State v. McEntyre
| Decision Date | 31 December 1842 |
| Citation | 25 N.C. 171,3 Ired. 171 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. JOHN MCENTYRE AND OTHERS. |
Under the act of Assembly of 1840, c. 57. “to incorporate the town of Rutherfordton,” the persons elected town magistrate and commissioners, are not indictable for refusing to accept the said offices, even if duly elected. The act contains no such provision.
The Legislature may, if they think proper, require any person appointed to an office in any manner prescribed by law to serve therein, under the pain of indictment or any other penalty. But there is no principle of the common law that renders such an offence criminal.
A person, who undertakes an office, and is in office de facto, although not legally appointed thereto, is bound to perform all the duties, and liable for their omission, in the same manner, as if the appointment were strictly legal, and his right perfect.
Under the above mentioned act, “to incorporate the town of Rutherfordton,” the election for town magistrate and commissioners must be held by the sheriff, or, at least, by a sworn deputy; otherwise, it is void.
Appeal by the Solicitor for the State, from the Superior Court of Rutherford, at Fall Term, 1842, his Honor Judge PEARSON presiding.
The charges in this indictment, and the facts of the case, are fully set forth in the opinion delivered in this court.
Attorney General for the State .
Francis for the defendants .
By an act, passed in the year 1840, ch. 57, “to incorporate the town of Rutherfordton,” it is enacted, s. 2, that the citizens of the town, on the first Monday of March in each year, may elect a town magistrate and four commissioners, with certain qualifications, as therein specified, to serve for one year from the day of election; and, by sec. 3, “that the sheriff of Rutherford county shall hold said elections for town magistrate and commissioners under the same regulations that elections are now held for members of Assembly, and shall determine who is elected; and that he shall immediately furnish the town clerk with a certificate, stating who are elected, which certificate the town clerk shall enter in a book to be kept for that purpose, and the said certificate or entry thereof in the clerk's book shall be deemed conclusive evidence of the election of such persons to the offices therein specified.” By the fourth section it is further enacted, “that the said commissioners, after they are thus elected, and shall have taken an oath faithfully to perform their duty, shall be deemed and held a body politic and corporate, by the name and style of “The Commissioners of Rutherfordton,” and have certain powers, authorities and duties as therein set forth; among which is that of appointing the town clerk; and, by the 11th section, that if the sheriff shall fail to hold said election for town officers, he shall forfeit fifty dollars; and, by the 12th section, “that if the magistrate and commissioners shall permit the streets or roads within the limits of the corporation to get out of order, they shall be liable to indictment, and, on conviction, be fined at the discretion of the court.”
The defendants, John McEntyre, Edmund Bryan, William Twitty and Harvey D. Collier were indicted in two counts. In the first count, after reciting the material parts of the act, it is alleged, “that, in pursuance of the directions of the said statute, the sheriff of Rutherford county did, on the first Monday of March, in the year of our Lord, 1841, duly hold an election in the said town of Rutherfordton, for a town magistrate and four commissioners to serve for one year from the day of said election, and, that, then and there the said John McEntire was duly elected and determined and declared by the said sheriff to be duly elected to the said office of town magistrate; and the said Edmund Bryan, William Twitty and Harvey D. Collier, with one John G. Bynum, were duly elected and declared and determined by the said sheriff to be duly elected to the said offices of commissioners for the said town; and, that thereupon it then and there became the duty of the said John McEntyre, Edmund Bryan, William Twitty and Harvey D. Collier, to take an oath respectively, faithfully to perform their duty respectively in their said respective offices. And the jurors do further present, that on the first day of April, in the year 1841, and for a long space of time theretofore, to wit, from the said first Monday of March to the first day of April in the year last aforesaid, they the said McEntyre, Bryan, Twitty and Collier, refused to take the oath prescribed by said statute as aforesaid, and refused to perform their duty as such town magistrate and commissioners as...
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