McNeill v. Somers

• Decision Date: 25 April 1887
• Court: North Carolina Supreme Court
• Parties: McNEILL v. SOMERS.

96 N.C. 467

2 S.E. 161

McNEILL

v.SOMERS.

Supreme Court of North Carolina.

April 25, 1887.

Appeal from superior court, Wilkes county.

D. M. Furches and Armfield & Armfield, for plaintiff.

G. N. Folk and Batchelor & Devereux, for defendant.

SMITH, C. J.

This action, brought, with leave granted by the attorney general, by the relator under Code, § 608, is to try title to the office of clerk of the superior court of Wilkes, to remove the defendant therefrom upon an alleged usurpation, and to secure the plaintiff's induction, was tried at March term, 1887, upon the following case agreed:

“(1) The relator, Milton McNeill, and the defendant, James F. Somers, were candidates for the office of clerk in 1886, and both were voted for at the election held on the fourth of November of that year. McNeill received a majority of the qualified voters, and on the sixth of November was declared duly elected for four years, from and after the first Monday in December, 1886, by the board of canvassers.

“(2) On the first Tuesday in November, 1884, McNeill was elected sheriff of Wilkes, and on the first Thursday thereafter declared by the canvassers to have been duly elected to said office for two years from the first Monday in December, 1884, on which day he appeared before the county commissioners, filed bonds as required by law, and was inducted into the office of sheriff. On the first Monday in December, 1885, he appeared again before the commissioners, and renewed his official bonds,-one being the bond for collection of state and county taxes; and on the first of September, 1886, as sheriff, he received the tax books for taxes levied for the year 1886, with authority from the board of commissioners to collect the same. On the first Monday in December, 1886, and at the time of election, and also at the time he appeared to qualify, he held the said tax books, and was actually engaged in collecting the taxes, a large portion of which was at said date uncollected.

“(3) At the November election, 1886, one John E. McEwen was elected sheriff for two years from first Monday in December, 1886, at which latter date he appeared, and tendered the required bonds to the board, which were accepted, and he qualified as sheriff, and was inducted into the office on that day, which office he still holds and exercises.

“(4) On same day, to-wit, the first Monday in December, 1886, the relator, McNeill, appeared before the board of county commissioners, and produced a certificate of the clerk of the board of canvassers, which declared he had been elected clerk of the superior court for four years; tendered his official bond in the penal sum of ten thousand dollars, with proper conditions for a bond of clerk of the superior court, signed by himself as principal, and G. H. Brown and others as sureties, and justified to over the sum of forty thousand dollars, and asked to be qualified and inducted into office; that said board considered the application, and declined to allow the same, and rendered the following order setting forth their reasons for declining:

“‘In the Matter of Milton McNeill.

“‘This case being heard on the application to be inducted into the office of clerk of the superior court of Wilkes county, he having been declared to be duly elected by the canvassing board on the fourth of November, 1886, and it appearing that said Milton McNeill did, as sheriff of Wilkes county, on the first Monday in December, 1885, execute a good and sufficient bond for the collection of state and county taxes due for the year 1886, and that his authority to collect the same had not terminated, it is therefore considered and adjudged by the board of commissioners of Wilkes county that said McNeill is ineligible to the office of clerk by reason of his being tax collector of Wilkes county, the same being an office or place of trust or profit within the meaning and purview of article 14, § 7, of the constitution of the state, and that no person can hold two offices or places of trust or profit at the same time. In other words, Milton McNeill cannot be tax collector and clerk of the superior court of Wilkes county at one and the same time.

“‘December 8, 1886.’

“(5) That said board informed the resident judge of the district (Judge GRAVES) of their action, who declared the office of clerk vacant, and appointed the defendant, Somers, to fill the vacancy until his successor should be duly chosen and qualified; and under this appointment the defendant appeared before the board on the first Monday in January, 1887, and tendered his bond, which was accepted, and he was duly qualified and inducted into the office of clerk of the superior court of Wilkes county, and continues to hold and exercise the same under said appointment, as he claims he has the right to do.

“If the court shall be of opinion that the relator, McNeill, is entitled to said office of clerk, then he shall have judgment against defendant for said office and for costs; but, if the court shall be of opinion that the plaintiff is not entitled to said office, then defendant to have judgment for costs.”

The court gave judgment for the plaintiff, and the defendant appealed.

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