Loftin v. . Sowers

1. That the defendant is not entitled to the said office of Sheriff and that he be ousted therefrom. 2. That the plaintiff, David Loftin, is entitled to the said office and to assume the execution of the duties of the same. The answer of the defendant admitted that the plaintiff had received the highest number of votes for the office of Sheriff, that he was declared to have been duly elected, and that he gave bonds and qualified as sheriff before the new Board of Commissioners as stated by him. It also admitted that the defendant was a candidate for the office, but denied that he intended to resign his office until the regular expiration of his term in it, which he contended did not expire until the year 1872, as provided in the 4th and 2d Articles of the Constitution; that he never had expressly or impliedly resigned his office or done any thing to forfeit it; that he tendered the bonds required by law to a majority of the old Board of Commissioners, who claiming that they were the rightful Board organized as such on the said 5th day of September, and that the bonds were accepted by the said Board and that he duly qualified as Sheriff before them; that he did not tender his bonds to, or offer to qualify before the new Board of Commissioners because he was told by them that they did not recognize him as Sheriff. The case was tried before his Honor, Judge Buxton, at a Special Term of the Superior Court of DAVIDSON County, in December, 1870, and by the consent of the parties without a jury. His Honor found the facts to be as stated in the complaint and answer, and then announced his conclusions of law to be as follows: "By comparison of sec. 30, Art. 4, of the State Constitution with sec. 32 of the same Article and with sec. 29, Article 2, I am of (253) the opinion that the defendant by virtue of his election in 1868, at the first election held under the Constitution, was entitled to hold said office for two years next ensuing the first Thursday in August, *Page 193 1870, having come to the conclusion that the terms `the officers elected at the first election' embraced all the officers specified under the judicial department in Art. 4, among which is that of Sheriff. I am further of the opinion that the Act of the General Assembly, ch. 148, of the laws of 1869-'70, entitled an "Act concerning elections and registrations in the year of our Lord 1870," although in terms directing the elections of Sheriffs for the various counties on the 1st Thursday of August, 1870, did not have the effect of impairing the right of the defendant to hold his said office during the term prescribed by the Constitution (see opinion of the Justices of the Supreme Court in regard to the term of office of the General Assembly elected in April, 1868, 64 N.C. Ap. on page 785.) I am further of opinion that the circumstances of the defendant having offered himself as a candidate for re-election, and the declarations made by him before the election, that he would abide the result of the election, do not work a resignation or abandonment of the office, but were at most a declaration of a purpose to resign or abandon, which, like the will of a testator, was ambulatory until the time came to carry it into effect, and could be revoked at pleasure. I am further of opinion that since the election there has been no abandonment of the office by the defendant, as he has held on to it as well as he could, and has tendered his bonds to the only Board who would receive it. Lastly, I am of the opinion that there has been no forfeiture by him of the office by reason of a failure to renew his official bond before the proper Board on the first Monday in September, 1870, because of the provisions of the act of the General Assembly of 1869-'70, ch. 169, sec. 2, entitled an "Act in relation to official bonds," were not complied with by the proper Commissioners of the County." A judgment was, according to this opinion, entered for the defendant, and the (254) plaintiff appealed. There are five cases at this term, called "The Sheriff Cases." The main question in all of these is, the term of office of the Sheriffs elected at the first election under the present Constitution, but each presents certain special circumstances, making it necessary that each case should be referred to separately. Each case differs in regard to the mode of instituting the proceeding. The purpose in all, however, is to get a decision upon the main question, and upon the effect of the special circumstances, without regard to the form of the *Page 194 procedure — so, that matter will be passed upon with the remark, that the form adopted in this case, seems to us to be the proper one. Art. 4, sec. 32 of the Constitution provides — "The officers elected at the first election held under this Constitution, shall hold their offices for the terms prescribed for them respectively, next ensuingafter the next regular election for members of the General Assembly." The next regular election for members of the General Assembly, is to be held on the first Thursday in August, 1870. (Art. 2, sec. 29.) So the officers whose offices are provided for by Art. 4, elected at the first election held under the Constitution, are to hold their offices for the terms prescribed for them respectively, next ensuring after that date. These words are plain and positive, and admit of no other construction. There is no other sections which conflicts with, or can control this construction, and it will be observed the wording differs very materially from that in respect to members of the General Assembly. This conclusion, although no reasons for an extension of the term of officers elected at the first election appears on the face of the Constitution, is (255) forced upon the Court, because it is so written. Our duty is, to administer the law as it is, and not according to our notion as to how it ought to be. (See opinion of Chief Justice and Justice Dick on the question of "tenure of office," at the request of the General Assembly,64 N.C. 785 appendix.) The special circumstances relied on, do not, in our opinion, amount to a resignation, or to an abandonment, or to a forfeiture of his office on the part of the defendant, upon the facts found by his Honor, in the Superior Court, and for the reasons given by him. This case is clearly distinguishable from Williams v. Somers, 18 N.C. 61. In that case, the Court put no stress upon the facts that Mr. Williams was a candidate before the people, and the decision is put upon an implied abandonment of the office, by reason of certain acts after the election. That decision did not meet with full concurrence on the part of the profession, because the abandonment of the office by Mr. Williams was not considered to have been voluntary, but ought to have been ascribed to the pressure of circumstances induced by unconstitutional action on the part of the Legislature, which the presiding Judge was ready to enforce. But, however this may be, our case in no wise comes up to that. See Aderholt v.McKee, post 257. Per Curiam. Judgment affirmed. NOTE. — The cases of the People of the State on the relation ofthe Attorney-General and D.A. Koon v. J.H. King, from Lincoln County, *Page 195 and the State on the relation of A.J.C. Powell v. the Board ofCommissioners of Sampson County, were decided upon the same grounds as those set forth in the above opinion, and the opinion is referred to for them. The same may be said of the case of R. F. Trogden v. Commissionersof Randolph County. In the case of J. Foley v. Commissionersof Pitt, the special circumstances relied on to take it out of the general principle announced in Loftin v. Sowers were (256) that being the former Sheriff, though he was not a candidate for reelection, he electioneered for the candidate who obtained the highest number of votes, voted for him, and afterwards proclaimed him as having been elected, and that he did not tender his official bonds at the proper time. The following is the opinion filed in the case. John Foley v. Commissioners of Pitt County.