
    The State at the relation of William Lowry, vs. Archibald R. Turk.
    The^ro tem. appointmentof a clerk, for a given period of time,does notconstl-tute him clerk during good behavior — nor does it deprive the court of the power to elect one under the provisions of the constitution, article 5th, sec. 10, and of the act of 1796, ch.3, (fall session.)
    An information, in the nature of a quo warrantors not the proper remedyin a con» trot ersy between a clerk holding a pro tem. appointment and one duly elected*
    An information, in the nature of a quo warranto, was moved for against the defendant Turk, at the April term of the circuit court for the county of M’Minn, to show by what authority he held the office of clerk of the county court of M’Minn. This application was grounded on the affidavit of William Lowry; in which he stated, “that on the first Monday in December, 1826, it being the first day of the December sessions of the county court of M’Minn, Young Colville, the clerk of said court, departed this life; that on Tuesday thereafter, the court being satisfied of the fact of his (Colville’s) death, and that the office of clerk was vacant, (a majority of the justices of the county being present,) elected and appointed said William Lowry clerk of said court, who took the oaths of office prescribed, and entered into bond and security to fulfil and perform his duty as clerk, &c. That by virtue of said appointment, he became seized of all the records, books, papers, &c. to - said office appertaining; and took upon himself the performance of the duties of said office, &c. That on the night of the fifth day of March, 1827, being the first Tuesday of the March term, 1827, of said court, the room wherein the records, books and papers, of said clerk’s office, were by him kept, was broken open by persons unknown, except from information, and were delivered to a certain Archibald R. Turk; that since said unwarranted entry, said Turk has had the records, books, papers, &c., and has acted as clerk, and taken, usurped and enjoyed the fees and emoluments of said office, of which he, said Lowry, was unjustly and illegally disseis-ed, &c.
    The rule was obtained, and executed on said Turk, who showed cause against exhibiting the information, by filing his affidavit; which, (after first protesting against the remedy resorted to in this case,) among other things, admitted the death of Young Colville, the former clerk of said court, at the time and place mentioned by said Lowry; and stated, that said court, op Tuesday, the second day of said December term, 1826, proceeded to advise and consider what it behoved them to do' in relation to filling said vacancy; and thereupon they considered, inasmuch as the said court could not, at the sessions aforesaid, fill the office of clerk, regularly, by giving the notice, &c« contemplated and required' by the statutes of the state, in such case made and provided; and that said court, in order to prevent inconvenience to suitors and others, who had business in said court, proceeded to make a temporary appointment of clerk, to continue only until the following March sessions of said court. That in conformity with said intention, the said court, then and there did appoint said William Lowry clerk, pro tempore, to execute the duties of said office, until the following March sessions, at which time a clerk was to be duly elected, during good behavior; all of which appears from the records of said court. That said appointment of Lowry, was not intended as a regular one, as no notice was, or could be posted in writing, on the court house door, on Monday of the term, &c.; and that said William Lowry, knowing the terms of his appointment, took upon himself the execution of the duties of the office, pro tempore. That at the following March sessions, the said William Lowry, the said Archibald Turk, and other citizens of said county,, were candidates for. said clerkship. That on Monday, the first day of March sessions of said court for 1827, the chairs man of said court posted upon the court house door of said coiibty, a public notice, signed by said' chairman — stating that there would be. held on Tuesday, the succeeding and second day of said term-, an election for clerk of said court, to fill the vacancy occasioned by the death of said Young Colville. That in pursuance of. said, notice, and according to the- statutes in such case made and provided, the said-court, on said Tuesday, the said second day of said term. as aforesaid, (thirty-seven justices present, being a ma jority of the whole number of justices in said county,) proceeded to tlie election of a clerk according to notice, fee. That proclamation was then made at the door, that said election would then take place, and that said William Lowry and said Archibald Turk, with other citizens, were nominated as candidates for the office, and that the court then and there held a free and public election, and that after three ballotings, in which no choice was made, he, the said Turk, received upon the fourth balloting nineteen votes, being a majority of the whole number of votes given in at each of said ballotings; whereupon said Archibald R. Turk was declared by said court duly and constitutionally elected — took the oaths of office and gave bond and security according to law. That the said court delivered to him all the records, books, papers, &c. of said office, that they could quietly get into their possession; a part, or balance of which was seized by said William Lowry, after said election, and kept by him at his own house in said county; and that at the time of said supposed seizure of the records, &c. and usurpation, mentioned in said Lowry’s affidavit, he, said Turk, was, and yet is seized as of fee, in the legal and rightful enjoyment of the office of clerk of said court, &c. fee. and had a right to all papers thereunto belonging, fee., without this, that, fee. Sic,.; all of which he is ready to verify.
    At the April term, 1827, of said circuit court, after argument heard upon all the above matters, fee, the court discharged the rule; from which an appeal, ip the nature of a writ of error, is prosecuted to this court.
    
      Jarnigcm and Meigs for plaintiff in error.
    T. L. Williams for defendant in error.
   Craeb, J.

delivered the unanimous opinion of the court. It is argued on the part of the plaintiff in error, that the appointment of Lowry, at the December sessions, “clerk pro tem,” to fill said vacancy until the next sessions of said court, made him clerk of the court during good behaviour. That the court was merely empowered by the constitution. to nominate its clerk, who immediately held his office undei the constitution, by the tenure prescribed in it, and that they could not create a different tenure. That the office was full, and the appointment of Turk, at a subsequent term, was illegal and a nullity, and that consequently the latter had no warrant or title to the office.

The correctness or incorrectness of these propositions, mainly depends upon the proper view to be taken of the constitution of this state, article 5, sec. 10, and the act of assembly of 1796, (fall session) ch. 3.

The constitution says, that “each court shall appoint its own clerk, who may hold his office during good behaviour.” The act passed a few months after the adoption of the constitution, provides, “that where any vacancy may happen by death, resignation or otherwise, the right of which appointment is by the constitution vested in the county court, then, and in that case such court shall hold an open and free election on the second day of the term, in which such appointment is to be made, admitting all citizens to the privilege of offering as candidates, except such as are prohibited by the constitution, or some of the existing laws of the state.

“That it shall be the duty of the chairman of any of the aforesaid courts, or any other justice acting in his place, to cause public notice, in writing, to be set upon the door of the court house, upon the first day of the term in which said election is to be held, signifying and setting forth under his hand, which of the offices is vacant, and the time prescribed by this act for filling the same,” &c.

It is alleged the constitution must speak for itself in relation to the appointment of a clerk, and that this legislative provision, so far as it seeks to prescribe the time and the mode of appointment, and the notice necessary to be given, conflicts with the constitution, and is therefore void. The fallacy of this argument will be apparent, upon a moment’s consideration. A constitution, or fundamental law, from its very nature, is brief in its provisions, and confined to the annunciation of first principles. It tells us, that an act is to be done, or a result produced, but often pretends not to particularise the time or manner. The latter power is necessarily left to the legislative department, under the high responsibilities which impel and restrain it in all its operations.

It is believed, that the general assembly have an unquestionable right to supply the mode of executing a power, or a duty devolved by the constitution in general terms, on any citizen or body of citizens, in the community; provided that mode do not come in collision with any of the injunctions of the constitution, and is consistent with all its principles.

The convention, when framing the constitution, could not anticipate, with certainty, what would be the character and composition of some of the courts, that the legislature, “art. 5, sec. 1, should, from time to time, direct and establish.” Well might they, therefore, leave the mode of appointment to be prescribed by the same department of the government, to whom they intrusted the more important power of establishing the court itself. The general assembly thus possessed of the power, desire so to act in relation to the county court, composed as it is of numerous members scattered over the whole county, as to afford every justice an opportunity of speaking, and to every citizen the “privilege of offering as a candidate,” in the selection of all officers, the right of whose appointment is, by the constitution, vested in the county courts.

The latter instrument had not ascertained the mode of appointment. It might, (independent of legislative interposition,) be made by whatever court should happen -to be on the bench, when the vacancy should first occur, if the bare number competent to the transaction of ordinary business, should be present. But as the appointment of these officers is a matter of importance, and one in which the whole county is interested, the general assembly considered it advisable to impart to it the character of an “election and conforming it to the bill of rights, sec. 5, it is required be a free and open election. To promote this result. notice in writing is to be given, and the election is to lake place on a named day of the term.

The object of the constitution is, that a good selection shall be made, and to this end, that the court shall make it. The act in unison with the constitution, and with a view to the same object, seeks to have the benefit of the whole court, or as many members possible, in making the appointment; and aims at certainly securing the services of one that is qualified, by affording a general opportunity for application. Do the legislature act unreasonably in all this; or do they violate the words or spirit of the constitution? It is believed they do neither. What then did the county court of M’Minn? The clerk died on the first day of the term, and on the second the court were informed of the fact. They Goüld not comply with the act of assembly, and make an appointment at that term, They must either then disregard a law, which it was their duty to obey, or they must defer filling the vacancy until the next term. In compliance with their consequent duty, the}' do defer it; and at the succeeding term, they conform to the requisitions of the law, and elect Turk, And yet we are told he is not entitled to the office.

He was unquestionably entitled, unless, in the mean time, some other person had acquired a prior right; and we are of opinion that Lowry had not. He was appointed clerk pro tem. to fill the vacancy until the next session. We are asked to say, that the court, contrary to their own, and his understanding, made him clerk during good behaviour; although they had determined already to defer the election until the succeeding sessions, in obedience to an act of assembly made in pursuance of the constitution; and although none of the requisites of the act had been complied with in relation to Lowry’s appointment The clerk dies on one day — the appointment is" made the next. No notice is given, by means of which, any citizen, who may he considered qualified, may have his pretensions presented; or that the justices may generally attend. Even those who happen to be present, do not consider themselves as engaged in the election of a clerk. It cannot he, that such an appointment Is effectual, as against the claims of a person regularly ed at the proper time. Wc go no further. We confine our opinion to the peculiar circumstances of the case before us. We need not remark upon the case of Stonestreet vs. Harrison, decided by the court of appeals of Kentucky, because we do not consider it applicable to the case Under consideration. Were it so, it would be regarded by us with much attention; for we entertain a high respect for the learning and independence of that tribunal.

We are also of opinion, after a careful consideration of the arguments, and the numerous authorities produced at the bar, that the mode of proceeding, sought to be used in this case, is not sanctioned by the laws of this stale. The old writ,of quo warranto, had fallen into disuse in England, prior to the passage of the North Carolina act of 1715, ch, 31, sec. 6, adopting the' English common law. Neither that writ, nor an information in the nature of it, is known by us to have ever been used in the colony of North Carolina, and was not, therefore, incorporated into our code, by the act of 1778, ch. 5, sec. 2, which did not adopt such parts of the.common law, as had not been in force and in use in the colony, or were inconsistent with the new form of government, or which had been abrogated, repealed, expired or become obsolete.

It is not known to us, that either the writ, or the information, has ever been used in'the courts of North Carolina or this state, since the revolution. It is probable, that the general provision in the bill of rights of North Carolina, sec, 8, and of Tennessee, sec. 14, much more general than are found in the constitutions of New York and Massachusetts, have contributed to prevent the introduction of this proceeding into the courts of the two former states.

There was a well founded aversion among the lovers of liberty, in England and America, to the proceeding by information, on account of the oppressive purposes to which it was frequently applied; and although it is properly said, at the bar, that in substance it is principally a civil proceeding in such a case as this; yet, even in such a case, it is in form á criminal proceeding, and may be followed by one of the usual consequences of such a proceeding — a fine to the state, in addition to the judgment of ouster. Besides, the illegal usurpation of an office, is probably a misdemeanor, the subject of a criminal charge, for which an indictment or presentment would lie. But upon this point no positive opinion is given. Let the judgment of the circuit court he affirmed.

Judgment affirmed.  