CASES

SUPREME COURT

or

NORTH CAROLINA.

STATE ex rel. CLARK, appellants, v. STANLEY.

(06 N. C. 50.)

Public officer - State directors in corporations.

A public office is an agency for the State, and the person whose duty it is to perform this agency is a public officer.

An act providing for the appointment of a director for the State in all corpo rations in which the State is a stockholder creates an office, and the person so to be appointed is a public officer.

ACTION in the nature of quo warranto brought by the State ex rel. C. C. Clark and others, against E. R. Stanley and others. The relators, under the act of the legislature of April, 1871, were appointed directors of the Atlantic and North Carolina Railroad Company, on the part of the State, and they bring this action to enforce recognition as such directors. The opinion sufficiently states the point at issue. Judgment below was for defendants. Plaintiffs appealed.

J. H. Haughton, for relators.

Phillips & Merrimon, for defendants.

State v. Stanley.

PEARSON, C. J. "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, 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." Article 3, section 10, of the constitution.

The words "whose appointment are not otherwise provided for," - evidently mean; provided for by the constitution, and the words: "No such officer shall be appointed or elected by the general assembly," are superadded as an express veto upon the power of general assembly, to appoint or to elect an officer, whether the office is established by the constitution, or shall be created by an act of the general assembly.

This construction was not contested on the argument, and the case was put by the counsel of the plaintiffs on the ground that the act of April, 1871, which authorizes the president of the senate and the speaker of the house of representatives to appoint proxies and directors for the State in all corporations in which the State is a stockholder, does not create in office.

On the part of the defendants, it was insisted: That the act of April, 1871, does create an office, and that the general assembly appointed officers to fill this new office in violation of article 3, section 10, of the constitution.

person whose This, we con

A public office is an agency for the State, and the duty it is to perform this agency is a public officer. sider to be the true definition of a public officer in its original broad The essence of it is, the duty of performing an agency, that is, of doing some act or acts, or series of acts for the State.

sense.

66

Public officers are usually required to take an oath, and usually a salary or fees are annexed to the office, in which case it is an office 'coupled with an interest." But the oath and the salary or fees, are mere incidents, and constitute no part of the office: Where no salary or fees are annexed to the office, it is a naked officehonorary, and is supposed to be accepted, merely for the public good. This definition also excludes the idea, that a public office must have continuance. It can make no difference, whether there be but one act, or a series of acts to be done whether the office expires as soon as the one act is done, or is to be held for years or during good behavior. This incident, however, need not be considered, for here is continuance; the duty is imposed upon the VOL. VIII.-62

State v. Stanley.

president of the senate, and the speaker of the house of representatives, for all time to come.

To illustrate our definition: The executive department is an agency for the State, and the governor and others, whose duty it is to discharge this agency, are public officers.

The judicial department is an agency for the State, and the judges are public officers.

The legislative department is an agency for the State, and the members of the senate and of the house of representatives, are public officers.

If it be objected, Worthy v. Barrett, 63 N. C. 199, speaks of members of congress and members of the general assembly as not being public officers, the reply is: The language used in that case has reference to the wording of the fourteenth article of the amendments to the constitution of the United States, in which the "senators and representatives in congress and members of the State legislatures" are nominated, because of being prominent objects-easily pointed out by specific terms; but in regard to the other objects, they could not be pointed out, or nominated by terms so specific, and recourse was had to the more general term, "executive and judicial officers," so the inference that "members of congress and members of the general assembly" are excluded from the original and broad sense of "public officers" is by no means logical. But suppose, in some way, either in that above indicated, or by inadvertence in cases not calling for a precise definition : "Members of congress and members of the general assembly" have been taken out of the definition of "public officers," and are to be styled "public servants." A distinction without a difference, that does not affect an argument, and we may allow this anomalous exception, without at all impairing the force of the conclusion drawn from the legal meaning of a "public officer." The distinction between

Worthy v. Barrett is this: here, we are treating the terms "public offices and public officers," in the broad, original legal sense in which these terms are used in the constitution of the State. There we were treating the terms in the restricted sense, in which they are used in the fourteenth article of the amendments of the constitution of the United States.

The instances given are offices coupled with an interest. The management of the university is an agency for the State, and the

State v. Stanley.

trustees upon whom is imposed the duty of discharging this agency are public officers. This office is naked, and merely honorary.

Suppose it be enacted by the general assembly: "There shall be some fit person, whose duty it shall be to see that all persons against whom there is probable cause for the charge of felony are forth with arrested, and in case any person shall flee from justice, to offer a reward for his apprehension."

SEC. 2. It is further enacted: "That John Smith discharge the duties aforesaid." This is an agency for the State-a public office. It makes no difference whether it be styled "office of general of police," or has no name, or whether there is an oath or not, it is to all intents and purposes a public office. The constitutionality of the act might be questioned, because to make this new office a duty or function of the executive department is taken away; in other words, the material out of which this new office is manufactured is taken from the governor; and in the second place, because the general assembly has filled this new office by its own appointment, contrary to the express provision of the constitution-"no such officer shall be appointed or elected by the general assembly."

Again. Suppose an act: Whereas, experience has proved that the governor has made an ill use of the power of appointment, it is enacted: There shall be two fit persons, to be styled "appointers general," whose duty it shall be to appoint all public officers and to fill all vacancies.

SEC. 2. It is further enacted: "The president of the senate and the speaker of the house of representatives shall be the appointers general." This act is clearly unconstitutional, for, in the first place, in order to create this new office, it takes from the governor a duty or function vested in him by the constitution; and in the second place, the general assembly fills the office by its own appointmen' contrary to the express veto of that instrument.

This is the case under consideration. True, it is on a larger scale and covers more ground; but, although differing in degree, it is the same in principle. A new office is created. It is not so in name, but is in effect the office of "appointors for officers in all corporations in which the State is a stockholder," and in order to create the office a duty or function of his office is taken from the executive, and the appointment of these "appointors for corporations" is made by the general assembly.

If it be said there is this distinction: The "appointors general

State v. Stanley.

in the supposed act are to appoint all State officers, whereas the "appointors for corporations" are confined to State proxies and directors, and these are not officers of the State, but of a corporation in which the State is a stockholder. The reply is: This is a distinction without a difference, even should it be conceded that the proxies and directors are not public officers-into which question we will not enter, for our concern is with the office of "appointors for corporations," and not with the persons they may appoint to these offices. To the suggestion, the act of April, 1871, does not purport to create an office or to fill it, the reply is: Such, obviously, is the legal effect of the act. When analyzed, it will be found to contain two provisions: There shall be an agency for the State to make the appointment of all State proxies and State directors in corporations. This creates a public office, and it can make no difference that it is called the office of appointors of State officers for corporations, or has no name given to it. In the second place, the officers who are to discharge this duty are appointed by the general assembly.

We declare our opinion to be, that the statute is unconstitutional, and that the relators are not entitled to the offices claimed. We put our opinion upon familiar principles and plain analogies of the law which are intelligible to every one. The many cases cited on the learned argument with which we were favored, are not referred to, because a full discussion of them would tend rather to obscure than to elucidate the subject.

We will only refer to Hoke v. Henderson, 4 Dev. 12; that mine from which so much rich ore has been dug. In the able and elaborate opinion of Chief Justice RUFFIN, we find an instance of a public officer clearly in point, which fully confirms our conclusion. It sustains the distinction between a naked honorary office like the one which we have been discussing and an office coupled with an interest. It sustains our conclusion, that the duty of appointing to an office, constitutes of itself a public officer, and there is the further coincidence of indefinite continuance by conferring the new office upon the incumbents of offices already established. On page 21 he says: "The distinction in principle between agencies of the two kinds is obvious, the one is for the public use exclusively, often neither lucrative nor honorary, but onerous. The other is for the public service conjointly with a benefit to the officers. The distinction which I am endeavoring to express, may be fully exemplified