Appeal by petitioner from Cornelius, Judge. Judgment entered 25 March 1981 in Superior Court, Cleveland County. Heard in the Court of Appeals 4 February 1982.
Hedrick, Judge. Judges Hill and Becton concur.
The State Board of Elections, the decision of which is the basis of this appeal, is an "agency" as defined in G.S. § 150A-2(1).
When a petition for judicial review of an agency decision is filed pursuant to G.S. 150A-45, the judge of superior court may affirm, remand, reverse, or modify the agency decision. G.S. § 150A-51. "If the court reversed or modifies the decision of the agency, the judge shall set out in writing, which writing shall become a part of the record, the reasons for such reversal or modification." G.S. § 150A-51. "Any party to the review proceedings . . . may appeal to the appellate division from the final judgment of the superior court under rules of procedure applicable to other civil cases." G.S. 150A-52.
While the record in the present case contains exceptions and assignments of error relating to the findings and conclusions and order of the State Board of Elections, there are no exceptions or assignments of error to the "final judgment" of the Superior Court affirming the decision of the State Board.
Rule 10(a) of the Rules of Appellate Procedure "provides in part that 'the scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments in the record.'" Swygert v. Swygert, 46 N.C. App. 173, 180, 264 S.E.2d 902, 907 (1980). Since the record in the present case contains no exceptions or assignments of error, no question is presented to this Court for review, Caudle v. Ray, 50 N.C. App. 641, 274 S.E.2d 880 (1981), other than such questions as the regularity of the judgment, if those questions are properly raised in the brief. State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976). Petitioner has not raised in his brief the question of the judgment's regularity; nevertheless, a recitation in the judgment negated each of the possible grounds provided in G.S. § 150A-51 for reversal of an agency decision, and, hence, the form of the judgment affirming the State Board's order was entirely proper.
We will also proceed to review those and only those arguments advanced in petitioner's brief which were ruled upon by the State Board.
First, petitioner argues that the 4 November 1980 election for county commissioners should be nullified and that a new election should be held on the grounds that the 4 November ballots did not leave sufficient space beneath the names of candidates printed on such ballot, and therefore voters were deprived of an
opportunity to conveniently write in the persons of their choice for county commissioner.
G.S. § 163-140(a), which applies to ballots in elections of county commissioners, states, "All general election ballots shall be prepared in such a way as to leave sufficient blank space beneath each name printed thereon in which a voter may conveniently write the name of any person for whom he may desire to vote." The effect of a violation of a statute governing the conduct of an election depends on the nature of the statute violated, as follows: (1) if the statute expressly declares that a particular act is essential to the validity of an election, or that its omission shall render the election void, the violation of the statute will per se render the election invalid; (2) if, however, the statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, the violation of the statute will invalidate the election only upon a showing by the contesting candidate or party that the election would have produced different results had the violation not occurred. See Green v. Briggs, 243 N.C. 745, 92 S.E.2d 149 (1956); Penland v. Town of Bryson City, 199 N.C. 140, 154 S.E. 88 (1930); Riddle v. ...