Rhodes v. . Hampton , 101 N.C. 629 ( 1888 )

By virtue of the authority conferred in an amendment to the Constitution in 1875 — Art. VII, sec. 14 — the General Assembly, by the Act of 27 February, 1877, modified the first section of that article by omitting therefrom the words "and five commissioners," and annexing thereto as follows: "Provided,however, that a majority of the justice may abolish the office of treasurer, and thereupon the duties and liabilities now attached to the office shall devolve upon the sheriff." Acts 1876-77, ch. 141, sec. 2.

Some doubts being entertained as to the power of the justices to establish the office after it had been abolished, a further amendment was made in these words: "That in all cases where the board of justices of the peace of any county has abolished the office of county treasurer, the said board shall have like power to reestablish the same, if, in the judgment of the board the public interests so require." Acts 1881, ch. 362, sec. 1.

Substantially, these provisions are embodied in section 768 of The Code.

As there is no restriction put upon the justices as to the time when they may exercise the conferred power of abolishing the office and devolving its duties upon the sheriff, so none is imposed upon them in restoring it, so that it may be again filled according to law. As the legislation is transferred to The Code, even the restraint that the restoration may be made when, in the judgment of the justices, the public interest may require, is removed, and the discretion reposed in the board in taking such action is absolute and unqualified.

It is therefore plain that the action of the justices, for whatever cause taken, was opportune and effectual — opportune, in that it took place at the end of the sheriff's term of office and the entering upon a new term, when the transfer of the duties from the one office to the other would least disturb the public business; effectual, in that the incumbent of the reestablished office would begin a term (633) commensurate with that of the other biennially chosen county officers, and terminating at the same time.

As then, the office of treasurer was, by the vote of the justices, restored, and without an incumbent a vacancy existed — Cloud v.Wilson, 72 N.C. 155 — and the duties disannexed from the office of sheriff, it became necessary to have the place filled, and this could only then be done by an appointment from the board of county commissioners, or there would be no one to perform the functions and execute the duties of the office. The Code, sec. 720.

This appointment, like that of other county officers, would be for the term during which it was made, and until, at an election held pursuant to law, the incumbent could be supplied by a popular vote.

It is plain that the election of Thompson in November preceding was a nullity, for the obvious and sufficient reason that there was then no such office to be filled, and equally so that the appointment of the plaintiff was regular and valid.

But the defendant contends that, having given his official bonds and been inducted into office before the action of the justices in restoring that of treasurer, the privileges and advantages attaching to him as sheriff cannot be withdrawn without impairing a right vesting in him to the emoluments thereof.

The contention has no support in law. The transferred duties occasioned by the abolition of the office of treasurer in 1876, attached to the office of sheriff only so long as there was no treasurer to perform them, and subject to the underlying condition that they should revest at once upon the restoration of the office of treasurer whenever the justices should see fit to restore it.

(634) There could not be a regular and duly appointed treasurer without the rights and functions belonging to the office, and these could not be then possessed and exercised by the sheriff. The incongruity is manifest, and has no support in the legislation on the subject, as no vested right of the defendant is disturbed for it is onlyduring this interregnum in the treasurer's office that the sheriff is charged with its duties and entitled to compensation for their discharge, and these terminated upon the expiration of the interval when the office is resuscitated and resumed by an appointee.

We decide the case upon the facts and agreement of counsel, and affirm the judgment.

Affirmed.

Cited: Cook v. Meares, 116 N.C. 587, 588, 589, 590, 592.