State ex rel. Little v. Powell, 24 N.C. 275, 2 Ired. 275 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 275, 2 Ired. 275

STATE ON THE RELATION OF ALEXANDER LITTLE vs. WILLIAM POWELL & AL.

The power given to the County Court to appoint a constable, in case of a vacancy, is a special power, and cannot be exercised without the presence of seven justices; otherwise both the appointment and the bond given under it are void.

Appeal from the Superior Court of Law of Richmond county, at the Spring Term, 1842, his Honor Judge Nash presiding. This was an action against the defendants on a paper writing, purporting to be given by one Sedbury and the defendants as his sureties, on a bond upon his appointment as constable, and dated the 16th of January, 1838. The signing and sealing of the instrument were proved, and that it was regularly filed by the Clerk of the County Court of Richmond, among the constables’ bonds in his office, Further, to prove the delivery of the paper writing and its acceptance by1 the court, the records of the County Court of Richmond of the January Term, 1838, were produced, where the following entry appears: “ On motion, Shadrach H. Sedbury was appointed constable, gave bond with William Powell, John Morrison and Stephen Terry securities.” This entry was made on Wednesday, the 17th of January, 1838, when the court was held by three magistrates only. It was admitted that the said Sedbury was not elected, either by the people or by the County Court, but was appointed as above stated. It was objected by the defendant’s counsel that the paper writing declared on was void, because Sedbury was not elected either by the people or by the County Court of Richmond, seven magistrates being on the bench. — but that he was appointed by a court consisting of but three magistrates — and that a court so constituted, was not the legally constituted agent of the State to receive the said paper writing as a bond, The court being of this opinion, the plaintiff submitted to a nonsuit, and appealed.

Winston for the plaintiff.

Badger and Strange for the defendants.

Gaston, J.

The County Court derives all its power of appointing constables and taking bonds from them from the Statute, to which we have referred in the opinion delivered in the case brought on the relation of McRae’s Administrators against Wall and Garrott, (supra p. 267.) It is ordered to supply a vacancy, when no election has been made by the people, “ seven justices being present.” From this order flows its authority, which is necessarily special. It is given to the court, seven justices being present, but not otherwise. The appointment, therefore, in this case, was wholly without authority, and, for the reasons given in the case already referred to, the instrument given as an official bond was altogether inoperative, because not accepted by an authorized agent of the State.

Per Curiam, Judgment affirmed.