candidates for office, this principle does not apply where the Legislature, in the exercise of its powers, has taken control of the subject and enacted a statute conferring on successful contestants in a legalized primary certain specified and clearly defined legal rights and enjoined upon an official board ministerial duties reasonably designed to make these rights effective.”

This decision is in clear illustration of the principle heretofore stated and approved, that while the courts, by appropriate common-law remedies, may interpose for the purpose of enforcing plainly ministerial duties or to protect clearly defined legal rights, it may not, without express legislative provision, resort to general equitable principles involving an interference with recognized political rights and methods by which the candidates of the different political parties are chosen.

On the record, plaintiff is not entitled to relief, and the judgment to that effect is

Affirmed.  