State Ex Rel v. Hancock

• Decision Date: 21 November 1899
• Court: North Carolina Supreme Court
• Parties: STATE ex rel. DALBY et al. v. HANCOCK et al.

34 S.E. 516

125 N.C. 325

STATE ex rel.

DALBY et al.

v.HANCOCK et al.

Supreme Court of North Carolina.

Nov. 21, 1899.

County Board of Education — Members — Term of Office—Eligibility-Nonresident.

1. Act Assem. 1897, c. 108, provided for the election, powers, duties, etc., of a board of education for G. county, and declared that the term of office of members of such board should extend for three years. Act 1899, c. 374, in terms abolished such board, and by chapter 732 the county board of school directors was established, with the same powers and duties. Held, that the act of 1899 should be treated as an amendment to the former act, and hence members elected thereunder in June, 1897, were entitled to hold their office until the expiration of their term.

2. Where relator in a proceeding in the nature of a quo warranto to try his title to the office of a member of the county board of education, which is a public office, was a resident and citizen of the county when he entered on the duties of his office, but is not such when the issue is tried, he is not entitled to such office.

Clark, J., dissenting.

Appeal from superior court, Granville county; George H. Brown, Judge.

Action by the state, on relation of A. J. Dalby and others, against F. W. Hancock and others, to try title to the office of the board of education or county board of school directors for Granville county. From a judgment for defendants, relators appeal. Reversed.

R. W. Dalby and W. A. Devin, for appellants.

A. W. Graham and B. S. Royster, for appellees.

FAIRCLOTH, C. J. Under an act of assembly of 1897 (chapter 108) the plaintiffs were elected as a "board of education" for Granville county, and were qualified, and entered on the duties of said office on the first Monday in July, 1897, for a term of three years. By an act of 1899 (chapter 374) the said county board of education was, in terms, abolished. By an act of 1899 (chapter 732) the office of "county board of school directors" was established, and by an act of 1899 (chapter 3) the defendants were elected as such board for said county. The plaintiffs insist that said acts of 1899 are only amendatory of the said act of 1897 and other portions of the school law, and that their office is not abolished. The defendants deny that contention. Thus the question so frequently before this court heretofore is again presented. Said acts of 1899 are In pari materia, and, in legal effect, constitute one act By comparing the powers and duties of the plaintiffs under the act of 1897 and the existing laws with those of the defendants as prescribed in said acts of 1899, it will plainly appear that the two are practically and substantially the same, and in several sections are so in totidem verbis. Therefore it follows that the plaintiffs' office has not been abolished, and not materially changed, except in its name. The reasoning and opinion of this court on the question here presented have been so frequently and so recently stated that we deem it wholly unnecessary to again repeat them, and will simply refer to a few of the decided cases. Wood v. Bellamy, 120 N. C. 212, 27 S. E. 113; State's Prison v. Day, 124 N. C. 362. 32 S. E. 748; Wilson v. Jordan, 124 N. C. 683, 33 S. E. 139; State v. Patrick, 124 N. C. 651, 33 S. E. 151. We think the judgment below is erroneous.

By agreement the complaint, answer, and judgment constitute the record and "case" on appeal. At the trial in July, 1809, his honor, by consent, finds as a fact that the plaintiff Puller "is not a citizen or resident of Granville county." It does not appear from that finding, or from any part of the record, whether Puller was a resident in July, 1897. If It was material to do so on the issue in this action, we...