THEOPHILUS WHITE v. H. W. AYER, State Auditor, and W. H. WORTH, State Treasurer
In the Supreme Court of North Carolina
May 22, 1900
126 N.C. 570
(Decided May 22, 1900.)
Chief Inspector of Shell Fish, Act of 1897, Chapter 13—Shell Fish Commissioners, Act 1899, Chapters 18, 19, 21—Salary—Mandamus—White v. Hill, 125 N. C., 194.
- The plaintiff‘s office of Chief Inspector of Shell Fish, to which he was appointed under the Legislature of 1897, still exists, and having performed its duties he is entitled to compensation.
- While the office was not abolished by the Legislature of 1899, the effect of it was to reduce the compensation to $400 per annum, and 5 cents per mile travel, when engaged in his work, and extra expenses not to exceed $50 per annum.
- As the prescribed manner of issuing the warrant can not be literally complied with, it should be conformed to, “as near as may be;” that is, the certificate should be issued by the clerk of the present board, and countersigned by the plaintiff, as chairman, and the Auditor‘s warrant should issue upon this certificate.
CONTROVERSY Submitted without Action, under The Code, secs. 567 and 568, to Starbuck, J., holding the Superior Court of Perquimans County, and determined December 4, 1899.
Upon the facts agreed, which are copied into the opinion, his Honor rendered the following judgment:
This cause coming on to be heard before Starbuck, J., upon the facts agreed, it appears that the Supreme Court, in the cause entitled State ex rel. Theophilus White v. George H. Hill et al.,” has held that
The Court is of opinion that the plaintiff is entitled to receive salary and expenses as provided under
It is manifest that the General Assembly, by enacting said
It is equally manifest that said chapter was enacted upon—and would not have been enacted but for—the assumption that by
The Court is therefore of opinion that said
It further appears that said
It is manifest that by said provision the General Assembly did not intend to increase the salary of the Chief Inspector to $2,800 or to diminish it to $400, but to provide compensation for the seven Commissioners undertaken to be appointed.
It is hereupon adjudged that plaintiff is entitled to receive a salary of $75 per month and actual travelling expenses, as provided under
H. R. STARBUCK,
Judge Presiding First Judicial District.
To the foregoing judgment the defendant excepted. Exception overruled. Appeal prayed by defendants. Notice waived. Appeal bond adjudged unnecessary. The controversy without action and the judgment to constitute the case on appeal.
J. C. L. HARRIS, Attorney for Plaintiff.
F. H. BUSBEE, Attorney for Defendants.
December 4, 1899.
Messrs. F. H. Busbee, and Cook & Green, for appellants.
Mr. J. C. L. Harris, for appellee.
FURCHES, J. This is a controversy without action under
The General Assembly of North Carolina, in 1897, passed an act to provide for and promote the oyster industry of North Carolina, ratified February 23, 1897, being
That on the 23d day of February, 1897, the plaintiff was duly appointed by the Governor of North Carolina, under the provisions of said act, Chief Inspector for the constitutional term of four years, and was duly commissioned as such, and was inducted into said office and proceeded to discharge the duties thereof. The compensation to be received by him was as provided in
The General Assembly of North Carolina, in 1899, passed an act to provide for the general supervision of the shell-fish industry of the State, ratified March 2, 1899, being
That the persons named in the preceding paragraph, having undertaken, under the title of Shell-fish Commissioners, to discharge the duties devolving upon the plaintiff as Chief Inspector, and having taken possession of the Steamer Lilly, the plaintiff brought suit in the county of Pamlico against said persons to try the title to the office. The record in said case, together with the opinion of the Supreme Court of North Carolina, adjudging that the title of the plaintiff was a valid one, is made a part of this case.
That since the 15th day of March, 1899, up to November 20, 1899, the defendant H. W. Ayer, Auditor of the State, has refused to issue to the plaintiff a warrant for the sum of $75 per month and his actual travelling expenses, and has also refused to issue warrants to the deputy inspectors appointed by the plaintiff in accordance with the
That since the opinion of the Supreme Court has been filed the plaintiff has again demanded of the Auditor the issuance of a warrant in his favor for the amount of his salary and expenses, and the same has been refused by the defendants. The defendants base their refusal upon the
The plaintiff insists that by the decision of the Supreme Court, hereinbefore mentioned in the facts agreed, he is entitled to a salary of $75 a month and actual travelling expenses from the time of the last payment made to him up to the present time, and that this is not prohibited by
It is further agreed that no part of the compensation as provided in
Upon these facts the plaintiff contends that he is entitled to a writ of mandamus against the defendants. This contention is disputed by the defendants, and the plaintiff‘s right to a mandamus is denied.
It has been decided by this Court that the plaintiff is entitled to hold his office of Chief Inspector, to which he was appointed in 1897, for the remainder of his term of four years. White v. Hill, 125 N. C., 194. This is settled, and the question is now presented as to whether or not he shall have pay for his services.
The plaintiff was duly appointed and inducted into his said office in March, 1897, for a term of four years, under an Act of the Legislature ratified on the 23d day of February, 1897—being
The Legislature may abolish a legislative office, and this is the end of it. White v. Hill, supra; Hoke v. Henderson, 15 N. C., 1. When the office is abolished, this ends the term of the officer holding it, as there can be no officer without an office, and of course no salary without an officer.
The Legislature may reduce the salary of an existing legislative office, if this is done for the benefit of the public, and not for the purpose of injuring the incumbent and to starve him out. But if it clearly appears that it was done for that purpose, it would be void. Bunting v. Gales, 77 N. C., 283; Hoke v. Henderson, supra. In cases where only a part of the salary is taken from the officer, it would have to appear from the legislation itself that the object was unlawful, or the courts would not interfere. Hoke v. Henderson, supra.
But if the Legislature should undertake to deprive the officer of the whole of his salary, while his office still continued, the intent would so plainly appear that the act would be declared void. Hoke v. Henderson, supra; Cotten v. Ellis, 52 N. C., 545.
The plaintiff holds his office under an appointment made in 1897, but he holds and discharges the duties of his office under such laws as may be passed, and in force, during his term of office.
The Legislature on the 28th day of February, 1899, passed an act expressly amendatory of
The Legislature having general powers of legislation, all these acts must be observed and enforced, unless they conflict with the vested constitutional rights of the plaintiff. (We say the constitutional rights of the plaintiff, for the reason that his rights alone are before us for our consideration.)
It is then the duty of the plaintiff to administer his office under the law as it now exists; that is, under the
For the purposes of this action it is not necessary for us to decide whether
The fact that the Legislature of 1899 changed the name of “an act to promote the oyster industry of North Carolina” to that of “Shell-fish Commissioners,” did not abolish the plaintiff‘s office. White v. Hill, and Abbott v. Beddingfield, supra; Wood v. Bellamy, 120 N. C., 212. Nor does the fact that the
The plaintiff being entitled to his office and to the salary attached thereto, what is his salary under the legislation as it now exists, and how is he to get it?
Under
Then what is necessary to be done to enable the plaintiff to draw his salary? The
So, if this direction as to the manner of issuing the warrant can not be literally complied with—in hic verbis—it should be complied with “as near as may be.” That is, the certificate should be issued by the clerk of the present board and countersigned by the plaintiff who is acting as chairman, in place of Hill, and the Auditor‘s warrant should issue upon this certificate.
This opinion might close here, and would do so, but for the arguments urged in opposition to the views we have expressed, some of which it seems to us should be noticed.
It is said that
It was said this Court had no jurisdiction of this matter, that it only has appellate jurisdiction, that the assumption of such jurisdiction is unheard of; that the judgment of the Court will be ultra vires, unlawful, unconstitutional and void, and that the Legislature may declare it unconstitutional; and
In Marbury v. Madison, 1 Cranch, 49, which was mandamus against James Madison, Secretary of the United States, it was held that the action would lie.
In Cotten v. Ellis, 52 N. C., 545, which was a proceeding in mandamus by Cotten, claiming a salary as Adjutant General of North Carolina, against John W. Ellis, Governor of North Carolina, it was held that the action would lie, and the writ was issued.
But a more recent case is that of Granville County Board of Education v. State Board of Education, 106 N. C., 81, in which it was held that the action would lie, and the writ was granted. The opinion of the Court in that case was written by Justice CLARK, and seems to be a direct authority for issuing the writ in this case.
The opinion in Cotten v. Ellis, supra, is not only authority for granting the writ, but it would be well to note what the Court says, near the close of the opinion, with regard to the execution of the writ, which is in these words: “We do not enter upon the inquiry as to how the writ will be enforced, because we are not allowed to suppose that the question will arise, feeling assured that the sole purpose of the Governor is to obtain a judicial construction of the statute in question.” The opinion (Cotten v. Ellis) also contains this language: “A statute which reduces a salary during the term of office, and one which takes away the salary altogether,
The facts in Cotten v. Ellis are so nearly the same as the facts in this case, is our excuse for quoting so much of the opinion.
Before the suggestion that the Legislature may declare the opinion of this Court unconstitutional may be adopted by anyone, we ask them to read the opinion of Chief Justice Marshall in the case of Marbury v. Madison, supra. It is a full and complete answer to this suggestion. We would like to incorporate the whole of that opinion in the opinion of the Court in this case; but as this is impossible, we will again have to ask to be pardoned for making some quotations from
On page 62: “The question whether a right has vested or not is in its nature judicial and must be tried by the judicial authority.”
On page 64: “What is there in the exalted station of the officer, which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the
On page 66: “The doctrine therefore now advanced is by no means a novel one.”
On page 67: “If Congress remains at liberty to give this Court appellate jurisdiction, when the Constitution has declared their jurisdiction shall be original, and original jurisdiction when the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution is form without substance.”
On page 69: “The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is no law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. * * * If an act of the Legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the Court, and oblige them to give it effect? Or in other words, though it be no law, does it constitute a rule as operative as if it was a law?”
On page 70: “It is emphatically the province and duty of the judiciary to say what the law is (the italics are ours). * * * So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide the case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”
We can not quote all of this very able and exhaustive opinion, but we trust that we have quoted sufficiently from it to establish the separate independent jurisdiction and power of courts to decide the law, and to show that neither the executive nor the legislative department has any such power.
Our opinion then is, that the plaintiff is entitled to the salary and compensation provided for in the
This action is to recover the salary of a public officer. The facts are agreed, and from these facts it appears that there is now money in the hands of the Treasurer, more than sufficient to pay the plaintiff, which arose from the oyster fund, under the
The judgment of the Court below will be modified in conformity with this opinion, and being so reformed, judgment will be entered in this Court.
Modified and affirmed.
DOUGLAS, J., concurring. I shall be glad indeed when all the office-holding cases are finally decided, not only from their intrinsic difficulty, but more so from the vast amount of discussion to which they have given rise. Much of this discussion, viewed from my standpoint, has seemed irrelevant and indeed liable to mislead. Hence upon one or two occasions I have felt compelled to explain myself in a concurring opinion, as I did not wish to be misunderstood upon important constitutional questions. My personal views are fully set out in Wilson v. Jordan, 124 N. C., 707, and Green v. Owen, 125 N. C., 212.
I have given this case most careful consideration, especially in view of the division of opinion, and I see no reason to overrule the unanimous opinion of this Court as expressed in Wood v. Bellamy, 120 N. C., 212. If I follow that opinion to its necessary and legitimate results, I am forced to concur with the Court in the case at bar. In fact, the case as now before us presents no substantial difficulties to my mind. Whatever complications may have existed were solved when we decided that the plaintiff was entitled to the office. The only question now before us is whether he shall receive the compensation which the Legislature attached to the performance of its duties. We are not creating any office, for the office was admittedly created by the
The only reason given why it should not be paid to the plaintiff is a construction of
We are asked who were authorized to render such services under said act? Plainly the person or persons rightfully performing the official duties prescribed by that act. Can we say that the primary object of the Legislature was not the public welfare, but the private benefit of the individuals—named in the act? Have we any right to say that the Legislature, in providing for the protection and supervision of one of the great industries of the State, intended to say to the Treasurer, “We think that the proper supervision of the shell-fish industry is necessary for the public welfare, and for this purpose we have appropriated the public money, but if that public money can not go into the pockets of our personal friends whom we have named in the bill, we prefer that those important public duties should remain unperformed and those great public interests entirely neglected.” The Legislature has not said so; it could not legally say so, and it shall not
Of course I would deeply regret to see my native State visited by earthquakes or cyclones of a civil or material nature, and I am glad to say they have no germ in the decision we are rendering. This case is a small one, actually and potentially. It enunciates no new principle, and involves but little money. Construing the two acts together, we find an office created by the Legislature with a salary attached thereto and a fund specifically appropriated for the payment thereof. All we now say is that the man legally and rightfully performing the duties of the office is entitled to the compensation thereunto affixed by law.
MONTGOMERY, J., dissenting. Because of the great public importance of the matters involved in the discussion and decision of this case, I have given to it a more thorough consideration than a Judge of this Court usually gives, or has time to give to the investigation of cases generally, and, after all, I find myself unable to agree to the conclusion reached by a majority of the Court that the plaintiff is entitled to writs of mandamus against the Auditor and Treasurer to
I further agree with the Court that the legislative department of our State Government is not the supreme—sovereign power in the State. I also agree with the Court that any public officer who is required by law to perform a specific duty, which concerns individual rights dependent upon the performance of that duty, may be compelled to perform that duty at the suit of a person who alleges that he is injured; and I agree with the Court that, when any Act of the General Assembly is plainly contrary to the provisions of the Constitution, such act is void, and it is the right and the duty of the Supreme Court to so declare it.
The only point of difference then between my views and the
The method by which the oyster funds are to be drawn out of the Treasurer‘s hands is set out in
If the General Assembly, when it enacted sec. 9, of chap. 19, of the Laws of 1899, in place of sec. 13, of chap. 13, of the Acts of 1897, had provided that warrants issued by the Auditor for the payment of claims against the oyster fund should be certified by a committee, the persons composing that committee being dead, and the Legislature not being aware of that fact, or by a committee who might die while charged with the duty of certifying the claims, the method would fail by reason of the non-existence of the certifying committee, but neither the courts nor the Treasurer could adopt another method for the payment of the claims than the one prescribed by the General Assembly. Another method would have to be adopted by the Legislature and the claimant would have to wait until that was done.
This is not a case where the officer is left to discharge his duties and at the same time be deprived of his entire salary, in so many words, by the legislative enactment. In such a case, the attempt to deprive the officer of his entire salary—to starve him out—and still require him to discharge the duties of the office, would be void under the decision in Hoke v. Henderson. But this is a case where the General Assembly considered that they had abolished the office, and it is only by judicial construction that the abolition of the office was not effected; and while under the judicial decision the old officer retains his position, and while the oyster fund in the hands of the Treasurer is appropriated to the payment of
It has been said, not by counsel in the case, however, that if this Court is powerless to compel the payment of a salary due to a public officer, then the decisions of this Court that an office is property are of no avail, since the Legislature hereafter in removing legislative officeholders could, simply declare that such displaced officers should not receive compensation for their services. That, in my opinion, is not a true proposition of law, and that any General Assembly of North Carolina should pursue such a course is unthinkable to me. If an officer should have his office taken from him by legislative enactment before his term expires, and the duties of his office are continued, the courts can declare such an Act of the Legislature void. If an appropriation has been made by the General Assembly for the payment of a salary of such an officer, and no particular method has been prescribed by which it is to be paid, the Auditor can issue his warrant to the claimant, and the Treasurer must pay it. If a particular method has been prescribed, that method must be followed. If an office is continued and the officer is required to perform the duties thereof, and the General Assembly should fail or refuse to make an appropriation for the payment of his salary, that would present a case indeed where the courts could not compel the legislative branch of the Government to perform a plain duty. If such an abuse of power were possible, the courts could give no relief; the people themselves would have to correct it.
In Hoke v. Henderson, the Court said:
This, it is to be hoped, is the last of the cases which involve the title to public office. The first one was Wood v. Bellamy, 120 N. C., 212. There, it was held by a unanimous Court that in North Carolina a public office is property belonging to the officeholder by contract between the State and himself, as had been held in Hoke v. Henderson, 15 N. C., 1. That unanimity of opinion continued up to and during the September Term, 1897, of this Court, when the case of Ward v. Elizabeth City, 121 N. C., 1, was decided. The opinion in that case was written by Justice CLARK, who, after stating
Since the decision last mentioned, Justice CLARK has entered numerous dissenting opinions, (which are part of the history of this Court), notably in the case of State Prison v. Day, 124 N. C., 362; Wilson v. Jordan, Ibid, 683; Gattis v. Griffin, 125 N. C., 336, and Abbott v. Beddingfield, Ibid, 256, in which he has with marked ability attacked the doctrine so long and so firmly established in the decisions of this Court that an office is property, and that it exists by contract between the State and the officeholder.
It has been suggested that the legislative department of the Government may resent the opinion of the Court in this case and pronounce it extra-constitutional itself. I feel satisfied, however, that the General Assembly will follow the course which has characterized that body since the foundation of the Government, that is, respect the authority and decisions of the highest court in the State as the final determination upon any matter of law or legal inference that may be before it under its appellate jurisdiction. In 1787, the highest court in the State in Bayard v. Singleton, 1 N. C., 42, where an act of the General Assembly alleged to be unconstitutional was before it for the decision of that question, said: “But that it was clear that no act they (the Legislature) could pass could by any means repeal or alter the Constitution, because, if they could do this, they would at the same
In Marbury v. Madison, 5 U. S., 137 (1803), where an Act of Congress, alleged to be unconstitutional, was before the Supreme Court of the United States, the Court took jurisdiction, and decided against the constitutionality of the act, and that decision has been followed in proper cases by that Court to this day. The opinion of the Court in that case is so opposed to the view of the sovereignty of the legislative branch of the Government, that it may be well to quote from it at some length. It is there said, Judge MARSHALL delivering the opinion of the Court: “The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then the legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those, who have framed written constitutions contemplated them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an Act of the Legislature repugnant to the Constitution is void. If an Act of the Legislature repugnant to the Constitution is void, does
The Court has not undertaken to decide that the Treasurer of North Carolina can be made to pay out money in a case where no appropriation by the General Assembly has been made. There is not a member of the Court who would think of doing such a thing. The decision of the Court rests upon the foundation and proposition that the General Assembly has appropriated a particular fund for the payment of the plaintiff‘s claim. There can therefore be no clash between the two departments of government. Nobody would dispute the proposition that if this fund had been appropriated by the General Assembly to the payment of the plaintiff‘s claim, the Treasurer could be made by mandamus to pay it. The duty required of the Treasurer would involve no judicial discretion, and would be simply a ministerial duty. County Board of Education v. State Board of Education, 106 N. C., 81.
CLARK, J., dissenting. The General Assembly of 1899, by chap. 21, ratified March 8, 1899, enacted: “Section 1. The Treasurer of the State of North Carolina shall not pay any compensation to any person or persons claiming the same for services rendered concerning the shell-fish industry, unless such person or persons are authorized to render such services under the provisions of the said act, entitled ‘To provide for the general supervision of the shell-fish industry of the State of North Carolina,’ and ratified March second, eighteen hundred and ninety-nine.” Who are authorized to render such services “under the provisions of the said act?” Plainly we must turn to the provisions of said act, which is chap. 19. We find it there provided: “Section 1. There shall be seven
Can the Court order the Treasurer to pay him when the Legislature has ordered the Treasurer not to pay him?
The identical point has been expressly decided against the plaintiff by this Court in cases on “all fours” with the one before us. In Boner v. Adams, 65 N. C., 639, the Court says that a mandamus can not be brought against the Auditor and Treasurer at the same time (as is here attempted) because in no case could a mandamus lie against the Treasurer until a warrant had been issued by the Auditor. READE, J., then says as to the Auditor, that he is “not a mere ministerial officer,” because he is to judge whether there is “sufficient provision of law for its payment.” He adds: “The most this Court could do would be to order the Auditor to examine the claim and to allow it, if he thought it correct, and in that event to issue his warrant for it, if in his opinion there is sufficient provision of law for its payment.” The Court then says: “Nor can we pass upon the merits of the claim.”
In Bayne v. Jenkins, 66 N. C., 356, we have a duplicate of the present case (if an office is a contract). There L. P. Bayne & Co. had a contract with the State, and, as in the present case, the Legislature directed that no payment should be made under it. The Court held that a mandamus could not issue for payment of plaintiff, and said: “The Auditor in his warrant upon the Treasurer, in any case, must recite the law under which it was issued, and as the Legislature has
As is well said in the brief of Mr. K. P. Battle in the latter case, “If each Superior Court in the State could order the Treasurer to pay out moneys or command the Auditor to issue warrants, the fiscal concerns of the State could not be regulated or intelligently conducted. All claimants could in effect sue a sovereign State by resorting to mandamus against the officers in charge of her funds.”
These cases have ever since been held as authority and have never been questioned in any way. In Koonce v. Commissioners, 106 N. C., at page 200, the Court quotes with approval from Boner v. Adams, “The most this Court could do would be to order the Auditor to examine the claim and report the fact, with his opinion, to the General Assembly.” In Burton v. Furman, 115 N. C., at page 169, the Court again cites Boner v. Adams, saying: “It was held that mandamus would not lie against the Treasurer, because no warrant had been issued, and not against the Auditor, because it was something more than a ministerial duty sought to be
The repeal of an appropriation has always been sufficient to shut the doors of the treasury against any claimant, but there have been occasions when the Legislature has, as in the present instance, expressly directed that a claim be not paid, notably, for instance, the Resolution of 1870-‘71, page 471, forbidding payment of warrants “already made or which may be made” on account of expenses incurred by order of the Governor in the “Holden-Kirk war.” No Treasurer and no Court has to this day deemed there was anywhere power to disobey that order of the Legislature, but the power does exist, and has existed all along, if the State can be ordered by the Court in the present case to pay a claim against it. And there is this difference against the plaintiff, he entered upon the discharge of his duties knowing the Legislature had directed he should not be paid, while in the matter of the Holden-Kirk claims the services had already been rendered, the salaries accrued, and the supplies furnished when the Legislature intervened and forbade payment. This power of
In the recent case of Garner v. Worth, Public Treasurer, 122 N. C., 250 (February Term, 1898), it was held by a unanimous Court, composed of the same Justices as now: “The Courts can not direct the State Treasurer to pay a claim against the State, however just and unquestioned, when there is no legislation to pay the same; and when there is such an appropriation, the coercive power is applied not to compel the payment of the State‘s liability, but to compel a public servant to discharge his duty by obedience to a legislative mandate.” Here, there is not only no legislative mandate, but a positive prohibition. In that opinion, attention is called to the fact that the
What is the plaintiff‘s ground for this action? It is that by virtue of chap. 13, sec. 12, of the Acts of 1897, he was appointed “Chief Inspector of the oyster industry” for four years, and that this Court has held in White v. Hill, 125 N. C., 194, that chap. 19, of the Act of 1899, creating Hill and six others “Commissioners of Shell-fish Industry,” continued in their hands (among other duties) the duties he had been discharging, and therefore the act was unconstitutional in so far as it took away his property in his office. The Court did so hold, and put Hill and the other commissioners out and put the plaintiff back. The Court construing the other parts of the Act of 1899, in connection with the Act of 1897, gave the plaintiff the additional duties, bestowed by the Act of 1899, upon the commissioners created in that Act, and which
The Court held in White v. Hill, supra, that the Act of 1899, in putting seven commissioners in office violated the contract made by the plaintiff with the State under the Act of 1897. If so, with whom did the plaintiff make the contract? With the State. If the office is a contract, who has attempted to break it? The State. The Court having in White v. Hill, supra, put White back into office, is now asked to order the State Treasurer to open his vaults and pay the plaintiff, as it would order any private individual under similar circumstances. Has the Court that jurisdiction? The
The Court has audited this claim, and holds it fixed not at the $900 allowed the Chief Inspector by the Act of 1897, but at $400, which is the sum allowed each of the seven commissioners for discharging that and other duties under the Act of 1899. It directs its mandamus to issue to the Treasurer to pay that sum to the plaintiff, which is “process in the nature of an execution,” to enforce collection out of the State, notwithstanding the statute prohibiting payment to anyone unless “authorized under the provisions” of chap. 19, Acts 1899, which provisions name those who alone are authorized. This is placed by the opinion of the Court on the ground that “the Legislature having general powers of legislation,” its statutes “must be observed and enforced, unless they conflict with the vested constitutional rights of the plaintiff,” i. e., unless the State breaks its contract with the plaintiff by the Legislature refusing to pay him the salary to which
An assertion of such power in the Court is so novel, so opposed to all previous adjudications, that it will challenge attention not only in this State, but elsewhere. It is doubtless the first time, in this or in any country, that a Court has issued its order to a public Treasurer to pay a claim which the legislative department has forbidden him to pay. If this can be done, this Court can direct the public Treasurer to pay the “Special Tax” bonds issued under the broad seal of the State, and signed by the Governor and Treasurer, and which the law-making power, for reasons as satisfactory to
Judged by the provisions of both State and Federal Constitutions, and the unbroken decisions of all the courts, for not one has been cited that sustains the exercise of this authority, this Court has no power to direct the public Treasurer to pay the plaintiff, when expressly forbidden by the Legislature. Among the numerous decisions of the U. S. Supreme Court that the courts have no such power, are Hagood v. Southern, 117 U. S., 52, which holds that the officer is merely the nominal party when the object is to coerce money out of the State treasury, and the action being really against the State, no court has jurisdiction. In Cunningham v. Railroad, 109 U. S., 446, it is said that “No judgment can be entered against a State through its officers or Treasurer,” and in Louisiana v. Jumel, 107 U. S., 711, the same doctrine is repeated, the Court pointedly adding: “It needs no argument to show that the political power can not be ousted of its jurisdiction and the judiciary set in its place.” To same effect, Pennoyer v. McConnaughy, 140 U. S., 1, and many others. In Osborn v. Bank, 9 Wheaton, 738, the same high Court says: “Judicial power is never exercised for the purpose of giving effect to the will of the Judge, but always for the purpose of giving effect to the will of the Legislature.” The will of the Legislature has been plainly expressed that the plaintiff shall not be paid out of the State‘s treasury.
Under our
The legislative department may, if it sees fit, acquiesce in this novel assertion of power on the part of the Court. If so, we are witnessing a new development in our history, a profound modification of our organic law which places “the power of the purse,” for the first time in the history of the world, in the possession of the judiciary. But the Legislature may not accept this view, for that department, as well as the executive, is equally a custodian of the
The members of the executive and legislative departments take an oath to support the
No one who reads chap. 21, Acts 1899, can doubt that the Legislature meant to prohibit, and does prohibit, the Treasurer from paying the plaintiff, or anyone else claiming his office, as the Court says the plaintiff does, under the Act of 1897. The Court has held that public office is property, and that, by virtue of that property in his office, the plaintiff is entitled to continue to discharge the duties of his office notwithstanding the Act of 1899 gave those duties to others, and that as a consequence the plaintiff is entitled to his salary. If that be granted, the Court can certainly go no further. It can not take charge of the public treasury and adjudge that,
It is true Hoke v. Henderson, 15 N. C., 1, held that a public office was private property—a decision unsupported by any decision of any other court, anywhere—but it limited the decision to saying that the officeholder‘s property was in his “emoluments,” and expressly says (p. 27), that if the Legislature should refuse to give officers salaries or to pay them, “this would be a plain breach of constitutional duty, and yet the Court could give no remedy,” and Hoke v. Henderson also expressly admitted that the Legislature could abolish any office created by the Legislature. The recent decision in Day‘s case (124 N. C., 362), which holds that an officeholder has property not merely in the emoluments but in the duties of his office, which he may claim as long as those duties are continued, makes it practically impossible to abolish any office having duties necessary to be continued (as is the case with most offices), and the later cases of Wilson v. Jordan, 124 N. C., 683, and Abbott v. Beddingfield, 125 N. C., 256, hold that as long as there is legislation on the same subject-matter—in pari materia as it is termed—the former office is not abolished, though the new act may expressly so declare (as in Wilson v. Jordan), and though the new office may have a different title and different duties, and added duties, as in Abbott v. Beddingfield, and White v. Hill. If to this indestructibility of a legislative office, for the term of the incumbent, however long, the Court has the power, now asserted for the first time in the history of jurisprudence, to coerce by its writ payment by the State of the old officer, legislative power over government, which is most largely exercised by the shaping of public agencies, is at an end. Whenever one Legislature shall create an office, for no matter how long a term, so long as similar duties are discharged subse-
The people of North Carolina control their treasury through their representatives in the General Assembly. If the General Assembly levies taxes in excess of what should be levied, or less than is necessary, the Court can not correct this. If the General Assembly be too extravagant in its appropriations on the one hand, or on the other shall withhold appropriations to pay debts which the Court deems just and meritorious, the Court can not compel a different conduct on the part of the coordinate branch in the discharge of the functions entrusted to it. The people alone can supervise such action of their representatives when acting within the sphere of their duties, by the election of another General Assembly, or, as was said in Hoke v. Henderson: “It must be left to the action of the citizens at large to change unfaithful for more faithful representatives.”
It is true that, if the Court can not coerce payment of an officer‘s salary, the decisions, peculiar to this State, that an office is property based upon a contract, are futile, since the Legislature hereafter, in removing the incumbents of a legislative office, need only to add a clause that the removed offi-
No stronger proof of the inadmissibility of the plaintiff‘s application can be had than the three cases which, after the most diligent and thorough research, his counsel have presented to the Court in support of the claim that the Court has power to order the Treasurer, by mandamus, to pay a salary which the Legislature has forbidden him to pay.
Firstly: Marbury v. Madison, 1 Cranch, 137. In that case the mandamus was refused. That case was where the commission of a Justice of the Peace for the District of Columbia had been signed by the outgoing President, Mr. Adams, and the new Secretary of State, Mr. Madison, refused to deliver it. Marbury applied for a mandamus. MARSHALL, C. J., wrote an elaborate opinion, expressing his views of government and of the functions of the judiciary, antagonistic to those known to be entertained by President Jefferson, the new Executive, saying, in substance, that Marbury was entitled to have his commission, and that the opinions of the judiciary ought to control in such matters, but concludes by deciding “the authority * * * to issue writs of mandamus to public officers appears not to be warranted
But neither in the wide range of the discussion in Marbury v. Madison, nor in any other case which the most minute research has found, has there ever been a decision by any court that there was private property in public office, or that the office was a contract between the State and the officer, save only the cases in this State based upon Hoke v. Henderson, and the expansion of that doctrine by recent decisions of this Court, the logical result of which later cases (but not of Hoke v. Henderson, which denies the power), may be the power claimed for the courts by the present application to enforce such “contracts” by issuing our mandamus to open the public treasury. In several decisions the United States Supreme Court has explicitly and expressly denied that there was, or could be, from the nature of things, any property or contract as to a public office—notably in Butler v. Pennsylvania, 10 Howard, 51 U. S., 402; Newton v. Commissioners, 100 U. S., 548; Crenshaw v. U. S., 134 U. S., 99; see quotations, 125 N. C., pp. 274—279. In the
In a very recent case, Keim v. U. S., decided April 9, 1900, 20 Supreme Court Reporter, 574, the United States Supreme Court held that except where protected by express constitutional or statutory provisions “the power of removal is incident to the power of appointment,” and that where an officer is thus removed “the courts can not issue mandamus either to reinstate him or to compel payment of his salary.” Thus, that Court disavows the power in the judiciary, in both particulars, which this Court is asked to assert. The plaintiff, not being a constitutional officer, is not protected by any constitutional provision, and can not be protected by legislative provision when it is by legislative enactment that he has been removed.
In a still more recent case in the United States Supreme Court, in which the opinion was filed yesterday (May 21), in the contest over the governorship of Kentucky, Taylor v. Beckham, the question was presented whether an office was “property,” and therefore protected by the
Secondly, Cotten v. Ellis, 52 N. C., 545, was a case in which the Court expressed the opinion that because Cotten‘s office had been created by Act of Congress, the Legislature had no power to abolish the office (as it could do with offices created by legislative enactment), and that consequently the salary was like the salaries of those officers who were protected by express constitutional provision from legislative abolition, and could not be taken away. The Court issued an alternative mandamus, i. e., a notice to show cause why a mandamus should not issue, but intimated very clearly that a peremptory mandamus (as here asked) could not issue, saying, “we do not enter upon the inquiry how it could be enforced.” In a still more recent case (Blount v. Simmons, 119 N. C., 50), the Court, speaking through FAIRCLOTH, C. J., while adjudging the State liable for certain obligations, was careful to add: “How the judgment will be satisfied is a question not now before us.” But it was soon before the Court upon an application for a mandamus upon that very claim in Garner v. Worth Treasurer, 122 N. C., 250, in which it was held,
Thirdly, County Board of Education v. State Board of Education, 106 N. C., 81. The Court held that the State Board of Education, being an agency of the State, could only be sued because the Legislature had authorized and directed that it might “sue and be sued.” It also held that a mandamus might issue “to compel public officers to discharge a mere ministerial duty, not involving an official duty“—that is, where the statute directs them to perform a certain duty. That would be the case here if the Legislature had directed the Treasurer to pay the plaintiff a certain salary, but it is not a ministerial duty, nor a duty at all, when the Legislature has told him, as in this instance, not to pay the plaintiff. If the case of Ward v. Elizabeth City, 121 N. C., 1, cited by Mr. Justice MONTGOMERY, and which was decided by a unanimous Court, had been followed, all the line of cases from Day‘s to ”White v. Ayer,” would have been decided in accordance with the dissenting opinion in these cases, as a glance at Ward v. Elizabeth City will sufficiently show.
The three cases cited for plaintiff certainly do not sustain his contention, and the utmost research has not brought forward any other, from any court whatever, that will justify this Court in directing payment of this, or any liability by
The plaintiff‘s contention rests upon two fallacies: First, that the agencies, created for mere governmental purposes, are “contracts,” and if that is conceded, that the State can be forced by the courts to execute the contract and to pay the salary. Whether a sovereign State will perform its contract and pay out money under it, must ever be left solely to the sense of right and justice in the sovereign. This is inherent in sovereignty, and everyone, who makes any contract of any kind with a State, does so with the knowledge that this right is safeguarded and reserved to each State by the