#### JAMES N. UMSTEAD v. THE BOARD OF ELECTIONS OF DURHAM COUNTY.

(Filed 15 September, 1926.)

1. Mandamus — Elections—Primaries—County Board of Elections.

The plaintiff in proceedings for mandamus to compel the county board of elections to declare him the successful candidate of his party in a primary election, or that he is entitled to a second primary to select between himself and another candidate for the same office, must show the denial of a present, clear legal right, by the failure of such board to have done so.

3. Same — Second Primary — State Board of Elections.

Where a county is entitled to two representatives in the Legislature, and the highest two of the three who ran in the primary have received a majority of the votes cast, the one receiving the lowest number of votes for representative is not entitled to the ordering by the county board of elections of a second primary for the nomination in competition with the one who has received a majority of the votes cast in the first primary, and more than the plaintiff in mandamus has received therein,.and the method directed by the State Board of Elections becomes immaterial under the circumstances.

3. Same — Written Notification.

In order for a candidate for the party nomination for the Legislature to obtain a writ of mandamus against the county board of elections to compel the ordering of a second primary, he must show that his opponents receiving the larger number of votes have not received a majority of the votes cast for said nomination, and within five days after the *140result has been officially declared and he has been notified thereof, he must have filed with the county board of elections a written request that the second primary be called by it. O. S., 6045.

Appeal by plaintiff from order of Schenck, J., dated 26 June, 1926, at Chambers, Durham, N. 0. Affirmed.

This action was commenced on 16 June, 1926, to procure a writ of mandamus, commanding the board of elections of Durham County to place the names of James N. Umstead and R. 0. Everett upon a ticket to be voted at a primary election to be held in said county on 3 July, 1926, as candidates for nomination by the Democratic Party for representatives from Durham County, in the General Assembly of North Carolina, session 1927. From order denying the writ, plaintiff appealed to the Supreme Court. The only assignment of error on this appeal is based upon an exception to the order signed by the judge.

W. S. Lockhart for plaintiff.

Fuller, Beade & Fuller and James W. Barbee for defendant.

ConNoe, J.

Under the apportionment made by the General Assembly of North Carolina of members of the House of Representatives to the several counties of the State, as required by the Constitution, Art. II, secs. 5 and 6, Durham County elects two members of said house, C. S., 6088. At the primary election, held as required by statute, C. S., 6018 et seq., in Durham County, on 5 June, 1926, for the nomination by political parties of candidates for offices, to be voted for at the general election to be held in November, 1926, there were three candidates, to wit: S. C. Brawley, R. 0. Everett and James N. Umstead, for nomination by the Democratic Party as representatives from Durham County. Each had duly complied with the requirements of the statutes, and was a duly qualified candidate for such nomination. Thus there were three candidates and two nominations to be made. There is no provision in the statute, relative to primary elections, that candidates for nomination as representative from a county, which under the apportionment made by the General Assembly, elects more than one representative, shall be classified or voted for, with respect to any one of said offices to which they aspire. Each voter in Durham County, qualified to vote in the Democratic primary, had the right to vote for one but not more than two of the three candidates, as the Democratic nominee for representative from said county.

Upon a canvass of the votes cast in the primary election, held on 5 June, 1926, in Durham County, it was ascertained that 3301 votes had been cast for S. C. Brawley, 3065 for R. 0. Everett, and 2724 for James N. Umstead. No one of said candidates was entitled to be declared the *141nominee of bis party for representative unless be received a majority of tbe votes cast for tbe nomination for wbicb be was candidate, C. S., 6045. It was tbe duty of tbe board of elections of Durham County, not only to tabulate tbe returns made by tbe judges and registrars of tbe several precincts in tbe county, but also to declare and publish tbe results, C. S., 6042. In order to determine whether either of tbe three candidates bad been nominated, it was necessary that tbe board of elections should determine tbe number of votes cast for tbe nomination, for no candidate could be declared a nominee unless be bad received a majority of tbe votes cast. It therefore became tbe duty of tbe board of elections to ascertain tbe number of votes cast in said primary for tbe respective nominations for wbicb Messrs. Brawley, Everett and Umstead were candidates.

On 8 June, 1926, as soon as tbe number of votes received in tbe primary election by each of tbe three candidates bad been tabulated and ascertained, but before tbe result bad been published by tbe board of elections, plaintiff, James N. Umstead, filed with tbe board a request, in writing, for a second primary, to nominate a Democratic candidate for representative from Durham County, requesting that tbe names of R. O. Everett and James N. Umstead be placed upon a ticket to be voted for in said primary, as candidates for said nomination. Thereupon, before acting upon said request and being in doubt as to whether any nomination bad been made in said primary, tbe board of elections of Durham County submitted to tbe State Board of Elections tbe results of tbe primary election, held on 5 June, 1926, in said county, for tbe nomination of candidates of tbe Democratic Party for representatives from Durham County, and requested a ruling by said State board as to whether either of said candidates bad received a majority of tbe votes cast for tbe nomination wbicb be sought. Tbe State Board of Elections was also advised of tbe request of James N. Umstead for a second primary, in wbicb be and E. O. Everett should be declared candidates for nomination as representative from said county.

Tbe State Board of Elections advised tbe county board that upon tbe facts submitted to said State board, in order to ascertain tbe number of votes east for tbe nomination as representative from Durham County, tbe total number of votes cast for all three candidates should be divided by tbe number of nominations to be made; that if upon applying this rule, it should be ascertained that each of tbe candidates bad received a majority of tbe votes cast for tbe nomination wbicb be sought, then tbe two candidates receiving tbe highest number of votes should be declared tbe nominees of tbe primary as representatives from Durham County, and that under tbe statute applicable, tbe county board of elections bad no power to order a second primary.

*142At a meeting held on 11 June, 1926, tbe county board of elections adopted tbe rule as advised by tbe State Board of Elections. Tbe total number of votes cast for tbe three candidates was 9090; one-half of tbis number is 4545; eacb of tbe candidates therefore bad received more than a majority of tbe votes cast, as thus determined; Mr. Brawley and Mr. Everett having received tbe highest number of votes were declared tbe Democratic nominees for representatives from Durham County and were so certified by tbe board of elections. Tbe said board declined to order a second primary, as requested by tbe plaintiff. By tbis action, plaintiff prays that a writ of mandamus be issued to compel tbe board of elections of Durham County to order a second primary and to place tbe names of R. O. Everett and James N. Umstead on tickets to be voted in said primary, as candidates for tbe Democratic nomination as representative from Durham County. Plaintiff concedes that S. C. Brawley has been lawfully declared to be a Democratic nominee for tbe office of representative from Durham County, whether be received a majority of tbe votes cast or not. His right to tbe nomination has not been challenged by a request for a second primary.

Plaintiff is not entitled to tbe issuance of said writ, unless be has a “present, clear legal right” which has been denied by defendant, and unless it is tbe duty of tbe defendant to grant bis request as a ministerial act, required of said board by statute. Britt v. Board of Canvassers, 172 N. C., 797. It is only when rights asserted by a plaintiff, in an action for a mandamus, are manifest, and tbe duty of defendant is ministerial, that plaintiff is entitled to relief by tbe issuance of tbe writ of mandamus. Johnson v. Board of Elections, 172 N. C., 162. Tbis principle is so well settled that citation of authorities does not seem necessary. Lenoir County v. Taylor, 190 N. C., 336; Person v. Doughton, 186 N. C., 723. In tbe opinion in tbe latter case, written by tbe present Chief Justice, it is said: “Mandamus lies only to compel a party to do that which it is tbe duty to do without it. It confers no new authority. Tbe party seeking tbe writ must have a clear legal right to demand it, and tbe party to be coerced must be under a legal obligation to perform tbe act sought to be enforced. Missouri v. Murphy, 170 U. S., 78; Withers v. Comrs., 163 N. C., 341; Edgerton v. Kirby, 156 N. C., 347; Betts v. Raleigh, 142 N. C., 229. As to when tbe writ will issue generally, see note to M’Cluny v. Silliman, 4 L. Ed., 263.”

Plaintiff, as one of tbe candidates for nomination as a representative by tbe Democratic Party from Durham County in tbe primary election held in said county on 5 June, 1926, was not entitled to have tbe board of elections of said county bold a second primary as requested by him (1) unless no aspirant for said nomination received a majority of tbe votes cast in said primary for said nomination, and (2) unless be received tbe *143second highest number of votes cast for said nomination in said primary and (3) unless within five days after the result of such primary election had been officially declared and he had been notified of such declaration he filed with said board a request, in writing, that said second primary be called and held. C. S., 6045. The burden was upon plaintiff to establish these facts; plaintiff has no- “present, clear legal right” to the' call of a second primary and defendant has no duty — indeed, has no power, under the statute — to call such primary, until these facts have been established.

The county board of elections has officially declared that as the result of the primary held on 5 June, 1926, Messrs. Brawley and Everett are the Democratic nominees for representatives from Durham County; whether the method adopted by the board in making this declaration is correct or not, plaintiff has failed to show that no aspirant for the nomination received a majority of the votes east; it does not appear that plaintiff received the second highest number of votes cast for said nomination, as required by the statute; nor does it appear that within five days after the result was officially declared and he had been notified of such declaration, he requested the call of the second primary. The result of the primary held on 5 June, 1926, was declared on 11 June, 1926; the request for the second primary was made on 8 June, 1926, before the result had been declared by the board. We must therefore hold that plaintiff, having failed to show a “present, clear legal right,” was not entitled to the writ of mandamus as prayed for.

Whether the method adopted by the board of elections for declaring the result of the primary be correct or not, need not be decided upon this record. It is conceded that this method was adopted by the board of elections without express statutory authority; the method of determining the result of the primary suggested in plaintiff’s brief, is also without such authority. If it be contended that the method adopted by the board is based upon an arbitrary assumption, the same must be said of the method suggested by the plaintiff. The purpose of an election is to choose some one of the candidates for the office or position to which he aspires, affirmatively and not by the exclusion of other candidates. The method adopted by the county board of elections upon- the advice of the State Board of Elections has the merit, at least, of determining the nominees without the necessity of numerous primary elections. As said of this method by Judge Hoke in Johnston v. Board of Elections, 172 N. C., 162, “It may be that the board, in adding up the entire vote for all the candidates and dividing the amount by the number of places to be filled, pursued the correct method for ascertaining the number of votes cast at the primary.” No candidate can be declared the nominee of the primary by this method of determining the result, when the *144number of candidates exceeds the number of nominations to be made, unless he has received a majority of the votes cast as required by the statute. Messrs. Brawley and Everett, having each received a majority of the votes cast for the nominations in the primary held on-5 June, 1926, as determined by the county board of elections, are the Democratic nominees for representatives from Durham County. Plaintiff, having failed to show a clear legal right to a second primary as alleged by him, was not entitled, under the statute, to a second primary.

The order denying the writ of mandamus, upon the facts of this record, is

Affirmed.