State, by the At. Gen'l, Hargrove, Lee v. . Dunn

73 N.C. 595

• Court: Supreme Court of North Carolina
• Decided: June 5, 1875
• Status: Published

Opinion

Reade, J.

We have decided at this term, in Van Bokleden v. Ganaclaij, that it is not within the power of the Legislature to enlarge or abridge the qualifications of voters; and the same is evidently true as to officers. It is admitted that the same arguments and principles are applicable to each. If, therefore, the Act of the Legislature, and the Board of Commissioners acting under it, required of the relator any other qualification than the Constitution requires, it must be disregarded ; and he must be inducted into office, whatever charges there may be against him ; or, however well supported. If the people in their Constitution declare a defaulter eligible to office, and then electa defaulter to office, it is not within the power of the Commissioners’ Court, nor of this Court, to object. Our province is, strictly, to declare what the law is, and not what it ought to be. And this we say, as we so often have to say, to exclude a conclusion to the contrary. Nor do we mean by the illustration, to say that the relator is a defaulter.

The Constitution, Article YI, section 1, prescribes the qualition of voters to be as follows: “Every male person, &c., twenty-one years old or upwards, who shall have resided in this State twelve months next preceding the election, and thirty days in the county in which he offers to vote, shall,be deemed an elector.”

The fourth section is as follows :

“Every voter, except as hereinafter provided, shall be eligh ble to office,” &c.

The exception above, is contained in the fifth section, as follow;!:

“The following classes of persons shall be disqualified for office: First, all persons who shall deny the being of Almighty God. ¡Second, all persons who shall have been convicted of treason, perjury, or of any other infamous crime; or of corruption or malpractice in office; unless such person shall have been legally restored to citizenship.”

So that every voter who does not deny the being of God, and lias not been convicted of crime, is eligible to office in this State. And this comes so near including every man, that it may be said, that almost every man is eligible to office; that is to say, is electable, if the people choose to elect. And this was the intention, to give the people the largest class out of which to choose.

Without burdening the case with what seems to have been a little sparring for some advantage between the relator and the Board, we may assume that the relator appeared before the Board of Commissioners after having been duly elected by the people ; that he had all the qualifications of a voter ; did not deny the being of God, and had not been convicted of crime; and was therefore eligible to office, and entitled to be inducted into the office of Sheriff, to which he had been elected.

Why then was he not let in ? Why was the popular will defeated ? It is of the first importance that the offices of the government should be filled by the proper persons; and the office of sheriff is very near to the people. And it is a grave offence to fill the office wrongfully.

The relator says that he stood before the Board a “proper man,” and demanded to be inducted into office, offering to comply with every rightful requirement; and that the Board required of him qualifications which the Constitution does not require, and wrongfully refused to indnfct him into the office; and instead thereof inducted into the office the defendant, whom he had defeated at the polls.

On the other hand, the Board alleges that it admitted the relator’s eligibility and his election, and his right to be inducted into the office, and offered to induct him requiring only such assurances for the discharge of the duties of the office as the Constitution and laws require ; and that the defendant refused to give the assurances. And that such refusal “created a vacancy ” which they proceeded to fill by the appointment of the defendant, who was eligible thereto, and gave all the required assurances ; and was only a few votes behind the relator at the polls.

1. The first question is, did the Board require of the de- fondant any “qualification ” which the Constitution does not require ?

All the difficulty in arriving at the proper solution of this question, grows out of not drawing the distinction between eligibility or qualifications for office; and assurances for the faiihfid discharge of the duties of the office. Such distinction is plain, as this will illustrate: Who is eligible to office? Answer : Almost every body. Is there not danger of abuses from making eligibility so common? Answer: No; because we require ample assurances to guard against abuses. What are those assurances ? Answer: (1.) An oath which binds^the con science. (2.) A bond with sureties to answer in money; and. (3), if he has been in the office already, a receipt for moneys paid over as evidence of his integrity.

It has been stated airead}7 what are the qualifications for office ; and that no others can be prescribed by the Legislature or required by the Board. And it is clear that the relator had all the necessary qualifications. And yet, he says that the Board refused to let him into the office, because he was a defaulter. And that thereby the Board sat in judgment on him and convicted him, which it had no power to do ; for that the Constitution prescribes that one is disqualified for corruption or malpractice only “ after he shall have been convicted;” which means convicted by due course of law. But this is a ghost of the relator’s own raising. The Board admitted his eligibility, his qualifications ; said not a word about his corruption or malpractice, and offered to induct him if he would give the required assurances for his faithfulness.

After prescribing who are eligible to office, the Constitution, in section 4, provides that every one, before entering upon the duties of office, shall take an oath to support the Constitution, and to be faithful in office. But this does not enter into eligibility for office. One must be eligible when elected ; the oath is after election. It is simply an assurance which one is to give after election, and before entering into the office that he will be faithful to the government and to his office, which as- snrance is binding on his conscience. And this is the only assurance required of many officers, such as the Governor, members of the General Assembly, Judges, &o. And that is the only assurance which is required in terms by the Constitution.

But can it be supposed that every other assurance is prohibited ? If so, then no bond can be required; and so the public funds, and all moneys in the hands of officials, are in jeopardy. This proposition is so monstrous that it was admitted for the relator that a bond and surety could be prescribed by the Legislature and demanded by the Board, althongh none is prescribed by the Constitution. But by what reasoning can it be maintained that a bond may be required ? Only upon the ground that a bond is a reasonable and proper assurance for the public safety ; a regulation which experience has shown to be necessary; reasonable in itself, and deprives no man of his rights, and is not intended, directly or indirectly, to abridge them. Cooley’s Con. Lim, 1, 602. If that reasoning is sound, as unquestionably it is, then any other assurance which can be supported by the same reasoning may be required. And this brings us to the question directly in dispute:

2. Is the statute under which the Board acted, requiring the relator, who had been sheriff for the preceding term, to produce his receipt for taxes, &c., in violation of the Constitution, as requiring an additional qualification, or is it a reasonable and proper regulation of the office, and an assurance for integrity ?

The Constitution creates, or rather recognizes the existence of, the office of sheriff. It does not prescribe the duties of the office. And yet, we cannot impute the folly of creating an office without any duties. And so we have to assume, either that the Constitution meant to recognize the office of sheriff already existing, with all its duties and regulations, or else, that the Legislature should prescribe its duties and regulations anew. Either aspect is fatal to the relator, and fully justifies the Board. At the time of the adoption of the Con- stitntion, and for a long time before, onr statute law required a sheriff' elected to a second term to exhibit a receipt for the settlement of the taxes, &c., before entering upon the duties of his second term. And so, at the end of each year, every sheriff had, and still has, to appear before the Board and produce his receipts for the past year and renew his bonds. And a failure to do so in any instance “ creates a vacancy,” (to use the language of the statute,) which the Board immediately proceeds to fill. And yet it was never before supposed that these regulations were elements of eligibility or qualifications for office. It is a prudent business regulation to hold an agent to short settlements and frequent exhibitions of his vouchers. And our experience and knowledge of human nature teach us that one who has been tried and found faithful may reasonably be trusted again, and on the contrary, one who has been tried and found wanting, ought no longer to bo trusted. It is only by one’s deportment in office that he acquires the reputation of a faithful or a faithless public servant. And such reputation is often the most satisfactory assurance that he will or will not be faithful if trusted again.

The relator says that the Board ought not to have refused him, because he had not been “convicted” by due course of law, and that the Board had no powrer to convict him.

If he had been convicted by due course of law, then that conviction would have put him out of the “ class” of persons “ qualified ” for office, and the Board would have refused him for that reason. And it would have refused him even if subsequent to conviction he had paid over the taxes and taken a receipt arid exhibited it to the Board. He would not, in that case, have stood before the Board a “ proper man.” But here the Board conceded that he was a proper man ; that he had not been convicted ; that he may have accounted for all moneys; that he might have the receipt' in his pocket and they only asked him to produce it. And it is only from the relator himself that we learn that he had no receipt- to produce. The Board produced against him no “ conviction ” for “ corruption or malpractice,” nor any charge founded upon malicious rumor or a licentious press, but permitted him “ to try himself,” and he confessed himself to be a defaulter ; that he had been faithless to his duties and the assurances which he had given for their performance. If, upon this exhibition th.e Board had permitted him. to euter again upon the duties of the office which ho had abused, it would have been an outrage, for which, probably, they would have been criminally liable.

As against the view which we have presented, decisions have been cited, such as the following: One was required by statute to swear that he had not fought a duel; when the Constitution had no such requirements. Another was required to swear that he had not been a rebel; when the Constitution had no such requirement: Held that the requirements could not be enforced because they embraced a class of persons not embraced by the Constitution, related to matters not pertaining to the offices, and were not intended to be, and were not, in fact, appropriate assurances for the faithful discharge o'f the duties of the offices. Such cases fall in the class embraced by Cooly in his book on Constitutional Limitations, sec. 602, as follows:

“ All regulations of the elective franchise, however, must be uniform, reasonable and impartial. They must not have for their purpose directly or indirectly to deny or abridge the constitutional right of the citizen to vote, or unnecessarily to impede its exercise. If they do, they must be declared void.” And what is true of the right to vote is also true of the right to hold office. It will be noted how the cases cited differ from our case. There, the requirements were entirely foreign to the office, unnecessarily and partially abridged the right to office, and were not intended to be, and were r.ot in fact, fit assurances for faithfulness. The very reverse of which, is true in our case in every particular.

The authorities cited may be found in the full briefs of counsel. We have attentively considered them, and they are readily distinguishable from our case.

It is not necessary that we should decide whether mandamus or quo warranto is the proper remedy, as neither can avail the relator.

We are of the opinion that the relator is not, and that the defendant is, entitled to the office in controversy-.

Per Curiam.

Judgment affirmed.