The opinion
MontgomeiÍy, J.,
dissenting : Before the adoption of The Code of Civil Procedure the writ of quo warranto was the only proper remedy provided by our laws to try the title to a public office. Section 362, O. C- P-, now Section 603 of The Code, abolished the writ of quo warranto. But the form of the action only has been abolished. The remedies obtainable under the old writ may be obtained by civil actions under the former provisions of Title 15, Chapter 2, Code of Civil Procedure, now Chapter 1, Title 15, of The Code. Saunders v. Gatling, 81 N. C., 298 . It is only under the provisions of that chapter of The Code that the title to a public office can be tried in this State. ' Section 607 of that Chapter of The Code declares that “An action may be brought by the Attorney General in the name of the State upon his own information, or upon the complaint of any private party, against the parties offending in the following cases : (1) When any person shall usurp, intrude into, or unlawfully hold or exercise any public office civil or military or any franchise within this State, or any office in a corporation created by the authority of this State ; or, (2) When any public officer, civil or military, shall have done or suffered an act which by *563 law shall make a forfeiture of his office ; or, (3) When any association or number of persons shall act within this State as a corporation without being duly incorporated. ”
There is not in my opinion a line written in the laws of North . Carolina which authorizes any suit to be brought to try the title to a public office except the above quoted section. Section 616 as I construe it only declares that actions brought under Section 607, sub-division 1, shall be tried with unusual dispatch, at the next term after summons issued.
It is too clear for argument that upon the face of Section 607 before an action can be brought for an office the defendant claimant must be in possession of the office.
Fleming, the defendant in this action not only has not usurped, intruded into, or unlawfully held or exercised the office of Sheriff of Granville County before this action was commenced, but he never has been declared by any authority competent or incompetent to be entitled to that office. The Clerk had proclaimed, as it was his duty to do under Section 26 of Chapter 159 of the Laws of 1895, after having tabulated the vote, the result of the vote, to-wit, that there was a tie between the plaintiff and the defendant Fleming for the office of Sheriff. So we have before us an action brought to test the title to an office by a person, who bad been held not entitled to it by that officer, the Clerk, whose duty it was to tabulate the vote and announce the result, against that person whom the Clerk had announced as having received a tie vote with the plaintiff, and therefore not entitled to the office. Under the announcement of the vote of the Clerk, neither one was entitled to the office of Sheriff, and yet we have before us a contest for the *564 office commenced by regular action before the day fixed by law for the commencement of the term of the office. It is perfectly clear that the proceeding was commenced under the powers which the plaintiff thought that the election laws of 1895 and 1897 conferred upon the Judges of the Supreme and the Superior Court over election officers. I concur with the Court in the opinion that the proceeding in the court below by which a recount of the vote was made by the Clerk through the order of the Judge was without authority of law; for the reason, as I believe, that when the Clerk tabulated the vote and announced the result, his duties as one of the election officers for that election ceased. But I go further and with due deference to the opinion of the Court I think this action ought to be dismissed, for it has no foundation to rest upon, except the supervisory powers given to the Judges under the election laws, and those powers do not support it. 'It is true that if another election is ordered, some expense will have to be incurred therefor by the county, but that is a matter that cannot be prevented by judicial determination. Legislation m,ust cure that. In the meantime the County would not be without the services of a person qualified to a.ct as Sheriff. The plaintiff was sheriff .at the time of the last election and under the law will serve until his successor is duly elected and qualified. If he was elected at the last election he will succeed himself, whatever the result of the new election, if it is held, may be. If he was not elected, then Fleming the defendant may show it, if he can, and succeed him in the office. The new election will settle nothing, unless it should turn out in some proper action for the office, between the plaintiff and defendant, that there was a tie vote ; and it is unfortunate that another election has to be held. *565 But the Election Laws make no provision to meet a case like this one ; and proceedings in the nature of quo warranto, if this action can be regarded in that light, can not be maintained because the defendant is not in possession of the office, and the action was brought before the term of the office was to begin.
In the opinion of the Court it is stated that unless the present action lies, neither the plaintiff nor the defendant can bring quo warranto until the new election is held. I do not take that view of the matter. After the first Monday in December following the election, the date fixed by law for the installation of the person truly elected to the office of sheriff, there was nothing to prevent Fleming, under Section 607 of The Code, from instituting proceedings against the plaintiff for the office. It is not necessary, as I see.it, that the plaintiff be in possession of the office by the election returns and his installation by the proper authorities, though not truly elected, in order that the defendant may have the right to contest with him the title to the office. .If the defendant was in fact elected, the plaintiff is unlawfully holding the office against the defendant, although the law from motives of public policy, that there may be no vacancy in so important "an office as that of Sheriff, prescribes that the. plaintiff shall hold the office until his successor is duly elected and qualified, from the mere fact that he was Sheriff at the time of the last election. It is not necessary to enable the defendant to commence his action that he should have his certificate of election or the announcement of the tabulated vote in his favor. He can show, if the fact be so, that he received a majority of the votes for the office and that he was entitled to be inducted therein, though another had received the certificate of "election and had been inducted into the *566 office, or notwithstanding that the Clerk had declared the result to be a tie between him and the incumbent.