State Ex Rel. Martin v. Melott

359 S.E.2d 783, 320 N.C. 518, 1987 N.C. LEXIS 2325
CourtSupreme Court of North Carolina
DecidedSeptember 3, 1987
Docket61PA87
StatusPublished
Cited by15 cases

This text of 359 S.E.2d 783 (State Ex Rel. Martin v. Melott) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Martin v. Melott, 359 S.E.2d 783, 320 N.C. 518, 1987 N.C. LEXIS 2325 (N.C. 1987).

Opinions

[520]*520WEBB, Justice.

This case brings to the Court the question of whether the General Assembly may delegate to the Chief Justice of the Supreme Court of North Carolina the power to appoint the Director of an agency created by the General Assembly. The appellant contends the Constitution of North Carolina places this power of appointment in the Governor. We believe the resolution of this question depends to a large extent on the interpretation of Article III, Sec. 5(8) of the Constitution of North Carolina which provides:

Appointments. The Governor shall nominate and by and with the advice and consent of the majority of the Senators appoint all officers whose appointments are not otherwise provided for.

In interpreting a constitution, as in interpreting a statute, if the meaning is clear from reading the words of the Constitution, we should not search for a meaning elsewhere. Elliott v. Gardner, 203 N.C. 749, 166 S.E. 918 (1932) and Reade v. Durham, 173 N.C. 668, 92 S.E. 712 (1917).

As we read Article III, Sec. 5(8), it is clear that it means the Governor has the power to appoint an officer of the State with the advice and consent of a majority of the Senators, unless there is some other provision for the appointment. In this case there is another provision. The General Assembly has provided for the appointment of the Director of the Office of Administrative Hearings by the Chief Justice of the Supreme Court of North Carolina. We hold that the plain meaning of Article III, Sec. 5(8) does not give the Governor the appointment power under these circumstances.

The appellant argues that the phrase “whose appointments are not otherwise provided for” has a settled judicial construction which is “whose appointments are not otherwise provided for by the Constitution itself.” The power to appoint the Director of the Office of Administrative Hearings is not provided for in the Constitution. The appellant says that for this reason only the Governor may appoint the Director of the Office of Administrative Hearings. The appellant relies on Salisbury v. Croom, 167 N.C. 223, 83 S.E. 354 (1914); Ewart v. Jones, 116 N.C. 570, 21 S.E. 787 (1895); and People of North Carolina ex rel. Cloud v. Wilson, 72 [521]*521N.C. 155 (1875), for this proposition. There is language to this effect in these cases, however, the language is not necessary to the holding in any of them. In Salisbury, while holding that the plaintiff was not the rightful holder of the office of Director of the State Hospital because his appointment had not been confirmed by the Senate as required by statute, the Court said that under the Constitution of 1868 “the term, ‘unless otherwise provided for’ meant unless otherwise provided for by the Constitution itself.” The Court pointed out that this interpretation was not satisfactory to the people of the state and this provision of the Constitution was amended in 1875. In Ewart, the Court used this same language in discussing the Constitution of 1868, but said this provision of the Constitution had been amended in 1875. Cloud deals with the appointment by the Governor of a superior court judge under the Constitution of 1868. This Court said “the words ‘otherwise provided for’ meant otherwise provided for by the Constitution,” but the Court was interpreting a provision of the 1868 Constitution which is not a predecessor provision to the provision at issue in this case. We cannot say that the phrase “whose appointments are not otherwise provided for” has such a well settled judicial construction that we must use it in this case.

If we study the development of the present Article III, Sec. 5(8), we believe it strengthens our interpretation of it. Article III, Sec. 10 of the Constitution of 1868 said:

. . . The Governor shall nominate, and by and with the advice and consent of a majority of the Senators elect, appoint all officers whose offices are established by this Constitution, or which shall be created by law, and whose appointments are not otherwise provided for, and no such officer shall be appointed or elected by the General Assembly.

It is apparent that this section of the 1868 Constitution gave the Governor a broad power to make appointments. The General Assembly was forbidden from making appointments. In 1875 this section was amended radically to strike the clauses “or which shall be created by law” and “and no such officer shall be appointed by the General Assembly” so that the section read as follows:

. . . The Governor shall nominate, and by and with the advice and consent of a majority of the Senators elect, ap[522]*522point all officers whose offices are established by this Constitution, and whose appointments are not otherwise provided for.

It is apparent that this amended section greatly diminished the Governor’s appointment power. It limited the Governor’s appointment power to offices established by the Constitution and even then he could not make such appointments if the appointments were otherwise provided for. In 1970 this section was again amended and became the present Article III, Sec. 5(8) of the Constitution. The amendment deleted the word “elect” and the clause “whose offices are established by this Constitution” so that the section now reads as set forth above. If the revisers of the Constitution had intended to give the Governor the power to appoint all officers whose appointments were not provided for in the Constitution, they could have easily done so. They did not and we believe it is only reasonable to conclude they intended to increase the Governor’s power from making appointments of constitutional officers to all officers whose appointments are not otherwise provided for.

The appellant also contends the statute violates Article I, Sec. 6 of the Constitution of North Carolina which says:

The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.

The appellant further contends the statute violates Article III, Sec. 1 which says:

The executive power of the State shall be vested in the Governor.

The appellant argues that in our state government we have a separation of powers and relies on the writings of some of our founding fathers and others to say that this is one of the bedrocks of our liberty. He relies on Wallace v. Bone, 304 N.C. 591, 286 S.E. 2d 79 (1982), which held that the General Assembly cannot constitutionally create an administrative agency of the executive branch and retain some control over it by appointing legislators to the governing body of the agency. He argues that this principle should extend to prevent legislative control over an executive of[523]*523ficer by providing for his appointment by one other than the Governor.

Wallace dealt with an appointment of legislators to the Environmental Management Commission. This Court held that it violated the separation of powers provision of the State Constitution for the General Assembly to appoint its own members to an agency of the executive branch. It does not hold that only the Governor may make appointments to the Commission. Wallace is not authority for this case.

We have determined that under Article III, Sec.

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State Ex Rel. Martin v. Melott
359 S.E.2d 783 (Supreme Court of North Carolina, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
359 S.E.2d 783, 320 N.C. 518, 1987 N.C. LEXIS 2325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-martin-v-melott-nc-1987.