Greene v. Owen

• Decision Date: 21 November 1899
• Citation: 34 S.E. 424,125 N.C. 212
• Parties: STATE ex rel. GREENE et al. v. OWEN et al.
• Court: North Carolina Supreme Court

34 S.E. 424

125 N.C. 212

STATE ex rel. GREENE et al. v. OWEN et al.

Supreme Court of North Carolina

November 21, 1899

Appeal from superior court, Davidson county; Robinson, Judge.

Quo warranto by the state, on the relation of E. L. Greene and others, against W. S. Owen and others. Judgment for defendants. Plaintiffs appeal. Reversed in part.

Clark J., dissenting.

While the office of county board of education, created by Pub.Laws 1897, c. 108, is not abolished by Laws 1899, c. 374, which attempts it as regards the right of an incumbent to hold office for the term of his election, Laws 1899, c. 732 ratified three days after chapter 374, creating the county board of school directors, for the same general purposes, and charged with the same general duties, having to be construed with chapter 374, and the two in effect continuing the old board under a new name, yet, on a vacancy occurring in the board after passage of chapter 732, it is filled eo instante by one of the appointees provided by chapter 732 for the board of school directors.

Walser & Walser, for appellants.

E. E Raper, for appellees.

DOUGLAS J.

This is an action in the nature of quo warranto, brought to test the title to the office of county board of school directors. On the first Monday in June, 1897, under the provisions of section 6, c. 108, of the Public Laws of 1897, G. W. Holmes T. H. Strohecker, and R. S. Greene, Jr., were elected as members of the county board of education for the term of three years by the joint action of the county commissioners, the clerk of the superior court, and the register of deeds. On the 6th day of September, 1897, R. S. Greene, Jr., resigned as a member of said board, and John R. Miller was elected to fill the vacancy by the county commissioners, the clerk of the superior court, and the register of deeds, the original appointing power. Some time during the year 1898, T. H. Strohecker resigned as a member of said board, and J. M. Nifong was elected to fill the vacancy by said commissioners, clerk, and register of deeds. On the 3d day of July, 1899, John R. Miller resigned from said board, which had then become, by virtue of chapter 732 of the Laws of 1899, the county board of school directors, and Ed. L. Greene was elected to fill the vacancy by the remaining members of the board. On the 3d day of July, 1899, George W. Holmes resigned as a member of said board, and Henry Sheets was elected by the two remaining members of the board to fill the vacancy. It will thus be seen that J. M. Nifong is the only plaintiff in this case claiming under an election prior to the passage of the act of March 7, 1899, being chapter 732, above mentioned. His case, therefore, stands upon a different footing from the others, and will be considered first.

Some things must be considered settled law in spite of the volcanic energy of a progressive and expanding age. Among these is the doctrine laid down in Hoke v Henderson, 15 N.C. 1, that an officer has a right of property in his office, of which he can be deprived only in accordance with the law of the land; and that, while the legislature may abolish the office, it cannot continue the office and transfer its duties and emoluments to another, against the will of the vested incumbent. The opinion in that celebrated case was delivered at the December term, 1833, of this court, by Chief Justice Ruffin, and was concurred in by his associates, Judges Daniel and Gaston, men whose names are the expression of the highest qualities that can adorn the bench. This opinion has never been questioned by this court, but, on the contrary, has been repeatedly cited and approved, affirmed and reaffirmed, until its very name has become the embodiment of a vital principle. We find it cited with approval upon one point or another in the following cases: Houston v. Bogle, 32 N.C. 496; State v. Moss, 47 N.C. 66; Thompson v. Floyd, Id. 313; State v. Glen, 52 N.C. 321, 327; Cotten v. Ellis, Id. 545; Barnes v. Barnes, 53 N.C. 366; Galloway v. Jenkins, 63 N.C. 147; State v. Smith, 65 N.C. 369; King v. Hunter, Id. 603; Clark v. Stanley, 66 N.C. 59; Brown v. Turner, 70 N.C. 93; State v. Gales, 77 N.C. 283; Vann v. Pipkin, Id. 408; Prairie v. Worth, 78 N.C. 169; Lyon v. Akin, Id. 258; McNamee v. Alexander, 109 N.C. 246, 13 S.E. 777; State v. Cutshall, 110 N.C. 545, 15 S.E. 261, 16 L. R. A. 130; Board v. Kenan, 112 N.C. 568, 17 S.E. 485; State v. Womble, 112 N.C. 867, 17 S.E. 491, 19 L. R. A. 827; Trotter v. Mitchell, 115 N.C. 193, 20 S.E. 386; McDonald v. Morrow, 119 N.C. 676, 26 S.E. 132; Wood v. Bellamy, 120 N.C. 216, 27 S.E. 113; Ward v. City of Elizabeth City, 121 N.C. 3, 27 S.E. 993; Caldwell v. Wilson, 121 N.C. 468, 28 S.E. 554; Miller v. Alexander, 122 N.C. 721, 30 S.E. 125; Day's Case, 124 N.C. 362, 366, 32 S.E. 748; State v. Jordan, 124 N.C. 683, 694, 33 S.E. 139; Bryan v. Patrick, 124 N.C. 651, 663, 33 S.E. 151. In Ward v. City of Elizabeth City, supra, this court says: "The only restriction upon the legislative power is that, after the officer has accepted office upon the terms specified in the act creating the office,--this being a contract between him and the state,--the legislature cannot run him out by an act purporting to abolish the office, but which, in effect, continues the same office in existence. This is on the ground that an office is a contract between the officer and the state, as was held in Hoke v. Henderson, 15 N.C. 1, and has ever since been followed in North Carolina down to and including Wood v. Bellamy, supra, though this state is the only one of the 45 states of the Union which sustains that doctrine." In the above list we have included only those cases where it is directly cited by name in the opinion of the court, omitting all those merely tending to sustain it. In reviewing the list of the judges who wrote the above opinions or concurred therein, we find the name of every chief justice who has since presided over this court, and of all the associate justices before whom the question was raised. An examination of the constitutional history of the state we think will show conclusively that the principles so clearly enunciated in Hoke v. Henderson have not only received the practically unanimous approval of succeeding judges, but have, by direct implication, been repeatedly ratified by the people themselves. The first "constitution of North Carolina" as a state was framed by a "congress" elected and chosen for that particular purpose, which assembled at Halifax on the 12th day of November, 1776, and remained unchanged until the amendments of 1835. It was this constitution whose provisions were construed in Hoke v. Henderson. Since this decision was rendered there have been five separate and distinct constitutional conventions, all of which might, but none of which have, abrogated or modified the principle of that opinion. In 1835 a constitutional convention met on June 4th, and framed amendments to the constitution of 1776, which were ratified by the people. In 1861 a convention met, and on May 20th passed the ordinance of secession, with some other amendments, none of which were submitted to the people. In 1865 a convention met on October 9th, repealed the ordinance of secession, and passed an ordinance prohibiting slavery. This convention reassembled in May, 1866, and further amended the constitution, but, with the exception of the above ordinances relating to secession and slavery, the amendments were rejected upon submission to the people. A convention, called by Gen. Canby under the reconstruction act of congress, assembled on January 14, 1868, and framed the "constitution of 1868," which was ratified by the people on April 24, 1868, and approved by congress on June 25, 1868. In 1875 a convention assembled on September 6th, and amended the constitution in several particulars, its action being ratified by the people at the election of 1876. In addition to these conventions, several amendments have been made by legislative action and popular ratification, such as the celebrated "free suffrage" amendment of 1854, and those prohibiting the payment of the special tax bonds, relating to the election of trustees of the university, increasing the number of justices of the supreme court, and others unnecessary to mention. The constitutional history of this state is more fully set forth in the concurring opinion of Douglas, J., in State v. Jordan, 124 N.C. 707, 33 S.E. 139. The various amendments made many changes of far-reaching results, including the successive repudiation of the governments of the United States and the Confederate States, but the underlying principle of Hoke v. Henderson remained unchanged. It survived the wreck of Southern institutions, weathered the storm of civil war, escaped the iconoclasm of reconstruction, and stands before us hoary with age, but apparently fresh from the fountain of perpetual youth. Any one of these conventions might have adopted an ordinance or constitutional amendment, certainly valid in its future operation, that all offices should be merely public agencies, held at the will of the creative principal,--at the will of the legislature if of legislative creation, or at the will of the people if of constitutional provision. The convention of 1835 assembled within less than 18 months after the rendition of the opinion, and were reminded of it by the presence of Daniel and Gaston as delegates from their respective counties. So far from expressing any disapproval, they completed the absolute independence of the judiciary by providing that "the salaries of the judges of the supreme court, or of the superior courts, shall not be diminished during their continuance in office." In Caldwell v. Wilson, 121 N.C. 425, 28 S.E. 554, this court says: "The statute now...