Hoke v. Henderson

• Decision Date: 31 December 1833
• Citation: 15 N.C. 1
• Parties: JOHN D. HOKE v. LAWSON HENDERSON.
• Court: North Carolina Supreme Court

15 N.C. 1

JOHN D. HOKE

v.LAWSON HENDERSON.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1833.

A clerk appointed under the Act of 1806 (Rev., c. 693) has an estate in his office, and although the Legislature may destroy the office and by consequence the estate in it, yet the Act of 1832 which continues the office, but transfers the estate in it to another is unconstitutional and void.

On the last circuit, at Lincoln, before his Honor, Judge Norwood, the plaintiff produced a certificate of the Sheriff of Lincoln, which set forth that at. an election held in pursuance of Laws 1832, ch. 2, he, the plaintiff, had been duly elected clerk of the Superior Court of Lincoln. The plaintiff then tendered the bonds required by the act, and moved that he might be qualified and permitted to take upon himself the duties of office. This was opposed by the defendant, who proved that he had been appointed Clerk of that Court, in April, 1807, under the act of 1806 (Rev., ch. 693, sec. 10); that he had regularly qualified, and given bonds for the faithful performance of the duties of his office, and that those bonds had been renewed according to the several acts of Assembly requiring such renewal. His Honor disallowed the motion, because in his opinion, Laws 1832, ch. 2, was unconstitutional, and therefore null and void, and of consequence did not affect the defendant's right to the office. From this judgment the plaintiff appealed.

The Act of 1832, is as follows:

AN ACT TO VEST THE RIGHT OF ELECTING THE CLERKS OF THE COUNTY AND SUPERIOR COURTS, IN THE SEVERAL COUNTIES WITHIN THIS STATE, IN THE FREE WHITE MEN THEREOF.

Be it enacted, etc. That at the next election for members of the General Assembly within this State, the sheriffs, deputy sheriffs, and inspectors and all persons holding the elections, shall open a poll and receive votes given for County and Superior Court Clerks, in the same manner and under the same rules and regulations that they now receive

and return votes for members of the General Assembly; and in case of the failure of persons appointed to hold said elections, or either of them, it shall be competent for a Justice of the Peace and two freeholders to supply such vacancy.

II. And be it further enacted, That all free white persons qualified to vote for members of the House of Commons in the General Assembly of this State, shall be entitled to vote for Clerks of the Superior and County Courts in their respective counties.

III. And be it further enacted, That the sheriffs or other persons qualified to hold said elections, shall at the court-house or place of returning or comparing the polls, declare the person or persons having the highest number of votes, duly elected Clerk of the County or Superior Court, as the case may be, who shall continue in office for the term of four years next after their qualification; and in the event of two or more persons having an equal number of votes for either of the offices aforesaid, then and in that case the Court of Pleas and Quarter Sessions, a majority of the acting justices being present, shall proceed to make the election as now prescribed by law in case of the election of sheriffs; and said Courts in manner aforesaid shall be a competent tribunal to decide all contested elections arising under this act.

IV. And be it further enacted, That the clerks elected under this act shall, at the first term of their respective courts, which shall happen after their election, execute and tender to the said Courts such bonds, and take such oaths as now are or hereafter may be prescribed by law: and where a vacancy shall be occasioned by failure to give the necessary bonds, refusal or neglect to qualify, death, resignation, removal or otherwise, the Court in which such failure may happen, shall proceed to fill the vacancy under the same rules, regulations and restrictions as are now required by law; and the person or persons so appointed shall continue in office until the next annual election for members of the General Assembly, or the first term of the Courts of Pleas and Quarter Sessions which shall thereafter happen.

V. And be it further enacted, That such person or persons and no others, who shall have attained to the age of twenty-one years, and have resided in the county in which they may have been chosen, twelve months immediately preceding the day of election, shall be eligible to the office of County or Superior Court Clerk: Provided always, that nothing herein contained shall be so construed as to repeal the law or any part thereof, which renders the Courts liable for neglecting to take sufficient securities of the Clerks of the County or Superior Courts.

VI. And be it further enacted, That this act shall be in force from and after the ratification thereof, and all laws and clauses of laws, coming within the meaning and purview of this act, be, and the same are hereby repealed.

RUFFIN, C. J. The office of Clerk of the Superior Court of Law, for Lincoln, is claimed by Mr. Hoke, by virtue of his election thereto, under Laws 1832, ch. 2; and his admission is opposed by Mr. Henderson, who claims the same office by virtue of a previous appointment thereto, under the act of 1806. The title depends upon the construction and validity of the act of 1832.

The decision in the Superior Court was in favor of the old clerk, and is rested by the Judge who pronounced it, distinctly

upon the ground that the act is unconstitutional and therefore void.

In support of the decision it has, however, been contended here, that it is not necessary, for the purpose of this controversy, to pass upon the correctness of the reasons of the Judge of the Superior Court; for that the act does not, in terms and according to a proper construction, oust the defendant from office.

It is true, the act does not immediately vacate the offices which were filled at its passage; nor does it expressly remove the incumbents upon the future elections to be had under its provisions. The question is, whether that effect arises from the necessary or fair construction of those provisions taken together? In construing an instrument, the cardinal point is to ascertain the meaning of those who speak in it, from the words used by them and the objects apparently to be affected. This is the rule for the construction of statutes, as well as other instruments; and it is the duty of the Court, to whose province it falls, according to the distribution of the powers of government in this country, to interpret statutes, to put a fair meaning upon the language of the Legislature, in order to effect, as far as they are constitutionally allowable, the ends in view. If the words are ambiguous, and the evils to be remedied not apparent, or not specified, and the remedy not plainly designated, the effects and consequences of the one construction or the other, may, and ought to be resorted to as important aids to the expounder. If in one sense the enactments are reasonable,consistent with natural equity and a sound public policy; and if, in another sense, they invade private right, are retrospective in their operation in denouncing punishments for acts not before criminal, or in divesting property secured by previous laws, and the guaranty of public faith—if they are repugnant to the natural sense of justice, subversive of the principles of sound legislation, and conflict with a wholesome policy long established and sanctioned by the tests of experience and common consent; and above all, if they transcend the limits of the legislative authority as defined by the Constitution—a Court in such a case would not only be warranted but bound to receive the former and not the latter, as the true meaning of the Legislature, and to execute the act as thus interpreted. A decent respect for the Legislature, and a knowledge of the imperfection of language, and of the difficulty of expressing the meaning in such exact terms as to convey it with precision to the mind of another, would impose on the Court the presumption as an irresistible one, that general phrases of dubious import, were

not used in the harsh sense attributed to them, to destroy existing rights, but in the milder one (of which they are susceptible) of regulating the future actions of the citizen, and prescribing a new rule for the subsequent acquisition or enjoyment of property.

These considerations would induce the Court cheerfully to adopt the construction of the act contended for by the counsel for the defendant, were there nothing more in it than those parts on which he has animadverted. But there are other provisions, which are absolutely inconsistent with this construction. To mention a few will be sufficient since they are decisive. The first section enacts that the sheriff and all persons holding elections at the next election for members of the General Assembly, shall also hold an election for County and Superior Court Clerks in the same manner, and under the same rules and regulations that they receive votes for members of the Legislature. The fourth section enacts that the clerks thus elected shall at the first term of their respective Courts, which shall happenafter their election, execute bonds for the faithful discharge of their duties, and take the oaths of office. It is thus seen that the enactment is, not that the elections thus to be held, shall be from time to time thereafter in each county, as a vacancy shall occur; but that a poll shall be opened at the then next general election, by all persons holding the elections for members of assembly. Indeed, no provision is made for any future election, not even one at the end of the four years, the prescribed term of service. In the event of a vacancy after one election, the Court is authorized to fill it, and the person appointed is to remain in office until the next annual election of members of the Assembly, or the first term of the Court of Pleas and Quarter Sessions thereafter; but even in that case, the persons who...