Wiley v. . Worth , 61 N.C. 171 ( 1867 )

The petition, filed at Fall Term, 1866, stated that the petitioner, by various biennial elections, had been superintendent of common schools in North Carolina from 1 January, 1853, until 7 March, 1866, at which latter date the office was abolished; that as such he was entitled to a salary which has been paid up to 1 January, 1865, but not since; that the last election in which he had been chosen by the General Assembly occurred in the latter part of 1864; that during 1865, and up to 7 March, 1866, he had discharged the duties of his office so far as the military orders of the United States would allow; that "he had never been (172) required to take an oath, and never did take an oath to support the Confederate Constitution or Government," and so was advised that the ordinance of 19 October, 1865, did not affect the tenure of his office; that he was entitled to his salary for four months, from 1 January, 1865, to 1 May, 1865, and again from 27 November, 1865, to 7 March, 1866 — in all $916.66; that he had applied to Governor Worth as ex officio president, and to the other defendants as members of the board of literature to order such salary to be paid to him, and that they had refused. Thereupon he prayed for a mandamus, etc.

The answer admitted that the petitioner had been superintendent, etc., as he claimed to have been, and that he had acted as such until the time, viz., about 1 May, 1865, when the military authorities of the United States occupied the State and removed its public officers; it alleged that thereupon a Provisional Government had been set up in North Carolina, and that this continued until January, 1866, when the defendant, Jonathan Worth, was installed as Governor; it did not admit that the petitioner had done any service as superintendent, etc., since 1 January, 1865; it alleged that the salary during that time, if due, was expressly payable in Confederate money, etc.; also, that the petitioner during that time was in office by the choice of persons who were rebels to the government of the United States, and that there was then no State government in North Carolina in regular and constitutional relation to the United States, and therefore, that he is not entitled to a salary from the present government.

The preliminary proceedings for an alternative mandamus having been waived, it was adjudged in the court below that the petitioner was not entitled to any salary during the year 1865, but that he was entitled to $391.66 for his salary from 1 January to 7 March, 1866, and (173) for that sum a mandamus was ordered to issue.

From this order the defendants appealed. This Court is of opinion that the petitioner is not entitled to demand any part of the amount claimed by him as his salary. He rests his claim on the allegation that "he had never been required to take an oath, and never did take an oath to support the Confederate Constitution or Government."

In our view of the subject, if he had taken the oath to support the Constitution of the Confederate States, he would have had a stronger ground of claim than that which he now occupies; for it is enacted (Acts of 1861, ch. 25): "All judges of the Superior and Supreme Courts, and all justices of the peace, and all other persons holding any office in this State, and required to take an oath of office before proceeding to discharge the duties of such office, shall be required, before proceedingfurther in the discharge of the duties of office, to take an oath to support the Constitution of the Confederate States of America." Here there is a public statute of which all persons are bound to take notice. There can be no doubt that this statute embraces the office held by the petitioner; it was one of "profit and trust," and one the incumbent of which was, by law, required to take an oath of office. Had Mr. Wiley taken the oath and discharged the duties of his office in reference to thede facto government of the State, as those duties concern matters purely civil, and were in no point of view connected with the war, it would have presented a strong case under the doctrine of "quantum meruit"; for, in point of fact, the rightful government of the State, although suspended by force and usurpation, did receive benefit (174) from the labor of the civil officers of the wrongful government. For instance, a judge takes the oath to support the Constitution of the Confederate States and rides the circuits, administering the law and keeping everything quiet, the war to the contrary notwithstanding. The people in Convention assembled ratify and declare valid all judicial acts done during the war, without intimating an opinion, it would seem, as the rightful State government takes the benefit of his labor, that he is entitled, ex bono et aequo, to be paid for his services?

But Mr. Wiley stands in a different attitude. He declined to take the oath of allegiance to the wrongful de facto government, and of course could not serve it; and, as a further matter of course, he could not serve the rightful State government, which was then suspended, being evicted from the exercise of its functions by war and usurpation. So Mr. Wiley can claim nothing of either government, for he did not render the required service to either.

Again, Mr. Wiley was elected by the Legislature of the wrongful government in 1864, for a term of two years, to begin July, 1865, but he was never inducted into office, for, as he avers, he did not take the oath of office required by law. Then followed the surrender, and, as is said inHughes' case, ante, p. 68, the political death of all the officers of the State, to all intents and purposes, as if they had died a natural death. To this may be superadded that an ordinance of the Convention of 1865 declared all offices vacant and required new elections.

The petitioner was not reelected, but claims a right to fill the office up to March, 1866, when the office was abolished, on the ground of his election in 1864 by the Legislature of a wrongful government, to which he had never given his allegiance! And yet he now wishes to rely upon the action of that wrongful government as the ground of his (175) claim to the office and the emoluments thereof.

PER CURIAM. Judgment below reversed. Judgment here that defendants go without day and recover their costs.

Cited: Cooke v. Cooke, post, 587; Hayley v. Hayley, 62 N.C. 185; S. v.Cansler, 75 N.C. 444.