Battle v. City of Rocky Mount

• Decision Date: 18 October 1911
• Citation: 72 S.E. 354,156 N.C. 329
• Parties: BATTLE et al. v. CITY OF ROCKY MOUNT et al.
• Court: North Carolina Supreme Court

72 S.E. 354

156 N.C. 329

BATTLE et al. v. CITY OF ROCKY MOUNT et al.

Supreme Court of North Carolina

October 18, 1911

Appeal from Superior Court, Edgecombe County; Cooke, Judge.

Mandamus by the State, on relation of T. H. Battle and others, against the City of Rocky Mount and others. Judgment for relators and defendants appeal. Affirmed.

Where the board of aldermen of Rocky Mount failed and refused to elect a recorder to prescribe over the recorder's court established by Acts 1907, c. 209, as required by section 24 mandamus was the proper remedy to compel the board to take such action.

This is a suit for a writ of mandamus, brought by certain citizens of the city of Rocky Mount, to compel its board of aldermen to elect a recorder, as required to do by the Acts of 1907, ch 209, §§ 24, 25, 26, and 27, in order that a recorder's court may be established and organized according to the terms of the said act, which sections provide as follows:

"Sec. 24. That a special court for the trial of misdemeanors is hereby established, and said court shall be known as the 'recorder's court of Rocky Mount.'

"Sec. 25. That said recorder's court shall be a court of record, and shall be presided over by a recorder, who shall be a bona fide resident and a duly qualified voter of said city, and shall be elected by the board of aldermen of said city at the meeting to be held on the Thursday next succeeding the election for mayor and aldermen, to be held on the first Monday in May, one thousand nine hundred and seven, and biennially thereafter; and such recorder shall hold his said office for a term of two years from the date of his said election and until his successor shall be duly elected and qualified. Pending such election and so long thereafter as the board of aldermen shall fail to fill said office by the election of a recorder, the mayor of said city shall be ex officio recorder, and as such shall exercise every power conferred upon and perform every duty imposed upon such recorder by this act.

"Sec. 26. That whenever the board of aldermen of said city shall, in accordance with the provisions of the preceding section, elect a recorder, said board shall likewise proceed to elect a vice recorder, who shall possess the same qualifications and hold office for the same term as the recorder; and said vice recorder shall enter upon and discharge the duties of the office of recorder whenever the recorder, on account of sickness, absence from the city or other good and sufficient cause, shall be unable to do so, and he shall for the time be clothed with every power conferred by law upon the recorder: Provided, that so long as the mayor of said city shall be ex officio recorder the mayor pro tempore shall be ex officio vice recorder, and as such shall be clothed with every power conferred by law upon such vice recorder.

"Sec. 27. That the recorder's court shall hold daily sessions in the court room of the municipal building in said city, and shall possess every power in the regulation and ordering thereof usually possessed by other courts of record in like cases."

The defendants have never complied with the requirements of this act, nor taken any steps to do so, contending that it was left entirely to their discretion whether to fill the office of recorder or permit the mayor to act as recorder, and the mayor pro tem. as vice recorder, and they thought it best for the interests of the community to continue the old régime. The judge of the superior court, Hon. Chas. M. Cooke, did not agree with defendant's counsel in this construction of the act, and adjudged that the writ of mandamus be issued. Defendants excepted and appealed.

F. S. Spruill, for appellants.

L. V. Bassett, for appellees.

WALKER J.

We concur with the learned judge in his conclusion of law and in his judgment. The act of 1907 is plainly mandatory. A recorder's court is established by the act, with detailed provisions for the exercise of the jurisdiction conferred upon it. It was clearly intended by the Legislature that the board of aldermen should, at their May meeting, next after the passage of the act, elect a recorder. There is not even the scintilla of a discretion given to the board so far. The Legislature had the power to pass the act, and it evidently knew precisely what it wanted to do, and expressed itself to that end in unambiguous words, and, being composed of fine grammarians, it conveyed its meaning to the board in the imperative mood, which is generally supposed to carry a mandate with it. In every section of the act the word "shall" is used to show that the Legislature intended that the board should execute its will and not its own. As an auxiliary, the word "shall" implies a duty or necessity, whose obligation is derived from the person speaking and is equivalent to an order or direction to do the particular thing, and excluding all idea of discretion or the exercise of the will of the person addressed, so that he may do it or not as seems to him best. He is simply commanded to do it, and his only duty, which, of course, is obligatory, is to obey. The mandate could not be more imperatively given than it was in this case, and why the intelligent gentlemen should have thought otherwise we are at a loss to know. Public duties are imposed to be performed and not to be neglected. It was not the purpose of the Legislature to decide who should be elected as recorder, for that was left to the choice of the board, but in all other respects they are left without any discretion in the matter. It has even been held that, when the word "may" is used in a statute, "it will be construed to mean 'shall' or 'must,' when public interests or rights are concerned, and when the public or third persons have a claim de jure that the power shall be exercised. And, conversely, the word 'shall' may be understood as equivalent to 'may' when no right or benefit to any one depends upon the imperative use of the term." Black Int. of Laws (1896) p. 338; Jones v. Commissioners, 137 N.C. 579, 50 s. E. 291; 36 Cyc. 1159; 2 Lewis' Sutherland, Stat. Con. (2d Ed.) §§ 637, 638, 640.

How could there be a recorder's court, under the terms of this act and in view of its evident intent, without a recorder? The provision for the mayor to fill any original vacancy was inserted for the purpose of keeping the office full until there could be an election, or to supply a vacancy occurring from any other cause until a recorder could be elected, as in case of death or resignation. It was not the purpose of that provision to enable the defendants to nullify the act of the Legislature, or to set at naught its declared will. The meaning of the statute is clear, and, where there is no ambiguity, there is no room for construction, and the intention must be gathered from the words employed. U.S. v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37; U.S. v. Hartwell, 6 Wall. 386, 18 L.Ed. 830; State v. Barco, 150 N.C. 792, 796, 63 S.E. 673; Fortune v. Commissioners, 140 N.C. 322, 52 S.E. 950; State v. Eaves, 106 N.C. 752, 11 S.E. 370, 8 L. R. A. 259; Adams v. Turrentine, 30 N.C. 147, 150. "The meaning and intention of the legislature (and its will) must be sought first of all in the language of the statute itself; for it must be presumed that the means employed are adequate to the purpose, and do express that will correctly." Black, Inter. of Laws (1896) § 25; U.S. v. Goldenberg, 168 U.S. 96, 18 S.Ct. 3, 42 L.Ed. 394; Hamilton v. Rathbone, 175 U.S. 421, 20 S.Ct. 155, 44 L.Ed. 219. As a corollary of the foregoing proposition, it follows that: "If the language of the statute is plain and free from ambiguity, and expresses a single definite and sensible meaning, that meaning is conclusively presumed to be the meaning which the Legislature intended to convey. In other words, the statute must be interpreted literally." Black, § 26. The purpose of this court always has been, as shown by its decisions, and ever will be, not to defeat the intention of the Legislature by a forced interpretation, but to construe its enactments so as to execute its will with punctilious regard for its sovereign right, delegated by the people, to make the law. We say what it is, but they say what it shall be, and, when the will of that body is declared, it becomes the duty of every citizen, and every official, to obey it. The defendants cannot escape the discharge of the duty enjoined upon them by the plea that, having failed to act at the day fixed in the act, they are discharged altogether from its performance, and thus, by their own willful wrong and neglect of duty, acquit themselves of responsibility.

The duty is a continuing one, time not being of the essence of the obligation imposed upon them, and the courts will compel them to do, at any time, what they have failed to do at the proper or appointed day. Any other doctrine would put it in the power of a delinquent officer to defeat the legislative will and repeal a law, and would be nothing less than monstrous. Grady v. Commissioners, 74 N.C. 101; McCormac v. Commissioners, 90 N.C. 441; 2 Lewis' Sutherland, Stat. Construc. (2d Ed.) § 612--16; Black, Inter. of Laws (1896) 343; Juliand v. Rathbone, 39 N.Y. 369.

This much upon the preliminary matters. The other question in the case is whether mandamus will lie to compel obedience to the law. The rule as to this point is that: "Where the duty to be performed is judicial or involves the exercise of discretion upon the part of the tribunal or officer mandamus will lie to compel such tribunal to take some action in the premises and exercise its judgment or discretion. But the function of the writ is merely to set in motion. It will not direct how the duty shall be performed or the discretion exercised. To do so would be to substitute the...