Midgett v. Gray
| Decision Date | 21 February 1912 |
| Parties | MIDGETT v. GRAY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Dare County; Cline, Judge.
Civil action in the nature of quo warranto, instituted in the name of the state, on the relation of S.E. Midgett, against W. R Gray. Judgment for defendant, and plaintiff appeals. Action dismissed.
There was evidence on the part of plaintiff tending to show that defendant, duly qualified and holding the office of clerk of the superior court of Dare county and during his term of said office, was appointed to the office of school committeeman for public school district No. 15, for said county, and was qualified and entered upon the discharge of the duties of the last-mentioned office. There was allegation, with evidence on part of defendant, to the effect that said defendant had not duly qualified as school committeeman, nor had he acted as such officer. On the issue joined, there was verdict for defendant, and plaintiff excepted and appealed, assigning errors.
B. G Crisp, E. F. Aydlett, and J. C. B. Ehringhaus, for appellant.
Ward & Grimes and D. M. Stringfield, for appellee.
HOKE J. (after stating the facts as above).
Our Constitution (article 14, § 7) provides that, with certain stated exceptions, not applicable to present case, "no person, who shall hold any office, or place of trust or profit, under the United States, or any department thereof or under this state, or under any other state or government, shall hold or exercise any other office, or place of trust or profit under the authority of this state, or be eligible to a seat in either house of the General Assembly," etc.; and, interpreting the provision, we have held, in reference to officers of this state, that the acceptance and qualification for a second office ipso facto vacates the first. Connor and Cheshire on the Constitution, p. 445; Barnhill v. Thompson, 122 N.C. 493, 29 S.E. 720.
Authority, with us, is also to the effect that actions of this character may be instituted in the name of the state on the relation of the Attorney General or of any individual who is a citizen and taxpayer of the jurisdiction where the officer is to exercise his duties and powers. Revisal, § 826 et seq.; Barnhill v. Thompson, supra; Houghtalling v. Taylor, 122 N.C. 141, 29 S.E. 101; Hines v. Vann, 118 N.C. 3, 23 S.E. 932; Foard v. Hall, 111 N.C. 369, 16 S.E. 420; Saunders v. Gatling, 81 N.C. 298.
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