People Ex Rel. Worley v. Smith

Smith, G. J. Nathan McDaniel, sheriff of Jones county, at the election held in August, 1878, was re-elected for the ensuing term. On the first Monday in September following he appeared before the board of county commissioners and tendered his official bonds, which were accepted, and took the prescribed oath. Sometime during the month he died and on the 7th day of October the commissioners appointed the relator, Thos. Worley, to fill the vacancy, and he was duly qualified as such on the 16th day of October. At the meeting of the commissioners on the first Monday in December, they elected the defendant sheriff, for the full *306 term of two years, and upon, bis giving one only of the bonds required by law, that for the due execution of process, and taking the oath, was by them inducted into office and entered upon the discharge of his official duties. On the first Monday in April, and after this action was commenced, he executed and tendered the other bonds for the collection of state and county taxes,, which were approved and accepted by the board. By the act of March 22d, 1875, the general election which under the existing law was required to be held on the first Thursday in August, 1876, was postponed and required to be held on the Tuesday after the first Monday of November of that year; and the county officers, then elected, to be qualified and inducted into office on the first Monday in December instead of the first Monday in September as theretofore. The law in its other provisions was modified and made to conform to this change of time for holding the election, and.those county officers whose terms would have expired on the first Monday in August were “authorized and directed to hold over in the same until their successors in office are elected and qualified under the act. Acte 1874-75, ch. 237, § 6. We have already decided that this section simply extended the expiring. term — spanning over the intervening space — until the newly elected officers could be qualified ; and that it did not take away the power of the commissioners to fill a vacancy by appointment or election. Sneed v. Bullock, 80 N. C., 132. The effect of this act is to change the time of election, and to make the terms of office begin and end in December instead of September as theretofore; and this the general assembly was competent to do. The appointment of the relator was for the unexpired term of office, held by McDaniel at the time of his death, and until his successor was qualified, and no longer. The constitution provides for the election of sheriffs, cor *307 oners, and constables, fixes their term of office, and declares that “in case of a vacancy existing from any cause, in any of the offices created by this section, the commissioners for the county may appoint to such office for the unexpired term.” Art. IY, § 24. And so the statute provides that in case of the conviction of a sheriff of a misdemeanor in office and a vacancy caused by his removal or any other means, the-commissioners shall at their first meeting thereafter elect a successor to fill the residue of the term. Bat. Rev., ch. 106,, § 6. The only question therefore is this: Did the vacancy.,, contemplated in the constitution, exist when the defendant-was appointed, so as to authorize the commissioners to exercise the power conferred ? The question is substantially answered in Cloud v. Wilson,. 72 N. C., 155. In that case D. H. Starbuck, who had been-, elected one of the twelve superior court judges at the first-election held under the constitution of 1868, refused to - accept the office, and the relator, J. M. Cloud, was appointed and commissioned by the governor in his stead. The constitution, Art. V., § 31, declares that “ all vacancies occurring in the offices provided for in this article of the constitution shall be filled by the appointment of the governor, <fcc.. The court held the appointment to be valid and say: “ We-adopt the conclusion that although Mr. Starbuck declined to accept and did not qualify, and take his commission, a vacancy did not 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.”' The language employed to describe the vacancy to be filled by the commissioners is still more explicit and manifest, for it is added, “ existing for any cause,” that is, whenever the office is without an incumbent. The commissioners- *308 appointed, and bad power to appoint, the relator only for the residue of the official term of the deceased sheriff, and at its determination rightfully proceeded to elect the defendant for the new term then commencing. Sneed v. Bullock, ■supra. The attempted qualification of McDaniel in September for a term to begin two months thereafter, and while he was :still in office, under a prior election for a term of which two months still remained, was without warrant of law, and nugatory. There cannot be an induction into an office for one term until the preceding term is ended, and the qualification and induction are directed to be done at one and "the same time on the first Monday in December. Bat. Rev., ch. 27, §8, (31.) The act of March 12th, 1877, regulating elections, makes permanent the change in the day of election, which was prescribed in the act of 1875 for one occasion, to-wit, the Tuesday after the first Monday in November of the years in ■which-elections are held, leaving in full force the necessary ■corresponding changes made in the former act. Section 77, .-however, directs the general elections for the year 1878 to be held in August, as formerly, but leaves in full force all the other provisions of the act of 1875. Though the election is held in August, the terms of the •county officers elected commences in December and continue for two years thereafter as required by the constitution. It was irregular and improper for the commissioners to induct the defendant into office without his giving all three of the required bonds as was held in Dixon v. Com’rs of Beaufort, 80 N. C., 118, yet he was legally in the office and so remains until ousted therefrom by judicial sentence. Bat. Rev., ch. 79, § 3. This defect was removed, however, by his *309 furnishing the necessary tax' bonds in April and does not now call for his amotion. No error. Affirmed.