Rodwell v. . RowlandRodwell v. . Rowland
BROWN, J., dissenting. This is an action in the nature of a quo warranto to try the title to the office of clerk of the Superior Court of WARREN, and was heard by Webb, J., holding the courts of the Second Judicial District, upon a case agreed, which is in substance as follows: (618)
In November, 1902, W. A. White was elected clerk for four years from 1 December, 1902. He qualified and held the office until September, 1904, when he resigned. The judge of that district then appointed the defendant to the office, in terms providing that he should “fill the unexpired term of W. A. White.” The defendant accepted the appointment and qualified by taking the oath and giving an official bond for the term ending the first Monday of December, 1906, at which time White‘s term would have expired if he had remained in office. “At the general election held in the county of Warren on 8 November, 1904, for members of the General Assembly, for State, county, and township officers, for members of Congress, and for electors for President and Vice President of the United States, a clerk of the Superior Court for the county of Warren was voted for, and James R. Rodwell, the relator herein, a citizen and resident of said county, received a majority of the votes cast for such officer, and upon a canvass of the votes cast at such election the board of county canvassers of said county did judicially determine and proclaim that the said Rodwell, the relator herein, had received a majority of the votes cast for such office and was elected as such clerk of the Superior Court of Warren. The said Oliver L. Rowland did not participate in or consent to the election of a clerk of the Superior Court for the county of Warren, but contended that no election for clerk of the Superior Court of said county could be held in the year 1904 according to law; and pursuant to such contention, said Rowland, through his attorney, appeared before said canvassing board and objected to the counting of any votes cast for any one for clerk of the Superior Court for said county.”
On the first Monday of December, 1904, both relator and defendant tendered their official bonds to the board of commissioners of the (619) county, who accepted the relator‘s, and rejected the defendant‘s solely upon the ground that he was no longer entitled to hold said office, and not because the bond was in any respect insufficient. Relator thereupon duly qualified as clerk of the Superior Court “and was declared by said board as inducted into the office.” Relator duly demanded the possession of the office, but defendant refused to surrender the same, and still claims said office and is exercising its duties and functions. Relator, having first obtained leave from the Attorney-General, brought this suit to recover the said office. All questions of accounting for fees and emoluments, if relator is adjudged to be entitled to the office, are reserved in the case agreed for future determination. At the hearing the judge gave judgment for defendant. Relator excepted and appealed. After stating the facts: The question presented in this case is whether the relator was duly chosen to the office of clerk of the Superior Court at the general election held in November, 1904. The defendant contends that he was not, for two reasons: First, because there was no vacancy in the office to be filled at that election, and, second, because
In order to test the correctness of the defendant‘s contention and the validity of his reasons therefor, we are called upon to perform the delicate and often difficult duty of construing the Constitution, for whatever is therein ordained, as we may construe it, becomes the supreme law of the State. The relator of course contends that the vacancy created by the resignation of W. A. White was required to be filled at the general election in 1904, and if there has been no special legislation adequate for the purpose of executing the will of the people, as thus expressed in their Constitution, that instrument itself provides sufficiently for such an election, especially when considered in connection with the general election laws of the State, and is therefore self-executing. We will now examine these several and conflicting views and determine which of them is the correct one.
The Constitution provides in Article IV as follows: Section 16: A clerk of the Superior Court for each county shall be elected by the qualified voters thereof, at the time and in the manner prescribed by law for the election of members of the General Assembly. Section 17: Clerks of the Superior Courts shall hold their offices for four years. Section 24: Sheriffs, coroners, and constables shall be elected by popular vote and shall hold their offices for two years, and “in case of a vacancy existing for any cause in any of the offices created by this section the commissioners for the county may appoint to such office for the unexpired term.” Section 28: When the office of justice of the peace (621) shall become vacant otherwise than by expiration of the term, and in case of a failure by the voters of any district to elect, the clerk of the Superior Court for the county shall appoint to fill the vacancy for the unexpired term. Section 29: In case the office of clerk of a Superior Court for a county shall become vacant otherwise than by the expiration
These extracts from the Constitution will suffice to show what has been ordained with respect to offices, the vacancies in which are not filled by appointment of the Governor. The appointees to vacancies in offices, which are so filled by appointment of the Governor, hold their places by the express provisions of section 25 until the next regular election for members of the General Assembly, when elections are required to be held to fill such offices. Indeed, it is suggested that this provision of section 25 Article IV extends to all offices created by that article, when the term of the appointee to a vacancy is not otherwise expressly and definitely fixed, if the words “unless otherwise provided for” are understood as referring only to the method of appointment, and not as excepting vacancies not filled by the appointment of the Governor from the operation of that section, and the words “appointees” in the next line as embracing, not only those who have received their appointment from the Governor, but also those whose appointments may have emanated from some other source designated in that article. We express no opinion as to the meaning of that section, preferring not to rest our decision upon its construction, as we think the case can well be decided without any reference to it, although if the construction which has been suggested were adopted the case would necessarily be decided against the (622) respondent, as we would then have a direct and unequivocal command that the election to fill a vacancy in the office of clerk shall be held at the next regular election for members of the General Assembly after the vacancy occurred. We have referred to that section only for the purpose of emphasizing the leading idea of the Constitution of 1868, as amended by the Convention in 1875, that appointees to elective offices should not hold their places any longer than is required for the people again to exercise their right of choosing such officers at the polls, and that they should be permitted to do so at the earliest opportunity that can be afforded for that purpose. This intent pervades the entire instrument, and when, as we shall presently see, the appointee is permitted to hold for the unexpired term, the intention to do so is expressed in plain and unmistakable language, and is confined to those offices the incumbents of which hold for only two years, during which time, under our system of elections, there is no provision for a regular election, and no election can intervene between the occurrence of the vacancy and the next regular election for a full term. We were told by counsel who argued for the relator that there was more reason for preserving the elective feature in filling a vacancy in the office of clerk since than before 1868,
These general observations will perhaps enable us the better to interpret the meaning intended to be conveyed by the sections of the Constitution which we have quoted. Our first inquiry must be, What is meant by the words in section 29, “the judge shall appoint to fill the vacancy until an election can be regularly held“? It must be borne in mind that this is not a provision for choosing an incumbent for the full term, who would, of course, hold until the expiration of that term, but to supply a vacancy by appointment until the people can have an opportunity in the regular way of choosing some one to fill that vacancy. If it was contemplated that the appointee of the judge should hold for the unexpired term, and therefore until the regular election for the full term, it was all-sufficient to provide simply that the judge should appoint to fill the vacancy, for this would have clearly and fully impressed that idea without the use of any words of restriction or limitation. The vacancy, nothing else being said, would comprise all of the time between the appointment and the expiration of the term. But the framers of the Constitution evidently intended that the words “until an election can be regularly held” should apply to an election to be held short of the time when the full term would expire, and to an election which could be held regularly, or, what is the same thing, according to rule or to the manner prescribed by law, whether that law be found in the (624) Constitution or the general statutes relating to elections. It then comes to this: Was there, at the time this election for clerk was held, any
There are other considerations which lead us to the conclusion that the constitutional provision refers to the next election at which members
As the office of a clerk is four years, and a general election may be held under the law after a vacancy has occurred and before the expiration of the term, we do not see how we can escape the conclusion that it was intended by the words in section 29 of Article IV of the Constitution, namely, “the judge shall appoint to fill the vacancy until an election can be regularly held,” that the vacancy should be filled at the next election at which members of the General Assembly are chosen.
The counsel for the respondent contend that Cloud v. Wilson, 72 N.C. 155, is an authority against the conclusion we have reached. We do not concur in this view. The language there under consideration was different from that we are now construing. It would be useless to review that case at any length to ascertain if what is there said conflicts with our understanding of the true meaning of the clause of the Constitution which was then construed. It is sufficient to say that the Court in Cloud v. Wilson laid great stress upon the fact that judges of the Superior Court had been divided into classes by the Constitution (627)
It is not our purpose to overrule Cloud v. Wilson, supra, for the decision of the case at bar, when rested upon the principles and reasons stated herein, does not require it. We do not agree with all that is therein said by the Court, and it remains to be stated that the Convention of 1875 seems to have thought that the Court had not construed the Constitution according to its spirit and the intention of its framers, for it amended the section then under consideration so as to require all vacancies in the office of judge of the Superior Court to be filled, first, by appointment of the Governor, and, afterwards, at the next election by the people for the unexpired term. This is in accordance with the true principle of our Government, that the people should have the power and the right to determine how and by whom they shall be governed; and this includes the right not only to select their officers originally, but to do so as soon as it can conveniently be done, when any of the offices become vacant, and it can be done regularly, that is, with due regard for the forms of the law and the requisite procedure; and we should not be too strict and technical in our interpretation of the Constitution, lest (628) we thereby unduly deprive them of this natural and fundamental right, but, on the contrary, we should be liberal in our construction, with the view of preserving that right to the people unimpaired and undiminished, except in so far as the exigencies of the case may require a temporary filling of the vacancy by appointment.
We have not adverted to the fact that section 28, relating to a vacancy in the office of justice of the peace, and section 29, relating to a vacancy in the office of clerk, are identical in language, except that in the former instance the vacancy is filled “for the unexpired term,” while in the latter it is filled “until an election can be regularly held.” This change in phraseology was not accidental, but it was intended, we think, that the concluding words of the two sections should have different meanings, and for the very reasons we have already given, that in the case of the justice an election would not be held, whereas in that of the clerk one would be held, before the expiration of the term.
We are not without strong authority to sustain our conclusion. In S. v. Johns, 3 Or. 533, the provision of the Constitution which the Court construed was that the Governor should fill the vacancy by appointment, which should expire when a successor shall have been elected. It was contended that the appointee held until the next regular election for the full term, but the Court decided that the vacancy should be filled at the next general election. In a well-considered and able opinion the Court, among other things, says: “It is not reasonable to presume that, where the people have reserved to themselves the appointment of an officer, they would confer on the Executive the filling of a vacancy in the office which would extend the time of the appointee beyond a general election and deprive the whole people of a county from electing their own local officer when they could fill it as (629) conveniently as they appointed the original incumbent. It is a political axiom that when an office becomes vacant the power that made the office can fill it again. If the people have surrendered that power, it should be by express and unequivocal words. The words are: `The Governor may fill the vacancy until a successor is elected.’ Vacancy in an office means the want of an incumbent at the time. It has no reference to duration of time, and the appointment of a person to fill a vacancy pro tempore does not invest him with a full term unless the law so expressly provides. Vacancy in an office is one thing, and term is another.” So in S. v. Conrades, 45 Mo., in construing words substantially similar to those used in our Constitution, the Court says: “The act of 1864 was a limitation on this power of appointment and abridged its exercise to the next regular election. It is insisted now that in passing this law the Legislature meant that the executive appointee should continue to hold his office till the next regular election of county judges, and that the act had exclusive reference to that election. But this construction, we think, is founded in misconception and is not maintainable. It was the obvious intention to give the people an opportunity to elect this officer at the earliest practicable moment, without incurring the expense of a special election. When applied to elections, the terms `regular’ and `general’ have been used interchangeably and synonymously. The word `regular’ is used in reference to the general election occurring throughout the State.” Construing a clause of the Constitution which provided that the appointment by the Governor to fill a vacancy should be until the next election, the Court in Weeks v. Gamble, 13 Fla. 9, said it is plain that the election contemplated is the next election after the vacancy, and not the election which is to be held to fill a new term. It is an election to fill the balance of the unexpired term, and not an election to fill the full term, which takes place, without reference to the vacancy, under a law having nothing to do with the (630)
In the people resides the right of selecting their officers, and the appointing power should not be permitted to extend in its operations beyond the particular exigencies and requirements of the case: Appointment is a temporary expedient devised to keep the office filled until the people have the first opportunity to exercise the right to fill it, which must needs be at the next general election, and this right should not be abridged by any construction which postpones its exercise to the (631) election for the next term.
We have already shown that an appointee to a vacancy does not hold for a full term, and it hardly requires argument or the citation of authority to show that section 17 of Article IV of the Constitution, so far as it fixes the duration of a full term, has no bearing upon the question of filling a vacancy, but is quite foreign thereto. Haggarty v. Arnold, 13 Kansas, 367. The decision of this case, as to the time of filling a vacancy, must turn upon the construction of those sections of the Constitution relating strictly to vacancies. If an election at which members of the General Assembly were chosen, and the machinery of which was all-sufficient for a fair and free expression of the popular choice, was not one regularly held within the meaning and intent of the Constitution, we cannot imagine what more was required to make it so. The leading idea in the use of the words “until an election can be regularly held” was to give the people the chance to fill the vacancy just as soon as an election should occur, which would be held and conducted
We will next consider the contention that there has been no legislation providing for an election to fill a vacancy in the office of clerk. This question has received some attention in what we have already said. It certainly is not absolutely necessary that there should be any special legislation upon the subject, if the Constitution furnishes sufficient machinery in itself or in connection with the general election laws to secure a fair election. The failure of the Legislature to act in obedience to the Constitution in the particular case, if it be requisite that it should act, cannot be permitted to defeat the right of the people to elect their officers, provided the machinery is otherwise sufficient for the purpose of affording them that right. The principle herein asserted that the Constitution is self-executing and that its provisions, if not in themselves sufficient for the purpose of holding an election at which the people may choose their clerk (and we have shown that they are), may be supplemented by such parts of the general election law as are applicable to the election of clerks at regular or stated intervals or of members of the General Assembly, and that an election held in substantial accordance with such law will be valid, is fully sustained in an able opinion by Judge Brewer (now a justice of the Supreme Court of the United States) in S. v. Thoman, 10 Kansas, 191. Referring to the same subject, Judge Cooley says: “A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.” Cooley Const. Lim. (7 Ed.), 121. The rule supplied in our case is that furnished by the law for the election of members of the General Assembly. A learned and exhaustive discussion of this question will be found in S. v. Burbridge, 24 Fla. 112, where it is held that, whenever a
It was contended before us that legislation is required in order to give notice to the voters that a vacancy will be filled at the election. The great weight of authority is directly opposed to this contention. “It has, therefore, been frequently held,” says Judge Cooley, “that when a vacancy exists in an office which the law requires shall be filled at the next general election, the time and place of which are fixed, and that notice of the general election shall also specify the vacancy to be filled, an election at that time and place to fill the vacancy will be valid, notwithstanding the notice is not given; and such election cannot be defeated by showing that but a small portion of the electors were actually aware of the vacancy or cast their votes to fill it. But this would not be the case if either the time or the place was not fixed by law, so that notice became essential for that purpose.” Cooley, supra, 909. This proposition seems to be well supported by the cases. S. v. Orvis, 20 Wis. 248; People v. Hartwell, 12 Mich. 508; S. v. Cowles, supra; (634) S. v. Shirving, 19 Neb. 497; S. v. Thayer, supra.
We believe nearly if not quite all of the courts hold that when notice is required by the law, if there has been actual notice of the vacancy and the people have had a fair opportunity to vote, all of which may be indicated by the vote cast, the election will be valid, though formal notice was not given, and even though many refrained from voting because of a difference of opinion as to the true construction of the Constitution in regard to the existence of a vacancy or the time of filling it. Actual knowledge and an opportunity to vote take the place of notice, or are equivalent to it. Mechem, supra, sec. 174; Adsit v. Secy. of State, 84 Mich. 420. The right to hold an election is derived from the law, and not from the notice. McCrary, supra, sec. 145. The cases upon this question of notice refer, of course, to statutes
It does not appear from the case agreed, nor has it been suggested, that the voters of Warren County did not know of the vacancy in the office of clerk, which occurred about two months before the election. It can hardly be supposed that such a change was made in the office of clerk without becoming known almost immediately to the people of the county. There is no presumption against the validity of the election. The presumption, if there is any at all, is the other way. If notice of the vacancy and of the election to fill it was required, we must presume that it was given, in the absence of proof to the contrary. Mechem, supra, sec. 219. The burden rests upon him who assails the validity of the election, and contests the right of (635) him who holds a certificate of election upon the ground of irregularity or of the omission of something directory which should have been done. Mechem, supra, sec. 220. The presumption of validity is strengthened by the requirement of our law that the local board of elections shall judicially determine and declare the result, which was done in this case. Indeed, we do not understand it to be contended that the people had no actual notice that a clerk would be voted for at the election. The whole argument here was addressed to the sole question whether there was any authority conferred by the Constitution or by the statute to hold an election for clerk, and it was not claimed or even suggested that there was any irregularity in the mode of procedure, or that the people did not in fact have a fair opportunity, if they desired, to cast their ballot for some person to fill the vacancy, if there was one.
We must not be understood to mean, by what we have said in this opinion, that there is any inherent reserved power in the people to hold an election to fill an office. It is freely admitted that authority to hold it must be found somewhere, either in the Constitution or in the statute. McCrary, supra, sec. 170. We merely hold that there was such authority to elect a clerk at the general election in 1904.
Our attention has been called to Deloatch v. Rogers, 86 N.C. 357. It seems that the question we are now deciding was involved in that case, and that the Court assumed, upon a state of facts somewhat like those we have in this case, that there was no vacancy to be supplied by a popular election. The matter does not seem to have been contested at all, nor was there the slightest discussion of it nor any citation of authority.
It is suggested that in Cloud v. Wilson, supra, the Chief Justice extended the principle of that case to clerks of the Superior Courts. It is clear that this could not be done. The authorities are all agreed upon this question, and those we will cite emanate from the highest source. “If the construction put by the court of a State upon one of its statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, and opinion on such a question is not a decision. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties, and decide to whom the property in contestation belongs. And therefore this Court (and other courts organized under the common law) has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties.” Carroll v. Carroll, 16 How. (U.S.), 287. Chief Justice Marshall, for the Court, says: “It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those (638) expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented. The reason of this maxim is obvious. The question actually before the Court is investigated with care and considered in its full extent; other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Cohens v. Va., 5 Wheat., 39. “More is needful to constitute a precedent than merely that a principle or doctrine is announced within the appropriate limits of a cause. It is a fundamental law that a precedent must be a conclusion, a decision in a cause, and not a process of reasoning, an illustration, or analogy. The reasoning, illustrations, and references contained in the opinion of a court are not authority, not precedent; but only the points arising in the particular case and which are decided by the Court.” Wells, supra, pp. 530, 531. These citations will suffice to show that we are no more bound by a mere statement made in Cloud v. Wilson, not necessary to the decision of the case, than if it had not been made at all. It is also argued that the language interpreted in Cloud v. Wilson is identical in meaning with that we are now construing, and for this reason the decision is binding upon us as coming within the maxim, stare decisis. We have already said that the language of the two sections is not the same in meaning. The difference may be thus
We are told that the judges of the Superior Court have in practice adopted a construction different from that we have placed upon the Constitution, and appointed to vacancies for the unexpired term. There is nothing in this record that tends to show such to be the case, but, (640) if it be true, while we have the greatest respect for their opinions, we should not permit such a construction to control us unless it meets with our approval. We must take the responsibility of deciding the question for ourselves, as it has been imposed upon us by the very instruments we are construing. It is our supreme duty to decide correctly, without giving undue weight to extraneous views and opinions,
Our conclusion is that the defendant is not entitled to the office of clerk, but that the relator was duly chosen to that office at the election of 1904, and is entitled to exercise its functions and to receive and enjoy its fees and emoluments. The mere fact that the defendant was appointed for the unexpired term can make no difference in the result, The judge could not thus lengthen his term as fixed by the law. Opinion of the Judges, 114 N.C. 927.
There was error in the judgment of the court below. Its judgment should have been for the relator instead of for the respondent.
Reverse