Harris v. . Watson , 201 N.C. 661 ( 1931 )

BROGDEN, J., dissenting.

STACY, C. J. concurs in the dissent. This is an action in the nature of a quo warranto brought by the Attorney-General of the State of North Carolina on the complaint of the relator, a citizen of this State, and a resident and taxpayer of Hyde County, to oust the defendant from the office of county commissioner of Hyde County, on the ground that defendant now unlawfully and wrongfully holds and exercises said office. C. S., 870(1).

The facts alleged in the complaint are as follows:

1. At the election held in November, 1930, the defendant, W. W. Watson, was duly elected as a county commissioner of Hyde County for a term of two years; pursuant to said election, on the first Monday in December, 1930, the defendant was duly inducted into said office of county commissioner of Hyde County, and since said date has held and exercised said office, and continues so to do.

2. On 24 March, 1931, while he was holding and exercising the office of county commissioner of Hyde County, pursuant to his election thereto in November, 1930, the Governor of North Carolina appointed the defendant, W. W. Watson, a notary public in and for this State, and duly issued to said defendant a commission as notary public; on 3 April, 1931, the defendant accepted said appointment and duly qualified as a notary public, as provided by statute.

3. Since his acceptance of his appointment by the Governor of North Carolina as a notary public, and his qualification for the performance of his duties as such, the defendant has been requested by citizens of this State, who are residents and taxpayers of Hyde County, to vacate the office of county commissioner of said county; the defendant has declined and refused to vacate the office. He continues to hold and exercise the office of county commissioner of Hyde County, and to hold himself out as qualified to act as a notary public in this State, notwithstanding the provisions of section 7 of Article XIV of the Constitution of North Carolina.

4. Section 7 of Article XIV of the Constitution of North Carolina is as follows:

"No person who shall hold an 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 contained herein shall extend to officers in the militia, justices of the peace, commissioners of public charities, or commissioners for special purposes."

The action was heard on a demurrer filed by the defendant, on the ground that the facts stated in the complaint are not sufficient to constitute a cause of action on which the relator is entitled to the relief prayed for. The demurrer was sustained, and the action dismissed.

From judgment dismissing the action, the relator appealed to the Supreme Court. The question of law presented by this appeal is whether a person who lawfully holds and exercises the office of county commissioner of one of the counties of this State, and who while holding and exercising said office, accepts an appointment as a notary public by the Governor of North Carolina, made under C. S., 3172, thereby forfeits and vacates the office of county commissioner, by reason of the provisions of section 7 of Article XIV of the Constitution of North Carolina. The answer to this question involves the nature of the position of notary public, under the laws of this State.

Referring to the provisions of section 7 of Article XIV of the Constitution of this State, Faircloth C. J., in Barnhill v. Thompson,122 N.C. 493, 29 S.E. 720, says: "This provision is plain and leaves no room for construction whenever the two places under consideration are found to be public offices." Smith, C. J., in Doyle v. Raleigh, 89 N.C. 134, says that the manifest intent of the provision is to "prevent double office-holding — that offices and places of public trust should not accumulate in a single person and the super-added words of `places of trust or profit' were put there to avoid evasions in giving too technical a meaning to the preceding word." The prohibition is expressed in language which is clear and unambiguous, and must be enforced, notwithstanding the character or relative importance of the two offices. In view of the language of the Constitution, the question as to whether the two offices, which one person undertakes to hold and exercise at the same time are or are not compatible, is immaterial.

The question as to whether the place of county commissioner of a county of this State is an office held under this State, within the meaning of section 7 of Article XIV of the Constitution, is not open to debate. It was so held in Barnhill v. Thompson, supra. In that case, Faircloth, C. J., says: "An office is defined by good authority as involving a delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public, by which it is distinguished from employment or contract." Under this definition, which is supported by authoritative judicial decisions, in this and other jurisdictions, and is in accord with definitions of approved text-writers, the position of county commissioner of a county of this State, is clearly an office held under this State, within the meaning of section 7 of Article XIV of the Constitution. Section 1 of Article VII of the Constitution provides that in each county of the State there shall be elected biennially by the qualified voters thereof the following officers: a treasurer, register of deeds, surveyor and five commissioners. The powers to be exercised by the county commissioners of a county are prescribed by statute. C. S., 1297. These powers clearly require the exercise of governmental functions. In the instant case, it is conceded that at the date of his appointment and qualification as a notary public, the defendant, W. W. Watson, was lawfully holding and exercising an office under this State, within the meaning of section 7 of Article XIV of the Constitution, to wit, county commissioner of Hyde County.

Is the position of notary public, to which the defendant was appointed by the Governor of North Carolina, and for which he has qualified as provided by statute, an office held under this State, within the meaning of section 7 of Article XIV of the Constitution? If it is such office, then, without regard to its relative importance, and without regard to whether or not the powers conferred by statute upon one who holds and exercises the position, are compatible with the powers of a county commissioner, the defendant, by his acceptance of the appointment thereto by the Governor, and his qualification therefor as provided by statute, elected to vacate his office of county commissioner of Hyde County, and now unlawfully holds and exercises said office. Otherwise he has not made, and was not required to make an election. In Barnhill v. Thompson, supra, it was held that the acceptance of a second office by one already holding another office under this State operates ipso facto to vacate the first office. In the opinion in that case, it is said: "The right of election must be admitted in all such cases. If the acceptance in this case, and entry did not vacate the first, what did it do? It is difficult to understand how the defendant could accept the second and hold the first in the same breath, and thereby do what is expressly forbidden by the Constitution. Reason as well as public policy forbids it." In Midgett v.Gray, 159 N.C. 443, 74 S.E. 1050, it is said: "It is well settled that the acceptance of and qualification for one office vacates eo instanti one office already filled by the same incumbent." This principle is referred to with approval in S. v. Wood, 175 N.C. 809, 95 S.E. 1050. It is well settled as the law in this State.

In S. v. Knight, 169 N.C. 335, 85 S.E. 418, one of the questions of law discussed and decided by this Court was whether the position of notary public, under the law in this State, is a public office. This question was directly presented in that case. It was held that the position is a public office, within the meaning of section 7 of Article VI of the Constitution of North Carolina. In that case, the question chiefly involved, and which was determinative of the appeal, was whether a woman was eligible, under the law then in force in this State, for appointment as a notary public. It was held that as a woman was not a voter under section 1 of Article VI of the Constitution of North Carolina, she was not eligible for election or appointment to an office. Section 7 of Article VI, Constitution of North Carolina. The Court was of opinion, and so held, that the position of notary public is a public office within the meaning of section 7 of Article VI of the Constitution, and for that reason a woman was not eligible for appointment as notary public, notwithstanding an act of the General Assembly of this State (chap. 12, Pub. Laws 1915), expressly authorizing the Governor to appoint women as well as men as notaries public, and declaring that the position of notary public should be deemed a place of trust and profit and not an office. The act of the General Assembly was held to be void, on the ground that the General Assembly was without power to declare that a position which by reason of the powers which were conferred on one holding the position was a public office, was not such office, but only a place of trust and profit.

The decision in S. v. Knight, supra, that the position of a notary public, under the laws of this State in force at the date of the decision, is a public office within the meaning of section 7 of Article VI of the Constitution, was made after an exhaustive examination of the authorities in this and other jurisdictions, and after a full and careful consideration of the principles of law applicable to a decision of the question. Allen,J., writing the opinion for the Court, says: "In Mechem on Public Officers, section 1, it is said that an office is a public position to which a portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, and which is exercised for the benefit of the public; this definition was adopted and approved in a unanimous opinion of this Court in S. ex rel. Wooten v. Smith, 145 N.C. 476, 59 S.E. 649, and again at this term in Groves v. Barden,169 N.C. 8, 84 S.E. 1042, and in the latter case it was also said that the performance of an executive, legislative or judicial act is the test of a public office." This test was applied to the position of a notary public. It was said that one of the duties which a notary public may perform is taking the probate of deeds, and that this is a judicial act. The powers which are conferred upon notaries public in this State are judicial in their nature. C. S., 3175.

It is true as pointed out in the brief filed in this Court by the learned counsel for the defendant that Clark, C. J., and Brown, J., dissented in S. v. Knight Justice Brown, however, concedes that the weight of authority supports the decision of the Court in that case. He cites no authority to the contrary, nor does he discuss the principles relied on by the Court as sustaining its decision. He rests his dissent solely on his opinion that the defendant in that case, although a woman, was qualified to perform the duties of a notary public. Manifestly, this was not involved in the case, and would doubtless have been conceded by the three members of the Court, whose opinions upon the questions of law involved resulted in the decision. A careful reading of the dissenting opinion of Clark, C. J., may well leave the reader under the impression that the learned and prophetic Chief Justice was more concerned with what he thought the law as applied to the facts in that case ought to be than with what it had been declared to be in this and other jurisdictions. One may well sympathize with this view, without being able to reach the conclusion on which theChief Justice in part rests his dissent.

It is needless, we think, to reexamine the authorities or to discuss again the principles of law on which this Court relied in its decision in S. v. Knight, that the position of a notary public under the law of this State, is a public office. If the position is a public office within the meaning of section 7 of Article VI of the Constitution of North Carolina as was held in that case, it seems to fallow that it is a public office within the meaning of section 7 of Article XIV. The test by which to determine whether a position created by statute is a public office, adopted and approved in S. v. Knight, was applied by this Court in S. v. Scott,182 N.C. 865, 109 S.E. 789. Applying this test, this Court has held that the position of notary public, created by statute in this State is a public office, and this holding must be regarded as authoritative. The powers conferred by statute upon a notary public are judicial, or at leastquasi-judicial, in their nature. Upon this principle it was held in Long v.Crews, 113 N.C. 256, 18 S.E. 499, that where a notary public was interested in a deed of trust as a preferred creditor therein, he was disqualified to take the acknowledgment and his attempted action was a nullity. In that case it was said by Clark, J., "In this State it is settled law that an acknowledgment of a deed by the husband, and privy examination of the wife taken before a justice of the peace, commissioner or notary, is a judicial, or at least a quasi-judicial act."

It has been suggested that since the enactment of chapter 117, Public Laws 1927, authorizing the Governor in his discretion to revoke a commission issued by him or by his predecessor to a notary public, a notary public in this State holds his office at the will of the Governor, and not for a fixed term, and that by reason of this statute the decision in S. v.Knight no longer controlling. This suggestion is, we think, not well founded, but even if the statute has the effect suggested, it does not affect the question involved in this case. The test as to whether a position created by statute is an office is not the term of one holding the position, but the power conferred upon him while he is lawfully holding the position. Upon this principle, it is immaterial that a notary public cannot be required to exercise any of the powers conferred on him by statute. When he does exercise any of these powers, he acts judicially, and therefore cannot ordinarily be held for damages resulting from his acts. Yates v.Ley, 121 Va. 265, 92 S.E. 837 Henderson v. Smith, 26 W. Va. 829, 53 Am.Rep., 139.

Counsel for defendant in their brief filed in this Court, concede that the authorities are apparently against the contention that the position of a notary public is not a public office. They suggest that it may be held that the position is that of a commissioner for a special purpose, within the meaning of the proviso in section 7 of Article XIV of the Constitution. We do not think this suggestion is well founded. A commissioner for a special purpose exercises no governmental power, and is therefore not a public officer.

The learned judge of the Superior Court by whom this case was tried was not inadvertent to the decisions of this Court with which his decision is in conflict. In his judgment, he expresses his disapproval of these decisions, and suggests that this Court, as now constituted, may overrule these decisions. We are not inadvertent to the practical situation which the judge of the Superior Court had in mind when he made the suggestion, but are of the opinion that these decisions are well supported by the authorities, and are in accord with well settled principles of law. The practical situation which gave rise to the suggestion would not justify this Court, as now constituted, in overruling decisions made by our predecessors which have been justly regarded as the law of this State. It cannot be said too often that it is the function of a court to declare what the law is, and not what its members as individuals think it ought to be.

There is error in the judgment dismissing the action. The judgment must therefore be

Reversed.