27 S.E. 993 | N.C. | 1897
The charter of Elizabeth City (chapter 126, Private Laws 1889) provided (section 12), among the officers to be elected by the board of commissioners, "a city attorney, who shall hold office one year and until his successor qualify." The plaintiff was elected city attorney for one year at the meeting of the board, 7 May, 1894.
By chapter 85, Private Laws 1895 the charter of Elizabeth City was repealed and a new charter, with different town limits, adding 1,000 population and making other substantial changes, was enacted. Section 19 thereof provides for the election of sundry officers by the board, among them a city attorney. The board elected under the new charter met on 3 June, 1895, and passed a resolution abolishing the office of city attorney. The plaintiff was paid up to that date. No city attorney was elected till May, 1896. The plaintiff rendered no services as city attorney after the action of the board in June, 1895. He began this action on 7 May, 1897, to recover his salary from June, 1895, till May, 1896 (45. 83), upon the ground that, though the term of one year for which he was elected had expired, he was further entitled to hold "till his successor was qualified," and no successor was elected and qualified till May, 1896, he was entitled to draw his salary till that date. This contention overlooks the fact that the corporation for which he was elected was absolutely abolished by the Legislature. The Legislature, at its discretion, can abolish counties (Mills v. Williams,
We believe this the first time it has been attempted to extend the doctrine of Hoke v. Henderson to "hold-overs." Their right is not a part of the term of office, but a constructive addition thereto. Besides, the plaintiff abandoned his functions after the new board took charge, and rendered no service thereafter, and entered no protest. This was a surrender of his rights, if he had had any, and on that ground also this action could not be maintained. Williams v. Somers,
No error.
Cited: Caldwell v. Wilson, post, 469; Holt v. Bristol,