Freeman v. . Board of Elections

Winborne, J. Two questions are presented as determinative of this appeal: (1) Does the amendment to Article IV, section 24, of the Constitution of North Carolina, fixing the term of sheriff at four years instead of two as formerly, affect the term of office of sheriff of Alamance County to which Marcellus Preston Robertson was elected at the general election in November, 1938, and into which he was inducted on the following first Monday in December ? (2) If so, did the board of commissioners of Alamance County have the power to fill the vacancy caused by the death of Sheriff Robertson by appointment for the unexpired portion of the term of four years ? We hold that both questions are properly answerable in the affirmative. I. At the outset, it is noted that the wording of the pertinent portion of the section in question as it originally appeared in the Constitution adopted in 1868 is that “In each county a sheriff and coroner shall be elected by the qualified voters thereof as is prescribed for the members of the General Assembly, and shall hold their offices for a period of two years”; and that the only material change effected by the amendment is the substitution of the word “four” for the word “two,” as it there appears. It is also noteworthy that the section is silent with respect to the time when the terms of office begin. *67 That the term of the office of sheriff elected at a general election held in November begins on the first Monday in December next thereafter appears to be settled by judicial interpretation of legislative enactments originating in the period in which the Constitution was adopted. Worley v. Smith, 81 N. C., 304, and Sneed v. Bullock, 80 N. C., 132, involving title to offices of sheriff. See, also, Buchman v. Comrs., 80 N. C., 121; Jones v. Jones, 80 N. C., 127; Clarke v. Carpenter, 81 N. C., 309; and Kilburn v. Latham, 81 N. C., 312. Looking to that period for the background upon which these decisions were rendered, we find that the General Assembly, in special session in the city of Ealeigh, in July, 1868, recognizing the necessity of machinery to carry into effect the provisions of the Constitution, and after providing for the organization of the board of county commissioners, directed and empowered that board to proceed to qualify all other county officers recently elected or appointed under the provisions of the Constitution and to take bonds required of them — specifying that sheriffs shall execute three several bonds as prescribed in the Eevised Code. Public Laws 1868, chapter 1. At the same session by another act concerning the government of counties, the Legislature provided that the board of county commissioners shall have power “to qualify and induct in office at the annual meeting on the first Monday of September after an election, or at any time when a vacancy in any of the county offices shall be filled, the clerk of the Superior Court, the sheriff, the coroner, the county treasurer, register of deeds and county surveyor; and to take and approve the official bonds of the said county officers. . . .” Public Laws 1868, chapter 20, section 8, subsection 32. In later enactments of the Legislature the provision for the meeting at which such qualification and induction into office should take place was changed to “the first Monday in the month next succeeding their election or appointment.” Public Laws 1874-75, chapter 237, section 3, ratified 22 March, 1875. It further appears that prior to 1876 general elections for the election of county officers, including sheriff and coroner, were held on the first Thursday in August. But by the said act of 1874-75 it is provided that the election for such officers in the year 1876 shall be held on Tuesday after the first Monday in November. And further provides: “Sec. 6. That all officers whose terms of office would expire did the election occur on the first Thursday in August, 1876, are hereby authorized and directed to hold over in the same until their successors in office are elected and qualified under this act.” However, at the next session, the Legislature fixed the first Thursday in August as the date for the general election of such officers in the year 1878, but provided that in 1880, and every two years thereafter, a general election shall be held on Tuesday *68 after tbe first Monday in November. Public Laws 1876-77, chapter 275, sections 1 and 77, ratified 12 March, 1877. It was in this period that the actions in the cases above referred to arose. In the case of Worley v. Smith, supra, an action to try title to the office of sheriff of Jones County, the facts briefly stated are these: Nathaniel McDaniel was elected sheriff at the election in August, 1878, for the ensuing term. He appeared before the board of county commissioners on the first Monday in September, tendered his bonds, which were accepted, and took the oath of office. He died in that month. On 7 October next the commissioners appointed Worley, the plaintiff, to fill the vacancy and he qualified on 16 October. On the first Monday in December the commissioners elected the defendant, Smith, for the full term of two years. Upon giving the process bond and taking the oath he was inducted into office. Later he executed the other two bonds which were accepted and approved by the commissioners. Worley challenged the last appointment. Speaking through Smith, C. J., the Court said: “By the act of March 22, 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 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.’ Laws 1874-75, chapter 237, section 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, supra. 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.” And in conclusion the Court said: “Though the election is held in August, the terms of the county officers elected commence in December and continue for two years thereafter, as required by the Constitution.” It thus appears that in interpreting legislation enacted early in the period following the adoption of the Constitution, relating to the time when sheriffs-elect shall qualify and be inducted into office, the Court recognizes the power of the General Assembly to legislate with respect *69 thereto, and that tbe legislation enacted — properly interpreted- — fixes tbe first Monday in December next ensuing tbe general election in November as tbe time for tbe beginning of tbe term of office of sheriffs elected at such election. As there written, tbe law has remained and is unchanged. Likewise, tbe statute, Public Laws 1868, chapter 20, section 8 (32), amended as above indicated and considered by tbe Court in Worley v. Smith, supra, has been brought forward in substantially tbe same form in subsequent codifications of statutes (Code of 1883, Vol. 1, chapter 17, section 707 [28]; Revisal of 1905, section 1318 [23]; and tbe Consolidated Statutes of 1919, section 1297, subsection 12), and is now and was in effect in tbe years 1937 and 1938. Therefore, when tbe General Assembly in the 1937 session came to propose and authorize tbe submission to tbe qualified voters of tbe State, and when tbe voters came to vote on tbe question of tbe adoption of tbe amendment, it is presumed that each acted in tbe light of tbe law. Applying tbe law as there declared to tbe present case, it is manifest that though at tbe general election held on 8 November, 1938, Marcellus Preston Robertson was elected sheriff of Alamance County, tbe term of office to which be was elected commenced on tbe first Monday in December and is to continue for tbe number of years next thereafter as then fixed by tbe Constitution — four years. It is admitted on all bands that whether tbe effective date of tbe amendment be on tbe day of its approval by a majority of tbe qualified voters, 8 November, or at tbe time of tbe certification by tbe Governor, 30 November, tbe amendment was in effect on tbe first Monday in December. Hence, it is not necessary that we consider here tbe question of tbe date on which tbe amendment became effective. North Carolina Constitution, Article XIII, section 2; Reade v. Durham, 173 N. C., 668, 92 S. E., 712. 2. Tbe Constitution, Article IY, section 24, further provides that “In case a vacancy existing for any cause in any of tbe offices created by this section, tbe commissioners of tbe county may appoint to such office for tbe unexpired term.” Tbe language is clear and tbe meaning manifest. See Worley v. Smith, supra. Hence, bolding as we do that tbe term is for four years, tbe affirmative answer to tbe second question follows as a matter of course. In accordance with this opinion, tbe judgment below is Reversed.