Norfleet v. Staton

• Decision Date: 30 June 1875
• Citation: 73 N.C. 546,21 Am.Rep. 479
• Court: North Carolina Supreme Court
• Parties: THE PEOPLE OF NORTH CAROLINA on the relation of ROBERT NORFLEET v. H. L. STATON, Jr.

73 N.C. 546

21 Am.Rep. 479

THE PEOPLE OF NORTH CAROLINA on the relation of ROBERT NORFLEET

v.H. L. STATON, Jr.

Supreme Court of North Carolina.

June Term, 1875.

Where A was appointed Clerk of the Superior Court for the county of E, by the de facto Judge presiding in that judicial district; in an action brought against A to oust him from the office, by the appointee of one who had been declared Judge de jure: Held, that the appointment of A was valid, and the appointee of the Judge de jure was not entitled to the office.

( Ellis v. Deaf and Dumb Asylum, 68 N. C. Rep. 423, and many other cases cited and approved.)

CIVIL ACTION in the nature of quo warranto tried before Moore, J. at Spring Term, 1875, EDGECOMBE Superior Court upon the following,

CASE AGREED:

1. The General Assembly by an act ratified _____ 1874, directed that an election should be held on the 1st Thursday in August, 1874, for a Judge of the Second Judicial District.

2. Said election was held accordingly, and Lewis Hilliard, Esq., of the county of Pitt, having received a majority of the votes cast was declared duly elected, and was commissioned Judge, by his Excellency the Governor, August 26th, 1874, and took the oath prescribed by law.

3. At the same time an election was held in regular course for a Clerk of the Superior Court of Edgecombe county, the term of the then incumbent having expired, and one W. H. Duggan was elected to said office, who on the first Monday in September following asked the Board of Commissioners of said county, then in regular session, for further time to file his bond and qualify as Clerk, and the said Board granted him until the 14th day of September for that purpose.

4. On the said 14th day of September, the said Duggan failed to give bond as required by law, when said Board of Commissioners declared said office vacant and notified both said Hilliard and Hon. W. A. Moore of said vacancy.

5. On the 15th day of September, 1874, said Hilliard appointed W. A. Duggan to fill said vacancy, who on the 1st day of October, 1874, notified said Hilliard that he should be unable to give bond, and on the same day of October, 1874, said Hilliard appointed H. L. Staton, Jr., Clerk of said Court. On the 5th day of October said Staton was duly qualified as Clerk, before the Board of Commissioners for said county, and entered on the duties of said office and has continued therein ever since.

6. On the said 5th day of October, the relator Robert Norfleet, appeared before said Board after the reception of the bond of said Staton, but before his qualification, and presented an appointment, made and dated Sept. 17th, 1874, from Hon. William A. Moore, who was appointed by the Governor to fill the vacancy occasioned by the resignation of Hon. E. W. Jones in 1871, the term of office of the said Jones expiring in 1878, and offered to qualify as Clerk, tendering a good and sufficient bond, but said Board declined to qualify him and induct him into said office.

7. On the 7th day of September, 1874, being the day appointed for the holding of Hertford Superior Court, the first of the Courts of that district, said Hilliard proceeded to the court-house of that county in the town of Winton, and took the seat usually occupied by the presiding Judge. Shortly thereafter, and before said Hilliard had said or done anything, said Moore came in and demanded of him the seat as Judge, which demand Hilliard refused, stating that he claimed to be the Judge, whereupon the said Moore declared the Court open for the transaction of business and directed the Sheriff, Isaac Pipkin, Esq., to make proclamation. This the Sheriff declined to do.”

The case agreed sets out many other facts, not pertinent to the case as decided in this Court, and the same are therefore omitted. All other facts necessary to an understanding of the case as decided are stated in the opinion of the Court.

Upon the case agreed the Court gave judgment ousting the defendant, and in favor of the relator, and thereupon the defendant appealed.

Smith & Strong, Howard & Perry and John L. Bridgers, Jr., for appellant .

Fowle and Johnston, contra .

READE, J.

By reason of the failure of the person elected by the people, to qualify, there was a vacancy in the office of Superior Court Clerk for Edgecombe county for the term of four years. The Constitution provides that the Judge of the Superior Court should fill such vacancy.

Judge Moore had been the Judge for several years; but, in the opinion of the General Assembly, his term had expired; and an act was passed ordering an election by the people for Judge; and under that act Judge Hilliard was elected and qualified and took possession of the office, and held it, exercising all the duties and business of the office until he was ousted under a decision of this Court declaring the act under which he was elected, unconstitutional. So that it is now clear, that for all the time from his election, qualification and induction into office until he was ousted under the decision of this Court, Judge Hilliard was not the rightful Judge, but he was the Judge in fact.

While Judge Hilliard was the acting Judge, it was notified to him by the County Commissioners that there was a vacancy in the Clerkship; and he filled the vacancy by the appointment of the defendant. The Commissioners also notified Judge Moore of the vacancy, and he appointed the relator. The defendant exercised the duties of the office until Judge Hilliard was ousted, without interruption. When Judge Moore resumed the office his appointee, the relator, claimed the clerkship, and Judge Moore decided in his favor and the defendant appealed.

The question is, what was the force and effect of the appointment of the defendant by Judge Hilliard? Was the appointment valid for any purpose, or for any time? If it was, then was it for the whole vacant term? Or only for such time as Judge Hilliard should be in? Or only until he, the defendant, could be ousted by direct proceedings against him? Probably the whole inquiry can be covered by the question: Is the appointee of a de facto officer a rightful officer? Or is he only an officer de facto like his appointor? The burden of the very full argument for the relator, was to show that while the defendant was an officer, and his acts valid as to the public and third persons, yet, in a direct proceeding against him, as this is, he cannot set up his wrongful appointment in support of his claim to the office. This is unquestionably true, supported by all the authorities, if we admit that the defendant is a de facto officer. But that is the very question in dispute. Why is the defendant a de facto and not a de jure officer? When the defendant is asked “by what authority do you hold the office?” he answers, by the appointment of the Judge of the Superior Court. And when it is replied, but that Judge was only a Judge de facto; the defendant rejoins, that may be so; but all his necessary official acts were valid as to the public and third persons; my appointment was a necessary official act, and therefore, valid; and I became not a wrongful usurper, not merely a de facto, but a rightful officer; just as rightful as any judgment which he rendered or any act which he did.

I scarcely think it necessary to cite authorities to show the distinction between mere usurpers and officers de facto and de jure. A usurper is one who takes possession without any authority. His acts are utterly void unless he continues to act for so long a time or under such circumstances as to afford a presumption of his right to act. And then his acts are valid as to the public and third persons. But he has no defence in a direct proceeding...