(Filed 26 September, 1917.)
Public Officers — Qualifications Recommendatory — Statutes — Courts.
The provision in a statute that township highway commissioners shall be selected for their fitness, and not for political faith, and to remove the position from partisan politics, one each of the two members to be elected shall, "so far as feasible and practicable, come from each of the two leading political parties of the township," is too indefinite and uncertain to affix a qualification to the position, being recommendatory only to the voters, whose action is not reviewable by the courts.
CIVIL action tried before Cox, J., at the April Term, 1917, of JOHNSTON.
S. S. Holt and James D. Parker for plaintiffs.
F. Hunter Creech and Abell Ward for defendants.
This is an action in the nature of a quo warranto, instituted by the plaintiffs, the relators, to recover possession of the offices of the Township Highway Commissioners of Ingrams Township in Johnston County.
His Honor rendered judgment in favor of the plaintiff, and the defendants appealed.
The facts are that the relators were elected highway commissioners by the following votes: John T. Cole, 321 votes; W. B. Massengill, 321 votes; S.W. Brown, 318 votes. The defendant John W. Sanders received 192 votes; W. W. Stewart, 197 votes; and John R. Massengill, 196 votes.
The plaintiff duly qualified and demanded possession of the offices of the defendants John W. Sanders and G. K. Massengill, who were members of the old board of highway commissioners of said township, the books, records, and all other property of the highway commission. The defendants refused to surrender, and the plaintiffs brought this action for possession of the offices.
The defendants do not deny the above allegations, but allege that the plaintiffs are not entitled to recover because the Public-Local Laws of 1913, chap. 441, sec. 7, provides:
"That a township highway commission for each and every township in the county of Johnston is hereby created and (113) incorporated, which township highway commission shall consist of three members, one of which shall be chairman and another clerk; said township highway commission shall be selected for their fitness and not their political faith, provided that at each and every election by popular vote of any township highway commission, and in order to remove the same, as far as possible, from partisan politics, one each of the two members of the several township highway commissions to be elected under this act shall, so far as feasible and practicable, come from each of the two leading political parties of such township."
The defendants allege that all three of the plaintiffs are Republicans, and that it was "possible and practicable" to have elected a competent person of a different political faith in compliance with the provisions of said statute.
We are of opinion that the plaintiffs are entitled to recover possession of the offices, as adjudged by his Honor below. We think the words of the act declaring, in substance, that, "so far as feasible and practicable," two members shall be selected from each of the two leading political parties, are merely recommendatory to the voters. They are entirely too indefinite and uncertain to have the effect of affixing a qualification to the position of highway commission. The feasibility and practicability of electing persons of different political parties is a matter for the voters to pass on, and their judgment is final and not reviewable by the Courts.
The judgment of the Superior Court is