The opinion
Mooee, J.,
Dissenting. I do not agree that G.S. 163-86 (P.L. 1933, C. 165, s. 8) in any wise repealed or abrogated any of the provisions of G.S. 163-143 (P.L. 1915, C. 101, s. 27). The 1933 enactment restated the existing law (P.L. 1901, C. 89, s. 33) 'with only two material changes: (1) the county board of elections was substituted for the board of county canvassers, and (2) the board was given authority “to pass upon the legality of any disputed ballots transmitted to them by any precinct officer.”
Ledwell v. Proctor, 221 N.C. 161 , 19 S.E. 2d 234 , cited by the majority opinion in support of the proposition that G.S. 163-143 has been repealed pro tanto by G.S. 163-86, does not involve a recount. It stands for the proposition that the declaration of the board of elections “must be taken as prima facie correct.” But it further states: “. . . the declaration of the result and the issuance of a certificate by a board of elections is prima facie correct, it is not conclusive. Resort, in proper instance, may be had to the courts and the courts may examine and pass upon the correctness and sufficiency of the return and to settle and determine the true and law *213 ful result of the election as it affects the rights of the parties 'before the court.”
It is conceded that a county board of elections has judicial functions and may exercise broad discretion in canvassing election returns and declaring results of elections. This was just as true prior to our decision in Brown v. Costen (1918), 176 N.C. 63 , 96 S.E. 659 , as it is today. Britt v. Board (1916), 172 N.C. 797 , 90 S.E. 1005 . The 1933 enactment did not add one whit to the stature of the board as a judicial and discretionary body, save “to pass upon the legality of any disputed ballots transmitted to them by any precinct officer.”
The minutes of the Harnett County Board of Elections show that, in ordering a recount, the Board acted solely upon the affidavit of Hill. This affidavit points out no “errors in tabulating returns and filling out blanks” such that the result of the election in any precinct could not be accurately known. It alleges no such errors. The existence of such errors must be alleged, or made to appear to the board, before a recount may be had. G.S. 163-143. Brown v. Costen, supra, at page 67.
A county board of elections does not have unlimited discretion. Its discretion does not supersede the law. The law applicable to the case at hand is G.S. 163-143, as interpreted by this Court in the Brown case. I am unwilling to recede from that interpretation.
The law amply provides for a correct, open and public count and tabulation of votes immediately upon the closing of the polls. G.S. 163-84 and 85. Ordinarily the first count is the more reliable count. The legislature has seen fit to limit recounts to those cases in which it is shown that errors have been made “in tabulating returns and filling out blanks.”
The Harnett County Boardi of Elections was without authority to order a recount. In the absence of a proper showing to the Board by allegation and upon hearing that there were “errors in tabulating returns and filling out blanks,” so that the result of the election in any one or more precincts could not be accurately known, Hill was not entitled to have the ballots recounted. The Board should have canvassed the votes without a recount and declared the results.
I vote to reverse the holding of the court below and remand the cause that an order be made directing the Election Board to canvass the returns and declare the results in accordance with the requirements of the pertinent rules and statutes as herein indicated.
WinboRNe, C. J., joins in this dissent.