The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1912-02-27

"a W.
ohces by n man at the same time.
II the act Claws 1911) had provided
that ID. 7. johnson, James I. John
son and z. V. Judd should constitute
the Board OF Health for Wake coun-
ty, their acceptance of said Office
would have rendered vacant the Of
flee of Chairman Of the Board of
Count Commissioners, Office OF
Mayor OF Raleigh, and Office Of Su-
perintendent Of Public Schools for
Wake county," Such act would be
unconstitutional, therefore, said the
same man hold two Offices in violation
Of the State Constitution.
Justice Brown, for the Supreme
Court, says: I'VE are unable to con-
cur in the conclusion that the statute
is violative OF article IA sec. Z, Of our
State Constitution. It is no a case
where one person holds two Offices at
h same time, but rather the case
where the duties Of a embe OF the
County Board of, Health are to be
performed ex-officiO by the Chairman
Of the, Board Of Commissioners, the
Mayor n Superintendent Of Schools.
These duties cannot be discharged by
the individuals named in his HOnorS
judgment any longer than during the
period they hold the Offices Of Chair
man, Mayor and Superintendent. The
right to discharge such duties is not
conferred upon them as individuals,
but is a part Of the duties Of the one
office already held by each. We also
have the familiar case Of the Gov
ernor, who is made by law q trustee
Of the University Of the State and
Chairman of the Board and is re-
CURED to perform the duties and also
act as Chairman Of the Executive
Committee Of h Trustees. Similar
legislation is to be found in other
States having a constitutional pro-
vision similar to ours" He gives a
number Of decisions upholdlng TINS
view from other States, and says:
1--WE could multiple authorities IN
support of these views. but deem IT
unnecessary" The law is, therefore,
held to be constitutional.
The opinion further states: 1T is
contended hat the secretary OF the
State Board did not fix the fees as
required by the act. We fail to see
how this affects the plaintiffs title
to the office. 1t is plain that the
secretary undertook to fix h fees
to which the plaintiff would be en-
titled. but whether he observed The
standard laid down by the statute Is
not for us to determine in this pro
ceeding. The statute, section . de-
clares that the compensation Of the
SUPERINTENDENT Of Health for the
county, when fixed by the secretary
shall be in proportion to the salarle:
paid by other counties for the same
service, having in view the amour,
of taxes collected by said county.
And the same section declares INA
"all expenditures shall be approved
by the Board Of County Commission
ers before being paid It thus be
: comes the duty OF the County Com
: missioners to pass on and audit tn
/ plaintiffs accounts for services ant
to determine whether they are rea
7 sOnab1e and within the pounds nAet
t by the statute"
, at is commended that mandamus i
: not the proper remedy, but that qua
= Warranto is. This contention !
based upon the theory that D.
= Stevens is in possession Of the offic.
.. of County Superintendent Of Health
4 for Wake county and exercising 1t
functions. We find nothing in tn
s record that gives DR.. Stevens even
colorado title to the office or indi
Gates that he is in possession OF il
The resolution Of the County Commits
sioners does not purport to elect hin
8 Superintendent of Health or even t
y induct him into any Office establishe'
= by law. " Tha mandaInus is
y proper remedy to enforce plaintiffs
e demands is established by abundan
authority. Moore v. Jones. &c \. c.
t 1876; Doyle V. Raleigh, SO \. c. 13
n ETC."
8 An appeal from the judgment Q
h the Superior Court was also taken t
the Supreme Court by the Board Q
g County Commissioners. The Suprem
Court disposes of it in the following
). words: 1T appearing from the juds
e ment OF the Superior Court hat thes
proceedings were dismissed entirel
e and no judgment or order of an
It kind entered against the defendan
n we see no reason for entertaining tn
d appeal, and it is dismissed at the co.
of the defendant, the Board Of Cour
d ty Commissioners Of Wake count.
It Appeal Dismissed
,e So the bitterly contested case re
garding the office OF Superintendent
, Of Health for Wake county is endet
DIR. McCullers wins a victory in hay
"a ing the Supreme Court declare hiI
the lawful occupant OF the Office, an
commanding the Board OF Ceunt
u ~