Nichols v. McKee

• Decision Date: 31 January 1873
• Citation: 68 N.C. 429
• Parties: THE PEOPLE OF NORTH CAROLINA ex rel. JOHN NICHOLS and others v. WM. H. MCKEE and others.
• Court: North Carolina Supreme Court

68 N.C. 429

THE PEOPLE OF NORTH CAROLINA ex rel. JOHN NICHOLS and others

v.WM. H. MCKEE and others.

Supreme Court of North Carolina.

January Term, 1873.

The Legislature, like the other departments of the State Government, acts under a grant of powers, and cannot exceed that grant.

There is no express grant of power to the legislative department to appoint to office; but there is an express prohibition.

The general appointing power is given to the Governor with the concurrence of the Senate; the power to fill vacancies, not otherwise provided for, is given to the Governor alone, and that, whether the Legislature is in session or not, and without calling the Senate.

The Directors of the Institution for the Deaf and Dumb and the Blind are officers, made so by the Constitution and so called. The Legislature has no right to appoint such Directors.

CIVIL ACTION, of the nature of a quo warranto, for the recovery of the office of the “Board of Trustees of the N. C. Institution of the Deaf and Dumb and the Blind,” determined at Fall Term, 1872, of WAKE Superior Court, before Watts, J.

Defendants held, exercised and claimed the offices demanded by the plaintiffs, by and under an act entitled “An act to alter chapter six of the Revised Code, concerning the North Carolina Institution for the Deaf and Dumb and the Blind,” ratified the 21st day of January, 1871. The following was the case agreed:

“That on the 1st day of March, 1872, the plaintiffs were appointed by the Governor of the State of North Carolina to the office of “The Board of Trustees of the North Carolina Institution for the Deaf and Dumb and the Blind”; that they accepted said office, were duly qualified thereto, and assumed the duties thereof; and immediately upon their acceptance as aforesaid, and before the commencement of this action, they notified the defendants of their said acceptance and demanded of them that they relinquish and surrender to plaintiffs said office, and turn over and deliver to them all books, money and other property belonging and appertaining to said office.

2. That the defendants are in possession of said office, exercising the powers and receiving the emoluments thereof; and have continued to exercise the powers and to receive the emoluments of the same, notwithstanding the plaintiffs' appointment, and the demand by them as aforesaid.”

Upon the above state of facts (after argument) his Honor held:

(1.) That the defendants are not entitled to hold said office, or to exercise the powers or to receive the emoluments thereof.

(2.) That the plaintiffs are entitled to hold said office, and to exercise the powers and receive the emoluments thereof.

(3.) That the defendants relinquish and surrender said office to the plaintiffs, and deliver to them all the books, money and property belonging and appertaining to said office. His Honor gave judgment in accordance with his said ruling, and also that the plaintiffs recover of defendants their costs.

From this judgment the defendants appealed.

Fowle, Busbee & Busbee and Merrimon, for appellants .

Batchelor, Edwards & Batchelor, contra .

READE, J.

The theory of our State government is, “that all political power is vested in and derived from the people.” Con. Art. 1, Sec. 2. The Constitution is their grant of powers, and it is the only grant which they have made. “And all powers not therein delegated remain with the people.” Art. 1, Sec. 37. This last clause will not be found in the former Constitutions of the State. The Constitution then proceeds to divide the government into three departments, Legislative, Executive and Judicial, and makes a grant of powers to each department, under its appropriate head, and directs that they shall be “forever separate and distinct from each other.” Neither is superior or inferior to the other, but each has its appropriate functions, and in the exercise of them, is independent and supreme. To the Legislative department is granted the power of making laws; to the Executive department the power of executing laws; and to the Judicial department, the power of expounding the laws.

It is true that their several functions sometime shade into each other as do the colors of the rainbow; but still they are distinct--as where the Governor appoints and the Senate confirms; or where the Governor fills vacancies in the judicial department. It follows that it is not true, as contended for upon the argument, that the Legislature is supreme except in so far as it is expressly restrained. However that may be in other governments, or however it may have heretofore been in this State, it is plain, that since the adoption of our present Constitution the Legislative, just like each of the other departments, acts under a grant of powers, and cannot exceed them. This being so, it is indispensable to good government that each department should confine itself strictly to the exercise of its legitimate functions. And then, however much they may shade into each other, there will still be harmony. It is only where the powers are brought in conflict that they become embarrassing and dangerous.

The first question is, to which of the departments has the constitution granted the power of appointment to office? If the Constitution does not in express terms grant the power to any one of the departments, and we have to solve the question by construction or implication, then we would have to consider whether the duty in any given case, is a Legislative, or an Executive, or a Judicial one; but if there is an express grant, then, of course, that must govern.

Under the first Constitution for the State, the Legislature was the general appointing power. It elected the Governor, his Council and other Executive officers, the officers of the Military, the Judges of the Courts, Justices of the Peace, &c. The Governor had no appointing power, except to fill vacancies when the Legislature was not in session. Under the present Constitution there is an entire change. The people have reserved to themselves the election of almost all the offices in the State. There are still some of the officers, which, for convenience, are otherwise appointed or elected, or chosen, as the case may be, and we proceed now to enquire which of the departments the power is given:

1. We will first consider, what express grant of appointing power is made to the Legislature.

“Art. II, sec. 20. The House of Representatives shall choose their own speaker and other officers.

Sec. 22. The Senate shall choose its other officers, and also a speaker pro tempore in the absence of the Lieutenant Governor, or when he shall exercise the office of Governor.”

The foregoing are all the grants of powers of appointment to the Legislature under the second article, which is the legislative article. And it will be observed, that even these are not grants to the Legislature as a body, but only to each branch to choose its own officers. Under the third article, which is the executive article, sec. 10, “The Governor shall nominate and by and with the advice and consent of the Senate, appoint all officers, &c., and no such officer shall be appointed or elected by the General Assembly.”

Except the foregoing, there is no other express grant of appointing power to the Legislature, and the section last quoted is only the power of one branch to confirm or reject the nominations of the Governor, with an express prohibition to the General Assembly as a body in regard to all officers. So, it is plain that there is not only no express grant of power to the legislative department to appoint to office; but there is no express prohibition.

2. In the second place we will consider what express grant of appointing power is made to the Executive Department.

Art. III, sec. 10. “The Governor shall nominate, and by and with the advice and consent of a majority of the Senators elect, appoint all officers whose offices are established by this Constitution, or, which shall be created by law, and whose appointments are not otherwise provided for, and no such officer shall be appointed or elected by the General Assembly.”

That section, read without any verbal criticism, would seem to make the Governor the general appointing power, and to exclude the Legislature altogether.

Section 13 enumerates the principal Executive officers, and provides that, “If the office of any of said officers shall be vacated by death, &c., it shall be the duty of the Governor to appoint,” &c.

The foregoing are all the express grants under the said Executive article. But under Article IV, which is the Judicial article, section 31, it is provided, that “All vacancies occurring in the offices provided for by this article of the Constitution shall be filled by the appointment of the Governor, unless otherwise provided for,” &c. And, under Article VII, section 11, the Governor was authorized to appoint Justices of the Peace in each county, until elections could be held.

From the foregoing it is plain that the general appointing power is given to the Governor, with the concurrence of the Senate; and that the power to fill vacancies, not otherwise provided for, is given to the Governor alone, and that, whether the Legislature is in session or not, and without calling the Senate.

3. In the third place we are to consider what appointing power is expressly given the judiciary. It seems that the only power expressly granted to the Supreme Court, is to appoint its clerk; and to the Superior Court, to fill vacancies in their clerkships.

Reading the whole Constitution, and without any hyper-criticism, it is plain, that such officers as are not elected by the people at the polls, and most of them are so elected, are to be appointed by the Governor, the Senate concurring, except the immediate offices of each branch of the Legislature, and the immediate officers of the Supreme Court; and that all vacancies are to be filled by the Governor alone, except such as are otherwise specifically provided...