#### STATE ex rel. R. H. SALISBURY v. A. B. CROOM and BOARD OF DIRECTORS OF STATE HOSPITAL, RALEIGH.

(Filed 11 November, 1914.)

1. Public Officers — Appointment—Constitutional Law — Legislative Powers— Hospitals for the Insane — Directors.

By amendment to Article III, sec. 10, of our Constitution by tbe Convention of 1875, the express inhibition of the General Assembly to appoint officers to. offices created by statute was taken away, and the inherent right of the Governor to appoint is now restricted to constitutional offices and where the Constitution itself so provides; and all offices created by statute, including directorates in State institutions — in this ease, the State Hospital at Raleigh — the power of appointment, either • original or to fill vacancies, is subject to legislative provision as 'expressed in a valid enactment.

2. Public Officers — Hospitals for the Insane — Directors—Appointments—Interpretation of Statutes — Concurrence of Senate.

Revisal, sec. 4547, providing directorates for hospitals for the insane, enacts, among other things, that each corporation shall be under the management of a certain number of directors, divided into classes, the terms *224of each class expiring at different times, “nominated by the Governor and, by and with the advice and consent of a majority of the Sendtors-elect, appointed by him,” and after making provisions as to quorums, etc., concludes that “after the ’ expiration of their said respective- terms of office, all appointments shall be for a term of six years, except such as are made to fill unexpired terms.” Seld, it was the design and purpose of the Legislature that the consent and approval of the Senate, as stated, be required for a valid appointment by the Governor to fill unexpired terms as well as full terms, and that the sole power of appointment of the Governor is derived under Revisal, sec. 5328, subsec. 3, to fill vacancies when, the Senate was not in session, and until it met and concurred in his appointment. Boynton v. Seartt, 158 N. C., 488, cited and distinguished ; State’s Prison v. Day, 124 N. C., 362, overruled.

3. Public Officers — Appointments—Ouster—Process—Concurrence of Senate —Color of Right — Interpretation of Statutes.

Revisal, see. 2368, providing in effect that a person “admitted and sworn into any office shall be held, deemed, and taken, by force of such admission, to be rightfully in such office, until by judicial sentence, upon a proper proceeding, he shall be ousted therefrom,” etc., applies to such persons who, having duly qualified, are performing the duties of the office under color of right, and not to the facts of this case, where the appointee of the Governor, requiring the concurrence of the Senate in order to hold his office for the full unexpired term of his predecessor, is holding over after the Senate has met and concurred in the appointment of another.

4. Public Officers — Quo Warranto — Ouster—Process—Interpretation of Statutes.

A relator in quo warranto proceedings to try titlo to office accepts the position that he has been displaced in the office by the form of action in which he seeks to assert his rights, and may not therein avail himself of the position that under our statute, Revisal, sec. 2368, he should have been ousted therefrom by a judicial sentence, under a proper proceeding, etc.

Appeal by plaintiff from Bond, J., at July Term, 1914 of WaKE.

Civil action to try title to position as director of tbe Central State Hospital, beard on case agreed. Tbe facts submitted were as follows:

R. H. Salisbury and A. B. Groom claim tbe title to tbe same office of director of tbe State Hospital at Raleigb, tbe office being tbe one occupied by J. D. Biggs and by bim resigned, and tbe term therein expiring in 1917.

1. J. D. Biggs, in March, 1911, with tbe confirmation of tbe Senate, was appointed for. a full term of six years to said office, and qualified.'

2. In 1912 J. D. Biggs resigned said office, and thereafter, on 8 November, 1912, tbe Governor of tbe State, while tbe Legislature was not in session, appointed by commission, a copy of which is hereto attached, R. H. Salisbury a director to fill tbe vacancy created by the resignation of said.Biggs, and said Salisbury accepted and qualified as such director.

*2253. R. H. Salisbury’s name was never sent to tbe 'Senate, and bis said appointment was not confirmed by tbe Senate.

4. In March, 1913, tbe Governor of tbe State nominated and tbe Senate confirmed and tbe Governor appointed by commission, a copy of wbicb is hereto attached, A. B. Oroom a director to fill tbe same vacancy in tbe term expiring in 1917, wbicb was then held by R. H. Salisbury, and said Oroom accepted and qualified as such director.

5. That on 17 December, 1913, tbe board of directors of tbe State Hospital, by a majority vote on a resolution, excluded Salisbury from further participation as a member of said board.' •

6. That plaintiff duly applied for leave to bring this action; tbe Attorney-General duly granted tbe same; all proper bonds have been given, and tbe summons has been duly served.

7. It is agreed that if as a matter of law said Salisbury’s appointment for tbe full vacancy in said term was valid, without confirmation and approval by tbe Senate, then judgment shall be entered for plaintiff, relator, confirming bis right to said office; and'it is agreed that if Salisbury’s appointment was invalid for the full vacancy, or if Oroom’s appointment under tbe facts was legal and valid, then judgment shall be entered for A.. B. Oroom, confirming bis right to said office and approving tbe action of tbe board excluding Salisbury.

By Governor’s commission, tbe relator, R. H. Salisbury, was appointed to fill tbe vacancy “caused by tbe resignation of John D. Biggs for tbe term expiring 28 February, 1917,” and conferred upon him “all tbe rights, privileges, and powers useful and necessary to tbe just and proper discharge of tbe duties of bis appointment.”

TJpon these facts, tbe court rendered judgment as follows:

Tbe parties in this action of quo wa/rranto, involving tbe title to tbe office of director of tbe State Hospital at Raleigh, having agreed that tbe same should be tried at this term of tbe court upon a statement of facts agreed, wherein it was submitted that if as a matter of law tbe plaintiff’s appointment was valid without approval of tbe Senate, then judgment shall be entered for plaintiff, relator, confirming bis right to said office; and that if tbe plaintiff’s appointment was invalid for tbe full vacancy, or if tbe defendant Oroom’s appointment was legal and valid, that judgment shall be entered in favor of tbe defendants, confirming tbe said Oroom’s right to said office, etc. And tbe court being of opinion that tbe appointment of tbe plaintiff; relator, was invalid, for that tbe same bad not been confirmed by tbe Senate, it is, therefore, ordered, considered, and adjudged that tbe title to tbe office of director

*226of tbe State Hospital at Raleigb is in tbe said defendant A. B. Groom, and tbat tbe defendants recover of tbe plaintiff tbeir costs and disbursements in tbis action, to be taxed by tbe clerk. g0ND

Judge Presiding.

From tbis judgment plaintiff excepted and appealed.

Manning & Kit chin for plaintiff.

B. G. Strong for defendant.

HoKE, J.

Tbe Constitution of 1868, Article III, sec. 10, made provision tbat tbe Governor, by and with tbe advice and consent of a majority of tbe Senators-elect, appoint all officers whose offices are established by tbe Constitution or which shall be created by law and whose appointments are not otherwise provided for, and no such officer shall be appointed or elected by tbe General Assembly.

Construing tbis and cognate sections of tbe Constitution in reference to vacancies, etc., it was held in various decisions tbat tbe term, “unless otherwise provided for,” meant unless otherwise provided for by tbe Constitution itself,» and tbat, except in specified and restricted instances, tbe Legislature bad no power to appoint to office or to fill vacancies therein. Nichols v. McKee, 68 N. C., 429; Welker v. Bledsoe, 68 N. C., 457; Clark v. Stanly, 66 N. C., 59. Tbis interpretation and consequent method of appointment to office and filling vacancies therein not being satisfactory to tbe dominant sentiment in tbe State, tbis article and section of tbe Constitution, as it then existed, and others of kindred nature, were altered by tbe Convention of 1875, and it was then established and now remains as follows (Art. Ill, sec. 10) : “Tbe Governor shall nominate and, by and with tbe advice and consent of a majority of tbe Senators-elect, appoint all officers whose offices are established by tbis Constitution and whose appointments are not otherwise provided for.” It will thus be noted tbat tbe inhibition on tbe legislative power to appoint to office is removed and tbe inherent power of tbe Governor to appoint is restricted to constitutional offices and where tbe Constitution itself so provides. Accordingly, it has since been tbe accepted view tbat, in all offices created by statute, including these directorates and others of like nature, tbe power of appointment, either original or to fill vacancies, is subject to legislative provision as expressed in a valid enactment. Cherry v. Burns, 124 N. C., 761; Cunningham v. Sprinkle, 124 N. C., 638. In Cherry’s case it was held:

“1. Constitutional offices must be filled in tbe mode designated in tbe Constitution.

“2. Under tbe amended Constitution of 1875, tbe Legislature may provide for tbe filling of any office created by statute.

*227“3. Tbe office of keeper of tbe Capitol is a legislative office. By tbe act of 23’February, 1899, amending section 2301 of Tbe Code, tbe Legislature conferred upon themselves tbe power to fill tbat office — and on 6 March, 1899, elected tbe plaintiff.”

This being tbe status of tbe matter so far as tbe question of power is concerned, in Eevisal, cb. 97, sec. 4547, tbe General Assembly enacted tbat: “Each corporation shall be under tbe management of a board of nine directors, no two of whom shall be resident of tbe same county, nominated by tbe Governor and, by and with tbe advice and consent of a majority of tbe Senators-elect, appointed by him, of whom five shall be a quorum, except when three of their number are in this chapter empowered to act for special purposes. Each board of directors shall be in classes of three, as they are now divided, and tbe term of office of such classes shall expire as follows: Those of tbe first class on 1 April, 1905; of tbe second class, on 1 April, 1907; and of tbe third class, on 1 April, 1909.- At tbe expiration of their said respective terms of office, all appointments shall be for a term of six years, except such as are made to fill unexpired terms.”

A perusal of this statute will disclose tbat it is tbe design and expressed purpose of tbe Legislature tbat these institutions shall be controlled and managed by a directorate who are appointed by tbe Governor, by and with tbe advice and consent of a majority of tbe Senators-elect, and from tbe closing paragraph it also sufficiently appears tbat this careful and circumspect method shall prevail not only for tbe full term, but for unexpired terms, and, while tbe Governor alone, under tbe general power to fill vacancies conferred by section 5328, subsee. 3, of tbe Eevisal, “Tbat be is to make appointments and supply vacancies not otherwise provided for in all departments,” may make appointment to this position when tbe Senate is not in session, such action could only be for tbe interval until tbe Senate meets and tbe two agencies, specially provided by tbe law, towit, tbe Governor and tbe Senate, shall concur in appointing bis successor.

This principle, tbat when tbe Constitution and statutes especially applicable require tbat tbe Governor and tbe Senate shall concur in making an appointment, tbe appointee of tbe Governor, ad interim, under a general power, shall, unless tbe Constitution or some statute otherwise provides, bold only until bis successor has been regularly selected and qualified, finds support in tbe position obtaining here, tbat in cases permitting construction, tbe correct rule of interpretation favors a recurrence to tbe original methods of selection (Rodwell v. Rowland, 137 N. C., 617), and is, we think, in accord with right reason and is well sustained by authority. People ex rel. Laine v. Tyrrell, 87 Cal., 475; People ex rel. Cagman, 20 Cal., 504; State ex rel. Meyer, 27 La. Anno., *228569; S. v. Raveshede, 32 La. Anno., 934; In re Marshalship So. Ala., 20 Fed., 379; State ex rel. Robert v. Murphy, 32 Fla., 138; Krop v. Smoot, 62 Md., 172; Throop on Public Officers, sec. 328; Mechem on Public Officers, sec. 139.

The decision .upholding the term of an ad interim appointment till the end of the next legislative session is by reason of some positive provision of the Constitution or statute, as in the case of the Federal Constitution, Art. II, sec. 2, and is an extension of the tenure which would otherwise prevail. And the fact that the Governor, in the designation of the relator as director, mistaking his power, essayed to appoint him for the whole unexpired term, does not affect the result. The appointment holds till the proper appointing powers concur in selecting his successor, and then expires. Throop on Public Officers, sec. 313.

The authorities relied upon by the relator are chiefly decisions construing the Constitution of 1868, and the only authority in this State favoring plaintiff’s position under the Constitution as amended in 1875 is that of State Prison et al. v. Day, 124 N. C., 362, and, in reference to the issue now presented, the majority of the Court, making only a casual reference to the question, rested its decision on People v. McIver, 68 N. C., 467, a case construing the constitutional provision as it formerly stood. This was pointed out with great effect in the vigorous and learned dissent of the present Chief Justice in Day's case, a dissent which has since prevailed and recognized by a unanimous Court in Mial v. Ellington, 134 N. C., 159, and other decisions, as the law of the land. And the case of Boynton v. Heartt, 158 N. C., 488, in no way conflicts with our decision. That case was concerning the position of public administrator, and it appearing that there was no time fixed by the statute for an appointment to begin or terminate, and that the filling of an unexpired term was neither provided for nor contemplated, it was held that an appointment to that position should always be for a full term; but in the present case the statute, section 4547, fixes definitely the termination of each office and there is express provision for the filling of unexpired terms and, by correct inference, in the same way as that of original appointments, except for an intervening period when the Senate is not in session, in which case a temporary appointment may be made, under section 5328, the same as we have stated, and expires by limitation whenever the office is filled by the regularly constituted appointing power.

We were further referred by counsel to Revisal, sec. 2368, to the effect that “Any person who shall, by the proper authority, be admitted and sworn into any office shall be held, deemed, and taken, by force of such admission, to'he rightfully in such office, until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void; . . .” The *229position being that the board acted without warrant of law in inducting respondent into office; bnt the portion of the section, as quoted, may not avail plaintiff. It can only apply, in any event, to persons who, having duly qualified, are filling the duties of the office under color of right: as we have endeavored to show, the appointment of the relator only held until his successor was regularly appointed by the concurrent action of the Governor and the Senate. His commission- expiring at that date, he must be held, from that time, without color. S. v. Taylor, 108 N. C., 196; Kimball v. Raymond, 45 Miss., 151; Throop on Public Officers, sec. 623 et seqMechera on Public Officers, sec. 319.

Apart from this, the relator has accepted the position of having been displaced by the form of action on which he now seeks to assert his rights. If, in violation of this section, he had been wronged by the action of the board, some remedy might be open to him, but in the present form of action the only question presented is, Which has the right to office? Throop on Public Officers, sec. 781; 17 Enc. PL and Pr., 452.

For the reason heretofore indicated, we are of opinion that the matter has been correctly decided, and the judgment for respondent is

Affirmed.