The Legislature of 1891, chapter 399, established a school for the white deaf and dumb of North Carolina at Morganton. The plaintiff alleges in his complaint that in March, 1891, he was duly elected a director of said school, under said act establishing the same, for a term of six years and until his successor should be elected and qualified; that the term of six years expired in March, 1897, but the act provides that his successor shall be elected by the Legislature; and the Legislature *Page 150 having failed to elect his successor, his term is extended — that he holds over — and is the rightful occupant of said office; that, as he was the rightful and legal occupant of said office, there is and has been no vacancy in said office since his election thereto in March, 1891. But the Governor, supposing said office to be vacant on account of the Legislature's failing to elect, and six years from the date of his election having expired, appointed the defendant to fill this supposed vacancy; that under (248) this appointment of the Governor, the defendant has taken possession of said office and now wrongfully holds the same, exercising its powers and functions and receiving the fees and emoluments thereof.
To this complaint the defendant demurs upon the ground that the complaint does not state facts sufficient to constitute a cause of action.
It is contended by the plaintiff that there was no vacancy for the Governor to fill, and that if there was a vacancy it was not such a vacancy as the Governor had the power to fill; that it was not a vacancy caused by "death, removal, or otherwise" leaving an unexpired term to be filled by the Governor.
But we are of the opinion that if there was a vacancy the Governor had a right to fill it under the provisions of the act of 1891 establishing the school and under section 3320 of The Code. Battle v. McIver, 68 N.C. 467.
But the Governor only had the right to appoint when there was a vacancy, and not the right to appoint a successor before the office was vacant, whose qualification would end the term of the incumbent at any time after his six years had expired. This the Legislature could do, as it was the primary source of power of electing directors. The Legislature created the office of director in this institution, and fixed his term of office at six years and until his successor should be elected and qualified. It could as well have fixed it at eight years or ten years as at six years. But it was fixed at six years, when it was to terminate, provided a successor had been elected and qualified. The very object of this provision, that the person elected should hold over until his (240) successor should be elected and qualified, was to prevent a vacancy until such election and qualification should take place.
If this be true, as it seems to us that it must be, there was no vacancy in the office to be filled when the Governor appointed the defendant. And as there was no vacancy, the Governor had no power to appoint the defendant, and his appointment being without authority, the fact that defendant was qualified and inducted into office did not, of itself, terminate the office of the plaintiff, as it required both an election (which we must take to be by the Legislature) and a qualification by the successor to do this. This view of the case is sustained by Battle v.McIver, supra. *Page 151
This case comes before us on complaint and demurrer, and we decide it as we understand the law arising upon the pleadings. But we do not suppose theplaintiff or defendant feels much interested in the case. The plaintiff, it seems, did not commence his action for about a year after he alleges he was wrongfully ousted of his office; and though it seems he prayed an appeal at February Term when the case was tried, he gave no bond for the appeal until April Term. The defendant filed no answer, but filed a general demurrer. If he had filed an answer setting up the plaintiff's abandonment, facts might have developed which would have presented another question for our consideration, under the decision of this Court in Williams v. Somers,18 N.C. 61, and Ward v. Elizabeth City, 121 N.C. 1.
There is error in the judgment of the court, and the plaintiff is entitled to the relief demanded.
Error.
(250)