State Ex Rel. Salisbury v. Croom

HoKE, J. Tbe Constitution of 1868, Article III, sec. 10, made provision tbat tbe Governor, by and with tbe advice and consent of a majority of tbe Senators-elect, appoint all officers whose offices are established by tbe Constitution or which shall be created by law and whose appointments are not otherwise provided for, and no such officer shall be appointed or elected by tbe General Assembly. Construing tbis and cognate sections of tbe Constitution in reference to vacancies, etc., it was held in various decisions tbat tbe term, “unless otherwise provided for,” meant unless otherwise provided for by tbe Constitution itself,» and tbat, except in specified and restricted instances, tbe Legislature bad no power to appoint to office or to fill vacancies therein. Nichols v. McKee, 68 N. C., 429; Welker v. Bledsoe, 68 N. C., 457; Clark v. Stanly, 66 N. C., 59. Tbis interpretation and consequent method of appointment to office and filling vacancies therein not being satisfactory to tbe dominant sentiment in tbe State, tbis article and section of tbe Constitution, as it then existed, and others of kindred nature, were altered by tbe Convention of 1875, and it was then established and now remains as follows (Art. Ill, sec. 10) : “Tbe Governor shall nominate and, by and with tbe advice and consent of a majority of tbe Senators-elect, appoint all officers whose offices are established by tbis Constitution and whose appointments are not otherwise provided for.” It will thus be noted tbat tbe inhibition on tbe legislative power to appoint to office is removed and tbe inherent power of tbe Governor to appoint is restricted to constitutional offices and where tbe Constitution itself so provides. Accordingly, it has since been tbe accepted view tbat, in all offices created by statute, including these directorates and others of like nature, tbe power of appointment, either original or to fill vacancies, is subject to legislative provision as expressed in a valid enactment. Cherry v. Burns, 124 N. C., 761; Cunningham v. Sprinkle, 124 N. C., 638. In Cherry’s case it was held: “1. Constitutional offices must be filled in tbe mode designated in tbe Constitution. “2. Under tbe amended Constitution of 1875, tbe Legislature may provide for tbe filling of any office created by statute. *227 “3. Tbe office of keeper of tbe Capitol is a legislative office. By tbe act of 23’February, 1899, amending section 2301 of Tbe Code, tbe Legislature conferred upon themselves tbe power to fill tbat office — and on 6 March, 1899, elected tbe plaintiff.” This being tbe status of tbe matter so far as tbe question of power is concerned, in Eevisal, cb. 97, sec. 4547, tbe General Assembly enacted tbat: “Each corporation shall be under tbe management of a board of nine directors, no two of whom shall be resident of tbe same county, nominated by tbe Governor and, by and with tbe advice and consent of a majority of tbe Senators-elect, appointed by him, of whom five shall be a quorum, except when three of their number are in this chapter empowered to act for special purposes. Each board of directors shall be in classes of three, as they are now divided, and tbe term of office of such classes shall expire as follows: Those of tbe first class on 1 April, 1905; of tbe second class, on 1 April, 1907; and of tbe third class, on 1 April, 1909.- At tbe expiration of their said respective terms of office, all appointments shall be for a term of six years, except such as are made to fill unexpired terms.” A perusal of this statute will disclose tbat it is tbe design and expressed purpose of tbe Legislature tbat these institutions shall be controlled and managed by a directorate who are appointed by tbe Governor, by and with tbe advice and consent of a majority of tbe Senators-elect, and from tbe closing paragraph it also sufficiently appears tbat this careful and circumspect method shall prevail not only for tbe full term, but for unexpired terms, and, while tbe Governor alone, under tbe general power to fill vacancies conferred by section 5328, subsee. 3, of tbe Eevisal, “Tbat be is to make appointments and supply vacancies not otherwise provided for in all departments,” may make appointment to this position when tbe Senate is not in session, such action could only be for tbe interval until tbe Senate meets and tbe two agencies, specially provided by tbe law, towit, tbe Governor and tbe Senate, shall concur in appointing bis successor. This principle, tbat when tbe Constitution and statutes especially applicable require tbat tbe Governor and tbe Senate shall concur in making an appointment, tbe appointee of tbe Governor, ad interim, under a general power, shall, unless tbe Constitution or some statute otherwise provides, bold only until bis successor has been regularly selected and qualified, finds support in tbe position obtaining here, tbat in cases permitting construction, tbe correct rule of interpretation favors a recurrence to tbe original methods of selection (Rodwell v. Rowland, 137 N. C., 617), and is, we think, in accord with right reason and is well sustained by authority. People ex rel. Laine v. Tyrrell, 87 Cal., 475; People ex rel. Cagman, 20 Cal., 504; State ex rel. Meyer, 27 La. Anno., *228 569; S. v. Raveshede, 32 La. Anno., 934; In re Marshalship So. Ala., 20 Fed., 379; State ex rel. Robert v. Murphy, 32 Fla., 138; Krop v. Smoot, 62 Md., 172; Throop on Public Officers, sec. 328; Mechem on Public Officers, sec. 139. The decision .upholding the term of an ad interim appointment till the end of the next legislative session is by reason of some positive provision of the Constitution or statute, as in the case of the Federal Constitution, Art. II, sec. 2, and is an extension of the tenure which would otherwise prevail. And the fact that the Governor, in the designation of the relator as director, mistaking his power, essayed to appoint him for the whole unexpired term, does not affect the result. The appointment holds till the proper appointing powers concur in selecting his successor, and then expires. Throop on Public Officers, sec. 313. The authorities relied upon by the relator are chiefly decisions construing the Constitution of 1868, and the only authority in this State favoring plaintiff’s position under the Constitution as amended in 1875 is that of State Prison et al. v. Day, 124 N. C., 362, and, in reference to the issue now presented, the majority of the Court, making only a casual reference to the question, rested its decision on People v. McIver, 68 N. C., 467, a case construing the constitutional provision as it formerly stood. This was pointed out with great effect in the vigorous and learned dissent of the present Chief Justice in Day's case, a dissent which has since prevailed and recognized by a unanimous Court in Mial v. Ellington, 134 N. C., 159, and other decisions, as the law of the land. And the case of Boynton v. Heartt, 158 N. C., 488, in no way conflicts with our decision. That case was concerning the position of public administrator, and it appearing that there was no time fixed by the statute for an appointment to begin or terminate, and that the filling of an unexpired term was neither provided for nor contemplated, it was held that an appointment to that position should always be for a full term; but in the present case the statute, section 4547, fixes definitely the termination of each office and there is express provision for the filling of unexpired terms and, by correct inference, in the same way as that of original appointments, except for an intervening period when the Senate is not in session, in which case a temporary appointment may be made, under section 5328, the same as we have stated, and expires by limitation whenever the office is filled by the regularly constituted appointing power. We were further referred by counsel to Revisal, sec. 2368, to the effect that “Any person who shall, by the proper authority, be admitted and sworn into any office shall be held, deemed, and taken, by force of such admission, to'he rightfully in such office, until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void; . . .” The *229 position being that the board acted without warrant of law in inducting respondent into office; bnt the portion of the section, as quoted, may not avail plaintiff. It can only apply, in any event, to persons who, having duly qualified, are filling the duties of the office under color of right: as we have endeavored to show, the appointment of the relator only held until his successor was regularly appointed by the concurrent action of the Governor and the Senate. His commission- expiring at that date, he must be held, from that time, without color. S. v. Taylor, 108 N. C., 196; Kimball v. Raymond, 45 Miss., 151; Throop on Public Officers, sec. 623 et seqMechera on Public Officers, sec. 319. Apart from this, the relator has accepted the position of having been displaced by the form of action on which he now seeks to assert his rights. If, in violation of this section, he had been wronged by the action of the board, some remedy might be open to him, but in the present form of action the only question presented is, Which has the right to office? Throop on Public Officers, sec. 781; 17 Enc. PL and Pr., 452. For the reason heretofore indicated, we are of opinion that the matter has been correctly decided, and the judgment for respondent is Affirmed.