State Ex Rel. Bryan v. Patrick

CLARK and MONTGOMERY, JJ., dissenting. This action is for the possession and control of the property of the Atlantic and North Carolina Railroad Company. From the agreed facts and admissions we are informed as follows: That said road was chartered in 1852, and said charter was amended in 1854-5, wherein it is provided that the State is entitled to eight directors, and the private stockholders to four directors; also that the board of (658) internal improvements, consisting of the Governor and his two appointees, shall appoint the eight State directors; that said board has continuously till the present time annually made such appointments; that said board of internal improvements, of which the Governor is exofficio president, is to be appointed biennially with the advice of the Senate, and is a corporate body, Code, sec. 1688; that said board of internal improvements was appointed by the Governor and confirmed by the Senate on 8 March, 1897, and their commissions were issued on 9 March, 1897, for two years, in the face of the commission; that defendant, Patrick, in September, 1898, was duly elected president of the road for the term of one year.

By an act of the Assembly, ratified 10 February, 1899, The Code, sec. 1688, was declared repealed, and a substitue [substitute] therefor was adopted, making the Board of Internal Improvements consist of nine members, to be elected by the General Assembly on joint ballot, incorporating the same and requiring it to meet on 24 February, 1899.

On 12 February, 1899, the Legislature elected a new Board of Internal Improvements, who met and organized on 24 February, 1899, and ordered that the State proxy and the board of directors (defendants) be removed from their offices, and that said offices be declared vacant, and elected the plaintiffs to fill said vacancies.

These new directors met on 28 February, 1899, and elected the plaintiff, Bryan, president of said company, and on the same day demanded of the defendants possession of the property, etc., of the road, which was declined.

It will be observed that if defendants' office was for two years, it did not expire until 9 March, 1899, and that plaintiffs' claim rests on legislation in February, 1899. The single question, then, is, Has the Legislature power to remove one from his office and confer it on (659) another? The plaintiffs' counsel, in his well-considered argument, insists that "to be appointed biennially" means that the appointment must be made every two years, but that it does not fix any term of office, if we understood him. Suppose that the Legislature enacts that an official board (for it is not disputed that the members of the Board of Internal Improvements are officers) shall appoint A B biennially to perform the duties prescribed in the act, it would fail to occur to intelligent minds that A B has an office between any two such appointments. The long recognition of such a conclusion would at least raise a doubt of the plaintiffs' construction. Do the duties of the board cease as soon as it has made a biennial appointment? Suppose the State proxy or any State director should prove unfaithful to the State's interest in the railroad at any time during the two years, how would he be removed and his place be supplied, except by the action of the board? which it could not do, according to the plaintiffs' contention. Laws 1897, ch. 122, sec. 1, expressly requires the board to remove for cause and fill the vacancy in such cases, and the act ratified 6 March, 1899, does not repeal said section 1, but only amends it by eliminating the word "Governor" from the board. It appears to this Court that "to be appointed biennially" ex vitermini implies a two-years term of office.

The simple question of the power of the General Assembly to remove a legal incumbent from his office and confer it on another has been so much discussed, decided and settled, that it seems to have become axiomatic. The law is a legal standard, based on experience in the past, and established to avoid uncertainty, that it may be known of all men. Facts seldom repeat themselves exactly, but in different cases they approach each other so closely that they fall into the same class and are necessarily governed by the same legal standard. (660)

This question of legislative power over the property of the citizen was presented to this Court in 1805, in the interesting case of University v.Foy, 5 N.C. 58. By the act of 1789, the Legislature granted to the trustees of the University all the property that has escheated or should thereafter escheat to the State. The act of 1800 repealed the act of 1789 and declared that any property, real or personal, that had in the meanwhile escheated and was held by the University should revert to the State as the property of the same, as if the act of 1789 had not been passed. In the meantime, valuable property in the Wilmington district had escheated and was sued for by the University. The Court, after elaborate consideration, held that the University should recover, and that the act of 1800 was invalid as to that property. The opinion was so clear and strong that Mr. Webster, in his able argument in the famous Dartmouth College case, cited and quoted from the opinion, and the Court he was addressing adopted the same principle that had been announced in the above case against Foy. Some modernized suggestions have been made against the Dartmouth College opinion, but none of them have offered any reason or cited any authority to support their suggestions, presumably for the reason that none were convenient.

In 1833 a similar question arose in Hoke v. Henderson, 15 N.C. 1. This referred to property in an office. It is now admitted that an office is property, and that it is protected by the rule which applies to property of a more tangible character. It was held that the act undertaking to deprive the legal incumbent of his office without his consent was void.

It may not be amiss to remark here that the people of North Carolina, when assembled in convention, were desirous of having some rights secured to them beyond the control of the Legislature, and those (661) they have expressed in their bill of rights and Constitution.

The principle involved in Hoke v. Henderson has been followed by a full list of decisions, without exception, to the present time. That principle is the basis of the recent decisions in Wood v. Bellamy,120 N.C. 212, and State Prison v. Day, ante, 362.

It has been suggested, further, not by the counsel, that if one Legislature can confer an office for two years, and the officer cannot be removed by the next Legislature, without his consent, otherwise than by abolishing the office, then it may confer an office for life, for fifty years, for one hundred or five hundred years. However logical such a proposition might be in a monarchial from of government, it has no standing or logic under our government. When our people were organizing a new State, they did not leave themselves to any mere chance. They intended and did relieve themselves from burdensome fetters and trammels, and did whatever was necessary for their safety and to promote the general welfare. This reasoning is not a mere question of construction. Passing by the unreasonableness of the proposition we are considering, we turn to positive law against it. It is declared in the Constitution, Art. I., sec. 7, "No man or set of men are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services"; in section 30, "No hereditary emolument, privileges, or honors ought to be granted or conferred in this State"; and in section 31, "Perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed."

If, therefore, the apprehended danger should be attempted, which has not for a century, the fundamental provisions mentioned would prove efficient. Take for illustration section 14 of the same article, (662) which forbids unusual punishments, etc. Bail may be required, fines imposed, and punishments inflicted, but if they are excessive, unusual, or grossly unreasonable, a remedy will be found under such provisions of the organic law. It was found and promptly applied, for unusual punishment, in S. v. Driver, 78 N.C. 423.

The truth is, under our system of government, with checks and balances in all the departments, the suggested danger is imaginary, and may be dismissed.

The reasoning in the cases we have referred to on this subject has been so often stated and so often written that there is no need to rewrite them in the present case.

"An office is a special trust or charge, created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be the consideration for its being conferred upon a particular individual, who for the time will be the officer." Troop v.Langdon, 40 Mich. 673 (Cooley, J.).

"The term embraces the ideas of tenure, duration, emolument, and duties." U.S. v. Hartwell, 6 Wall., 385, 393.

The taking of the oath of office is not an indispensable criterion, for the office may exist without it. It is a mere incident, and constitutes no part of the office. S. v. Stanley, 66 N.C. 59; Comrs. v. Evans, 74 Penn. St., 124, 139 (Sharswood, J.).

"Like the requirement of an oath, the fact of the payment of a salary or fees may aid in determining the nature of the position, but it is not conclusive, for while a salary or fees are usually annexed to the office, it is not necessarily so. As in the case of the oath, the salary or fees are mere incidents and form no part of the office." S. v. Kennon,7 Ohio St. 716; U.S. v. Hartwell, 6 Wall., 385;Howerton v. Tate, 68 N.C. 547. (663)

The duties to be performed by an officer may be changed and reduced, and thereby the emoluments diminished, for in those respects he takes the office subject to the power of the Legislature to make such changes as the public good may require. Bunting v. Gales, 77 N.C. 283. We see now that the compensation may become very small, as the Legislature may deem proper for the public good, but the position still remains an office. Our opinion is, that the plaintiffs are not entitled to recover, for reasons stated inWood v. Bellamy, 120 N.C. 212, and State Prison v. Day, ante, 362.

REVERSED. CLARK and MONTGOMERY, JJ., dissenting.

Cited: R. R. v. Dortch, post, 663 and 668; Greene v. Owen, 125 N.C. 215;Dalby v. Hancock, ib., 327.

Overruled: Mial v. Ellington, 134 N.C. 159.

No. 2.