State v. Hall

• Decision Date: 20 December 1892
• Citation: 16 S.E. 420,111 N.C. 369
• Parties: STATE ex rel. FOARD v. HALL, Chief of Police.
• Court: North Carolina Supreme Court

16 S.E. 420

111 N.C. 369

STATE ex rel. FOARD v. HALL, Chief of Police.

Supreme Court of North Carolina

December 20, 1892

Appeal from superior court, Guilford county; H. G. CONNOR, Judge.

Proceeding of quo warranto by R. A. Foard against F. R. Hall, chief of police. From a judgment overruling a demurrer, defendant appeals. Affirmed.

In a proceeding to test the right of an incumbent to the office of chief of police, the board of aldermen by whom the defendant was appointed and inducted to office, having no interest in the action, and no relief being sought against them, are not necessary parties defendant.

The following is the petition of the relator: "The relator of the plaintiff, complaining of the defendant, alleges: (1) That the relator of the plaintiff is a citizen resident, a taxpayer, and qualified voter in the city of Greensboro Guilford county, state of North Carolina, and that he brings this action against the defendant, Frank R. Hall, in the name of the state of North Carolina, by leave of the attorney general of said state. (2) That the city of Greensboro aforesaid, is a municipal corporation, duly organized chartered, and existing at the times hereinafter mentioned and at the present time, under the laws of the said state and that its municipal government is vested by law in a board of aldermen consisting of twelve members and a mayor, whose terms of office begin at the general election on the first Monday in May of each year, and continue for the period of one year, and until their successors are duly elected and qualified. (3) That one of the duties which devolves on the board of aldermen of said city is to appoint a police force, to consist of a chief of police and such number of policemen as the good government of the city may require, who shall hold their office during the term of the board appointing them, and until their successors are appointed. (4) That the present board of aldermen of said city, who were elected on the first Monday in May, 1892, and were duly qualified to serve for the ensuing year at a meeting of the board on or about the 6th day of May, 1892, appointed the defendant, Frank R. Hall, chief of police of said city, and on the 15th day of May, 1892, the said board accepted the official bond of the said Frank R. Hall as such chief of police, and inducted him to said office, exercising its functions and receiving its emoluments. (5) That the said defendant, Frank R. Hall, is not eligible, under the constitution and laws of the said state of North Carolina, to hold the said position and office of chief of police for the said city of Greensboro, for that the said Frank R. Hall was not at the time of his said appointment and induction to said position, and is not now, a qualified voter in the said state of North Carolina, nor a qualified voter in the city of Greensboro, in that the said Frank R. Hall has never been registered as required by the constitution and laws of the said state or the charter of the said city, nor has he ever applied to be admitted to registration, as a voter in said state or the city of Greensboro, nor has the said Frank R. Hall ever taken, or applied to be allowed to take, the oath or affirmation required for voters in said state or city. (6) That the said defendant, Frank R. Hall, had not at the time of his induction to the office aforesaid resided in the said state, nor in the county of Guilford or the city of Greensboro, for the space of time required by law to entitle him to register or vote in the said state, county, or city, and he is not, in law, a citizen of the same. (7) That the defendant, Frank R. Hall, claiming the said position or office of chief of police of said city of Greensboro by virtue of the said appointment and induction, still continues unlawfully to hold the same, and to discharge its duties, and to take and receive its fees and emoluments. Wherefore, the plaintiff demands judgment, with costs, that the defendant is ineligible, and not entitled to the said office, and that he is ousted therefrom."

The defendant demurs to the complaint for that: "(1) The relator fails to allege that he has any right in or to the place of chief of police of the city of Greensboro, or any interest in the emoluments of said place or office, and therefore he is not a proper plaintiff or relator. (2) It appears from the complaint that the defendant was appointed chief of police by the board of aldermen of the city of Greensboro, and his official bond was accepted, and he was inducted into said office by said board; and so there is a nonjoinder of parties, because the said board of aldermen are not made codefendants with the said Frank R. Hall. (3) The complaint does not allege facts sufficient to constitute a cause of action, in this: it appears by said complaint that the defendant was regularly appointed chief of police by the proper authorities, and duly qualified as such; and the law does not require that a person holding said place or office should be a qualified voter of the city or state, nor a registered voter, nor a citizen of the state. (4) The place of chief of police of the city of Greensboro is not such a public office as is contemplated by the statutes authorizing the institution of an action in this instance of a quo warranto v quo warranto. Section 607, Code N. C."

J. T Morehead, for appellant.

Jas. E Boyd, for app...