#### STATE OF NORTH CAROLINA, Ex Rel. T. W. GRIMES, JR., v. HADEN C. HOLMES.

(Filed 31 October, 1934.)

1. Public Officers A a — Legislature may place additional duties upon municipal officer with provision that he receive compensation of only one office.

The Legislature of this State may abolish, subject to some specific constitutional restrictions, an existing public office, and therefore it has power to place additional duties upon the officers of a municipal corporation, and a statute (eh. 175, Private Laws of 1933) which places the *294affairs of a municipal corporation in the hands of a city council and a city manager and provides that in the event of a vacancy in the office of city manager, by sickness or otherwise, the council may delegate the duties of this office to one of its members, to be performed *ex officio*as mere auxiliary duties with such compensation as the council may determine, but shall receive no salary as a member of the council, *is held,*not to contravene Art. XIV, sec. 7, of the State Constitution prohibiting the holding of more than one office of trust or profit by any one person, since the statute merely places additional duties upon the municipal officer and provides that the incumbent of the office shall receive compensation for that one office. C. S., 2896, 2897.

2. Statutes A a — It will be presumed that act has been passed in conformity with constitutional requirements.

The courts will not go behind the ratification of an act of the Legislature to inquire as to whether notice required by Art. II, sec. 12, of the Constitution of North Carolina, and C. S., 6106, and will conclusively presume that this requirement binding upon the conscience of the Legislature has been observed.

Appeal by plaintiff from. *Harding,*Jat March Term, 1934, of RowaN.

Affirmed.

This is an action in the nature of a *quo warranto,*brought by the Attorney-General of the State of North Carolina on the complaint of the relator, a citizen of this State, and a resident, taxpayer, and qualified voter of the city of Salisbury, to oust the defendant from the office of city councilman of the city of Salisbury, on the ground that defendant now unlawfully and wrongfully holds and exercises said office. C. S., 870 (1)-871.

The agreed statement of facts is as follows: “(1) That the relator, T. *W.*Grimes, Jr., is a citizen, taxpayer, and qualified voter of the city of Salisbury, North Carolina.

“(2) That leave was obtained from the Attorney-General to institute this *quo warranto*proceeding, and relator gave the proper undertaking within the time required by law, and said proceeding was instituted by the issuance of summons and copy of the complaint being served on the defendant on 28 September, 1933, all within the time required by law.

“(3) That the said Haden 0. Holmes gave the proper undertaking within the time required by law and before filing his answer in this cause, and that defendant’s answer was duly filed within the time allowed by law.

“(4) That Haden 0. Holmes was duly elected a member of the city council of the city of Salisbury, North Carolina, in the municipal election held in May, 1933; pursuant to said election, on 1 July, 1933, the defendant was duly inducted into said office of city councilman, began the performance of his duties as such, and since said date has held and exercised said office, and continues so to do.

*295“(5) That on 1 July, 1933, while the defendant was bolding and exercising the office of city councilman, there being a vacancy in the office of city manager, the said Haden C. Holmes was appointed by the city council to do and perform the duties of city manager, and began the performance of his duties as such and continues so to do.

“(6) That the said Haden C. Holmes is now acting and performing the duties of the office of city councilman and city manager, and is receiving as compensation the sum of $250.00, with an additional $15.00 per month for the use of his automobile while engaged in the performance of his duties, but that he is not receiving any salary as city councilman.

“(7) That the 1933 session of the General Assembly of North Carolina ratified an act entitled 'An Act to Amend Chapter Two Hundred and Thirty-one of the Private Laws of One Thousand Nine Hundred and Twenty-seven of North Carolina, Relating to the Office of City Manager of the City of Salisbury,’ said act being fully set forth in defendant’s further answer; that no notice by publication was given before the introduction and passage of said act.

“(8) That the city charter and all supplementary acts, whether public or private, amendatory thereof are hereby made a part of this agreed statement of facts.

“(9) That a former member of the city council, during the last term of office of the city council, performed the duties of councilman, mayor and city manager at one and the same time.

“(10) That prior to 1 July, 1933, the said Haden O. Holmes was a member of the city council of the city of Salisbury, North Carolina, and received as compensation for his services as city councilman the sum of $50.00 per month up to and including the month of April, 1933, but that he did not receive any compensation as city councilman after the ratification of chapter 175, Private Laws of 1933; that on 15 November, 1932, while the said Haden C. Holmes was a member of the city council, he was appointed to perform the duties of city manager at a salary of $200.00 per month, in addition to the salary received as city councilman up to May, 1933, but that for the months of May and June, 1933, he did not receive any salary as city councilman, and has not since that date received any salary as city councilman.

“Dated 17 February, 1934. George R. Hzzell, Attorney for Plaintiff. Hayden Clement, Attorney for Defendant.”

The judgment of the court below is as follows: “This action having been called for trial, and it appearing to the court that plaintiff and defendant have waived a trial by jury and agreed upon an agreed statement of facts; and the court finding as a fact that the defendant Haden C. Holmes was duly and lawfully elected a member of the city council *296at tbe last municipal election, and duly qualified as a member of said council on 1 July, 1933, and since said date bas been lawfully performing tbe duties of bis office as a member of said city council, together with sucb additional duties as bave been imposed upon bim by tbe council; and tbe court being of tbe opinion that tbe said Haden C. Holmes is lawfully entitled to continue to exercise and perform tbe duties of bis office as a member of tbe city council, together with tbe additional duties of city manager delegated to bim by tbe city council.

“It is now, on motion of Hayden Clement, counsel for tbe defendant, adjudged that tbe said Haden 0. Holmes is lawfully entitled to continue to bold tbe office of a member of tbe city council and to do and perform tbe additional duties of city manager imposed upon bim by said council, together with sucb franchises, privileges, and emoluments connected therewith; and that tbe plaintiff be denied tbe relief prayed for in tbe complaint, and that the plaintiff pay tbe costs of this action, to be taxed by tbe clerk. ¥m. F. Harding, Judge Presiding.”

Tbe plaintiff excepted and assigned error to the judgment, as signed, and appealed to tbe Supreme Court.

*George R. TJzzell for plaintiff.*

*Hayden Clement for defendant.*

ClaeksoN, J.

Tbe question involved: Is it a valid exercise of legislative power for tbe Legislature to enact that: In tbe event tbe city manager of a municipal corporation shall be sick, absent, or otherwise unable to perform tbe duties of bis office, or should tbe position be vacant, tbe city council may delegate tbe duties of city manager to one of its members, to be performed *ex officio*as mere auxiliary duties? *We*think so> under tbe facts and circumstances of this case.

Article XIY, section 7, of the Constitution of North Carolina, is as follows: “No person who shall hold any office or place of trust or profit under tbe United States, or any department thereof, or under this State, or under any other state or government, shall bold or exercise any other office or place of trust or profit under tbe authority of this State, or be eligible to a seat in either bouse of tbe General Assembly: *Provided,*that nothing herein contained shall extend to officers in tbe militia, justices of tbe peace, commissioners of public charities, or commissioners for special purposes.”

In *Groves v. Barden,*169 N. C., 8 (9), speaking to tbe subject is tbe following: “Tbe line between offices’ and places of trust or profit’ within tbe meaning of tbe Constitution bas not been clearly marked, principally because they approach each other so closely, and are in all. essential features identical.

*297“In *Doyle v. Raleigh,*89 N. C., 133, tbe Court, speaking of tbis question, says: ‘It is apparent from tbe association tbat “places of trust or profit” are intended wbicb approximate to but are not offices, and yet occupy tbe same general level in dignity and importance. Tbe manifest intent is to prevent double office-bolding — tbat offices and places of public trust should not accumulate in any single person — and tbe super-added words of “places of trust or profit” were put there to avoid evasions in giving too technical a meaning to tbe preceding words/ and tbis was affirmed in *State ex rel. Wooten v. Smith,*145 N. C., 476, tbe Court adding in tbe latter case: ‘The most important characteristic wbicb distinguishes an office from a public agency is tbat conferring of tbe office carries with it a delegation to tbe individual of some of tbe sovereign functions of tbe Government. In tbis respect, tbe terms “office” and “places of trust” as used in our Constitution are synonymous. *Doyle v. Raleigh,*89 N. C., 136; *Barnhill v. Thompson,*122 N. C., 495.’ ”

In tbe above^-cited case it was held tbat a rural mail carrier was an officer. Under tbe doctrine announced in *Hoke v. Henderson,*15 N. C., 1, a public office was property and, although tbe General Assembly could regulate tbe fees and emoluments thereof, it could not take away tbe entire or major part of tbe salary of a public officer.

*Hoke v. Henderson, supra,*was overruled in *Mial v. Ellington,*134 N. C., 131, so tbat now tbe fees, salaries and emoluments of all officers, except tbe salaries of tbe judges and certain other officers, set forth in tbe Constitution, are absolutely subject to legislative control. Under tbat decision, an officer appointed for a definite time to a legislative office has no vested property therein or contract right thereto of wbicb tbe Legislature cannot deprive him.

Tbe people of tbe city of Salisbury adopted Part 4, Plan D, Mayor, City Council and City Manager, chapter 56, “Municipal Corporations.” C. S., 2896, is as follows: “Tbe city council shall appoint a city manager, who shall be tbe administrative bead of tbe city government, and shall be responsible for tbe administration of all departments. He shall be appointed with regard to merit only, and be need not be a resident of tbe city when appointed. He shall bold office during tbe pleasure of tbe city council, and shall receive such compensation as it shall fix by ordinance.”

C. S., 2897, is as follows: “Tbe city manager shall (1) be tbe administrative bead of tbe city government; (2) see tbat within tbe city tbe laws of tbe State and tbe ordinances, resolutions and regulations of tbe council are faithfully executed; (3) attend all meetings of tbe council, and recommend for adoption such measures as be shall deem expedient; (4) make reports to tbe council from time to time upon tbe affairs of tbe *298city, keep tbe council fully advised of tbe city’s financial condition and its future financial needs; (5) appoint and remove all beads of departments, superintendents, and other employees of tbe city.”

In *Town of Saluda v. County of Polk, ante,*180 (187), we find: “It will be seen by tbe Constitution of tbe State that almost unlimited power is given tbe General Assembly in reference to tbe creation and abolishing of counties, cities, and towns of tbe State.”

Tbe General Assembly, Private Laws 1933, cb. 175, passed an act relative to tbe position of tbe city manager of tbe city of Salisbury. A copy of tbe same is made a part of tbe agreed statement of facts. Tbe material part is as follows: “In tbe event tbe city manager shall be sick, absent from tbe city, or otherwise unable to perform tbe duties of bis office, or should tbe position of city manager be vacant, tbe council may delegate tbe duties of tbe city manager to one of its members, to be performed *ex officio*as mere auxiliary duties, and designate one of its members to perform such duties, and tbe person so designated shall have all of tbe powers and authority of tbe city manager while be shall serve in that capacity, and shall receive such compensation as tbe council shall determine, but shall receive no salary as a member of tbe city council.”

Conceding that tbe city manager is an officer in tbe meaning of tbe Constitution, yet we think tbe duties of bis office in tbe cases set forth in tbe act for tbe time being can be performed *ex officio*by one of tbe council “as mere auxiliary duties.”

If tbe General Assembly can abolish, they can subject to tbe limitations of tbe Constitution, place additional duties on officers of a municipality. *Chief Justice Ruffin*says, in *Troy v. Wooten,*32 N. C., 377 (379-380) : “Tbe only provision in that instrument which has any bearing on tbe question is that in tbe 25th section, that no person shall bold more than one lucrative office at any one time. But that does not restrain tbe Legislature from abolishing an office and transferring its duties, so as to attach them to another office, when it shall seem to tbe General Assembly to promote tbe public weal, and when tbe several duties are not in their nature incompatible. ... It therefore answers an important purpose in tbe public economy, by uniting tbe duties and fees in one office, to induce fit men to take tbe place. . . . For, while it is not to be presumed, on tbe one band, that tbe Legislature will create needless offices, so, on tbe other, it cannot be presumed that it will, with tbe intent to evade a constitutional provision, impose on one officer more duties than by reasonable diligence be can discharge.”

In tbe *Mial case, supra,*at page 154, is tbe following: “When tbe State employs officers or creates municipal corporations as tbe mere agencies of government, it must have tbe power to discontinue tbe agency whenever it comes to be regarded as no longer important. 'The framers *299of the Constitution did not intend to restrain the State in the regulation of their civil institutions adopted for internal government.’ They may, therefore, discontinue offices, or change the salary or other compensations, or abolish or change the organization of municipal corporations at any time, according to the existing legislative view of State policy, unless forbidden by their own Constitution from doing so.” Cooley’s Const. Lim. (7th Ed.), 387.

At pages 161-162: “If the people have not authorized the legislative department to parcel out their sovereignty by grants of public offices as private property, we dare not do- so. The Legislature having been entrusted with the power of either electing or providing for the election of officers of legislative creation, must, as the representatives of the people, be entrusted to make such changes in the tenure, duties and emoluments of such offices as in its judgment the public interest demands. This power having been vested in that department of the Government, it is our duty to obey and enforce the law as the 'State’s collected will.’ ” *Lawrence v. Hodges,*92 N. C., 672; *State ex rel. McNeil v. Somers,*96 N. C., 467; *McCullers v. Commissioners,*158 N. C., 75; *Borden v. Goldsboro,*173 N. C., 661; *State v. Wood,*175 N. C., 819. The plaintiff cites *Harris v. Watson,*201 N. C., 661, which is distinguishable from the present ease.

Citing a long list of authorities in *Hinton v. State Treasurer,*193 N. C., 496 (499), we find: “In *Sutton v. Phillips,*116 N. C., at p. 504, speaking to the question, this Court said: ‘While the courts have the power, and it is their duty in proper cases, to declare an act of the Legislature unconstitutional, it is a well-recognized principle that the courts will not declare that this coordinate branch of the Government has exceeded the powers vested in it unless it is plainly and clearly the case. *If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.*(Italics ours.) . . . At p. 505: It cannot be said that this act is plainly and clearly unconstitutional. The doubt, if any, must be resolved in favor of the General Assembly.’ ”

Plaintiff contends that the act in controversy was not passed in compliance with Article II, section 12, of the Constitution and as provided in C. S., 6106. This contention cannot be sustained.

In *Cox v. Commissioners,*146 N. C., 584 (585), is the following: “The courts will not go behind the ratification of the act to ascertain whether notice has been given in accordance with section 12, Article II, of the Constitution of the State. While that section is binding upon the conscience of the General Assembly, and doubtless is intended to be observed by that body, the courts will not undertake to review the action in that respect of a coordinate department of the State Govern*300ment, and will conclusively presume, from ratification, that tbe notice bas been given. *Gatlin v. Tarboro,*78 N. C., 119; *Brodnax v. Groom,*64 N. C., 244; *Worth v. Railroad,*89 N. C., 291; *Puitt v. Commissioners,*94 N. C., 709; *S. v. Powell,*100 N. C., 525.”

Tbe able brief of plaintiff is gripping and persuasive, but not convincing. It is a serious matter for a court to declare an act of tbe General Assembly unconstitutional. Tbis bas been done when tbe act is plainly and clearly so. Tbe General Assembly is tbe law-making body, subject to constitutional limitations. Tbe judicial forum would soon be an autocracy if it would attempt to legislate or overrule acts of tbe General Assembly, passed contrary to its views, wben not unconstitutional. Tbe policy as to tbe passage of tbe act in controversy bere is for tbe General Assembly and not for us to determine.

For tbe reasons given, tbe judgment of tbe court below is

Affirmed.