Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-03-12
From the Raleigh Standard
WHO ARE BANNED.
DECISION OF THE SUPREME COURT
OF NORTH CAROLINA.

OF NORTH CAROLINA.
OPINION OF JUSTICE READE
IN THE CASE OF WORTHY vs. BERRET, EFT. AL
| It is insisted on for the petitioner that
the County Commissioners of Moore coun-
ty have no power to inquire as to his quail
fcations ; that their duty is to administer
to him the oath prescribed by law, and to
receive his bond that this duty is merely
ministerial and involves the exercise of no
discretion and that the court will enforce
its performance by mandamus. and leave
the petitioners right to hold the Office, to
be tested by proceeding under quo acar-
rdnto. The solemn act of administering
an oath and Inducing into office may not
be merely ministerial. But if it were, the
court will not compel them to do wrong,
if it be clear that they did right.
Our statute provides that 'no person
prohibited from holding Office by section
third, of the amendment to the Constitu-
ton to the United States, known as article
Fourteen, shall qualify under this act, or
hold Office in this State Acts of 1868,
chapter l, section g.
I The Fourteenth article of the Constitu-
ton of the United States section 3, is as
follows:
"No person shall be Senator or Rep
| resentatlve IN Congress, or electOr OF Pres
ident and Vice President, or hold any Of
flee, civil or military, under the United
States, or under any State, who, having
previously taken al oath as a member of
Congress, or rs any officer Of the United
States, or as a member of any State Legis-
lature, or as an executive or Judicial officer
of any State, to support the Constitution
of the United States, shall have engaged
in insurrection or rebellion against the
same, or given aid and comfort to the enc
| mics thereof. But Congress may by a
vote of two-thirds of each House, remove
| such disability
| "Senators and Representatives in Con-
gress, members of the State Legislatures,
and all executive and judicial officers, both
of the States and of the United States, shall
be bound by oath or affirmation to support
this Constitution" Article 6, section 3,
Constitution of the United States.
The petitioner was a sheriff before and
during the rebellion, and the question is,
whether he is disqualified from holding
the Office Of sheriff now by reason of the
3D. section, 18th article, Constitution of the
United States, supra.
The government of the United States is
divided into three branches-Legislative
Executive and Judicial. These three parts
make one whole. There is no other part
or parcel.
1t follows that there can be no Office in
| the government that is not in one of these
departments. There can be no officer ex-
cept he be the incumbent of an Office :;
therefore there can be no officer except he
be in some office in one of these depart
ments. If he is in Office in the Legislative
department, then he is legislative officer.
if in the Executive, he is an executive Off
Ger; and if the Judicial, he is judicial
officer.
But note: it is not every one who is Of
these departments that is an Iiicer. Every
officer is Of these departments, but not gice
reysa. Members of the Legislature are not
officers Theirs are places Of trust or pro-
fl, but not offices of trust or profit So in
the other departments: as in the Judicial,
we have judges, sheriffs, clerks. &C., who
are officers; and jurors, commissioners, &C.,
who are placement. Nor is this distinction
without difference, for our statute speaks
dstinctively of offices Of trust or profit, and
of places of trust or profit. Revised Code,
chap. II, sec. u. And the fourth section
of the same is follows:
Livery officer and other person, who
may be requir. d to take an oath of Office,
or an oath for the discharge of any duty
imposed on him, and also the oath appoin-
| ted for such as hold any Office of trust or
profit ia the State. shall" &c, &C., which
! shows that every person who is called up
on to perform public duties, and take an
oath to discharge the duties, is not neces-
sarily an officer.
Let us consider:
l. First is the sheriff an officer ? An
| Office Is right to exercise Il public or phi
! I L q
emoluments, in which one has q property,
and to which there are annexed duties, and
with US, in public offices, oaths to support
the Constitutions of the State and of the
United States. do not know how better
to draw the distinction between an officer
and mere pLucenaan than by making his
oath the test. Every officer is required to
take, not only an oath of Office, but an oath
to support the Constitution of the State
and the United States. Rec. Code, Chap.
Oaths. Whereas every mere placenaa1a, is
! simply required to take an oath to per-
form the particular duty required Of him
as in the case of Jurors, Commissioners,
&c.-and takes no oath to support the Con-
stitution of the State or of the United
States.
2. Does the sheritf's Office require him to
take an oath to support the Constitution of
questionably it does. Every member of
the General Assembly, and every person
who shall be chosen or appointed to hold
any Office of trust or profit in the State,
shall, before taking his seat, or entering
upon the discharge of the duties of the
office, take and subscribe the following
oath" &c. Req. Code Chap. Oatbs. Then
follows the oath to support the Constitu.
ton of the State. And the fifth section re-
quires that they shall also take an oath to
support the Constitution of the United
States
The following are the officers in North
Carolina who are required to take an oath
to support the Constitution of the State
and of the United States.
Attorney General, State and County So
licitors, Clerk and Master in Equity, Clerk
of the Superior Court, Clerk of the County
Court, Comptroller, Constable, Coroner
Entry Taker, Governor, Inspector of -four
and tobacco, &C., Judge of the Supreme
Court, Judge of the Superior Court, JUS
tees of the Peace, Public Treasurer, Ran
ger, Register, Secretary of State, Sheriff,
Standard Keeper, Stray Valuers, Surveyor
for the county, Trustee for the county