Welker v. Bledsoe

• Decision Date: 31 January 1873
• Citation: 68 N.C. 457
• Court: North Carolina Supreme Court
• Parties: THE PEOPLE OF N. C. ex rel. G. W. WELKER and others v. M. A. BLEDSOE and others.

68 N.C. 457

THE PEOPLE OF N. C. ex rel. G. W. WELKER and others

v.M. A. BLEDSOE and others.

Supreme Court of North Carolina.

January Term, 1873.

The Trustees of the University, the Directors of the Penitentiary, of the Lunatic Asylum and of the Institution for the Deaf and Dumb and the Blind, are public officers.

The act of the General Assembly, entitled, “An Act for the better government of the Penitentiary,” ratified the 1st day of April, 1871, violates section 10 of article 3 of the Constitution, and is therefore void.

By virtue of article 3, section 10 of the Constitution, the Governor shall nominate, and by and with the advice and consent of a majority of the Senators elect, appoint the Directors of the Penitentiary, and such other officers as are therein prescribed.

( Clark v. Stanley, 66 N. C. Rep., cited and approved.)

CIVIL ACTION, in the nature of a quo warranto, to determine who constitute the proper and legal “Board of Directors of the Penitentiary,” heard and determined by his Honor, Watts, J., at Fall Term, 1872, of WAKE Superior Court.

The facts agreed and submitted to his Honor in the Court below, are substantially the following:

1. That on the 1st day of March, 1872, the relators were appointed by the Governor of the State to the office of “The Board of Directors of the Penitentiary,” that they accepted said office, and were duly qualified thereto, and took upon themselves the performance of the duties thereof, and claim that they are entitled to receive the emoluments of the same; and that immediately upon their acceptance of said office, and before the commencement of this action, they notified the defendants thereof, and demanded of them that they should relinquish and surrender to the relators, all books, papers, money and effects belonging and pertaining to said office, with which demand, the defendants refused and still refuse to comply.

2. That by an act of the General Assembly, entitled “An act for the better government of the Penitentiary,” ratified the 1st day of April, 1871, said defendants were appointed a Board of Directors for said Penitentiary, that they accepted said appointment, qualified thereto and took upon themselves the burden of performing the duties thereof; and that by virtue of said appointment, the defendants claim to be in the lawful possession of said employment, and in rightful exercise of the powers and duties incident to the same, and that they refused and still do refuse to relinquish and surrender said employment to the relators. That said General Assembly convened on the 3d Monday in November, 1871, and adjourned on the -- day of --, 1872.

On the above state of facts, after argument of counsel, and upon motion of the counsel for the relators, it was adjudged by the Court:

(1.) That the defendants are not entitled to hold and occupy said office, nor to exercise the powers, nor to perform the duties, nor to receive the emoluments thereof.

(2.) That the relators are entitled to hold and occupy such office, and to exercise the powers and perform the duties, and receive the emoluments thereof.

(3.) That the defendants be ousted from said office and the relators put in the same; and that the defendants relinquish and surrender to the relators all books, money and property belonging to the same.

(4.) That the relators receive of the defendants their costs of suit.

From this judgment the defendants appealed.

Battle & Son and Fowle, for appellants .

Batchelor, Edwards & Batchelor, contra .

PEARSON, C. J.

This case is governed by Clark v. Stanley, 66 N. C. Rep. 59. The Court, however, was willing to hear further argument and to review its decision, as the questions are of the first impression and one of them, and that one which the greatest stress is now laid was not fully argued.

1. The question upon which that case turned was, what constitutes a public office? It was held that the duty of appointing proxies and directors on the part of the State, in all railroads in which the State has an interest, is a public office, and it is announced as a principle of law--an agency for the State is a public office; duration and salaries are not of the essence. The duty of acting for and in behalf of the State constitutes an office. According to this principle, the Trustees of the University, the directors of the Penitentiary, of the Lunatic Asylum and of the Institution for the Deaf and Dumb and the Blind are public officers. This is put beyond any room for doubt by the Constitution, Art. XIV, sec. 7, “No person shall hold more than one lucrative office under the State at the same time: Provided, That officers in the Militia, Justices of the Peace, Commissioners of Public Charities, and commissioners appointed for special purposes shall not be considered officers within the meaning of this section.”

2. Have the defendants a right to the office of the directorship of the Penitentiary? This is to be decided upon in the first instance. C. C. P. sec. 370. The solution of the question involves the construction of Art. III, sec. 10. Has the General Assembly power to provide by law for the appointment or election by its own body of these officers, or is the appointing power vested in the Governor by and with the advice and consent of a majority of the Senators elect?

The stress of the argument was put on the position, that by its proper construction the Constitution only vests in the Governor, the power of appointing all officers whose appointments are not otherwise provided for by that instrument, or whose appointments shall not be otherwise provided for by law, and that in this instance the appointment of these officers has been otherwise provided for by law, to-wit: the statute under which they claim. In other words, that the General Assembly may from time to time provide for the appointment or election of officers by its own body, and thus take such appointments out of the operation of the general words of the Constitution.

It would be an anomaly, if the Constitution leaves it in the power of the General Assembly to assume to itself the duty of appointing or electing public officers, and thus open a door to defeat the express provisions of the instrument, and to encroach upon the functions assigned to a co-ordinate branch of the government.

This is the question now presented for our consideration. Creating an office is an act of legislation. Filling an office is an executive act. This is a fundamental principle. Accordingly, by the English constitution, the power of appointment is solely in the crown and the parliament has nothing to do with it. The constitution of the United States gives to the President the power of appointment subject to the confirmation of the Senate, but Congress as a body has nothing to do with it. The framers of our old constitution in 1776, had an extreme jealousy of the executive, and favored the legislative branch of the government. The colony was at war for its independence, and the governors had sided...