255 N.C. 546 | N.C. | 1961
Any justice of the peace appointed by the resident judge of a judicial district, after due notice and hearing, may be “removed from office by the resident judge of the superior court of the district in which the county is situated, for misfeasance, malfeasance, nonfeasance or other good cause.” G.S. 7-115.
The evidence and findings of fact by the court below warrant the conclusion that before the respondent was originally appointed a Justice of the Peace for Asheville Township in Buncombe County, North Carolina, in August 1956, Alex P. Digges was the duly elected, qualified and acting Constable for Asheville Township and that he continued to hold such office until 5 December 1960.
The court found as a fact that during the time Alex P. Digges was Constable for Asheville Township, he received a salary from the County of Buncombe each month and that all fees paid for the service of civil process issuing from the several offices of the Justices of the Peace for Asheville Township became the lawful property of Buncombe County; that it was the duty of said Constable to turn said fees over to the Treasurer and Accountant of Buncombe County each month, together with his report of the fees collected.
The court further found that the respondent on or about 25 January 1960, commenced giving all civil process issuing from his office of Justice of the Peace to James E. Dayton, Jr., for service, and paid said Dayton the lawful fees for service of same; that Dayton kept the fees for service of such process for his own personal use and did not pay the same into the Treasury of Buncombe County.
Even so, it is well to note that there is nothing in Chapter 275 of the 1931 Public-Local Laws of North Carolina, or in the amendments thereto, requiring this respondent to pay such fees to Buncombe County or to make any report of the fees paid for service of process to the Treasurer of Buncombe County or to anyone else. Therefore, any failure, if there was any such failure in law, to turn over to the Treasurer of Buncombe County the fees earned by serving process issued by Justices of the Peace in Asheville Township, such failure is not chargeable under the law to the Justice of the Peace who issued such process.
It is true that Section 3, Chapter 275, of the 1931 Public-Local Laws of North Carolina, during the period of time under consideration, required that all civil process issuing out of the office of Justices of the Peace for Asheville Township be delivered to and served by the Constable for Asheville Township or his agent. It is equally true, according to the evidence adduced in the hearing below, that for several years prior to the election and qualification of Herman T. DeWeese as Constable for Asheville Township on 5 December 1960, his predecessor
The record, we think, discloses that a well-nigh intolerable situation existed. However, the question to be determined on this record is not whether Buncombe County has lost money by reason of the use of Special Deputies to serve the processes issued from the office of the Justices of the Peace in Asheville Township, but the question is simply this: Pías this respondent acted wrongfully or in bad faith in doing what he has done in light of the existing situation?
The respondent testified that he discussed the situation with several County officials and that Wayne Roberts was appointed as a Special Deputy Sheriff for the purpose of serving such process. That thereafter he directed his process to Roberts for service and paid to him the fees for such service; that Roberts had turned over all his checks for such service to the County Treasurer and had received the Treasurer’s check each month for an amount equal to the total fees for serving process. Roberts resigned and James E. Dayton, Jr., was appointed to succeed him on 25 January 1960.
According to the affidavit of Roy A. Taylor, admitted in evidence in the hearing below, he had been County Attorney for Buncombe County for ten years prior to 25 June 1960; that in consultation with Sheriff Brown and the Commissioners of Buncombe County, he advised the County Commissioners that they had authority to appoint an additional Deputy Sheriff and to set his salary pursuant to the provisions of the Home Rule Bill, but that fees for service must under the law be paid to the County Accountant. It was agreed that Wayne Roberts be named a Special Deputy to serve process issued by the Justices of the Peace in Asheville Township and that all fees for such service be paid promptly into the office of the County Accountant and that the monthly check to Mr. Roberts at the end of each month should be in an amount equal to the total service fees paid him as set out above. Mr. Taylor did not recall having any negotiations with respect to the appointment of Mr. Dayton.
Laurence E. Brown, Sheriff of Buncombe County, testified that he knew the respondent and that his character is good. That he did not have sufficient regular deputies to serve process issued by the Justices of the Peace; that he knew of the appointment of James E. Dayton, Jr., to serve such process; that Dayton had performed his duties efficiently.
Other witnesses whose character and integrity were not questioned,
Gordon Ramsey testified that he had been for several years desk officer for the Sheriff of Buncombe County, having the responsibility of receiving legal process directed to the Sheriff for service. That for more than two years prior to 25 January 1960 he had received numerous requests to serve process directed to the Constable of Asheville Township. That during said period he knew of his own knowledge that the incumbent Constable, Alex P. Digges, was not available to serve such process. That he knew of the appointment of James E. Dayton, Jr., as Special Deputy Sheriff to serve process issued by Justices of the Peace in Asheville Township, and that since his appointment all such process had been promptly served.
The respondent further testified that when Mr. Dayton was appointed a Special Deputy Sheriff that he and Dayton went to the office of the County Treasurer and talked with the Treasurer, James C. Garrison; that they were told by the Treasurer that the fees were to be paid directly to Dayton and that it would not be necessary to make any report thereof. That thereafter he directed all process from his office to Dayton and paid him all the fees for serving such process. Dayton likewise testified that the Treasurer of Buncombe County told the respondent to pay him (Dayton) his fees and that it would not be necessary to make any report of such fees.
The Treasurer denied making such an arrangement. He also denied any knowledge of the appointment of Dayton and testified that he had absolutely nothing to do with his appointment. However, when confronted with Defendant’s Exhibit #5, in the form of an affidavit sworn to before a Deputy Clerk of the Superior Court of Buncombe County on 25 January 1960 by James C. Garrison and others, recommending the appointment of James E. Dayton, Jr., as Special Deputy Sheriff for Asheville Township for the express purpose of “serving Constable’s papers only,” he admitted he signed the recommendation, and then testified that he signed many petitions without informing himself as to their contents.
The evidence further discloses that James E. Dayton, Jr., took the oath of office as a Special Deputy Sheriff of Buncombe County on 25 January 1960 before a Deputy Clerk of the Superior Court of Buncombe County; that he gave bond for the faithful performance of his duties and that the premium for said bond was paid by Buncombe County.
With respect to the conclusion of the court below that it was a
It is quite clear that, if it was unlawful for the respondent to use Dayton as a process server and to pay him fees for such service after May 1960, it was likewise unlawful for him to use him and pay him fees from 25 January 1960, the date of his appointment, until May 1960; and if it was unlawful for process to be delivered to Dayton for service as a Special Deputy Sheriff, it was likewise unlawful for process to be delivered to Wayne Roberts as a Special Deputy Sheriff prior thereto.
If the services of a Special Deputy Sheriff were no longer necessary when Herman T. DeWeese qualified as Constable for Asheville Township on 5 December 1960, then the procedure that should have been followed was to inform the Sheriff of Buncombe County and the Board of Commissioners of said County that DeWeese had qualified as Constable and was ready, able and willing to perform the duties of his office (if indeed he was), and that a Special Deputy Sheriff to serve process issued by Justices of the Peace in Asheville Township, in lieu of a Constable, was no longer necessary and to request that his appointment be terminated.
It appears, however, from the testimony of Herman T. DeWeese that while he had qualified as Constable of Asheville Township, he made little use of the office in the courthouse set aside for the Constable of Asheville Township. He testified that he had spent most of his time in the office of the Western Carolina Bonding Company. A careful consideration of his testimony leads to the conclusion that up to the time of the hearing below he had made no effort whatever to assume and discharge the duties of his office as Constable. In fact, he testified that he had not requested that any process be directed to him for service. “That he carried a badge, but did not wear it where everybody could see it.”
In our opinion, to hold that the arrangement entered into by the Sheriff of Buncombe County and the Commissioners of said County, pursuant to the advice of the County Attorney, in an effort to solve the urgent problem with respect to service of civil process issuing from
We call attention to the fact that Chapter 393 of the 1959 Session Laws of North Carolina placed the Constable of Asheville Township on a fee basis beginning on the first Monday in December 1960, and that Chapter 275, of the 1931 Public-Local Laws of North Carolina was repealed by Chapter 1057 of the 1961 Session Laws of North Carolina,.
The judgment of the court below is
Reversed.
