State Ex Rel. C. C. Clark v. Stanley

• Citation: 66 N.C. 59,8 Am.Rep. 488
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1872
• Parties: STATE ex rel. C. C. CLARK and others v. E. R. STANLEY and others.

66 N.C. 59

8 Am.Rep. 488

STATE ex rel. C. C. CLARK and others

v.E. R. STANLEY and others.

Supreme Court of North Carolina.

January Term, 1872.

1. “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. Section 10, Article 3, Constitution.”

2. The words contained in the above section of the Constitution, “whose appointments are not otherwise provided for,” mean provided for by the Constitution, and the words “no such officer shall be appointed or elected by the General Assembly,” are superadded as an express veto upon the power of the General Assembly, whether such office be established by the Constitution or be created by an Act of the General Assembly.

3. A public office is an agency for the State; and the person, whose duty it is to perform that agency, is a public officer. Nor does it make any difference whether he receives a salary and fees and takes an oath, these being mere incidents and no part of the office itself. Nor is it material whether one act or a series of acts are required to be done.

4. The Act of the General Assembly, passed April 6th, 1871,^a1 giving to the President of the Senate and Speaker of the House of Representatives, the power to appoint “all proxies and directors in all corporations in which the State has an interest,” creates a public office and fills the same by appointment of the Legislature.

5. The power of the General Assembly to repeal an Act, which had been passed since the adoption of the Constitution, and accepted by the Railroad Company as an amendment to their charter, discussed by Pearson, C. J.

Hoke vs. Henderson, 4 Dev. 12

Worthy vs. Barrett, 63 N. C. R. 199, cited and commented on.

This was an action in the nature of a Quo Warranto brought by the relators of the plaintiff against the defendants. The summons was returnable to Fall Term 1871 of Craven Superior Court. Before the application of the relators of the plaintiff an order of injunction had been issued by His Honor, R. P. Dick, restraining the defendants from leasing or disposing of the property and franchise of the Atlantic and North Carolina Railroad Company to the Pennsylvania Central Railroad Company or to any other person until the further order of the Judge of the 3d Judicial District. At the return term of the Superior Court for Craven county, the defendants filed their answer, and on motion, the injunction order theretofore issued was vacated by His Honor, Wm. J. Clarke and judgment rendered against plaintiff for costs. From this judgment the relators of plaintiff appealed to the Supreme Court. To understand the opinion of the Court, a brief statement of the facts is all that is thought to be necessary. The relators of the plaintiff alleged in their complaint, in substance, that they were the legal and rightful Board of Directors of the Atlantic and North Carolina Railroad Company; that by virtue of an Act of the General Assembly, ratified on the 6th day of April, 1871, authorizing and empowering the President of the Senate and Speaker of the House of Representatives to appoint proxies and directors on the part of the State in all corporations in which the State has an interest. E. J. Warren, President of the Senate, and Thomas J. Jarvis, Speaker of the House of Representatives, had issued commissions to C. C. Clark and others as directors on the part of the State in the said Railroad Company; that at a regular meeting of the Stockholders other directors were elected to represent the private Stockholders, and that a President and other officers were elected. That the defendants are now in possession, claiming to be directors and refused to surrender possession of the property &c., of the said Company, and that they had intruded into and usurped the offices of the said Railroad Company without authority of law. They asked judgment that they be declared the legal and rightful Directors of the Atlantic and North Carolina Railroad Company, that the defendants be ousted therefrom, and plaintiffs be put in possession. For an injunction and receiver.

Defendants in their answer insisted that they were the rightful directors of the A. & N. C. R. R. Co. That they claimed to hold the same under the provisions of the charter and the law of the land, authorizing and empowering the Governor of the State to appoint directors, &c. That the Governor had issued commissions to a number of the defendants as directors on the part of the State and that the others had been legally and properly elected in a meeting of the Stockholders under the provisions of the charter of the company. They denied the right of the plaintiffs under the appointments made by the President of the Senate and Speaker of the House of Representatives. That the act of the General Assembly which conferred this power upon them was unconstitutional.

J. H. Haughton, who appeared for the relators took the following positions, which were elaborately argued:

I. That the Constitution, sec. 1, art. 3. has created the office of Superintendent of Public Works. In sec. 13 of same article, it is declared that his duties shall be prescribed by law, and that such duties were prescribed by the act of 1868-'69, chap. 270.

II. That the Constitution having once conferred the power upon the legislature to prescribe the duties of this officer, with reference to the State's interest, in improvements already done and in process of completion, the whole subject matter is submitted to the discretion of that body, and “therefore the Supreme Court is not capable of controlling the exercise of power on the part of the General Assembly.” Broadnax vs. Groom, 64, N. C., 250.

III. That having this power to give the appointment of State directors, &c., to Superintendent of public works, the General Assembly could withdraw such right and confer it upon another, as they had done in the acts of 1869-'70, chap. 112, giving to the Governor and counsel, and that by virtue of the same power, by the Act of 1870-'71, they took this authority from the Governor and conferred it upon the President of the Senate and Speaker of the House.

IV. That this view is in harmony with sec. 10, art. 3. That this section was not intended to apply to the manner of appointing proxies and directors, but only to those who have been recognized as officers, a proper classification of whom had been given by the Court in Worthy v. Barret, 63 N. C. R., and this act of April 5th, 1871, empowering the President of the Senate and Speaker of the House to appoint, did not create any office at all, but if the right to appoint directors, &c., was an office it was created by the charter of the corporation, A. & N. C. R. R. Company, which existed at the adoption of the Constitution.

V. That the provisions of sec. 10, art. 3, does not apply because this office (if one) had already been provided for prior to the Constitution and was therefore otherwise provided for, and that said 10th section does not, for the reason stated, apply to the act of April 6th, 1871, under which the plaintiffs claim their appointments.

Phillips & Merrimon for defendants .

PEARSON, C. J.

“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, 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.”--Art. iii, section 10, of the Constitution.

The words--“whose appointments are not otherwise provided for,”--evidently mean: provided for by the Constitution, and the words: “No such officer shall be appointed or elected by the General Assembly,” are superadded as an express veto upon the power of the General Assembly, to appoint or to elect an officer, whether the office is established by the Constitution or shall be created by an act of the General Assembly.

This construction was not contested on the argument, and the case was put by the counsel of the plaintiffs on the ground that the Act of April, 1871, which authorizes the President of the Senate and the Speaker of the House of Representatives to appoint proxies and directors for the State in all corporations in which the State is a stockholder, does not create an office.

On the part of the defendants, it was insisted: That the Act of April, 1871, does create an office, and that the General Assembly appointed officers to fill this new office in violation of art. iii, sec. 10, of the Constitution.

A public office is an agency for the State, and the person whose duty it is to perform this agency is a public officer. This, we consider to be the true definition of a public officer in its original broad sense. The essence of it is, the duty of performing an agency, that is, of doing some act or acts, or series of acts for the State.

Public officers are usually required to take an oath, and usually a salary or fees are annexed to the office, in which case it is an office “coupled with an interest.” But the oath and the salary or fees, are mere incidents, and constitute no part of the office: Where no salary or fees are annexed to the office, it is a naked office--honorary,--and is supposed to be accepted, merely for the public good. This definition also excludes the idea, that a public office must have continuance. It can make do difference, whether there be but one act, or a series of acts to be done--whether the office expires as soon as the one act is...