Mial v. Ellington

• Decision Date: 02 December 1903
• Citation: 46 S.E. 961,134 N.C. 131
• Court: North Carolina Supreme Court
• Parties: MIAL. v. ELLINGTON et al.

46 S.E. 961

134 N.C. 131

MIAL.

v.ELLINGTON et al.

Supreme Court of North Carolina.

Dec. 2, 1903.

PUBLIC OFFICE—LEGISLATIVE CONTROL— PROPERTY RIGHTS.

1. An officer appointed for a definite time to a public office has not a vested property interest therein, or contract right thereto, of which the Legislature cannot deprive him. Montgomery and Douglas, JJ., dissenting.

¶ 1. See Constitutional Law, vol. 10, Cent Dig. §§ 856, 357.

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

Action by the state, on the relation of A. T. Mial, against J. C. Ellington and others. Judgment for defendants, and relator appeals. Affirmed.

This is a civil action In the nature of a quo warranto, tried upon the following agreed facts: At the session of 1889 (Pub. Laws, p. SCO, c. 363) an act was passed entitled, "An act providing an alternative method of constructing and keeping in repair the public roads of Kaleigh township, Wake county." It was provided by said act that the justices of the peace of Raleigh township should meet, and, if a majority so decided, adopt the method of keeping in repair the public roads of said township in accordance with the provisions of said act; that, when they had so adopted said method, it was by said act made the duty of the county commissioners at their regular meeting, and biennially thereafter, to appoint a supervisor of roads for said township; that said supervisor should bold his office for two years; that, in the event of a vacancy, the same should be filled by said board of commissioners. Provision was made for removal for cause, and upon notice. Said supervisor was required to qualify by taking the oath of office, and giving bond in an amount to be fixed by the board. The duties prescribed for said supervisor were that he should formulate a plan for the permanent improvement of the public roads of said township outside the city of Raleigh by the use of the labor of county convicts and workhouse hands, etc. He was required to disburse all funds paid to him upon the warrant of the county commissioners for the purpose of carrying out the provisions of the said act, and to keep an account thereof, as well as a list of all tools, etc., in his possession, and to make a report thereof to the commissioners. The duties of said supervisor in all other respects were specifically pointed out in the several sections of said act. His compensation was to be fixed by the board of commissioners, but the same was not to exceed $750 per annum. Pursuant to the provisions of said act, the method prescribed therein for working the roads of Raleigh township was duly adopted by the justices of the peace, and a supervisor duly elected. At the session of 1801 (Pub. Laws, p. 182, c. 218) the maximum limit of the salary of the supervisor was fixed at $1,200. At the session of 1897 (Pub. Laws, p. 621, c. 434) the provisions of said act were extended three miles beyond the present limits of Raleigh township, in each direction. That at the regular meeting of the board of commissioners of Wake county held in December, 1902, one Bryant Harrison was appointed by the said board to be supervisor of roads of Raleigh township for a term of two years, commencing January 1, 1903. That the said board fixed his salary at $70 per month, and that the said Harrison duly qualified and entered upon the discharge of his duties as such officer. That at the February meeting of said board of commissioners the said Harrison resigned the said office, to take effect on March 1, 1903, and thereupon the board accepted said resignation, and called a special meeting, to be held on February 21, 1903, to appoint a successor. That at said special meeting the relator, A. T. Mial, was duly appointed to fill out the said unexpired term, and his salary fixed at $70 per month. That he subsequently gave the required bond, took the oath of office, and was duly inducted therein, and entered upon the discharge of his duties as such officer. That at the session of 1903 the General Assembly enacted chapter 551, p. 931—an act entitled "An act to improve the public roads of Wake county." By said act it was provided that the board of county commissioners of Wake, in order to provide for the proper construction, improvement, and maintenance of the public roads of the county, "shall on or before January 1, 1904, elect a superintendent of roads for the county, who shall hold office until December, 1904, and until his successor has been elected and qualified; and at their regular meeting in December, 1904, and biennially thereafter, they shall elect a successor to said office. The superintendent of roads shall be paid such compensation as shall be fixed by said board out of the county road fund, and hold office for two years and until his successor has been elected and qualified. * * * It shall be the duty of said superintendent of roads, subject to the approval of the board of county commissioners, to supervise, direct and have charge of the maintenance and building of all public roads in the county, and he shall submit to the county board of commissioners a monthly report concerning the work in progress and the moneys expended, and he shall submit a quarterly report on the condition of the public roads and bridges and plans for their improvement That the board of commissioners shall dividethe county into three road districts, to be known as the Raleigh, the Northern and the Southern road districts, respectively. The boundary of the Raleigh road district shall be the circumference of a circle, the radius of which shall extend eight miles from the capitol building, in the city of Raleigh, in every direction; and the boundaries of the other districts shall be fixed by the board of county commissioners, and said board shall have power to create new road districts whenever in their opinion there is necessity for the same, and to alter the boundaries of any district, except the Raleigh road district, when they may consider it advisable. For each of the road districts the county commissioners shall elect, at the time herein prescribed for the election of the road superintendent, a district supervisor, who shall hold office for the same term and in the same manner that he holds, and until their successors are elected and qualified. Each supervisor shall give bond in the sum of $1,-000 for the faithful performance of the duties of his office, the truthful accounting for all moneys coming into his possession, and the proper care of all teams, wagons, machinery, tools and implements entrusted to his charge; and they shall furnish inventories of such materia], tools, implements, machinery and utensils of every nature that shall come into their hands upon their entrance upon and retirement from office; they shall be paid such compensation as shall be fixed by the board of county commissioners, and may be removed from office in the same manner provided for the road superintendent The county commissioners shall furnish each supervisor with a complete outfit of teams, carts, machinery, implements, tools and utensils for use by him upon the roads of his district, and the machinery, tools, implements and property now belonging to the Raleigh road district shall not be used upon the roads of any other district but shall be kept for the exclusive use of that district. The work of the supervisors in each district shall be under the direction and control of the superintendent of roads, and they shall faithfully conform to his directions and the requirements of this act. There shall be kept continuously employed upon the roads of each district a squad of not less than fifteen hired hands, whose compensation shall be fixed by the board of commissioners." That at the regular meeting of said board of commissioners held in April, 1903, the said board caused public notice to be given that at the regular May meeting of the said board a superintendent, of roads for Wake county, and three supervisors for the respective road districts of said county, would be elected by the said board, under said chapter 551, p. 931, Laws 1903, and, in pursuance of said notice, at said May meeting the board of commissioners elected the defendant J. 0. Ellington superintendent of roads for Wake county, and the defendant Alfred Jones supervisor for the Raleigh road district, and I. N. Bailey and A, R. Holloway supervisors for the Northern and Southern road districts of Wake county, respectively. That the relator, A. T. Mial, was not a candidate or applicant for either of these positions. That the defendants J. C. Ellington and Alfred Jones prior to the commencing of this action gave the bond and took the oath of office, and did all other acts required of them by the said act of March 6, 1903. Thereafter, on the 12th day of May, 1903, acting under the order of the defendants the board of county commissioners of Wake county, the said J. C. Ellington took possession of the teams and other property and effects belonging to Raleigh township, and then in the custody of the relator, A. T. Mial, by virtue of his office aforesaid, in the absence of said Mial and without his consent; and on the said 12th day of May the defendants the board of county commissioners of Wake county withdrew all the convicts, guards, and officers in their custody, and which worked upon the roads of Raleigh township, and over whom the relator, A. T. Mial, had supervision, and placed them under the charge and supervision of the defendant J. C. Ellington. That thereafter, on said May 12, 1903, the relator, A. T. Mial, demanded the return to him of all of the said property and effects, and that they give to him control of the convicts, guards, and officers, and that the same was refused by the defendants. That at the said May meeting, 1903, the board of commissioners of Wake county, in pursuance of the said act of March 6, 1903, fixed the boundaries of the Northern and Southern road districts of Wake county (the boundaries of the Raleigh road...