In re Yelton: Advisory Opinion , 223 N.C. 845 ( 1944 )

To His Excellency, J. Melville Broughton,

Governor of North Carolina:

Your request for an advisory opinion in the matter of Nathan Yelton poses the question whether the comptroller of the State Board of Education may be granted a leave of absence under eh. 121, Public Laws 1941, he having accepted a temporary captaincy in the United States Army, and still retain his present position. Also involved is the broader question whether, in like circumstances, any State official may be given a leave of absence to accept a temporary officer’s commission in the United States Army or Navy without perforce vacating his civil office.

The question is an important one and ought to be settled in the interest of continued, efficient, orderly government. Its solution lies in harmonizing the statute law with the Constitution, if this can be done.

I. The Meaning of Oh. 121, Public Laws 1941:

The following pertinent provisions of eh. 121, Public Laws 1941, are clear and explicit: “Section 1. Any elective or appointive State official may obtain leave of absence from bis duties for military or naval service, protracted illness, or other reason satisfactory to the Governor, for such period as the Governor may designate. Such leave shall be obtained only upon application by the official and with the consent of the Governor. The official shall receive no salary during the period of leave. . . . The period of leave may be extended upon application to and with the approval of the Governor if the reason for the original leave still exists, and it may be shortened if the said reason shall unexpectedly terminate: Provided, that no leave or extension thereof shall operate to extend the term of office of any official beyond the period for which he was elected or appointed. If, by reason of the length of the period of absence or the nature of the duties of the official, the Governor deems it necessary, the Governor may appoint any citizen of the State, without regard to residence or district, as acting official or substitute for the period of the official’s leave of absence, such appointee to have all the authority, duties, perquisites, and emoluments of his principal.”

(Sections 2 and 3 contain similar provisions in respect of county and municipal officials.)

Thus it will be seen the General Assembly has spoken on the subject, and, to the extent of its legislative authority, has taken care of the situation. There would be no question of your right to grant the comptroller a leave of absence, and to appoint a substitute or acting official in his stead, during his absence, if he were going into the Army as a private and not as an officer. Critchlow v. Monson, 102 Utah, 378, 131 P. (2d), 794. The constitutional question which has occasioned your request foí-an advisory opinion arises only by reason of his acceptance of a temporary officer’s commission. It is conceded that the acceptance of a second office which is forbidden or incompatible with the office already held operates ipso facto to vacate the first. Barnhill v. Thompson, 122 N. C., 493, 29 S. E., 720; Whitehead v. Pittman, 165 N. C., 89, 80 S. E., 976; In re Martin, 60 N. C., 153; Annotation 53 A. L. R., 595.

II. The Effect of Art. XIV, Sec. 7, of the OoNstitutioN :

The Constitution, Art. XIV, sec. 7, provides: “No person who shall hold any office or place of trust or profit under the United States, or any department thereof, or under this State, or under any other State or government, shall hold or exercise any other office or place of trust or profit under the authority of this State, or be eligible to a seat in either house of the General Assembly: Provided, that nothing herein contained shall extend to officers in the militia, justices of the peace, commissioners of public charities, or commissioners for special purposes.”

Under this section, which is intended and designed to prevent or inhibit double office-holding, except in certain instances, it is not permissible for one person to bold two offices at tbe same time. Groves v. Barden, 169 N. C., 8, 84 S. E., 1042; Harris v. Watson, 201 N. C., 661, 161 S. E., 215; Brigman v. Baley, 213 N. C., 119, 195 S. E., 617; In re Barnes, 212 N. C., 735, 194 S. E., 499; Doyle v. Raleigh, 89 N. C., 133. It bas been said, however, tbat where tbe second office is temporary, or tbe appointment thereto does not “require continuous public service,” no constitutional offense is thereby incurred. Grimes v. Holmes, 207 N. C., 293, 176 S. E., 746; S. v. Wood, 175 N. C., 809, 95 S. E., 1050; S. v. Smith, 145 N. C., 476, 59 S. E., 649. Such would seem to be tbe case here.

Furthermore, it will be noted tbat “officers in tbe militia” are expressly excluded from tbe operation of this section. As all able-bodied male citizens of tbe State, between tbe ages of 21 and 40 years, who are citizens of tbe United States and who are not averse to bearing arms from religious scruples, are liable to duty in tbe militia, Const., Art. XII, it was evidently deemed unjust to single out State officials and require them to forfeit their offices if they accepted commissions in tbe militia while on active military duty in defense of tbe commonwealth. So it was provided tbat tbe inhibition against double office-bolding should “not extend to officers in tbe militia.” And while this designation, strictly speaking, may or may not reach as far as “temporary appointments as officers in tbe Army during tbe present emergency,” tbe reason for tbe limitation of tbe operation of tbe section would seem to require tbat it “not extend to” such temporary officers in tbe Army. Certainly tbe spirit of tbe Constitution would envisage tbat it fall short of such operation. “Tbe meaning of a constitution is to be found, not in a slavish adherence to tbe letter, which sometimes billetb, but in tbe discovery of its spirit, which givetb life.” Opinions of the Justices, 204 N. O., p. 813, 172 S. E., 474. If need be, tbe letter gives way to promote tbe equity of tbe spirit. An inhibition or prohibition usually extends no farther than tbe reason on which it is founded. Cessante ratione, cessal ipsa lex.

“Historically tbe ‘militia’ or ‘militiamen’ have been held to comprehend every temporary citizen-soldier who in time of war or emergency forsakes bis civil pursuits to enter for tbe duration tbe active military service of bis country”- — Douglas, J., in S. v. Grayston, 349 Mo., 700, 163 S. W. (2d), 335.

It will also be observed tbat tbe official on leave is to receive no salary during tbe period of bis absence. Nor is be expected to perform any of tbe duties of bis office while on leave. Thus, neither tbe spirit nor tbe reason for tbe constitutional inhibition against double office-bolding is to be offended. “Tbe reason of tbe law is more potent in its interpretation than tbe language used to express it. Reason is its soul; language its outward form.” Warrenton v. Warren County, 215 N. C., 342, loc. cit. 348, 2 S. E. (2d), 463.

Moreover, tbe services in the Army of the officer on leave are to be temporary and not permanent. This saves the case from incompatibility,. In re Martin, supra, which would undoubtedly result, if the services-contemplated were those of the professional, permanent soldier, as distinguished from those of the temporary citizen-soldier. S. v. Grayston, supra; Annotations 26 A. L. R., 142, and 132 A. L. R., 254.

The instant provision was never intended to discourage public officials from assuming military leadership in time of emergency. Critchlow v. Monson, supra. Officers in the militia are liable to be called out t0' suppress riots or insurrection, “and to repel invasion.” Const., Art. XII, sec. 3. Temporary officers in the Army are likewise subject to-military duty “to repel invasion” during a war emergency. To say that one may serve as a private in the Army during war time and hold his State position, but if he accept a temporary officer’s commission he must renounce his civil office, would be to impose an unequal sacrifice on State officials who seek promotion in the Army.

It was the purpose of the proviso in this section to permit public officials to serve as officers in the militia without forfeiting their civil office, and it is reasonable to suppose that as the interdiction in the first part of the section was not intended to extend to civil officers serving as officers in the militia, for precisely the same reason it was not intended to extend to civil officers holding temporary commissions in the Army during a war emergency, as they both fall in the same category. Both would be temporarily engaged in bearing arms in defense of the commonwealth and in like positions. To declare otherwise would be to say that an unwarranted discrimination inheres in the Constitution, whereas the pervading principle of the organic law is equality of treatment. The thesis of the Constitution is that all similarly situated are entitled to like treatment from the government they support and defend. Leonard v. Maxwell, 216 N. C., 89, 3 S. E. (2d), 316. Equality and fair play are implicit in the Constitution. Such is its theme. “A constitution should not receive a technical construction as if it were an ordinary instrument or statute. It should be interpreted so as to carry out the general principles of the government, and not defeat them” — Brown, J., in JenTcins v. Board of Elections, 180 N. C., 169, 85 S. E., 289.

Substantially the same question as here presented has arisen in a number of the States having constitutional provisions in respect of dual office-holding, quite similar to ours, and yet with sufficient variations perhaps to render them distinguishable. At any rate, opposite conclusions have been reached in the different States with variant reasons assigned therefor. On the one side may be listed the States of Pennsylvania, Commonwealth v. Smith, 343 Pa., 446, 2 Atl. (2d), 440; Arizona, Perkins v. Manning, 59 Ariz., 60, 122 P. (2d), 857; and Illinois, Fekete v. East St. Louis, 315 Ill., 58, 145 N. E., 692, 40 A. L. R., 650. On the other, may be designated tbe States of Florida, Re Advisory Opinion, 150 Fla., 556, 8 So. (2d), 26, 140 A. L. R., 1481; California, McCoy v. Los Angeles County, 18 Cal. (2d), 193, 114 P. (2d), 569; Missouri, S. v. Crayston, supra; Utah, Critchlow v. Monson, supra; Texas, Carpenter v. Sheppard, 135 Tex., 413, 145 S. W. (2d), 562; and West Virginia, S. ex rel. Thomas v. Wysong, W. Va., ., 24 S. E. (2d), 463 (decided 23 February, 1943). Most of tbe recent cases have been collected in Annotation 140 A. L. E., 1499. Thus, in its final analysis, we are left to apply our own Constitution to tbe facts in band, and to say what it means. Tbe authorities elsewhere, while enlightening, are not controlling.

Accordingly, you are advised that tbe question first above propounded is answered in tbe affirmative.

Eespeetfully,

Waltee P. Stacy,

Chief Justice;

Michael ScheNcic,

W. A. DeviN,

M. V. BarNhill,

J. Wallace Winborne,

A. A. F. Sea well,

Emery B. DeNNY,

Associate Justices.