The opinion
*67 Smith, C. J.,
dissenting. If I were to put the construction upon the issue and responsive findings of the jury which other members of the Court put upon them, I would concur in the disposition made of the appeal. But I think they fairly bear a very different meaning, as understood and acted on in the Court below.
The answer, controverting the allegations in the complaint, declares, in its sixth article, that votes returned from the two precincts mentioned were not coumed, because the election held at each “ was null and void, and that the returns from these precincts were invalid and void.”
To meet this conflict in the pie iding, the several issues were agreed upon and submitted to the jury, and as the proper inquiry to be made in the action was, in substance, whether the returns were so vitiated as that, in law, they ought not now to be counted in the pending investigation, or should be rejected, involving, not so much the power of the canvassing boards to exclude, as the correctness of the action itself to be passed on by a Court in whom such power is vested. Were the reasons for excluding the returns which determined the conduct of the canvassing board sufficient to warrant their exclusion at the present trial ? Thus understood, the findings upon the 2d and 8d issues are repugnant to the finding on the first. For if the relator did receive a majority of the votes cast in the county, the votes in the two precincts, which reduced the number of the relator’s votes to a minority, ought not now, in determining the rights of the contesting claimants, to be taken into the computation; then the action of the canvassing board, though outside of any authority conferred by law, was, if such authority had been possessed, correct in itself, and should guide and control in the Court.
Taking this view of the verdict, the Judge was left no other course, except to set aside the verdict and re-commit the *68 matter to another jury, and in this he committed no error. Such was the action of the Court, under similar circumstances of irreconcilable findings of the jury in Mitchell v. Brown, 88 N. C., 156 , and this is a proper precedent.