dissenting: Originally the county commissioners constituted the returning board of elections, and were only authorized to “proceed to add the number of votes returned, the person having the greatest number of votes being the one elected.” B. B., ch. 52, sec. 21. On this it was held that “to add the number of votes returned” is a ministerial act. This statute is so plain that he who runs may read. Moore v. Jones, 76 N. C., 186.
Later it was enacted that county canvassers shall open and canvass and judicially determine the returns and make abstracts, etc. The Code, sec. 2649. The person having the greatest number of legal votes for any office to be declared elected. Iiid., sec. 2699. This was held to give authority to determine the authenticity of the returns themselves, but not to pass upon the qualifications of voters. Peebles v. Comrs., 82 N. C., 385.
It was then enacted, Laws 1901, ch. 89, sec. 33, now 0. S., 5986, that “the board of county canvassers shall have power and authority to judicially pass upon all facts relative to the election, and judicially determine and declare results of the same, and they shall also have power and authority to send for papers and persons and examine the same.”
These progressive steps mark-a steadily advancing public policy, looking to an authoritative and controlling supervision of elections, both general and primary.
It will be noted that registrars and judges of election are not given judicial powers, except to “maintain order and to enforce obedience to their lawful commands during their sessions,” for which purpose only they are constituted inferior courts. 0. S., 5977.
Section 5986 has not received judicial interpretation, nor has sections 6020 or 6047 as correlating the boards of canvassers had direct consideration from this Court. There is, however, recognition of the enlarged scope of their powers, by Solee, J., speaking for the Court:
*84“If a second primary is to be ordered, much time may be required not only for holding the election, but for investigating the irregularities that may occur therein." Johnston v. Board of Electiom, 172 N. C., 167.
“This development of public policy along the line of supervision and control indicates a distinct purpose to provide relief from irregularities and illegalities through regular election agencies.”
In Battle’s Revisal, supra, the duty was limited to adding the figures and announcing their sum. In The Code the function was enlarged to a judicial determination of the returns.
In 0. S., 5986, the power and authority of the county board are broadened to judicially pass upon all facts relative to the election, not merely the returns, and to judicially determine and declare the results of the same. So that what the court below has held to be the whole duty of the board is stated by the Legislature to be in addition to the larger duty of passing upon “all facts” relative to the election, and there is the still further judicial function of sending for “papers and persons” and “examining the same.”
It is contended by the defendant board of elections that under C. S., 6020, entitled “Primary Governed by General Election Laws,” that this revisal of the precinct returns by the county board applies to primaries as well as to the election itself.
The General Assembly seems to have thought that it would be better if the county board should have the same control in judicially determining the result in a county, in a primary as well as in the election itself, for the title of section 6020, “Primary Governed by General Election Laws,” would seem to indicate as much, and the section itself reads as follows: “Unless otherwise provided in this article, such primary elections shall be conducted, as far as practicable, in all things and in all details in accordance with the general election laws of this State, and all the provisions of this chapter and of other laws governing elections not inconsistent with this article shall apply as fully to such primary elections arid the acts and things done thereunder as to general elections; and all acts made criminal if committed in connection with a general election shall likewise be criminal, with the same punishment, when committed in a primary election held hereunder.” The general election laws apply when not inconsistent, Brown v. Costen, 176 N. C., 63.
It seems reasonable that the statute, section 6020, should direct that the action of the precinct officers, who have no judicial function, should be passed upon by the county board of elections, which is vested with such authority, for in many counties the primary determines the result of the election.
After an election, the courts are vested with the judicial power upon a quo warranto to pass upon the result except as to members of the Legis*85lature. But this not being statutory, tbe courts bave no power to go behind tbe returns of tbe election board in a primary, and tbe action of tbe court in this ease was therefore without authority of law. If tbe Superior Court bad any jurisdiction over this board; tbe power is confined to ordering its members to reassemble and exercise its powers according to law. Tbe court bad no power to say what tbe judgment of the board of elections should be. Its jurisdiction is limited to requiring tbe board to complete its labors and perform purely ministerial acts. Johnston v. Board, 172 N. C., 162; Britt v. Board, ibid., 807.
Certainly tbe court was without jurisdiction to compel tbe board of elections to reverse their findings and declare a specific person tbe candidate of tbe Democratic Party where tbe right, to nomination is in open controversy. This is fully discussed in Britt v. Board, supra, where tbe Court, citing Topping on Mandamus, bolds “that in no case does tbe writ lie to compel a tribunal, judicial or administrative, to render any particular judgment or decision, or to set aside one already rendered, but only to enforce tbe performance of a ministerial or mandatory duty,” citing U. S. v. Seaman, 17 How. (U. S.), 225; Gaines v. Thompson, 7 Wallace, 347.
Tbe pleadings in this case show that tbe board of elections refused to count three Eepublican votes, tbe illegality of which was not denied at a full bearing, at which both claimants of tbe nomination were present, after due notice, and represented by counsel. These illegal votes were sufficient to change tbe result of tbe primary, and tbe board of elections held that such illegal votes should not be allowed to determine tbe results of a Democratic primary.
Tbe county board of elections is authorized expressly by C. S., 5986, to “judicially pass upon all facts relative to tbe election, and to judicially determine and declare tbe result of tbe same,” and tbe board of elections of Nance was vested with tbe same power as to primary elections by O. S., 6020. They bave done this, and declared Mrs. George T. Buchan tbe Democratic nominee for register of deeds, tbe court was without any authority to examine into tbe action of tbe board or direct them, as in this case, to declare another person tbe nominee of tbe Democratic Party in tbe primary.
C. S., 6020, having thus given to tbe county election board tbe power and duty of revising and judicially determining tbe result of tbe precinct returns no statute authorizes tbe courts to go behind tbe decision of tbe county board. Tbe law seems to be correctly summed up in tbe second head-note to Brown v. Costen, 176 N. C., 63, as follows: “Under tbe provisions of our primary law (Laws 1915, ch. 101), tbe right of a voter to cast bis ballot therein depends not only upon bis legal status, but upon tbe good faith of bis intent to affiliate with tbe party bolding *86the primary, and bis 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.”
The action of the board of elections in declaring the. nominee of the party is not subject to review by the courts, but is only subject to the vote of the people at the ballot box. In my judgment, therefore, the action of the court was without authority, and should be reversed, and the decision of the board of elections should be held a finality.