State Ex Rel v. Hill

• Citation: 34 S.E. 432,125 N.C. 194
• Parties: STATE ex rel. WHITE. v. HILL, et al.
• Decision Date: 21 November 1899
• Court: United States State Supreme Court of North Carolina

34 S.E. 432

125 N.C. 194

STATE ex rel.

WHITE.

v.HILL, et al.

Supreme Court of North Carolina.

Nov. 21, 1899.

STATUTES—REPEAL OR AMENDMENT—PUBLIC OFFICE.

Act 1897, c. 13 ("An act for and to promote the oyster industry"), is not repealed, and the office of chief inspector under section 12 thereof abolished, so that one appointed thereto can be deprived thereof during his term, but simply amended by Act 1899, cc. 18, 19, the same general object being found in the acts of 1897 and 1899, though the name, methods, and details are different; and said chapter 18, while expressly providing for amendment of certain sections of the act of 1897, purports to repeal said section 12, providing for the chief inspector, and said chapter 19 provides for the general supervision of the shellfish industry, and prescribes for a commission to look after it.

Clark, J., dissenting.

Appeal from superior court, Pamlico county; Bowman, Judge.

Quo warranto by the people, on the relation of Theophilus White, against George H. Hill and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Simmons, Pou & Ward, W. B. Rodman, and David L. Ward, for appellants.

W. H. Day and J. C. L. Harris, for appellee.

FAIRCLOTH, C. J. The plaintiff was duly appointed by the governor "chief inspector" in February, 1897, for a term of four years, under Act 1897, c. 13, § 12, to provide for and promote the oyster industry of North Carolina. The defendants claim that plaintiff's office was abolished by Act 1899, c. 18, § 3, and that he is entitled to the office as a shellfish commissioner under and by virtue of Act 1899, c. 19, passed at the same session of the legislature. The above statement presents the question so frequently presented to this court in recent years; that is, whether the act relied upon by the new claimant is amendatory of a previous act, under which the other claimant (the plaintiff in this case) asserts title, or whether it is an absolute repeal and the substitution of a new system or scheme for the government and regulation of the same subject-matter. As the argument and reasons have been so often stated by this court we deem it quite unnecessary to repeat them. We may say, however, that it is well settled that an office is property; that the legislature may abolish an office of its own creation; that it may, when not in conflict with the organic law, increase or diminish the duties of an officer, but it cannot, as long as the office remains, deprive the officer of the material part of his duties and emoluments and that the oath and salary are the incidents of an office, but no part of its duties. Many of the decided cases for the above propositions and the general doctrine are cited in State v. Beddingfield (at this term) 34 S. E. 412, as well as in State v. Webb (at this term) 34 S. E. 430.

Are the provisions of Act 1899, c. 19, establishing the shellfish commission, the same, in substance, as those in Act 1897, c. 13, promoting the oyster industry, in North Carolina? A careful reading shows that they are. The name, the methods, and details are different, but the same general object is found in both acts. Act 1899, c. 18, expressly provides for the amendment of certain sections of Act 1897, and by section 3 repeals section 12, under which the plaintiff was appointed; and the same act (chapter 19) provides for the general supervision of the shellfish industry in North Carolina, and then prescribes in detail how the commission shall perform the duties assigned to it. The reading of a few sections of each act will show the truth of the matter:

                ----------------------------------------
                |1897.  |  |        |    |       |1899.|
                |-------|--|--------|----|-------|-----|
                |Section|12|compared|with|section|2    |
                |-------|--|--------|----|-------|-----|
                |Section|12|compared|with|section|4    |
                |-------|--|--------|----|-------|-----|
                |Section|12|compared|with|section|5    |
                |-------|--|--------|----|-------|-----|
                |Section|12|compared|with|section|8    |
                ----------------------------------------
                

These refer to material matters, and will do for illustration.

In the argument, it was said that Act 1897, c. 13, had for its object "catching and inspecting oysters, " whereas Act 1899, c. 19, had in view the "general supervision of shellfish, " and that, therefore, the subject-matter of the two acts was not substantially the same. There was no attempt by counsel to mark the distinction, and we have no disposition to undertake the task, but will let our opinion rest upon the ground already stated.

We have thought it not improper to look back, and see if the legislature has had in mind any distinction in that respect. The Code (volume 2, p. 424) contains all the legislation prior to 1883, under the general head of "Oysters and Other Pish." Act 1885, c. 84, forbids the superior court clerks of Onslow and Pender counties to license any person to stake off oyster gardens in certain limits within those counties. Act 1887, c. 90, § 1, authorizes the justices of the peace of Onslow county to appoint three citizens, interested in the oyster industry, as a "board of shellfish commissioners, " with jurisdiction over "all the grounds and shellfisheries relating to the oyster culture" in their county. Section 8: The county treasurer "shall keep the shellfish funds separate, * * * and pay out of the oyster fund all verified orders drawn on him by the board of shellfish commissioners, " and pay over any balance of the oyster fund, and he and his bond are made liable for all moneys coming to him "from such shellfisheries." Act 1889, c. 298, to promote the "cultivation of shellfish in Onslow county, " provides for the board of shellfish commissioners to be paid from "taxes laid upon oyster grounds, " and other accounts to be paid upon the order ofthe said board. It further provides how any person "may raise or cultivate oysters or other shellfish, " on any ground in the county. Act 1891, c. 419, provides that all applications for oyster grounds must be made to the "board of shellfish commissioners, " etc. Act 1891, c. 200, entitled "An act to perpetuate the landmarks of oyster grounds in Onslow county and to facilitate the catching of migratory fish, " puts the oyster lands under the control of the shellfish commission. Webster's International Dictionary defines "shellfish" thus: "Any aquatic animal whose external covering consists of a shell, either testaceous, as in oysters, clams, and other mollusks, or crustaceous, as in lobsters or crabs." Worcester also describes "shellfish" as follows: "The term is chiefly applied, in commerce, to crabs, lobsters, and croyfish, oysters, mussels, periwinkles, and whelks." Upon the above review, we are not prepared to say that the legislature has declared or drawn any distinction between oysters, shellfish, and "migratory fish."

It was also urged that, in order to sustain the plaintiff's contention, this court must overrule Ward v. City of Elizabeth City, 121 N. C. 1, 27 S. E. 993. That contention was discussed and decided adversely in State v. Beddingfield (at this term) 34 S. E. 412, and the fallacy of the argument made apparent. We are therefore of opinion that no error was committed in the superior court in trying this case. Affirmed

CLARK, J., dissents, for the reasons given In the dissenting opinion in State v. Beddingfield (at this term) 34 S. E. 412, and for the further reason that chapter 19, Laws 1899, under which the defendants claim, provides an entirely different system from chapter 13, Laws 1897...