State v. Hord

• Decision Date: 07 April 1965
• Docket Number: No. 258,258
• Citation: 141 S.E.2d 241,264 N.C. 149
• Parties: STATE of North Carolina v. John S. HORD.
• Court: North Carolina Supreme Court

Page 241

141 S.E.2d 241

264 N.C. 149

STATE of North Carolina v. John S. HORD.

No. 258.

Supreme Court of North Carolina.

April 7, 1965.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, Asst. Atty. Gen. James F. Bullock, for the State, appellant.

Bailey & Booe, Charlotte, for defendant appellee.

DENNY, Chief Justice.

At the threshold of this appeal, we must determine whether or not the position of the defendant as Chief of Police of the City of Charlotte is an office within the meaning of G.S. § 14-230, which reads as follows:

'If any clerk of any court of record, sheriff, justice of the peace, recorder, prosecuting attorney of any recorder's court, county commissioner, county surveyor, coroner, treasurer, constable or official of any of the State institutions, or of any county, city or town, shall willfully omit, neglect or refuse to discharge any of the duties of his office, for default whereof it is not elsewhere provided that he shall be indicted, he shall be guilty of a misdemeanor. If it shall be proved that such officer, after his qualification, willfully and corruptly omitted, neglected or refused to discharge any of the duties of his office, or willfully and corruptly violated his oath of office according to the true intent and meaning thereof, such officer shall be guilty of misbehavior in office, and shall be punished by removal therefrom under the sentence of the court as a part of the punishment for the offense, and shall also be fined or imprisoned in the discretion of the court.'

First, let us examine the history of the foregoing statute. A statute containing provisions similar to those in the first sentence of the above statute was enacted in Chapter 32, § 107, Battle's Revisal of 1873, amended and codified in The Code of North Carolina, 1883, Vol. I, § 1090, the latter statute reading as follows:

'If any clerk, sheriff, justice of the peace, or any other officer, who is required, in entering upon his office, to take an oath of office, shall wilfully omit, neglect or refuse to discharge any of the duties of his office, for default whereof it is not elsewhere provided that he shall be indicted, the clerk or other officer so offending shall be guilty of a misdemeanor. And if it shall be proved, that any such officer, after his qualification, shall have violated his said oath, and willingly and corruptly have done anything contrary to the true intent and meaning thereof, such officer shall be guilty of misbehaviour in office, and shall be punished by removal therefrom under the sentence of the court as a part of the punishment for the offence; and shall also be fined and imprisoned, in the discretion of the court.'

Section 1090 was superseded in 1901 by Chapter 270, § 2, of the Public Laws of 1901, and codified in the Revisal of 1905, in § 3592, with substantially the same provisions which exist in our present statute. See also C.S. 4384.

It will be noted that the words, 'who is required, in entering upon his office, to take an oath of office,' were omitted in Chapter 270, § 2, of the Public Laws of 1901, codified in the Revisal of 1905, in § 3592. The General Assembly undoubtedly felt that such words were mere surplusage in light of the statement in the second sentence in the statute, to wit: '(O)r shall have wilfully and corruptly violated his oath of office according to the true intent and meaning thereof * * *.'

A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the State applicable to all municipal corporations, or such powers as are necessarily implied by those given. G.S. §§ 160-1 through G.S. 160-509; Starbuck v. Town of Havelock, 252 N.C. 176, 113 S.E.2d 278; State v. McGraw, 249 N.C. 205, 105 S.E.2d 659; Laughinghouse v. City of New Bern, 232 N.C. 596, 61 S.E.2d 802; Stephenson v. City of Raleigh, 232 N.C. 42, 59 S.E.2d 195.

The power of a municipal corporation to appoint policemen is given in G.S. § 160-20. Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545. Moreover, G.S. § 160-21 provides: 'A policeman shall have the same authority to make arrests and to execute criminal process, within the town limits, as is vested by law in a sheriff.'

The case of State ex rel. Barlow v. Benfield, 231 N.C. 663, 58 S.E.2d 637, was an action in the nature of quo warranto to determine the right of Benfield to hold the office of Chief of Police of Granite Falls. G.S. § 160-25 at that time provided: 'No person shall be mayor, commissioner, intendant of police, alderman or other chief officer of any city or town unless he shall be a qualified voter therein.' Benfield was not a qualified voter of Granite Falls. Devin, J., later C. J., speaking for the Court, said: 'The office of chief of police of an incorporated town, as Granite Falls is admitted to be, is a public office. Foard v. Hall, 111 N.C. 369, 16 S.E. 420.'

G.S. § 160-25 was rewritten in Chapter 24 of the 1951 Session Laws of North Carolina to read as follows: 'No person shall be mayor, commissioner, councilman, or alderman of any city or town unless he shall be a qualified voter therein.' This change in the law, however, in our opinion, has no bearing whatever on the question as to whether or not a chief of police or a policeman is a public officer. The statute deals merely with the qualification of the appointee and not with the character of the office.

In the case of Foard v. Hall, 111 N.C. 369, 16 S.E. 420, this Court held that the office of chief of police is such an office that a quo warranto might be brought to try the title thereto.

In McIlhenney v. City of Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L.R.A. 470, this Court held that a policeman is an officer of the State.

Some jurisdictions in this country hold that policemen are officers of the state because they exercise the sovereign powers of the state in performing their duties as policemen; others hold that such policemen are officers of the municipality because they are charged with the duty to enforce the ordinances of the municipality. Some others hold that policemen are merely employees of the municipality. The statutory provisions involved in the different jurisdictions in this country vary widely. However, in our opinion, a chief of police as well as a policeman, when duly appointed to such position, pursuant to statutory authority, is an officer within the meaning of G.S. § 14-230, and we so hold.

It is not the method by which a policeman becomes a member of the police force of a municipality that determines his status but the nature and extent of his duties and responsibilities with which he is charged under the law. Cornet v. City of Chattanooga, 165 Tenn. 563, 56 S.W.2d 742.

To constitute an office, as distinguished from employment, it is essential that the position must have been created by the constitution or statutes of the sovereignty, or that the sovereign power shall have delegated to an inferior body the right to create the Position in question. Anno.--Office and Employment--Distinction, 140 A.L.R. 1079.

An essential difference between a public office and mere employment is the fact that the duties of the incumbent of an office shall involve the exercise of some portion of the sovereign power. 42 Am.Jur., Public Officers, § 13, page 891; 93 A.L.R. 337 Anno.--Office and Employment--Distinction; Sixth Decennial Digest, 1946-1956, Vol. 24, Officers k1, where the authorities are collected from 21 jurisdictions which support the above view, and none are cited to the contrary.

In view of the fact that a chief of police as well a policeman is charged with the duty to enforce the ordinances of the city or town in which he is appointed to serve, as well as the criminal laws of the state within the limits of such city or town, such chief of police or policeman is an officer of such city or town within the meaning of G.S. § 14-230, and this view is in accord with the following authorities. McQuillin on Municipal Corporations, Vol. 16, § 45.11; State ex rel. Haas v. Stone, 240 Ala. 677, 200 So. 756; State v. Kurtz, 78 Ariz. 215, 278 P.2d 406; Brown v. Boyd, 33 Cal.App.2d 416, 91 P.2d 926; Temple v. City of New Britain, 127 Conn. 170, 15 A.2d 318; State ex rel. Green v. Glenn, 39 Del. 584, 4 A.2d 366; Curry v. Hammond, 154 Fla. 63, 16 So.2d 523; Buchholtz v. Hill, 178 Md. 280, 13 A.2d 348; Olson v. City of Highland Park, 312 Mich. 688, 20 N.W.2d 773, 21 N.W.2d 286; Duncan v. Board of Fire and Police Com'rs, 131 N.J.L. 443, 37 A.2d 85; Canteline v. McClellan, 282 N.Y. 166, 25 N.E.2d 972; State ex rel. Randel v. Scott, 95 Ohio App. 197, 118 N.E.2d 426; Morris v. Parks, 145 Or. 481, 28 P.2d 215; Mann v. City of Lynchburg, 129 Va. 453, 106 S.E. 371; National Labor Relations Board v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575.

In the last cited case, the question was whether certain employees of the defendant corporation who, at its request, had been appointed special policemen to guard its plants during wartime, were still employees of the company and entitled to maintain their rights in the labor union in which they were members. The Labor Board held their rights were not impaired by reason of their having been deputized as special policemen. The Board was overruled and appealed to the Supreme Court of the United States which reversed the decision of the lower court. The Court said:

'We find it impossible to say that the Board is wrong in adopting this policy as to deputized guards. It is a common practice in this country for private watchmen or guards to be vested with the powers of policemen, sheriffs or peace officers to protect the private property of their private employers. And when they are performing their police functions, they are acting as public officers and assume all the powers and liabilities attaching thereto. Thornton v. Missouri Pacific R. Co., 42 Mo.App. 58; Dempsey v. New York Central & Hudson River R....