Rhodes v. Hampton
| Decision Date | 17 December 1888 |
| Citation | 8 S.E. 219,101 N.C. 629 |
| Parties | RHODES, County Treasurer, v. HAMPTON, Sheriff. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Polk County; BOYKIN, Judge.
Action by D. V. Rhodes, treasurer of Polk county, against J. W Hampton, sheriff. The object of this action, begun on March 21, 1887, is to compel the defendant to surrender to the plaintiff the books, papers, moneys, and other effects in his hands belonging to the treasurer's office, and was tried upon the following agreed facts, to-wit:
The following facts are agreed upon in this case, and the same submitted to the court for decision thereon, to-wit:
That J W. Hampton is sheriff of Polk county, N. C., and that since 1876 up to November, 1886, the said county had no office of treasurer, having abolished the same in 1876, and that the sheriff of the county had regularly performed the duties of treasurer; that in 1886 the board of commissioners of said county, and the justices thereof, in regular meeting, had made the records (copies of which follow herein) as of the date appearing thereon, marked "A:" [1] that at the regular election on the first Tuesday in November the said J W. Hampton was elected sheriff, and one A. B. Thompson was elected by the people to fill the office of treasurer of said county; that the defendant, J. W. Hampton, sheriff of said county, is now performing the duties of treasurer, and receiving the emoluments of the office, and refuses to surrender the same.
That on December 13, 1886, defendant, having been elected sheriff of said county, filed his bond, and was qualified as such.
Now if the court shall be of the opinion on the foregoing facts that the plaintiff is entitled to recover, judgment shall be entered for the plaintiff; otherwise judgment shall be entered for the defendant.
An election of county treasurer prior to the re-establishment of the office is a nullity.
OSBORN & M. H. JUSTICE, for Plaintiff.
BYNUM & W. A. SMITH, Defendant's Attorneys.
W. P. Bynum, for appellant.
M. H. Justice and Batchelor & Devereux, for appellee.
SMITH, C.J., (after stating the facts substantially as above.)
By virtue of the authority conferred in an amendment to the constitution in 1875, (article 7, § 14,) the general assembly, by the act of February 27, 1877, modified the first section of that article by omitting therefrom the words "and five commissioners," and annexing thereto as follows: "Provided, however, that a majority of the justices may abolish the office of treasurer, and thereupon the duties and liabilities now attached to the office shall devolve upon the sheriff." Acts 1876-77, c. 141, § 2. Some doubts being entertained as to the power of the justices to re-establish the office after it had been abolished, a further amendment was made in these words: "That in all cases where the board of justices of the peace of any county has abolished the office of county treasurer, the said board shall have like power to re-establish the same, if, in the judgment of the board, the public interests so require." Acts 1881, c. 362, § 1. Substantially these provisions are embodied in section 768 of the Code. As there is no restriction put upon the justices as to the time when they may exercise the conferred power of abolishing the office and devolving its duties upon the sheriff, so none is imposed upon them in restoring it, so that it may be again filled according to law. As the legislation is transferred to the Code, even the restraint that the restoration may be made when in the judgment of the justices the public interest may require, is removed, and the discretion reposed in the board in taking such action is absolute and unqualified. It is therefore plain that the action of the justices, for whatever cause taken, was opportune and effectual,--opportune, in that it took place at the end of the sheriff's term of office and the entering upon a new term, when the transfer of the duties...
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