State v. Wilson

• Decision Date: 31 January 1875
• Citation: 72 N.C. 155
• Court: North Carolina Supreme Court
• Parties: THE PEOPLE of the STATE OF NORTH CAROLINA, on the relation of JOHN M. CLOUD v. THOMAS J. WILSON.

72 N.C. 155

THE PEOPLE of the STATE OF NORTH CAROLINA, on the relation of JOHN M. CLOUD

v.THOMAS J. WILSON.

Supreme Court of North Carolina.

January Term, 1875.

Where A was elected Judge of the Superior Court and declined to accept the office and never qualified: Held, that there was a vacancy within the meaning of SEC. 31, ART. IV of the Constitution, and the Governor had the power to fill such vacancy by appointing a successor.

The General Assembly has no power to order an election to fill such vacancy, and any law for that purpose is unconstitutional and void.

The word “until the next regular election,” in SEC. 31, ART. IV, of the Constitution, mean until the next regular election for the office in which a vacancy has occurred.

( Clark v. Stanly, 66 N. N. C. Rep. 59: People v. Bledsoe, 68 N. C. Rep. 457, cited and approved.)

CIVIL ACTION, in the nature of a quo warranto, contesting the right to the office of Judge of the 8th Judicial District, tried by consent by Kerr, J., at Fall Term, 1874, of ORANGE Superior Court, having been removed by consent from the Superior Court of Yadkin county.

The following are substantially the facts submitted to his Honor, and upon which the judgment appealed from, was founded.

At an election held in April, 1868, D. H. Starbuck was elected to the office of Judge of the 8th Judicial District, he being at and before his said election, the District Attorney of the United States, for the District of North Carolina, and in the active discharge of the duties of his said office; and that he so continued until the 24th day of August, 1867, when he formally, by letter to the Governor of the State, declined to accept the said office of Judge.

On the 1st day of July, 1868, the Supreme Court of North Carolina, under the former Constitution, adjourned; and that on the same day, Hon. R. M. Pearson, Chief Justice elect, and Hon. E. G. Reade and Hon. R. P. Dick, Associate Justices, elected at the election in April, 1868, after having been qualified by taking the oaths of office, proceeded to superintend the allotment and classification of the persons elected as Judges of the various Judicial Districts of the State; and in said allotment, D. H. Starbuck, the Judge elect for the 8th District, was assigned a term of eight years.

On the said 1st day of July, 1868, when said classification was made, the Hon. W. B. Rodman and the Hon. Thomas Settle, had qualified as Associate Justices of the Supreme Court of North Carolina, by taking the oath of office, but were not present at the said classification. That at the time of the said classification and allotment of terms, D. H. Starbuck had not been commissioned as a Judge, nor had he accepted the said office, and never was a Judge of the Superior Court.

After the letter of Starbuck was received by the Governor, and he formally declined to accept the office of Judge, his Excellency, W. W. Holden, Governor of the State of North Carolina, appointed and commissioned the relator, the said J. M. Cloud, a Judge of the 8th Judicial District; in said commission, directing the relator to enter upon said office and discharge all the duties thereof until his successor shall be duly elected according to the Constitution and laws of the State. That the relator entered upon the discharge of the duties of said office, after being duly qualified, and continued in charge thereof, till the defendant, T. J. Wilson, assumed the execution of the duties of said office, against the relator's consent.

The defendant, the said T. J. Wilson, was duly elected, at a regular election, held on the first Thursday of August, A. D. 1874, Judge of the said 8th Judicial District, in pursuance of an Act of the General Assembly of North Carolina, entitled “An Act concerning the election of certain officers,” ratified 13th day of February, 1874; and that he was commissioned by his Excellency, C. H. Brogden, Governor of the State, as a Judge of the Superior Court of the 8th Judicial District, on the 22d day of August, A. D. 1874, and that day was qualified as Judge, by taking the oaths of office, and since that time has been in the active discharge of the official duties of Judge in and for said District.

His Honor being of opinion with the defendant, adjudged that the relator, John M. Cloud, was not entitled to the office of Judge of the 8th Judicial District, as claimed in his complaint, and that T. J. Wilson, having been duly elected under said act of the General Assembly, chapter 118, of the laws of 1873-'74, and commissioned by the Governor, was the lawful and rightful Judge of the said 8th Judicial District, and entitled to hold the office.

From this judgment, the relator appealed.

McCorkle and Batchelor, for appellant .

Graves and J. W. Graham, contra .

PEARSON, C. J.

D. H. Starbuck, at the first election after the adoption of the Constitution, was elected Judge of the 8th Judicial District; he did not accept the office and declined to qualify. Thereupon the Governor appointed the relator to fill the vacancy. The question is, was this a vacancy which the Governor had power to fill? One of these conclusions must be adopted:

1. On the refusal of Mr. Starbuck to accept, the General Assembly had power to order a special election for a Judge of that district; in the absence of a grant of this power to the General Assembly by the Constitution, this conclusion must be rejected.

2. This is casus omissus in the Constitution; and that instrument is so defective as to have provided no way to fill the office, so that the administration of the law in a judicial district must stop, should it so happen that the person elected Judge should decline to accept, or dies before he qualifies and takes out his commission. This conclusion must be rejected.

3. We adopt the conclusion, that although Mr. Starbuck declined to accept and did not qualify and take his commission, a vacancy did occur in the office. By an unexpected event there was no one to fill the office; thus for all practical purposes the office was vacant and it can make no difference whether Mr. Starbuck declined before, or the moment after he qualified, or whether he was eligible to the office; for taking it in either of the three ways, there was the same mischief, no one to administer the laws in that judicial district, and to avoid this detriment to the public welfare, the power to fill vacancies is conferred upon the Governor. The Act of 1873-'74, chap. 118, directs an election for Judge in the 8th Judicial District, on the 1st Thursday in August, 1874, which was a regular election day for members of Congress, members of the General Assembly, and some other State officers, and was also regular election day, for the Judges of the Superior Court, belonging to the short term.

Under this statute, Mr. Wilson was elected by a vote of the people of the 8th Judicial District. He qualified and in spite of the protestation of the relator, took possession of the office. The question is, had the General Assembly power to order the election? This depends upon the construction of Art. 4, sec31: “All vacancies occurring in the offices provided for by this article, shall be filled by the appointment of the Governor unless otherwise provided for, and the appointees shall hold their places until the next regular election.”

It is settled that the words “otherwise provided for” mean otherwise provided for by the Constitution. Clark v. Stanly, 66 N. C. Rep. 59. People v. Bledsoe, 66 N. C. Rep. 457.

The question now is, what is the meaning of the words “until the next regular election?” Taken by themselves they are too indefinite to have any particular meaning; as they cannot stand alone, it is the province of the Court to find by the rules of construction, other words to support them, that is, to find a definite meaning.

I. It is suggested the addition of the words, “for members of the General Assembly,” would fix a definite meaning. That is true. But what warrant is there for adding these words? We know of no rule of construction to justify it; there is no association of ideas by which the election of judicial officers is connected with the election of members of the General Assembly. There is as much, if not more reason for making the sentence read, “until the next regular election for Justices of the Peace,” that being a judicial office. It is unnecessary to say more upon this view of the question. Indeed after the consideration of the matter, which the appointment of Judge Cloud gave rise to, in connection with election for members of the General Assembly in 1872, the position has by general consent been abandoned as untenable, and was not pressed in the argument before this Court.

II. It is suggested that the addition of the words “for Judges of the Superior Court,” will fix a definite meaning. This seems to have been the construction adopted by the General Assembly, in the Act above referred to. It is obvious that the addition of these words, so as to make the sentence read, “until the next regular election for Judges of the Superior Court,” does not meet the whole question. For the section under consideration, embraces all vacancies in the judicial department, except those otherwise provided for by the Constition, and includes the Justices of the Supreme Court, Clerks of the Superior Court and Solicitors, as much as the Judges of the Superior Court; so to make the sentence full, it must be made to read, “until the next regular election for Justices of the Supreme Court, in respect to vacancies occurring in the office of Chief Justice or any one of the Associate Justices, for Clerks of the Superior Court, in respect to a vacancy occurring in the office of a Superior Court Clerk, and for Solicitor in respect to vacancies occurring in respect to the office of a Solicitor, and for Judges of the Superior Court, in respect to vacancies occurring in the office of a Superior Court Judge.”

It would seems this was the construction...