State ex rel. Midgett v. Gray, 159 N.C. 443 (1912)

May 28, 1912 · Supreme Court of North Carolina

159 N.C. 443

STATE ex rel. S. E. MIDGETT v. W. R. GRAY.

(Filed 28 May, 1912.)

1. Appeal and Error — Record — Quo Warranto — Admissions—Corrections — Consent of Attorney-General — Interpretations of Statutes — Practice.

It appearing that, by 'inadvertence, tbe record in tbis action of quo warranto to try the title of office did not show that permission of the Attorney-General was given according to the requirements of Revisal, sec. 826, it is held that proof of such permission given anterior to the commencement of the action may he offered upon the new trial awarded, and upon failure thereof the action may be dismissed.

2. Two Offices — Acceptance—Vacancy—Constitutional Law.

The acceptance and qualification for one office vacates eo instanti an office already filled by the same incumbent.

3. Same — Acceptance—Qualification—Oath—Estoppel.

A clerk of the Superior Court, while holding this office, was elected a school committeeman, qualified as such, and after having met with the other committeemen, resigned in writing his position as such to the board of education: Held, he was estopped by his resignation to. deny that he had accepted the office, or his qualification therein, and the fact that he was not sworn on the Bible will not avail him.

Appeal from Cline, J., at November Term, 1911, of Dare.

Quo warranto to .try title of defendant to tbe office of Clerk of tbe Superior Court of Dare County.

Tbis issue was submitted to tbe jury: “Did defendant accept and qualify and enter upon tbe duties of School Committeeman of District No. 15, white race, as alleged in tbe complaint? Answer: No.”.

Tbe court rendered judgment for tbe defendant. Plaintiff appealed.

B. G. Crisp, J. C. B. Ehringhaus, and E. F. AydMU for plaintiff.

B. M. String-field and Ward & Grimes for defendant.

Per Curiam.

1. It does not appear in tbe record that tbe relator has ever obtained tbe permission of tbe Attorney-General to institute tbis proceeding, which is a condition precedent to tbe right of plaintiff, who personally does not claim tbe office, to maintain tbe action. Revisal 1905, sec. 826.

Since tbe former opinion in tbis case was .published, but not certified down, we are informed that such permission was given in writing as required by law, but that tbe record of it was inadvertently omitted in the transcript of appeal. ‘As tbe ease is to 'be tried again, proof of such permission given anterior .to the commencement of tbe action may then be offered, and for failure to do so tbe action may be dismissed. No such objection is taken by defendant, and therefore vte presume the permission of tbe Attorney-General was regularly obtained. <

2. Tbe plaintiff in apt time asked tbe court to charge tbe jury: “If you believe all tbe evidence in tbis cause, it will be your duty to answer the issue Yes.” Tbis was refused. Plaintiff excepted.'

We think tbe court should hatfe given tbe instruction.

Tbe defendant offered no evidence. Tbe evidence offered for tbe plaintiff is uncontroverted, and, if believed, proves these facts:

Tbe defendant was duly elected and qualified as Clerk of tbe Superior Court of Dare County.

Afterward, on 5 July, 1911, while bolding said office, be was duly elected School Committeeman of Dare County for School District No. 15.

On 22 July, 1911, defendant qualified as school committee-^ man and took tbe oath of office. On 15 August, 1911, be' resigned tbe office of school committeeman in these words:

To the Honorable Board of Education, Dare County, N. Q.

GehtlemeN : — I hereby respectfully tender my resignation as School Committeeman for tbe Fifteenth District, to take effect from date hereof. Tbis 15th day of August, 1911.

W. R. GRAY,

School Committeeman.

In tbe meantime be bad talked with A. W. Price, County Superintendent of Public Instruction, about tbe schools. '

He bad bad a meeting in bis office with tbe other two committeemen and with Professor Eason present, who was present upon invitation of W. R. Gray.

It is well settled that tbe acceptance and qualification for one office vacates eo mstcmU an office already filled by tbe same incumbent. Barnhill v. Thompson, 122 N. C., 493.

Tbat tbe defendant was not sworn on tbe Bible wben be qualified as scbool committeeman will not avail bim. He is estopped to deny bis qualification. S. v. Long, 76 N. C., 254; 3. v. Cansler, 75 N. C., 442.

Tbe defendant, if tbe evidence is to be believed, beld bimself out and acted as scbool committeeman. He signed bis name as sucb and in writing resigned tbe office of scbool committeeman. Having resigned sucb office, tbe defendant cannot be beard to say tbat be did not accept it. He could not resign an office wbicb be bad never accepted or qualified to discharge its duties.

Tbe former opinion in this case is canceled.

New trial.