People Ex Rel. Battle v. McIver

68 N.C. 467

• Court: Supreme Court of North Carolina
• Decided: January 5, 1873
• Status: Published

Opinion

Reade, J.

Consider the case as if Ashley had not resigned. His term would have expired January 1st, 1873, if his successor had been elected and qualified.' As his successor was not elected and qualified, he would have held ■over. Con., Art. III., sec. 1.

Up to January 1st, 1873, he would have held, as filling his own term, and after that time as holding over for the election and qualification of his successor.

As Ashley did resign and the defendant, Mclver, was put ■in his place, he was put in his place to all intents and purposes ; and up to January 1st, 1873, filled the vacancy caused by Ashley’s resignation, and after that time as holding over for the election and qualification of his successor.

How long he may be entitled to hold over, or, when and how his successor is to be “ elected and qualified,” may be beyond the purposes of this decision; but it would seem that it will be only until the people can elect his successor at the “ next general election,” to-wit: August, 1874. Art. ■3, ss. 1 and 13.

It has been suggested, that as the term for which Mr. Reid was elected was four years from and after January 1st, 1873, ■and as the defendant, Mr. Mclver, is in to fill the vacancy ■caused by Mr. Reid’s failure to qualify, he is in Mr. Reid’s place to all intents and purposes, and is entitled to hold for ■the whole four years. But the Constitution is express, that Mclver shall hold only until the next election, “ and the person then chosen shall hold the office for the remainder of the unexpired term fixed in the first section of this Article,”' to-wit: four years from January 1st, 1873. Art. 3, s. 13.

It has been suggested, that the Governor, instead of appointing Mr. Battle, or allowing Mr. Mclver to hold over, ought to have nominated some one to the Senate to fill the vacancy on January 1st, 1873. The answer is, that the Governor never nominates to the Senate to fill vacancies. He does that alone, in all cases. But where officers have to. be appointed to fill a regular term, then he nominates to the Senate, unless it be an officer who is elected by the people, and then he never nominates to the Senate, but fills the vacancy or term by his own appointment (unless there is an officer holding over), until the people can elect, as in this, case.

Besides the provisions in the Constitution already quoted,, we refer to the numerous authorities cited by defendant’s counsel, which were to the point and conclusive. See, also, People v. Bledsoe et al. and People v. McKee et al., at this term.

There is no error.

Pee Cuexam.

Judgment affirmed.