The defendants rely upon the legislation of 1899 and their election by the Legislature.
It was conceded that J. A. Fuller, one of the plaintiffs, had ceased to be a citizen or resident of Granville County.
His Honor, upon the pleadings, rendered judgment in favor of defendants. Plaintiffs appealed. Under an act of Assembly, 1897, ch. 108, the plaintiffs were elected as a "Board of Education" for Granville County, and were qualified and entered on the duties of said office on the first Monday in July, 1897, for a term of three years. By an act of 1899, ch. 374, the said County Board of Education was in terms abolished. By an act of 1899, ch. 732, the office of "County Board of School Directors" was established, and by an act of 1899, ch. 3, the defendants were elected as such board of said county.
The plaintiffs insist that said acts of 1899 are only amendatory of the said act of 1897, and other portions of the school law, and that their office is not abolished. The defendants deny that contention.
Thus, the question, so frequently before this Court heretofore, is again presented. Said acts of 1899 are in pari materia and in legal effect constitute one act. By comparing the powers and duties of the plaintiffs under the act of 1897 and the existing laws, with (327) those of the defendants as prescribed in said acts of 1899, it will plainly appear that the two are practically and substantially the same, and in several sections are so in totidem verbis. Therefore it follows that the plaintiffs' office has not been abolished, and not materially changed, except in its name. *Page 229
The reasoning and opinion of this Court on the question here presented have been so frequently and so recently stated that we deem it wholly unnecessary to again repeat them, and will simply refer to a few of the decided cases: Wood v. Bellamy, 120 N.C. 212; Day v. State Prison,124 N.C. 362; Wilson v. Jordan, ibid., 683; Bryan v. Patrick, ibid., 651. We think the judgment below is erroneous.
By agreement, the complaint, answer and judgment constitute the record and case on appeal. At the trial in July, 1899, his Honor by consent finds as a fact that the plaintiff Fuller "is not a citizen or resident of Granville County." It does not appear from that finding or from any part of the record whether Fuller was a resident in July, 1897. If it was material to do so on the issue in this action, we should infer, from the fact of his election, qualification, entrance into office in 1897, and continuance therein until 1899, that he was a resident or citizen of the county.
It must be recognized in this country as a fundamental principle that the citizens have established government for their liberty and protection, and that it must be administered and its functions exercised only by themselves and through their agency, so that an alien cannot hold an office; nor can a nonresident do so even in a particular county if his right is successfully controverted in a judicial proceeding.
By agreement the court found as a fact that relator Fuller was not a resident and citizen of Granville County at the time of the trial. This agreement, in effect, authorized the court to amend the pleadings, so as to present the same issue, and it also dispenses with the (328) necessity of the forfeiture of his office being tried and found in the usual way. The record then is that Fuller was a resident and citizen when he entered on the duties of his office, but was not such when the issue came to be tried.
We are therefore of opinion that the plaintiffs, except Fuller, are entitled to discharge the duties of the Board of Education which has been held to be a public office. Barnhill v. Thompson, 122 N.C. 493.
Reversed.