in Barnhill v. Thompson, 122 N.C. 493, in describing what is a public office and applying his description to the Board of Education of Bladen County, said that it was a delegation of the sovereign power to an individual for the public good, which thereby distinguished it from a mere employment or contract.
In Harris v. Wright, 121 N.C. 179, the Chief Justice, in enumerating the powers which the General Assembly possessed over municipalities under Constitution, Art. VII, sec. 14, said: "Thus was placed at the will and discretion of the Assembly, the political branch of the State Government, the election of county officers, the duty of (335) county commissioners, the division of counties into districts, the corporate powers of districts and townships, the election of township officers, the assessment of taxable property, the drawing of money from the county or township treasury, the entry of officers on duty, the appointment of justices of the peace, and all charters, ordinances provisions relating to municipal corporations."
So that the matter of the election and entry on duty of all county and township officers is within the legislative will and discretion. This was the case when the relators assumed their duties, and if there is a contract, they took with notice of this, and it was a part of their contract. Caldwell v. Wilson, 121 N.C. 469, and particularly the case ofHead v. University, 19 Wallace, 526, therein cited with approval.
The Constitution gives the Legislature "full" power; the Court has declared this includes the election and entry into office, and that the *Page 235 power of removal is incident to the power of appointment, unless the Constitution prescribes some other tribunal for removal.
This can be sustained without reversing Hoke v. Henderson, 15 N.C. 1. That case has no more application to the case at bar than it has to the case of Caldwell v. Wilson. It was a part of plaintiffs' contract that they "held at the legislative will and discretion." Mr. Justice DOUGLAS said inCaldwell v. Wilson, 121 N.C. 467, that the power of removal was incident to the power of appointment, which was an American recognition of the common-law doctrine that the sovereign could suspend an officer at any time, though such officer held by a life tenure; a power which was exercised in this State in 1868, and recognized as valid by all the judges, for they took office under and by virtue of the vacation of the life offices of their predecessors.
In Crenshaw v. U.S., 134 U.S. 99, Mr. Justice LAMAR (336) likens these identical powers over municipal corporations to the legislative control of offices, and cities with approval and liberal quotations the case of Newton v. Commissioners, 100 U.S. 548, as an authority that because the Legislature can divide counties, etc., in its discretion, hence, the officers thereunder possess no contractual or vested rights, and he says: "Whatever the form of the statute, the officer under it does not hold by contract. He enjoys a privilege revocable by the sovereignty at will; and one Legislature can not deprive its successor of the power of revocation."
If public office is a contract it is strange that the Court should have held in London v. Headen, 76 N.C. 72, from this same county of Chatham, that if one elected constable did not accept and qualify he was liable to a penalty. Is it possible a man can be punished for declining to make a contract with the State?
Cited: Dalby v. Hancock, ante 328; White v. Auditor, 126 N.C. 575, 593.
Overruled by Mial v. Ellington, 134 N.C. 131. *Page 236
(337)