Eliason v. Coleman

• Decision Date: 28 February 1882
• Citation: 86 N.C. 235
• Court: North Carolina Supreme Court
• Parties: W. A. ELIASON v. THADDEUS COLEMAN.

86 N.C. 235

W. A. ELIASON

v.THADDEUS COLEMAN.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1881, of IREDELL Superior Court, before Seymour, J.

This action is brought to recover so much of the salary of the chief engineer of the Western North Carolina railroad company as was received by the defendant for services while in possession of the office and in discharge of its duties, for the period immediately preceding his retirement therefrom in June, 1872. The company was organized under an act of the general assembly passed in 1855, the substance of which, so far as it affects the present controversy, may be thus summarily stated: The management of the affairs of the company is committed to a general board consisting of twelve directors, of whom eight were to be appointed by the Governor with the advice and consent of the senate, and the others elected by the individual stockholders. The directors who must be citizens of the state and resident therein, and also hold each at least five shares of the capital stock, are required to elect one of their number president of the company. Contracts authenticated by the president and secretary of the board of directors are made binding upon it. With the exception of the commissioners designated by name to open books of subscription to the capital stock, no other officers of the corporation are created or expressly recognized in the act. Acts 1854-'55, ch. 228.

The concluding paragraph of section 6 confers among other rights and immunities the authority to “make all such by-laws, rules and regulations, as are necessary for the government of the corporation, or for effecting the object for which it (the company) is created, not inconsistent with the constitution and laws of the state.”

At a meeting of stockholders held in August, 1869, an ordinance or by-law was adopted in these words: “The following are declared officers of the company, to wit--the president, directors, secretary, treasurer, superintendent and chief engineer. All other persons whose services shall be necessary shall be considered as employees.” Another ordinance or by-law declared that the chief engineer should hold his office for one year and until his successor is duly elected and qualified, and fixed his salary at $2,000 per annum. The plaintiff was appointed to this place in November, 1869, and again on the 13th day of that month, in the year following.

In February, 1871, was passed an act, as its title declares, “for the benefit of the Western North Carolina railroad company,” conferring upon the stockholders the right to remove the then acting directors, and any of the agents or officers of the company, and to appoint others in their place, and in the event of such removal, designating the state directors by name. Under this act the stockholders met on April 4th, 1871, and after organization against the written protest of the plaintiff proceeded to remove him and elected the defendant to the vacated place of chief engineer, to serve until their next annual meeting. The defendant entered upon the discharge of his official duties and continued to discharge them up to the time of his resignation. For his services during this period he received the stipulated compensation, amounting to $2,338.74, the last portion of which was paid in February, 1873.

Upon this showing His Honor intimated an opinion that the position of chief engineer was not such an office as to give the plaintiff a tenure and vested right thereto, and he could not maintain the action. The plaintiff in submission thereto, suffered a non-suit and appealed.

Messrs. J. M. Clement and D. M. Furches, for plaintiff .

Messrs. J. M. McCorkle and W. R. Henry, for defendant .

SMITH, C. J., after stating the case.

The only question therefore before us is as to the correctness of this ruling. We are not required to decide upon the redress which the plaintiff may have against those who displaced him, or the corporation for which they professed and undertook to act in disregarding the conditions of the contract, as to the term of service and rate of compensation, involved in the ordinance in force, and entering into the contract when the election was accepted. Nor is it necessary to consider and determine the legal effect upon the defendant's right to the office, as the appointee of the stockholders, de facto if not de jure, representing the corporation by virtue of an unconstitutional enactment in making the appointment.

The principle governing in such cases is clearly laid down in the cases of Ellis v. N. C. Inst. for Deaf, Dumb and Blind, 68 N. C??, 423, and in Norfleet v. Staton, 73 N. C., 546, with a mere reference to which we are content, for the reason that the ruling under review is entirely independent of those decisions.

The inquiry is this: Can the plaintiff recover the salary or fees received by the defendant for personal services rendered as chief engineer to the corporation? Has the defendant taken and converted to his own use moneys...