Stanford v. Ellington
| Decision Date | 19 November 1895 |
| Citation | 23 S.E. 250,117 N.C. 158 |
| Parties | STATE ex rel. STANFORD v. ELLINGTON. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Wake county; Starbuck, Judge.
Action in the nature of quo warranto by the state upon the relation of E. D. Stanford against J. C. Ellington to recover possession of the office of state librarian. There was a judgment for defendant, and plaintiff appeals. Affirmed.
The general rule is that a majority of the members of a legislative body will constitute a quorum, in the absence of a constitutional provision fixing the number.
T. R Purnell and MacRae & Day, for appellant.
E. W Pou and Shepherd & Busbee, for appellee.
This is an action in the nature of quo warranto, in which plaintiff claims to be state librarian, and alleges that defendant is in possession of the office and unlawfully withholds the same from him. Defendant, answering, admits that he is in possession of the office, performing its duties and receiving its emoluments; but he denies that he is holding it wrongfully or unlawfully, and alleges that he was duly elected thereto on the 8th day of January, 1895, for a term of two years next ensuing. Under the view we take of the case it is not necessary for us to consider or pass upon defendant's right to this office. The plaintiff's right to recover depends upon his right to the office. If he is not entitled to it, it is a matter of no importance to him who is. It is true that if plaintiff is entitled to the office it necessarily follows that defendant is not, but it does not necessarily follow that defendant is entitled to it if plaintiff is not.
Prior to the 13th day of March, 1895, the board of trustees of the state library, under existing law, elected to and filled this office. On that day (March 13, 1895) the legislature passed and ratified an act repealing the law authorizing the board of trustees to elect, and provided for the election of this officer by the legislature. And on the same day, to wit, the 13th day of March, 1895, the plaintiff claims that he was duly elected state librarian by the legislature pursuant to said act. And this not being a bill enacted into a law ratified and signed by the presiding officers of senate and house, and deposited in the office of secretary of state which then becomes the evidence of its passage (Carr v Coke, 116 N.C. 223, 22 S.E. 16; U.S. v. Ballin, 144 U.S. 4, 12 S.Ct. 507), it became necessary for plaintiff to introduce the record of the legislature for the purpose of proving his election and right to the office he was claiming. These records show that on the morning of the 13th of March there was a roll call of the house, a quorum answered, and the house proceeded to business. They also show that there was a proposition in both branches of the assembly (senate and house) to go into the election of state librarian; that these motions prevailed, and both the president of the senate and the speaker of the house appointed two tellers, each, to take this vote. And they reported that in the senate there were 26 votes cast, 25 being for the plaintiff and 1 against; and in the house there were 48 votes cast for the plaintiff, and none against him. It is admitted by plaintiff that there must be a quorum present to do business, or, in this case, to elect the plaintiff to the office he claims. But he claims that it appearing there was a quorum present that morning, and it not appearing there had been an adjournment since, it will be presumed that there continued to be a quorum present. We think this is undoubtedly true,--that the quorum will be presumed until it shall appear there is not one. Cush. Elect. (2d Ed.) 369. This is usually made to appear by what is called a "division"; and this is usually had after a vote by yeas and nays, when the presiding officer announces the vote and some opposing member doubts the correctness of the announcement and demands a division,--a call of the body. Id. § 1798. And strictly speaking this is what is called a "division." Cush. Parl. Law, § 1814. The original purpose of a division was for the purpose of ascertaining who voted "Aye" and who voted "No," and it was effected in this way: the ayes occupied one part of the hall and the noes another, and there remained until the tellers appointed counted them. In this way it came to be called a "division." In more modern assemblies it is more usually effected by a call of the house,--a yea or nay vote when each member's name is called. Cush. Elect. § 1615. This mode is used for two purposes,--one to determine on which side the majority voted, and also for the purpose of determining whether...
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