This is an action in the nature of quo wаrranto, in which plaintiff claims to be State Librarian, and alleges that defendant is in possession of the office and unlawfully withholds the same from him. Defеndant, answering, admits that he is in possession of the office performing its duties and receiving its emoluments ; but he denies that he is holding it wrongfully or unlawfully, and alleges that he was duly elected thereto on the 8th day of January, 1895, for a term of two years next ensuing.
Under the view we take of the case it is not necessary for us to consider or pass upon defendant’s right to this office. The plaintiff’s right to recover depends upon his right to the office. If he is nоt entitled to it, it is a matter of no importance to him who is. It is true that if
Prior to the 13th day of March, 1895, the board of trustees of the State Library, under existing law elected to and filled this office. On that day (March 13, 1895) the Legislature passed and ratified an Act repealing the law authorizing the board of trustees to elect, and provided for the election of this officer by the Legislature. And on the same day, to-wit, the 13th day of March, 1895, the plaintiff claims that he was duly elected State Librarian by the Legislature pursuant to said Act. And this not being a bill enacted into a law, ratified and signed by the presiding officers of Senate and House and deposited in the office of Secretar}*- of State, which then becomes the evidence of its passage (Carr v. Coke,
The original purpose of a division was for the purpose of ascertaining who voted “aye” and who voted “no,” and it was effected in this way : the ayes occupied one part of' the hall and the noes another and there remained until the tellers appointed counted them. In this way it came to be called’a division. In more modern assemblies it is more usually effected by a call of the House, a yea or nay vote when each member’s name is called Cushing, Sec. 1615. This mode is used for two purposes, one to determine on which sidе the majority voted and also for the purpose of determining whether there is a quorum present. U. S. v. Ballin, supra. In this case there was no viva vocevote, preceding the roll call. With this exception there seems to have been all done that is usually done before a division, which is now usually had by a call of the roll. Cushing, Sec. 1615. Why this wаs not done, we do not know. Article II, Sec. 9, requires that in all elections under this constitution the vote shall be viva voce. And if this section applies to this election, it does not mean a roll call but a vote by voice, and not by ballot.- And if the vote had been taken that way and
But it seems to be conceded that the speaker оf the House of Bepresentatives of the United States could not compel a member to vote. Nor had he any right to count members present and not voting, to make a quorum, until the House adopted a rule to that effect. He then counted non-voting members present to make up a quorum and the Supreme Court of the United States sustained his action. U. S. v. Ballin,
The legislature of North Carolina сonsists of 170 members, fifty in the Senate and one hundred and twenty in the House. Therefore it takes the presence of 26 Senators to constitute a quorum in the Senate and 61 members of the House. In this election 26 Senators voted, which was a majority of that body, and a quorum. But in the House there were but 48 members who voted. This we see was less than a quorum. Eor this reason plaintiff has failed to establish his right to the office.
There were various questions prеsented as to the defendant’s rights. But the view we have taken of the case makes it unnecessary for. us to consider them, and we do not. The judgment of the court below is affirmed.
Affirmed.