The Trustees of The Univ. of North Carolina v. McIvera

• Decision Date: 31 January 1875
• Citation: 72 N.C. 76
• Court: North Carolina Supreme Court
• Parties: THE TRUSTEES OF THE UNIVERSITY OF NORTH CAROLINA, v. ALEXANDER MCIVER.

72 N.C. 76

THE TRUSTEES OF THE UNIVERSITY OF NORTH CAROLINA,

v.ALEXANDER MCIVER.

Supreme Court of North Carolina.

January Term, 1875.

The amendment to the Constitution, Art. IX, Sec. 13, adapted by the General Assembly, February, 1873, was adapted and satified by the people in accordances with the provisions of the Constitution, Art. XIII, Sec. and is a part thereof.

The act of 1873-'4 Chap. 64, providing for the election of Trustees of the University, was passed in accordance with the provisions of the Constitution and the Trustees elected under that act were properly elected.

CIVIL ACTION brought to the Spring Term, 1874, of the Superior Court of ORANGE county, and heard upon the plaintiffs' demurrer to the answer of the defendant, before his Honor, Judge Tourgee, at Chambers, on the 12th day of June, 1874.

The plaintiffs, claiming to be Trustees of the University of the State, being elected as prescribed by the Act of 1873-'74, chapter 64, entitled “An act to provide for the election of Trustees of the University of North Carolina,” which act was passed in pursuance of sec. 5, Art. ix, of the amended Constitution, bring this action against the defendant, the Superintendent of Public Instruction, to recover the books, records, seal and other property of the University, in the custody of the defendant by order of the Board of Education.

The defendant in his answer, denies that the plaintiffs are the Trustees of the University, alleging that the amendments to the Constitution, as proposed by the Act of 1871-'72, chap. 53, and passed again by the requisite majority, 24th day of February, 1873, (Act of 1872-'73, chap. 86, and submitted to the people for ratification or rejection, by the Act of 1872-'73, chap. 153, were never passed and ratified according to the requirements of sec. 2, Art. xiii, of the Constitution, and are therefore no part thereof. And for a second defence, the defendant insists, that if the amendments were duly passed and ratified, still the election of Trustees by the General Assembly, under the Act of 1873-'74, chap. 64, was not authorized by those amendments, and is consequently void.

The plaintiffs demurred to the defendant's answer, alleging that the Court was bound by the certificate of his Excellency the Governor, attested by the Great Seal of the State and deposited in the office of the Secretary of State, and that his Honor, in this investigation, had no authority to look behind that certificate; and as to the second defence of the defendant, the plaintiffs insist, that the Legislature having “power to provide for the election of Trustees,” was the sole judge of the manner in which that power should be exercised.

His Honor being of opinion with the defendant upon both the questions raised by the pleadings, overruled the demurrer, from which judgment the plaintiffs appealed.

Moore & Gatling, Battle & Son and J. W. Graham, for appellants .

Batchelor, contra .

BYNUM, J.

The provision of the Constitution, before the amendment now to be construed, was as follows: “The Board of Education shall elect Trustees of the University as follows: One for each County in the State, whose term of office shall be eight years.” Art. 9, Sec. 13. The amendment to the Constitution strikes out section 13, and substitutes the following: “The General Assembly shall have power to provide for the election of Trustees of the University,” etc. After this amendment was adopted and declared to be a part of the Constitution, the General Assembly passed an act in these words: “ The General Assembly of North Carolina do enact, In pursuance of the authority granted by the 5th Section of the 9th Article of the amended Constitution, that there shall be sixty-four Trustees of the University of North Carolina elected by joint ballot of both Houses of the General Assembly, on the 29th day of January, 1874, whose term of office shall be eight years,” etc. In pursuance of this act, Trustees were elected, who bring this action for the corporate property of the University.

Two questions are made: 1st. Was this amendment duly ratified, so as to become a part of the Constitution? and 2d. Supposing the amendment to have been duly ratified, was the election of Trustees in conformity therewith.

The Constitution provides two modes for its amendment--one by a Convention to be called by the General Assembly, and the other provision is as follows: “No part of the Constitution of this State shall be altered unless a bill to alter the same shall have been read three times in each House of the General Assembly and agreed to by three-fifths of the whole number of members of each House respectively; nor shall any alteration take place, until the bill so agreed to, shall have been published six months previous to a new election of members to the General Assembly. If after such publication, the alteration proposed by the preceding General Assembly shall be agreed to, in the first session thereafter, by two thirds of the whole representation in each House of the General Assembly, after the same shall have been read three times, on three several days in each House, then the said General Assembly shall prescribe a mode by which the amendment or amendments may be submitted to the qualified voters for members of the House of Representatives, throughout the State; and if upon comparing the votes given in the whole State, it shall appear that the majority of the voters voting thereon, have approved thereof, then, and not otherwise, the same shall become a part of the Constitution.” Art. 13. Sec 9.

Under this provision, a bill was duly passed by our General Assembly, which contained seventeen amendments, including therein the one in relation to the University. After a new election, the next General Assembly rejected nine and adopted eight of these amendments, which had all been previously incorporated and adopted in one bill, but incorporated each of the nine amendments in a separate bill, and in that form submitted them to the vote of the people, who approved of each amendment by a majority of nearly forty thousand votes.

It is insisted that these amendments were not constitutionally adopted, and are therefore invalid. The argument is, that the Constitution contemplated and required that the same bill and the same amendments, without change, should have the approval of each General Assembly, and that it by no means followed because the second General Assembly adopted separately eight ont of seventeen amendments adopted by the first General Assembly, that it would have adopted the seventeen or any of them, if they had been voted upon by the second body, in the form adopted by the first body. And it is urged that the second General Assembly, in fact, did reject them in that form, and only adopted eight of them, and that only after shaping them into eight separate bills. And that conversely, it does not follow because the second General Assembly adopted eight of the amendments in eight separate bills, the first General Assembly would have so adopted them or any of them, for that some one or more of the amendments rejected by the second General Assembly might have been the inducing cause of the adoption of the seventeen as a whole, by the first General Assembly. And that thus, there was not the concurrence of two Legislatures upon the same amendments, according to the words and spirit of the Constitution.

Constitutions lay down general propositions, and do not deal in details, leaving these to be worked out by the Legislature. If it can be shown that these amendments or any of them, have not been made in accordance with the rules prescribed by the fundamental law, every principle of public law and sound policy requires the Court to pronounce against them. But this cannot be shown. They have been adopted in accordance with the language of the Constitution, because each amendment has passed through all the forms of legislative enactment prescribed by that instrument. They do not violate the spirit of the Constitution in the manner of their adoption, for although they finally assumed the shape of eight separate bills, they are yet the eight identical amendments adopted by the first Legislature, and it cannot be shown why the amendments adopted in elght bills would not have been as valid in one bill, as originally passed, or why they should have been less valid because they were adopted in eight bills instead of one. The substance and even the precise form of the amendments adopted were the same and unaltered from their inception to their consummation in the Constitution. The proposed mendments were of distinct and independent parts of the Constitution, and were as much so when incorporated in one bill, as when incorporated in eight bills. There is nothing in our law which requires, as in some States, that each subject matter of legislation shall be put in a separate bill. These amendments are therefore just as valid in one bill as in the eight bills, and it appears change was a matter of supererogation, more calculated to raise doubts than to solve them. But the amendments do not derive their force from the Legislatures which devised them, but from the people who ratified them, and in this case they have spoken with no uncertain sound. Had a Convention framed these amendments, it un questionably would have had the power to submit them to the people as one act or several. The power of the General Assembly cannot be distinguished from the powers of a Convention upon the question of submitting its amendments to popular vote. When the voice of the people is constitutionally expressed in their favor, the amendments become and are a part of the fundamental law.

At the last term, all the members of the Court then present, concurred in the opinion that the amendments to the Constitvtion were duly ratified, and it was so publicly announced from the Bench, on the argument. The opinion was not then filed, because the CHIEF JUSTICE was absent...