Groves v. Barden

• Decision Date: 14 April 1915
• Docket Number: (No. 213.)
• Citation: 84 S.E. 1042,169 N.C. 8
• Parties: GROVES. v. BARDEN.
• Court: North Carolina Supreme Court

84 S.E. 1042

169 N.C. 8

GROVES.

v.BARDEN.

(No. 213.)

Supreme Court of North Carolina.

April 14, 1915.

Appeal from Superior Court, Duplin County; Peebles, Judge.

Action by J. H. Groves against Prank Bar-den. Prom a judgment of nonsuit, plaintiff appeals. Reversed.

This is an action to recover a penalty of $200, imposed by section 2365 of the Revisal upon any person who shall presume to hold any office or place of trust or profit, contrary to article 14, § 7, of the Constitution of the state. The statute confers the right of action to recover the penalty upon any one who shall sue for the same. The plaintiff offered evidence tending to prove that the defendant was an acting constable and was at the time a rural mail carrier. His honor, being of opinion that the position of rural mail carrier was not a public office, entered a judgment of nonsuit, and the plaintiff excepted and appealed.

George R. Ward, of Wallace, and John A. Gavin, Jr., of Kenansville, for appellant.

Stevens & Beasley, of Kenansville, for appellee.

ALLEN, J. The Constitution, art 14, § 7, 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 under 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."

The line between "offices" and "places of trust or profit, " within the meaning of the Constitution, has not been clearly marked, principally because they approach each other so closely, and are in all essential features identical.

In Doyle v. Raleigh, 89 N. C. 133, 45 Am. Rep. 677, the court speaking of this question, says:

"It is apparent from the association that 'places of trust or profit' are intended which approximate to but are not offices, and yet occupy the same general level in dignity and importance. The manifest intent is to prevent double office-holding—that offices and places of public trust should not accumulate in a single person—and the superadded words of 'places of trust or profit' were put there to avoid evasions in giving too technical a meaning to the preceding words."

And this was affirmed in State ex rel. Wooten v. Smith, 145 N. C. 476, 59 S. E. 649; the court adding in the latter case:

"The most important characteristic which distinguishes an office from a public agency is that the conferring of the office carries with it a del-egation to the individual of some of the sovereign functions of the government. In this respect the terms 'office' and 'place of trust, ' as used in our Constitution, are synonymous. Doyle v. Raleigh, 89 N. C. 136 ; Barnhill v. Thompson, 122 N. C. 495 ."

In determining whether a position is an office, place of trust or profit, or an employment, the authorities, which are collected in the valuable note to Attorney General v. Tillinghast, 17 Ann. Cas. 452, attach significance to the fact that an oath to support the Constitution is required, or that a bond for the faithful performance of duties must be executed, or that the duties are prescribed by law, and not regulated by contract, or that the incumbent discharges independent duties and is not acting under the direction of others, or that the duties are continuing and permanent in their nature and are not occasional or intermittent, or that the term is fixed and continuing and not temporary, or that the position is named an office or an employment in the statute creating it; but, in the absence of a constitutional provision, these are only circumstances which are entitled to consideration, and are not determinative or conclusive. The editor of the note says:

"It may be stated as a general rule, fairly deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast upon the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent, while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements."

Our court is in line with the current of authority, having adopted and approved the definition of an office that it is "a public position to which a portion of the sovereignty of the country, either legislative, executive, or judicial, attaches for the time being, and which is exercised for the benefit of the public, " and saying further:

"The most important characteristic which distinguishes an office from a public agency is that the conferring of the office carries with it a delegation to the individual of some of the sovereign functions of the government." State v. Smith, 145 N. C. 477, 59 S. E. 650.

If, therefore, there is no constitutional classification of offices and employments, and a duty is imposed upon the incumbent of a position which requires him to perform a legislative, executive, or judicial act, he is a public officer, and otherwise an employé, and, in determining the nature of the duty, the fact that the lawmaking power may have declared the position an office or an employment, although not conclusive, is entitled to consideration. If these principles are properly applied, the position of rural mail carrier has all the indicia of a public office.

By reference to the postal laws and regulations of 1913, it will be seen (section 718) that rural carriers are appointed by the postmaster general; that they are required to take an oath to support the Constitution (section 722), and to execute a bond to secure the faithful performance of their duties (section 723); that the oath is referred to as an official oath (section 722), his duties are designated as official duties (section 752), and mention is made of the official character of the carrier (section 740). His term and his duties are fixed by law and not by contract, and the duties are continuing and not intermittent and affect the public generally. They are defined to be:

"The delivery into and collection from boxes on their routes of mail matter of all classes, serving of...