Birchfield v. Department of Conservation & Development

BbogdeN, J. Was the plaintiff an employee of the State at the time of the injury? The Industrial Commission found as a fact that he was not an employee, and ordinarily this would end the controversy if there was any competent evidence to support the finding. It is contended, however, that the facts are not in dispute, and, therefore, the question as to whether the plaintiff was an employee is wholly a conclusion of law. The exercise of the duties and functions of a public office or public employment of an appointive nature, rests upon the concurrence of two essential facts: (1) due appointment, and (2) proper qualification. The appointment must be duly made by proper authority, communicated to and accepted by the appointee. The qualification consists in the giving of a bond or taking of an oath where such is required or in otherwise complying with the provisions of law. The courts have held generally that if a person assumes the duties or enters upon the discharge of the functions of an office, even under a colorable appointment or election, that he is at least a de facto officer to the extent of incurring liability in the performance of such duties. Lee v. Martin, 186 N. C., 127, 118 S. E., 914. C. S., 2141 (w), empowers the State game warden to appoint or employ deputy wardens with the approval of the Com *219 mission. Apparently the plaintiff was duly appointed by tbe State game warden, but sucli appointment bad neither been communicated to him nor accepted by him at the time of his injury. Although he was engaged in assisting the game warden of Graham County, he was not performing such service by virtue or color of an appointment made by the State game warden. Consequently he was not then discharging duties under circumstances implying an acceptance of the appointment, neither had the plaintiff taken the oath required by law. The general effect of failure to take a proper oath is discussed in the following cases: Clark v. Stanley, 66 N. C., 59; Lee v. Dunn, 73 N. C., 595; Lee v. Martin, supra, and S. v. Long, 186 N. C., 516, 120 S. E., 87. The effect of failure to take the oath of office before the injury is debated in the briefs, but this phase of the case becomes immaterial by reason of the conclusion that there was no communication of the appointment or acceptance thereof prior to the date of the injury. Reversed.