Doyle v. Aldermen of Raleigh

• Decision Date: 31 October 1883
• Court: North Carolina Supreme Court
• Parties: JAMES DOYLE v. ALDERMEN OF RALEIGH.

89 N.C. 133

45 Am.Rep. 677

JAMES DOYLE

v.ALDERMEN OF RALEIGH.

Supreme Court of North Carolina.

October Term, 1883.

CIVIL

ACTION in which application is made for the writ of mandamus, heard at Fall Term, 1883, of WAKE Superior Court, before Shepherd, J.

The plaintiff was elected an alderman of the city of Raleigh, and asked to be restored to the office from which he was removed by the defendants. It was found by the jury, upon issues submitted to them: 1. That he was sworn and inducted into office on the 8th of May, 1883. 2. That he was wrongfully obstructed by defendants in the exercise and discharge of the functions of his office. 3. And that the plaintiff, on the first Monday in May, 1883, held and exercised an office or place of trust or profit under the government of the United States. A further statement of the facts appears in the opinion.

Upon this verdict, and the admission of plaintiff that he still holds the office or place as found in the above issue, the court adjudged that the writ of mandamus be refused, and the plaintiff appealed.

Messrs. D. G. Fowle, Walter Clark, J. B. Batchelor and T. M. Argo, for plaintiff .

Messrs. Reade, Busbee & Busbee, Fuller & Snow and A. M. Lewis & Son, for defendants .

SMITH, C. J.

The plaintiff, elected an alderman of the city of Raleigh, and having taken the oath of office and met and acted with his associate members of the board, was ejected from his seat by a resolution of the body, on the ground of his constitutional incompetency to hold the office under essentially the same circumstances as was the plaintiff Ellison, whose appeal is determined at this term. There was, however, no successor chosen to occupy the plaintiff's vacated place. In this state of the case the plaintiff has sought an appropriate remedy for his restoration to office in coercive measures against the alleged wrong doers.

At the time of the election and since, he has been acting under an appointment from the treasury department of the United States, and at a salary or compensation of sixty dollars per month, as night watchman of the postoffice building in this city, to guard and protect it from depredation and injury. This employment, it is insisted, rendered him ineligible to hold under that clause of the constitution, omitted in the formation of the constitution of 1868, and reinserted by an amendment made in 1875, which declares that:

“No person who shall hold any office or place of trust or profit under the United States, or any department thereof, or under this state or any other state or government, shall hold or exercise any other office or place of trust or profit under the authority of this state, or be eligible to a seat in either house of the general assembly,” with certain exceptions not material to the present inquiry. Const., Art. XIV, §7.

It was upon the assumption of this incompatibility that the board of aldermen proceeded in declaring the office vacant, because the person elected could not, under the law, hold it and exercise the attaching franchises. There is no impediment in the way of the plaintiff's restoration to his seat, even if the aldermen had...