Opinion
(Decided 1 March, 1898.)
Quo Warranto — County Commissioners — Trial of Title to Office — Sufficiency of Complaint on Demurrer.
1. In an action to try the title to the office of county commissioner held by a defendant, only citizens and taxpayers of the county can be relators.
2. Where persons who have been elected and qualified as county commissioners bring an action against persons appointed by the judge of the district, under the provisions of chapter 135, Laws 1895, to try the defendants' title to office, the complaint must allege that the plaintiffs are citizens and taxpayers of the county.
(142) QUO WARRANTO, brought by leave of the Attorney-General, to test the right of the defendants to sit as County Commissioners of Vance, brought to and tried at the October Term, 1897, of VANCE, before Timberlake, J., and a jury.
T. T. Hicks for plaintiff (appellant).
A. C. Zollicoffer for defendants.
The relators were duly elected commissioners of Vance County at the November election in 1896 and were duly inducted into office on the first Monday in December of that year. After the relators were elected, but before they were inducted into office, A. W. Graham, then one of the Judges of the Superior Court, and holding the courts of the Judicial District in which the county of Vance is located, acting under chapter 135, Laws 1895, appointed the defendants commissioners of said county, and they were inducted into office. This action is brought for the purpose of trying the title of the defendants to said office under this act of the Legislature, and under this appointment of Judge Graham.
The defendants interposed the objection and moved to dismiss the plaintiff's action for the reason that they do not allege they were (144) residents and taxpayers of Vance County. In answer to this motion the plaintiffs say this is not necessary, as the complaint alleges that they were elected commissioners of Vance County by the vote of the people.
This would be a sufficient averment if the defendants were holding and claiming the offices to which the plaintiffs claimed to have been elected, and the object of this action was to try the plaintiffs' title. The relators would then have a direct personal interest in the action, and it would not be necessary for them to allege that they were residents and taxpayers of Vance County.
But this action is not brought to try the title of the relators. The defendants do not dispute their title, and the fact that the relators are commissioners goes for nothing. It need not have been alleged in the complaint. The relators stand just as if they were not commissioners — just as any private citizen would stand, in bringing this action for the public good. In such case the plaintiffs, having no direct personal interest in the action, must show that they have some public interest to be affected or that may be affected by the defendants being allowed to hold said office, that is, that they are residents and taxpayers in the county where the defendants are holding and exercising the office.
This may seem to be a technical objection, but it is not. If this were not the law, our best people, elected to office beyond all doubt, might be annoyed and vexed by persons from other counties or even from other States, who had not the slightest interest in the office or in the public good.
But this is not a new question in this State. It has been decided by this Court in at least two cases, and we are governed by those decisions. Hines v. Vann, 118 N.C. 3; Foard v. Hall, 111 N.C. (145) 369, and cases there cited.
The defendant's motion must be allowed and the plaintiffs' action dismissed.
DOUGLAS, J., dissents.
Cited: Caldwell v. Wilson, 121 N.C. 424; Mott v. Comrs., 126 N.C. 877; Jones v. Riggs, 154 N.C. 282; Midgett v. Gray, 158 N.C. 135.