
    STATE ex rel. L. H. SMITH v. J. D. LEE.
    (Filed 29 March, 1916.)
    1. Elections — Public Office — Title—Burden of Proof.
    In an action to try title to a local public office, in this case that of mayor of a town, the burden of proof is on the relator, and failing in this, he may not recover the office.
    2. Elections — Public Office — Pleadings—Votes Cast — Evidence.
    Where the title to a public office is in controversy, and the answer denies that the plaintiff was elected thereto, but admits that the judges of election counted the same number of ballots for the two candidates, it is competent for the parties to offer evidence of the legality of the votes counted.
    8. Elections — Public Office — New and Old Kegistration — Evidence—Trials— Nonsuit.
    Where the relator’s title to office depends upon either the validity of a new registration or election according to the old registration book, and it appears that in either view he has failed to show that he received a majority of the votes cast at the election, he may not recover the office.
    Appeal by defendant from Peebles, J., at September Term, 1915, of Wake.
    This is an action to try tbe title to tbe office of mayor of Fuquay Springs.
    Tbe plaintiff alleges: “Upon 8 May, 1915, in an election beld pursuant to law, the plaintiff’s relator, to wit, L. II. Smith, was duly elected to tbe office of mayor of tbe town of Fuquay Springs, Wake County, having received in said election a majority of one vote of tbe votes cast for mayor in said election, said office being a public office.”
    Tbe defendant in bis answer admits that an election was beld at tbe time and place alleged in tbe complaint, but denies “that tbe plaintiff’s relator, L.- H. Smith, was duly elected to tbe office of mayor of tbe said town of Fuquay Springs, or that be received in said election a majority of one vote of the votes cast for said mayor in such election, or that be received any majority whatsoever, as will fully, appear in tbe further defense hereinafter set forth in this answer.”
    Tbe plaintiff further alleges that 45 ballots cast in said election were counted by tbe judges of election for tbe relator, Smith, and that 45 ballots were counted for bis opponent, and that tbe judges of election failed to count tbe ballot of J. A. Powell, who voted for tbe relator, Smith.
    Tbe defendant admitted that tbe number of ballots counted were as alleged by tbe plaintiff, and further alleged that tbe said Powell was not a qualified voter.
    
      Tbe defendant also alleged in tbe amendment to tbe answer tbat tbe election was void upon tbe ground tbat there was no registration of voters.
    Evidence was offered tbat tbe old registration books of tbe town of Euquay bad been lost or destroyed; tbat a new registration bad been ordered, but tbat no legal notice of tbe registration bad been given; tbat there were about 100 voters in Euquay and tbat 90 or 91 of these voted.
    There was a conflict of evidence as to whether tbe order for a new registration was generally known, and some evidence offered upon this question was excluded by tbe court.
    Of tbe 45 ballots counted for tbe relator, one was tbe vote of E. W. Kurfees and another of A. J. Eletcber, neither of whom was registered on tbe old registration books, but who were registered on tbe new registration book.
    J. A. Powell, who voted for tbe relator, but whose vote was not counted, was registered on tbe old registration books and not on tbe new registration book.
    At tbe conclusion of tbe whole evidence tbe defendant moved for judgment of nonsuit, which was denied, and be excepted.
    
      Jones & Bailey and A. J. Fletcher for plaintiff.
    
    
      Douglass & Douglass and B. N. Simms for defendant.
    
   AlijeN, J.

Tbe contention of tbe plaintiff is tbat tbe election could not be held under tbe new registration because of tbe failure to give legal notice of tbe registration, and tbat tbe right of tbe voters to vote must be determined by tbe old registration books, while tbe contention of tbe defendant is tbat no legal election was held, and tbat if this position cannot be maintained, tbat tbe election was held upon tbe new registration.

It would seem to be clear from tbe record tbat if tbe right of tbe plaintiff to recover is tested by either tbe old or tbe new registration, be cannot recover.

Tbe burden is on tbe plaintiff to prove tbat be was duly elected, as this is alleged in tbe complaint and is denied in tbe answer.

Tbe answer does not admit tbat 45 legal votes were cast for tbe relator, thereby leaving open only tbe question .of tbe right of A. J. Powell to vote.

On the contrary, there is not only a denial tbat tbe plaintiff was elected, but also an allegation tbat tbe whole election was void, and tbe admission of tbe defendant is only tbat tbe judges of election counted 45 ballots for the relator and 45 ballots for bis opponent.

It was therefore competent for tbe parties to offer evidence as to tbe legality of tbe votes counted, and if this is considered, tbe plaintiff has failed to prove Ms title to tbe office by the old or the iiew registration.

If the old registration alone is considered, there must be deducted from the 45 votes counted for the relator the votes of Kurfees and Fletcher, who were not registered on the old registration books, which would leave his vote 43, and if the vote of Powell is added, he would have only 44 votes and his opponent 45.

If his title is tried by the new registration he is not entitled to recover unless the vote of Powell can be added to the votes counted for him, and Powell was not registered on the new registration book.

We are therefore of opinion that in any view of the evidence the' plaintiff has failed to make out his title to the office, and that the judgment of nonsuit ought to have been allowed.

This renders it unnecessary to consider the other questions presented by the .appeal.

Reversed.  