Wood v. Bellamy

• Decision Date: 27 April 1897
• Citation: 27 S.E. 113,120 N.C. 212
• Parties: WOOD at al. v. BELLAMY et al.
• Court: North Carolina Supreme Court

27 S.E. 113

120 N.C. 212

WOOD at al. v. BELLAMY et al.

Supreme Court of North Carolina

April 27, 1897

Appeal from superior court, Wake county; Adams, Judge.

Action by the state of North Carolina, on the relation of Z. V Walser, attorney general, and others, against J. C. Bellamy and others, to have relators, other than the attorney general and W. R. Wood, declared to be the trustees of the Central Hospital for the Insane, near Raleigh, and W. R. Wood declared to be the principal and resident physician of said hospital, and to compel defendants, who claim to be directors and superintendent of such hospital, to deliver it and the property thereof to relators. From a judgment in favor of defendants, relators appeal. Affirmed.

The statement of facts agreed is as follows: "(1) That the general assembly, on the 8th day of March, 1897, passed an act, a copy of which is hereto annexed, and on the 9th day of March, 1897, another act, a copy of which is annexed, known as the 'Appropriation Act. ' (2) That on the 9th day of March, 1897, the governor nominated the relators as trustees of the Central Hospital for the Insane, and that on the said 9th day of March, 1897, the senate duly confirmed the nomination of said relators as such trustees. (3) That thereafter, on the said 9th day of March 1897, three of the relators met at the capitol in Raleigh, and having called one of their number to the chair, and for want of a quorum adjourned to meet in Raleigh on the 18th day of March, 1897. That, prior to the confirmation of the relators, the governor notified them by wire that their nominations had been sent to the senate, and requested them to meet in Raleigh, March 9th but no notice was given to any of the relators after their confirmation, except M. L. Wood, Dr. Phil J. Macon, and Dr B. S. Utley. (4) That on the said 18th day of March, 1897, pursuant to the adjournment, the said relators, each and every one of them, being nine in all, met in Raleigh, and qualified by taking the oath of office before W. H. Martin, a justice of the peace in and for Wake county, and organized by electing Dr. P. John president, and M. L. Wood secretary, and then elected Dr. W. R. Wood, of Halifax county, principal and resident physician for four years from and after his election. (5) That the defendants, other than Dr. Geo. L. Kirby, are the directors of what was designated under chapter 2, volume 2, of the Code, as the North Carolina Insane Asylum, elected and qualified under chapter 2, volume 2, of the Code, and acts amendatory thereof, whose terms of office have not expired, unless they are put to an end by the legislation and facts set forth in this case; and that the defendant George L. Kirby was elected by said board on the 7th day of March. 1894, to fill the unexpired term of six years of Dr. W. R. Wood, resigned, said Wood's term beginning on the 8th day of March, 1893, as will appear from an extract from the minutes of the board of directors at their meeting held on the 8th day of March, 1894, the salary of said Kirby being fixed at $2,800 per annum. That R. R. Cotton, R. H. Speight, and John R. Smith constitute an executive committee (if they are still in office, under the legislation and facts hereinbefore set forth) who receive $4 each per day when in session, as compensation. (6) That the defendants are in possession and in control of all the property belonging to the said institution for the insane near Raleigh, by whatever name it should be called, claiming to be the properly constituted authorities and custodians thereof under the law. (7) That on the 18th of March, 1897, the relators made due demands on the defendants for the possession, management, and control of the said asylum, and all of its property, which demand was refused by the defendants. (8) That the defendant John R. Smith was duly appointed and qualified on the ___ day of March, 1895, as a director of said North Carolina Insane Asylum for the term of six years. That he was appointed and qualified as superintendent of the State Penitentiary on the ___ day of March, 1897. (9) That the original charter of the said asylum, chapters 1 and 2, Acts 1848, and chapters 73 and 74, Acts 1858, and all acts amendatory thereof, and other private or other laws relating to said asylum, shall be considered as a part of this case.''

The judgment is as follows:

"This cause coming on to be heard upon an agreed statement of facts and the complaint and answer, and the court being of opinion against the right of the relators or any of them to recover and so holding, it is thereupon considered and adjudged that this action be dismissed, and that the defendants go without day, and recover their cost to be taxed by the clerk. It is further considered and adjudged that the defendant John R. Smith, by accepting the office of superintendent of the State Penitentiary, has vacated the office of trustee or director of the State Insane Asylum near Raleigh."

Act March 8, 1897, to charter the Eastern Hospital for the Colored Insane and the Western Hospital for the Insane and North Carolina Insane, at Raleigh, and to provide for their government, did not abolish the offices of directors and superintendents of such hospitals, as established under the old law, but only changed the names of the offices.

A. C. Avery and J. C. L. Harris, for appellants.

Shepherd & Busbee, for appellee.

MONTGOMERY J.

The defendant Kirby, at the time of his election, and the other defendants, at the time of their appointment, were public officers, and they are entitled to hold their offices, their terms not having yet expired, unless their right to the same has been divested by an act of the last general assembly, ratified on the 8th day of March, 1897, and entitled "An act to charter the Eastern Hospital for the Colored Insane and the Western Hospital for the Insane and North Carolina Insane, at Raleigh, and to provide for their government." In examining that act, with the view of arriving at its construction and effect, we are not disposed to inquire into the motives of the legislators in enacting the bill into a law, nor is it necessary to do so to arrive at a proper legal conclusion. If the general assembly has in some of the provisions of the statute gone beyond its powers, such a course may be attributed to another motive than a willful attempt to violate the constitution. In the great opinion delivered in the case of Hoke v. Henderson, 4 Dev. 1, Chief Justice Ruffin said for the court: "All men are fallible, and in the dispatch of business, the heat of controversy, and the wish to effect a particular end, may inadvertently omit to scrutinize their powers, and adopt means adequate indeed to the end, but beyond those powers."

Before proceeding to an examination of the statute, it will be in order to announce that after full and able argument, and after a careful examination of authorities cited by counsel from the courts of this and other states, we adhere to the opinion that an office is property, and is the subject of protection like any other property, under the provisions of section 17 of article 1 of the constitution. Hoke v Henderson, supra; King v. Hunter, 65 N.C. 603; Cotten v. Ellis, 7 Jones (N. C.) 545; Bailey v. Caldwell, 68 N.C. 472; Bunting v. Gales, 77 N.C. 283. And yet it is true that public offices, being for the public good and convenience, are not so completely the subject of property as are many other species of possessions. Property in an office is qualified to some extent by the duties which the holder owes to the public in their performance. As, for instance, a public office cannot be sold or assigned. The holder cannot, as a rule, depute to another the performance of the duties of the office. And, for misfeasance or malfeasance, the courts or other competent authority, under such laws as may be in force on the subject, may deprive the holder of the same. But, if such limitations and restrictions be excepted, a public office is as much the subject of property as a man can have in anything. The emoluments of the office are private property "as much," as was said in Hoke v. Henderson, supra, "as the land which one tills, or the horse he rides, or the debt which is owing to him." The emoluments of a public office being then private property, it would seem to follow logically that, the terms for which the defendants were elected and appointed respectively not having expired, they could not be ousted except for cause, for the committal of some malfeasance in office, or unless they had failed and refused to perform the duties of their office, or unless the offices themselves had been abolished. As long as the office is continued, the term of office, it does seem in reason and justice, ought to be the private property of the holder; and to take it from him, and give it to another by legislation, is, in effect and reality, a judicial act, and the sentence is pronounced without trial and without a hearing. And the law is to that effect. It is clearly decided in Hoke v. Henderson, supra, and approved in Bunting v. Gales, 77 N.C. 283, that, as long as the office is in existence, the term, likened to a grant for which the holder has been elected or appointed, cannot be lessened, to the prejudice of the grantee. In Cotten v. Ellis, supra, it appeared that the office of adjutant general had not been abolished, but that the duties of the office had been transferred to another before the plaintiff's term had expired, and Chief Justice Pearson, delivering the opinion of the court, said: "The legal effect of the [first] appointment was to give the office to the applicant [in mandamus], and he became entitled to it as a 'vested right' for the term of three years, from which he could only be removed in the manner...