In re Advisory Opinion to Governor

• Decision Date: 12 January 1944
• Parties: In re ADVISORY OPINION TO GOVERNOR. In re YELTON.
• Court: North Carolina Supreme Court

28 S.E.2d 567

223 N.C. 845

In re ADVISORY OPINION TO GOVERNOR. In re YELTON.

Supreme Court of North Carolina

January 12, 1944

On 29 December, 1943, the following letter was received from His Excellency, J. Melville Broughton, Governor of the State of North Carolina:

29 December 1943

Honorable W. P. Stacy, Chief Justice

Honorable Michael Schenck

Honorable W. A. Devin

Honorable M. V. Barnhill

Honorable J. Wallace Winborne

Honorable A. A. F. Seawell

Honorable E. B. Denny, Associate Justices

Raleigh, North Carolina

My dear Sirs:

A question of great public concern has arisen in the connection with the performance of my duties as Governor of North Carolina, upon which I desire to request the opinion of the Chief Justice and Associate Justices of the Supreme Court of North Carolina.

The question presented is one which affects numerous public officials who have accepted or will accept commissions in the Armed Forces of the United States and who are going into active service as Officers therein.

Honorable Nathan Yelton was heretofore appointed as Comptroller by the State Board of Education, with the approval of the Governor as Director of the Budget, under the provisions of Article 8 of Section IX [sec. 8, art. 9] of the Constitution of this State, and was engaged in the performance of his duties as such at the time he accepted a commission as a Captain in the United States Army and has now been assigned for work with the Allied Military Governments and entered upon the performance of his duties on the 27th day of December, 1943.

Captain Yelton's appointment was made by the President of the United States by authority of H. J. Res. 199, Public Law No. 252, Seventy-Seventh Congress of the United States, Joint Resolution Sept. 22, 1941, 55 Stat. 728, 10 U.S.C.A. § 484 note, the material parts thereof reading:

'During the present emergency, temporary appointments as officers in the Army of the United States may be made, under such regulations as the President may prescribe, from among qualified persons without appointing such persons as officers in any particular component of the Army of the United States. All persons so appointed as officers shall be commissioned in the Army of the United States and may be ordered into the active military service of the United States to serve therein for such periods of time as the President may prescribe. * * * Provided, That any appointment made under the provisions of this Act may be vacated at any time by the President and, if not sooner vacated, shall continue during the present emergency and six months thereafter: Provided further, That any person appointed as an officer in the Army of the United States under the provisions of this Act shall receive the same pay and allowances and be entitled to the same rights privileges, and benefits as members of the Officers' Reserve Corps of the same grade and length of active service * * *.'

Captain Yelton has applied to me as Governor of the State of North Carolina for a leave of absence, on account of entering into military service, under the provisions of Chapter 121 of the Public Laws of 1941, and, as Governor of North Carolina it is my desire and purpose to grant the leave of absence as requested for the duration of the existing state of war, or until Captain Yelton has been discharged from military service, if I can legally do so. The compensation of Captain Yelton as Comptroller terminated upon his entering active duty as a Captain in the United States Army and the leave of absence if granted will be granted without pay. If this leave of absence can be lawfully granted by me as Governor, it is my purpose, under the authority of Chapter 121 of the Public Laws of 1941, to appoint an acting official as substitute for Captain Yelton for the period of his leave of absence, such appointee to have all the authority, duties, perquisites and emoluments of his principal.

I am in doubt as to whether or not I have the power to grant this leave of absence on account of the question as to whether or not Captain Yelton, in accepting a commission as an Officer in the United States Army, has thereby vacated his office as Comptroller of the State Board of Education by reason of the inhibition against double office holding contained in Article XIV, Section 7 of the Constitution of the State of North Carolina, and, whether or not, under such circumstances, a leave of absence to this official could be granted, or whether or not it would be necessary that his office be treated as vacant and a successor appointed as provided in Section 8 of Article IX of the Constitution. It may be stated that this same question here presented as to Captain Yelton applies to many other public officials in the State on account of such officials accepting commissions as Officers in the Armed Forces of the United States.

On account of the paramount importance and emergency of this question, I am constrained to request an opinion of the Chief Justice and Associate Justices in order that the appropriate action may be taken by me with respect to the pending application of leave of absence for Captain Yelton.

I am advised by the Attorney General that the question presented has not been decided by our Court. I hand you herewith the letter from the Attorney General, together with a memorandum of authorities presented to me therewith.

Respectfully yours,

(Signed) J. Melville Broughton

Governor

29 December 1943

Subject: Leave of Absence; Comptroller, State Board of Education; Double Office Holding; Acceptance of a Commission as Captain in the United States Army.

Governor J. Melville Broughton

Raleigh, North Carolina

Dear Governor Broughton:

I have your letter of December 27, in which you advise that Honorable Nathan Yelton, Comptroller of the State Board of Education, has accepted a commission as Captain in the United States Army and has been assigned for special work with the Allied Military Governments, having entered upon his duties as such on December 27, 1943. You state that this presents the question as to whether or not Captain Yelton can be granted a leave of absence, and also whether or not it will be possible for the State Board of Education, with the approval of the Governor, to name an Acting Comptroller, or whether his acceptance of a commission terminates his tenure of office, making it necessary to appoint or elect his successor for the unexpired portion of the term of his appointment.

I have today conferred with you about the subject of your letter and advised you that, in my opinion, no satisfactory answer could be secured to this question except through the medium of the opinion of the Chief Justice and Associate Justices of the Supreme Court of North Carolina. The identical question has not been presented under the circumstances of this case to our Court. I am enclosing herewith a copy of the memorandum on this subject from which you will observe that some of the Courts of other states have held that the acceptance of a commission of the character accepted by Captain Yelton would prevent him from holding the office under the authority of the State, while in other jurisdictions, the Courts have reached a contrary conclusion.

The nearest approach to this question in our State is found in Matter of Martin, 60 N.C. 153, in which, at the request of Governor Zebulon B. Vance, an opinion of the Justices was rendered, in which it was held that the acceptance of the office of Brigadier General under the Confederate States vacated the office of Adjutant General of North Carolina held by the person accepting the Confederate States' office. This case, however, was decided on the basis of incompatibility of the two offices, although the constitutional provision then existing was substantially similar to Article XIV, Section 7 of our Constitution.

On account of the great importance and emergency of this question, I feel confident that the Chief Justice and Associate Justices of the Supreme Court, at your request, would be willing to render you their advisory opinion, and I recommend this course.

Respectfully yours,

(Signed) Harry McMullan

Harry McMullan, Attorney General

HM/e

To His Excellency, J. Melville Broughton, Governor of North Carolina:

Your request for an advisory opinion in the matter of Nathan Yelton poses the question whether the comptroller of the State Board of Education may be granted a leave of absence under Chap. 121, Public Laws 1941, he having accepted a temporary captaincy in the United States Army, and still retain his present position. Also involved is the broader question whether, in like circumstances, any State official may be given a leave of absence to accept a temporary officer's commission in the United States Army or Navy without perforce vacating his civil office.

The question is an important one and ought to be settled in the interest of continued, efficient, orderly government. Its solution lies in harmonizing the statute law with the Constitution, if this can be done.

I. The Meaning of Chap. 121, Public Laws 1941:

The following pertinent provisions of Chap. 121, Public Laws 1941, are clear and explicit:

'Section 1. Any elective or appointive State official may obtain leave of absence from his duties for military or naval service, protracted illness, or other reason satisfactory to the Governor, for such period as the Bovernor may designate. Such leave shall be obtained only upon application by the official and with the consent of the Governor. The official shall receive no salary during the period of leave * * *. The period of leave may be extended upon application to and with the approval of the Governor if the reason for the original leave still exists, and it may be shortened if the said reason shall unexpectedly terminate:...