State Ex Rel. Greene v. Owen

The complaint alleged that the plaintiffs were rightfully entitled to the office under provisions of the act of 1897, ch. 108, and were wrongfully excluded therefrom by defendant claiming under legislation of 1899.

The answer alleges that the defendants are legally in possession (213) and entitled to the office; that the act of 1897, ch. 108, was repealed by the act of 1899, ch. 374, and that they were themselves elected by the Legislature of 1899 as the County Board of School Directors. It also alleges that none of the plaintiffs were original appointees, and that two of them, Greene and Sheets, were appointed after defendants had been elected by the Legislature, and that the appointment of Nifong was void, because the original appointing body had no authority to fill vacancies.

His Honor, upon the pleadings, rendered judgment in favor of defendants. Plaintiffs appealed. DOUGLAS, J., writes the opinion of the Court.

CLARK, J., writes dissenting opinion as to Nifong. This is an action in the nature of quo warranto brought to test the title to the office of County Board of School Directors. On the first Monday in June, 1897, under the provisions of section 6, chapter 108, of the Public Laws of 1897, G. W. Holmes, T. H. Strohecker and R. S. Greene, Jr., were elected as members of the County Board of Education for the term of three years by the joint action of the county commissioners, the clerk of the Superior Court, and the register of deeds. On the 6th day of September, 1897, R. S. Green, Jr., resigned as a member of said board and John R. Miller was elected to fill the vacancy by the county commissioners, the clerk of the Superior Court, and the register of deeds, the original appointing power. Some time during the year 1898 T. H. Strohecker resigned as a member (214) of said board, and J. M. Nifong was elected to fill the vacancy by said commissioners, clerk, and register of deeds. On the 3d day of July, 1899, John R. Miller resigned from said board, which had then become, by virtue of chapter 732, of the Laws of 1899, the County Board of School Directors, and Ed. L. Greene was elected to fill the vacancy by the remaining members of the board. On the 3d day of July, 1899, George W. Holmes resigned as a member of said board, and Henry Sheets was elected by the two remaining members of the board to fill the vacancy. It will thus be seen that J. M. Nifong is the only plaintiff in this case claiming under an election prior to the passage of the act of March 7, 1899, being chapter 732 above mentioned. His case therefore stands upon a different footing from the others, and will be considered first.

Some things must be considered settled law in spite of the volcanic energy of a progressive and expanding age. Among these is the doctrine laid down in Hoke v. Henderson, 15 N.C. 1, that an officer has a right of property in his office of which he can be deprived only in accordance with the law of the land; and that while the Legislature may abolish the office, it can not continue the office and transfer its duties and emoluments to another against the will of the vested incumbent. The opinion in that celebrated case was delivered at the December Term, 1833, of this Court, by Chief Justice RUFFIN, and was concurred in by his associates, Judges DANIEL and GASTON, men whose names are the expression of the highest qualities that can adorn the bench. This opinion has never been questioned by this Court, but on the contrary has been repeatedly cited and approved, affirmed and reaffirmed, until its very name has become the embodiment of a vital principle. We find it cited with approval upon one point or another in the following cases: Houston v. Bogle, 32 N.C. 496; State v.Moss, 47 N.C. 66; Thompson v. Floyd, 47 N.C. 313; State v. (215)Glenn, 52 N.C. 321, 327; Cotton v. Ellis, 52 N.C. 545; Barnesv. Barnes, 53 N.C. 366; Galloway v. R. R., 63 N.C. 147; State v. Smith,65 N.C. 369; King v. Hunter, 65 N.C. 603; Clark v. Stanly,66 N.C. 59; Brown v. Turner, 70 N.C. 93; Bunting v. Gales,77 N.C. 382; Vann v. Pipkin, 77 N.C. 408; Prairie v. Worth, 78 N.C. 169;Lyon v. Aiken, 78 N.C. 258; McNamee v. Alexander, 109 N.C. 246; State v.Cutshall; 110 N.C. 545; Board of Education v. Kenan, 112 N.C. 568; State v.Womble, 112 N.C. 867; Trotter v. Mitchell, 115 N.C. 193; McDonald v.Morrow, 119 N.C. 676; Wood v. Bellamy, 120 N.C. 216; Ward v. ElizabethCity, 121 N.C. 3; Caldwell v. Wilson, 121 N.C. 468; Miller v. Alexander,122 N.C. 721; Day's case, 124 N.C. 362, 366; Wilson v. Jordan,124 N.C. 683, 694; Bryan v. Patrick, 124 N.C. 651, 666.

In Ward v. Elizabeth City, supra, this Court says: "The only restriction upon the legislative power is that after the officer has accepted office upon the terms specified in the act creating the office, this being a contract between him and the State, the Legislature can not run him out by an act purporting to abolish the office, but which in effect continues the same office in existence. This is on the ground that an office is a contract between the officer and the State, as was held in Hoke v.Henderson, 15 N.C. 1, and has ever since been followed in North Carolina down to and including Wood v. Bellamy, supra, though this State is the only one of the 45 States of the Union which sustains that doctrine."

In the above list, we have included only those cases where it is directly cited by name in the opinion of the Court, omitting all those merely tending to sustain it.

In reviewing the list of the judges who wrote the above (216) opinions or concurring therein we find the name of every Chief Justice who has since presided over this Court, and of all the Associate Justices before whom the question was raised.

An examination of the constitutional history of the State, we think, will show conclusively that the principles so clearly enunciated in Hoke v.Henderson have not only received the practically unanimous approval of succeeding judges, but have by direct implication been repeatedly ratified by the people themselves. The first "Constitution of North Carolina" as a State was framed by a "Congress" elected and chosen for that particular purpose, which assembled at Halifax on the 12th day of November, 1776, and remained unchanged until the amendments of 1835. It was this Constitution whose provisions were construed in Hoke v. Henderson. Since this decision was rendered there have been five separate and distinct constitutional conventions,all of which might, but none of which have abrogated or modified the principle of that opinion. In 1835, a constitutional convention met on June 4th, and framed amendments to the Constitution of 1776, which were ratified by the people. In 1861 a convention met and on May 20th passed the ordinance of secession, with some other amendments, none of which were submitted to the people. In 1865 a convention met on October 9th, repealed the ordinance of secession and passed an ordinance prohibiting slavery. This convention reassembled in May, 1866, and further amended the Constitution, but, with the exception of the above ordinances relating to secession and slavery, the amendments were rejected upon submission to the people. A convention, called by General Canby under the Reconstruction Act of Congress, assembled on January 14, 1868, and framed the "Constitution of 1868," which was ratified by the people on April 24, 1868, (217) and approved by Congress on June 25, 1868. In 1875, a convention assembled on September 6th, and amended the Constitution in several particulars, its action being ratified by the people at the election of 1876.

In addition to these conventions, several amendments have been made by legislative action and popular ratification, such as the celebrated "Free Suffrage" amendment of 1854, and those prohibiting the payment of the Special Tax Bonds, relating to the election of Trustees of the University, increasing the number of Justices of the Supreme Court, and others unnecessary to mention.

The constitutional history of this State is more fully set forth in the concurring opinion of DOUGLAS, J., in Wilson v. Jordan, 124 N.C. 707.

The various amendments made many changes of far-reaching results, including the successive repudiation of the governments of the United States and the Confederate States, but the underlying principle of Hoke v.Henderson remained unchanged. It survived the wreck of Southern institutions, weathered the storm of civil war, escaped the iconoclasm of reconstruction, and stands before us hoary with age, but apparently fresh from the fountain of perpetual youth. Any one of these conventions might have adopted an ordinance or constitutional amendment, certainly valid in its future operation, that all offices should be merely public agencies, held at the will of the creative principal, at the will of the Legislature if of legislative creation, or at the will or the people if of constitutional provision.

The convention of 1835 assembled within less than eighteen months after the rendition of the opinion, and were reminded of it by the presence of DANIEL and GASTON as delegates from their respective counties. So far from expressing any disapproval, they completed the absolute independence of the judiciary by providing that "the salaries of the judges of the Supreme Court, or of the Superior Courts, shall not be diminished during their continuance in (218) office."

In Caldwell v. Wilson, 121 N.C. 425, this Court says: "The statute now under consideration is not retrospective and does not interfere with any vested right. Being a part of the act originally creating the office of Railroad Commissioner, it prescribes a rule of property in said office, and modifies the extent of interest and tenure therein ``prospectively.' The defendant, taking under the act, holds subject to the act, and, relying upon his contract, is bound by all its provisions. One of its express provisions was the reserved right of the Legislature to remove, and the power and duty of the Governor to suspend under a given state of facts. This power of suspension, together with the necessary method of its enforcement, was assented to by the defendant in his acceptance of the office." And again on page 472, we say: "The only property he could have in the office was that given to him by the statute, which must be construed in all its parts. His commission, which is his title deed, appears to us with the fateful words of the creative act written across its face by the hand of the law."

With this decision before them, the Legislature in bringing forward into the Corporation Commission Act the substantial provisions of the Railroad Commission Act omitted all sections providing for the suspension or removal of a commissioner, thus leaving the principle of Hoke v. Henderson in full force and effect. In fact, among all the offices created or recreated by the recent Legislature, not one seems in any manner to have been withdrawn from the protection of that doctrine.

In R. R. v. Baugh, 149 U.S. 368, the Supreme Court of the United States says: "Notwithstanding the interpretation placed by this decision upon the 34th section of the Judiciary Act of 1789, (219) Congress has never amended that section; so it must be taken as clear that the construction thus placed is the true construction, and acceptable to the legislative as well as to the judicial branch of the government." May we not say the same of Hoke v. Henderson?

That the members of the County Board of Education are public officers is expressly held in Barnhill v. Thompson, 122 N.C. 493. It is contended by the defendants that the County Board of Education was abolished by chapter 374 of the Laws of 1899, ratified on March 4, 1899. This is true; but we are compelled to hold that it is practically reestablished by chapter 732, ratified on March 7, 1899. The new County Board of School Directors, created for the same general purposes and charged with the same general duties, is in effect but a continuation of the old board under a new name. A careful examination of the two acts will show this to be so, and the few changes in name and other nonessentials do not materially affect the question. The identity of the chrysalis is not changed even by the gorgeous wings of the butterfly, as the same individual life runs through all its forms. It is well settled that statutes in pari materia are to be construed together, certainly when passed at the same session of the Legislature, and, under certain circumstances, even when passed at different sessions.State v. Bell, 25 N.C. 506, 508; State v. Woodside, 31 N.C. 496, 501;State v. Melton, 44 N.C. 49; Simonton v. Lanier, 71 N.C. 498, 503;Rhodes v. Lewis, 80 N.C. 136, 139; Wilson v. Jordan, supra, p. 687; Black Interpretation of Laws, sec. 86; Endlich Interpretation of Statutes, sec. 45; Potter's Dwarris on Statutes, 190. Many cases from other jurisdictions are cited in the above authorities.

It is also contended by the defendants that under the act of (220) 1897 the county commissioners, the clerk, and register of deeds had no authority to fill vacancies. We think they had such power necessarily and by direct implication. As the County Board of Education was charged with continuing duties and responsibilities, it was evidently the intention of the Legislature that it should be a continuing body, at all times qualified to perform the responsible duties imposed upon it. To fulfill this intention, it is evident the power to fill vacancies must reside somewhere, and we can see no place more appropriate than in the body possessing the original power of appointment. This is clearly the logical deduction by analogy, and has been so held in other jurisdictions. 19 Am. Eng. Enc. of Law, 430; Throop on Public Officers, sec. 436.

It is further urged by the defendants that this is only an $8 office and therefore beneath the notice of a court of justice. For this somewhat novel position, the only authority to which we are cited is the maxim "de minimisnon curat lex." It may be an $8 office, but does it involve only an $8 principle? Where would the learned counsel draw the line? Eight dollars with board is equal to the monthly wages of many a farm hand, and can we say that his month's labor is beneath our notice? Such a proposition commends itself neither to our judgment nor our conscience. We must stand by the principle as we have laid it down, and give to all alike its equal protection. Moreover, why should the defendants complain? Is the office any greater to them than to the plaintiffs? They found the plaintiffs in possession and promptly ousted them, and have resisted with the utmost vigor all attempts at repossession. The records of other cases show the heroic efforts made to obtain possession of similar offices by those who unite in saying that it would be beneath the dignity of this Court to reinstate the rightful owner.

We are, therefore, compelled to hold that J. M. Nifong (221) is lawfully a member of the County Board of School Directors of Davidson County, and is entitled to the immediate possession of the office with all its duties, privileges and emoluments, to hold the same until the first Monday in June, 1900. It makes no difference whom he dispossesses, as his claim is superior to any of the new board, and they all must stand out of his way.

The principles enunciated above equally require us to hold that the remaining plaintiffs, Greene and Sheets, are not entitled to be members of the County Board of School Directors, as they were not elected until after the passage of the Act of 1899, and therefore had no vested rights that could be affected by the passage of said act or any election held thereunder. In fact, they never were members of the Board, as at the time of their assumed election there were no vacancies to be filled. The vacancies caused by the resignations of Miller and Holmes were filled eoinstanti by the appointees of the Legislature, who were somewhat in the nature of remaindermen waiting for the determinanation [determination] of the particular estate.

It is urged that there are three legislative appointees and only two eligible places, but this does not concern the plaintiffs, and the defendants are not asking us to adjudicate their respective rights as between themselves. It may be that the two who first qualified filled and exhausted the vacancies. If so, the third man must await the determination of Nifong's estate in the office.

In all the similar cases that have been brought before us, we have never held the act to be unconstitutional except in so far as it interfered with the vested rights of the incumbent. The Legislature had ample authority to pass chapter 732 of the Laws of 1899, and also had authority to elect, as they did by chapter 3 of said laws, subject only to the rights of the incumbents. Of course where the vacancy was already filled by the continuation of the term of the former incumbent, there was no room in that particular office for (222) any one else until a vacancy occurred by expiration of the term, resignation, death or disqualification.

Every act of the Legislature carries with it the presumption of constitutionality, and, where it becomes our duty to declare any part of such act unconstitutional, it is equally our duty to give full force and effect to the remainder of such act, provided it remains capable of operation. In other words, we should give effect to the expression of the legislative will so far as it does not conflict with the organic law, and should declare it utterly void only when its unconstitutionality so far permeates its essential features as to destroy its practical operation.Berry v. Haines, 4 N.C. 428; McCubbins v. Barringer, 61 N.C. 554, 556;Johnson v. Winslow, 63 N.C. 552, 553; Gamble v. McCrady, 75 N.C. 509,512; State v. Joyner, 81 N.C. 534, 537; Riggsbee v. Durham, 94 N.C. 800,805; State v. Barringer, 110 N.C. 525, 529; McCless v. Meekins,117 N.C. 34, 39; Russell v. Ayer, 120 N.C. 180, 189; Rodman v. Washington,122 N.C. 39, 42; Packet Co. v. Keokuk, 95 U.S. 80; Cooley's Const. Lim., 178, 215.

The judgment of the court below must be reversed as to the plaintiff J. M. Nifong in accordance with this opinion, and affirmed as to the other appellants.

The costs in this Court must be divided between appellants and appellees.

Modified and affirmed. Cited: Dalby v. Hancock, post 328; Gattis v. Griffin, post 334; White v.Auditor, 126 N.C. 585; Taylor v. Vann, 127 N.C. 245; Cotton Mills v.Waxhaw, 130 N.C. 295.

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

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