McCall v. Webb

• Decision Date: 21 November 1899
• Citation: 34 S.E. 430,125 N.C. 243
• Parties: STATE ex rel. McCALL v. WEBB.
• Court: North Carolina Supreme Court

34 S.E. 430

125 N.C. 243

STATE ex rel. McCALL v. WEBB.

Supreme Court of North Carolina

November 21, 1899

Appeal from superior court, Buncombe county; Coble, Judge.

Quo warranto proceedings, on the relation of R. S. McCall against Charles A. Webb. Judgment for plaintiff. Defendant appeals. Affirmed.

Clark J., dissenting.

Laws 1899, cc. 371, 520, which, while not abolishing a court, make changes relative thereto, are unconstitutional, so far as they attempt to authorize an appointment to the office of solicitor thereof before expiration of the term of the incumbent elected thereto; he having a vested right thereto.

F. A Sondley, T. H. Cobb, and Chas. A. Moore, for appellant.

V. S Lusk and Frank Carter, for appellee.

FURCHES J.

This is an action in the nature of quo warranto by the plaintiff against the defendant for the office of solicitor of the criminal court of Buncombe county. It is admitted that plaintiff was duly elected to the office of solicitor of this court in November, 1896, "for a term of four years, and until his successor was elected and qualified"; that he was duly commissioned, qualified, and inducted into said office of solicitor of Buncombe county on the 1st of January 1897, for a term of four years thence next ensuing, which term has not expired. Notwithstanding these facts, plaintiff alleges that the defendant, Webb, has unlawfully obtruded himself into said office, and, by and with the recognition of the judge of said court, has ousted the plaintiff of his said office, and that defendant now unlawfully holds and exercises the duties of said office, and is unlawfully receiving the fees and emoluments thereof. The defendant admits that he has entered upon and holds the office of solicitor of the criminal court of Buncombe county, but he denies that he unlawfully entered into said office, or that he ousted the relator from the office he holds, or that he now unlawfully holds the same. But, on the contrary, the defendant alleges that the general assembly of 1899, by chapters 293, 371, and 520, "abolished" the criminal court of Buncombe county, established by the act of 1895, c. 75, to which the relator of the plaintiff was so elected, qualified, and inducted into, and by these acts of 1899 the legislature established the criminal court of Buncombe county, of which he is solicitor; that said acts provide that the judge of said court shall appoint a solicitor thereof, and that the judge, exercising the power so vested in him, appointed the defendant solicitor thereof; that he was duly inducted into said office under and by virtue of said appointment; and that he now holds and exercise the duties and functions thereof, receiving the fees and emoluments of said office, as he of right may do. This presents the question as to whether or not the office the defendant holds is the same as that the plaintiff held, as solicitor of the criminal court of Buncombe county. If it is, the plaintiff is entitled to the relief he demands. If it is not, he is not entitled to this relief, and the defendant will hold the office. This question, as to whether it is the same office or not, depends upon the question as to whether the criminal court of Buncombe was "abolished" by the legislature of 1899. Acts above referred to. This very question has been so recently and so fully considered by this court that we do not feel called on to enter upon a discussion of this matter again in this case. State v. Jordan, 124 N.C. 686, 33 S.E. 139. According to the decision in that case, the criminal court of Buncombe county was not "abolished"; and the office the defendant admits he is in possession of and holding is the same office that the plaintiff was elected to and was holding before the defendant wrongfully took possession thereof. This entitles the plaintiff to the relief demanded in his complaint, unless the defendant has shown other reasons why he is not entitled to judgment. This the defendant undertakes to do by showing that the act of 1895 is unconstitutional in toto, and absolutely null and void, and that, as the act is void in toto, there is no office for the plaintiff to hold. And, of course, if the act of 1895 is void, for the same reason the act of 1899 is also void. The defendant further alleges that the plaintiff must recover, if recover he does, on the strength of his own title, and not on the weakness or want of title in the defendant. The plaintiff says that it would be unconscionable in the defendant to set up such a defense as this, when he is in possession of the very office he says does not exist, and is receiving fees and emoluments of the same, and that he is thereby estopped to set up this defense. But however inconsistent it may seem for the defendant to claim and hold, and receive the fees and emoluments of, an office that he claims does not in law exist, we are of the opinion that there is no legal reason why he may not if he chooses to do so. But we see no ground or reason for the application of the doctrine of estoppel in this case. The plaintiff's right to the office does not depend upon the doctrine of estoppel, nor does it enter into the defense of the defendant. The plaintiff claims the office upon the facts agreed, and the law arising thereon, as declared in a great number of cases by this court. The defendant's contention would be correct if the act of 1895 and the acts of 1899 were, as he contends they are, absolutely void, because, as he contends, there would be no such office as that of solicitor of the criminal court of Buncombe county; and while these acts are unconstitutional in many respects, some of which were pointed out in the opinion in State v....