Bunting v. Gales

• Decision Date: 30 June 1877
• Citation: 77 N.C. 283
• Court: North Carolina Supreme Court
• Parties: STATE OF NORTH CAROLINA on relation of JOHN N. BUNTING v. WESTON R. GALES.

77 N.C. 283

STATE OF NORTH CAROLINA on relation of JOHN N. BUNTING

v.WESTON R. GALES.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION in the nature of a Quo Warranto tried at Spring Term, 1877, of WAKE Superior Court, before Buxton, J.

This action was instituted by the relator, John N. Bunting, Clerk of the Superior Court of Wake County, to test the right of the defendant, Weston R. Gales, to hold the office of Clerk of the Criminal Court of Wake County, which Court was created under an Act of the General Assembly. (Laws 1876-'7, ch. 271.) The plaintiff claimed that under the amended Constitution, Art. IV, § 33, the General Assembly had no right during his term of office to deprive him as Clerk of Wake Superior Court of the fees and emoluments of his office by transferring the entire criminal business to the Criminal Court, and appointing the defendant as Clerk thereof; but that the plaintiff was entitled to perform the functions and receive the emoluments of Clerk of the Criminal Court until the expiration of his term. The defendant answered and relied upon the amendment to the Constitution conferring upon the General Assembly power to create additional Courts, &c. Const. Art. IV, § 12. The defendant also alleged that on account of the press of criminal business in the Superior Court of Wake County, there was an urgent public necessity for the establishment of the Criminal Court. The plaintiff filed a demurrer to the answer. His Honor gave judgment overruling the demurrer and dismissing the action and the plaintiff appealed.

Messrs. E. G. Haywood, D. G. Fowle, Busbee & Busbee, Walter Clark, G. H. Snow and T. M. Argo, for plaintiff .

Messrs. W. N. H. Smith and Battle & Mordecai, for defendant .

RODMAN, J.

It will not be necessary for the decision of this case to review the judgment in Hoke v. Henderson, 4 Dev. 1. In this case the Legislature has not put another man in the office of the plaintiff. It has merely created another Court and transferred to it a portion of the jurisdiction of the Superior Court of Wake, of which plaintiff is Clerk, and appointed the defendant, Clerk of the new Court, thereby incidentally depriving the plaintiff of certain fees which, but for the establishment of such new Court with a separate Clerk, the plaintiff would have received. It has done this under a clause of the Constitution which authorizes the Legislature to establish such Courts whenever the public welfare requires it.

It is admitted that a lucrative public office is private property, of which no one can be divested except by the law of the land; and it may also be admitted so far as this case is concerned, that after a law has once fixed the tenure of the office, a subsequent Act of the Legislature cannot alter the tenure to the detriment of persons then in office; e. g. by converting it from an office during good behaviour, or for four years, into an office for two years. This was the decision in Hoke v. Henderson, and in Taylor v. Stanley, 4 Dev. 1, 31.

It may also be admitted that the Legislature cannot select a particular officer, and by a special law applicable to him alone, deprive him of any material part of his duties and emoluments. This partakes of the nature of a judicial forfeiture without a trial. This was the case of King v. Hunter, 65 N. C. 603. Neither can the Legislature take away the entire salary of an officer. Cotten v. Ellis, 7 Jones, 545.

But a public office is property of a peculiar nature. It is said in the opinion of the Court in Hoke v. Henderson, page 20, that if the Legislature should increase the duties and responsibilities, or diminish the emoluments of the office, the officer must submit. Clearly any other rule would subordinate the public welfare to the interest of the officer. He takes subject to the power of the Legislature to change his duties and emoluments as the public good may require.

When the present plaintiff qualified as Clerk, the Constitution of 1868 was in force, and by § 19 of Art IV, the General Assembly was required to...