Buckman v. Comm'rs of Beaufort

• Decision Date: 31 January 1879
• Court: North Carolina Supreme Court
• Parties: GEORGE E. BUCKMAN v. COMMISSIONERS OF BEAUFORT.

80 N.C. 121

GEORGE E. BUCKMAN

v.COMMISSIONERS OF BEAUFORT.

Supreme Court of North Carolina.

January Term, 1879.

CONTROVERSY submitted without action under C. C. P., § 315, at Fall Term, 1878, of BEAUFORT Superior Court, before Eure, J.

The plaintiff was elected clerk of the superior court at the election held in August last, and was so declared by the board of county canvassers as required by law. At the meeting of the county commissioners held on the first Monday of September following, he appeared and tendered his official bond with sureties which were unsatisfactory to the defendants and they refused to accept it. The session of the commissioners was prolonged to a late hour on Tuesday afternoon, when, without finishing the public business, they adjourned to the first Monday in October in consequence of the inability of two of them, who had other important public duties to perform, to remain longer with their associates. Previous to the adjournment and pending the plaintiff's application to be allowed to qualify, the commissioners passed the following resolution: “Whereas, George E. Buckman has failed to give bond and qualify as clerk of the superior court, it is therefore ordered that he have until the first Monday of October next to give bond and qualify according to law, provided that if at the October meeting the board is satisfied that they have no power to make such extension of time, the board will not then induct said Buckman into office.” This action of the commissioners was communicated by the chairman to the judge of the district and he took no action and made no order in relation thereto. But for the early termination of the session, the plaintiff would have tendered a bond with other and sufficient sureties on the next day. At the adjourned session in October the plaintiff did tender such bond to the board in the penal sum of $14,000, with sureties justifying to that amount, and asked to be admitted to his office. The board adjudging that their power to accept an official bond ceased at their former meeting, refused to consider or receive it and denied the application.

His Honor ordered the board to consider the bond tendered by the plaintiff, or such bond as he shall tender at the time fixed by them, and if said bond be satisfactory, that they induct the plaintiff into office, from which ruling the defendants appealed.

Messrs. Reade, Busbee & Busbee, for plaintiff .

Mr. G. H. Brown, Jr., for defendants .

SMITH, C. J. (After stating the case as above.)

Upon these facts the only question presented for our determination is: Had the commissioners the power at their October session to act in the premises and induct the plaintiff into the office to which he has been elected?

It is obvious that no final disposition was intended to be made of the case at the time of the adjournment, when further time was allowed the plaintiff to comply with the requirements of the law. As he could not know in advance whether the sureties offered and deemed by himself sufficient would be satisfactory to the commissioners, it was reasonable and proper, when they were rejected, that he should have some opportunity offered him to find and offer others in their place. A single day would have answered his purpose, but as the session could not be protracted owing to the necessary absence afterwards of two of the commissioners, he was permitted to prepare and offer his bond at their next regular session in October. The proviso attached to the resolution intimates or implies a doubt as to their right thus to defer further action, but the power is nevertheless exercised, and at that time and no other can the plaintiff comply with this prerequisite condition of admission to office. There was on his part no such delay as can work a forfeiture of office, and nothing but an absolute want of power can be permitted to produce that result.

Let us examine and see what are the statutory provisions on the subject: It is the duty of one elected or appointed clerk to deliver to the commissioners a bond with sufficient sureties to be approved by them at their first meeting after the election or appointment. Bat. Rev., ch. 17, § 137. If he fail to give bond and qualify as directed, the presiding officer of the board must immediately inform the...