
    THE STATE ex rel D. V. RHODES v. J. W. HAMPTON.
    
      County Treasurer — Sheriff—Election— Office — Vacancy—Vested Right— County Commissioners.
    
    1. The power conferred upon the Board of Justices of the Peace by §768 The Oocle, in respect to the abolition and restoration of the office of County Treasurer, may be exercised at any time and whenever, in the_ discretion of the Board, it may be thought desirable.
    2. If there is no person to fill the office at the time of its restoration, there is a vacancy which may be filled, until next regular election, by the Board of County Commissioners.
    8. When the office is abolished the duties thereof devolve upon the Sheriff of the county, who, however, has no such vested interest therein that may not be taken away by a restoration of the office and an appointment of another person to fill it.
    4. The election of a person to an office which does not exist, or in which there is no vacancy, is a nullity.
    
      This is a civil ACTION, which was tried before Boykin, J., at Spring Term, 1888, of Polk Superior Court.
    The object of this action, began on March 21st, 1887, is 'to compel the defendant, Sheriff of Polk County, to surrender to the plaintiff the books, papers, moneys and other effects in his hands belonging to the Treasurer’s office, and was tried upon the following agreed facts:
    That J. W. Plampton is Sheriff of Polk County, North Carolina, and that since 1876 up to November, 1886, the said county had no office of Treasurer, having abolished the same in 1876, and that the Sheriff of the county had regularly performed the duties of Treasurer; that in 1886 the Board of Commissioners of said county and the Justices thereof, in regular meeting, had made the records (copies of which are set out below), as of the date appearing thereon.'
    That at the regular election, on the first Tuesday in November, the said J. W. Hampton was elected Sheriff, and one A. B. Thompson was elected by the people to fill the office of Treasurer of said county.
    That the defendant J. W. Hampton, Sheriff of said county, is now performing the duties of Treasurer, and receiving the emoluments of the office, and refuses to surrender the same.
    By order of the board the Clerk of said board was instructed to notify the Justices of the Peace to meet on the first Monday in December, 1886, for the purpose of voting for or against restoring the Treasurer’s office, as the vote that was taken to-day, allowing each and every Justice, of the Peace to sign his name to an instrument of writing, instead of voting by ballot for or against restoring the office of County Treasurer, was thought to be illegal.
    November 15th, 1886.
    By order of the board, and after consultation with a few citizens present, and the newly elected county officers, it was, on motion, agreed to adjourn from day to day on account of bad weather, it being so bad that it was seemingly impossible for the bondsmen of the various county officers and other officers notified to attend, and the board agreed on Monday for receiving bonds. And also a few Justices of the Peace met, and, without organizing, adjourned, and Cleric instructed to notify the Justices of the Peace to meet on Monday, the 13th inst., for the purpose of voting for or against restoring the County Treasurer’s office.
    December 6th, 1886.
    The Board of County Justices of the Peace met, and in convention assembled did, by their votes, restore the county treasurer’s office, and the newly elected Treasurer was notified to file a justified bond by the first Monday in January, 1887.
    The vote for restoring_ 15
    The vote against restoring_ 0
    December 13th, 1886.
    By the failure of A. B. Thompson, the duly elected Treasurer, to give bond, the office was declared vacant, and D. V-Rhodes appointed to fill unexpired term. D. V. Rhodes present. His bond as Treasurer, approved by Board of Commissioners, found to be correct, and approved and ordered to be recorded.
    January 3d, 1887.
    That on December 13th, 1886, defendant having been elected Sheriff of said county, filed his bond, and was qualified as such.
    Now, if the Court shall be of the opinion, on the foregoing-facts, that the plaintiff is entitled to recover, judgment shall be entered for the plaintiff; otherwise, judgment shall be entered for the defendant.
    The Court being of opinion that the plaintiff was entitled to recover, so adjudged, and the defendant appealed.
    
      Mr. J. B. Batchelor, for the plaintiff.
    
      Mr. W. P. Bynum, for the defendant.
   Smith, C. J.

(after stating the case.) By virtue of the authority conferred in an amendment to the Constitution in 1875 — Art. VII, Sec. 14 — the General Assembly, by the Act of February 27th, 1877, modified the first section of that article by omitting therefrom the words “ and five commissioners,” and annexing thereto as follows: “Provided, however, that a majority of the Justices may abolish the office of Treasurer, and thereupon the duties and liabilities now attached to the office shall devolve upon the Sheriff.” Acts 1876-77, ch. 141, sec. 2.

Some doubts being entertained as to the power of the Justices to establish the office after it had been abolished, a further amendment was made in these words: “ That in all cases where the Board of Justices of the Peace of any county has abolished the office of County Treasurer, the said board shall have like power to re-establish the same, if, in the judgment of the board, the public interests so require.” Acts 1881, ch. 362, sec. 1.

Substantially, these provisions are embodied in section 768 of The Code.

As there is no restriction put upon the Justices as to the time when they may exercise the conferred power of abolishing the office and devolving its duties upon the Sheriff, so none is imposed upon them in restoring it, so that it may be again filled according to law. As the legislation is transferred to The Code, even the restraint that the restoration may be made when, in the judgment of the Justices, the public interest may require, is removed, and the discretion reposed in the board in taking such action is absolute and unqualified.

It is therefore plain that the action of the Justices, for whatever .cause taken, was opportune and effectual — opportune, in that it took place at the end of the Sheriff’s term of office and the entering upon a new term, when the transfer of the duties from the one office to the other would least disturb the public business ; effectual, in that the incumbent of the re-established office would begin a term commensurate with that of the other biennially chosen county officers, and terminating at the same time.

As. then, the office of Treasurer was, by the vote of the -Justices, restored, and without an incumbent a vacancy existed—Cloud v. Wilson, 72 N. C., 155—and the duties dis-annexed from the office of Sheriff, it became necessary to have the place filled, and this could only then be done by an appointment from the Board of County Commissioners, or there would be no one to perform the-functions and execute the duties of the office. The Code, § 720.

This appointment, like that of other county officers, would be for the term during which it was made, and until, at an ■election held pursuant to law, the incumbent could be supplied by a popular vote.

It is plain that the election of Thompson in November .preceding was a nullity, for the obvious and sufficient reason that there was then no such office to be filled, and equally ■so that the appointment of the plaintiff was regular and valid.

But the defendant contends that, having given his official bonds and been inducted into office before the action of the Justices in restoring that of Treasurer, the privileges and advantages attaching to him as Sheriff cannot be withdrawn without impairing a right vesting in him to the emoluments thereof.

The contention has no support in law. The transferred duties occasioned by the abolition of the office of Treasurer in 1876, attached to the office of Sheriff only so long as there was no Treasurer to perform them, and subject to the underlying condition that they should re-vest at once upon the restoration of the office of Treasurer whenever the Justices .should see fit to restore it.

There could not be a regular and duly appointed Treasurer without the rights and functions belonging to the office, and these could not be then possessed and exercised by the Sheriff. The incongruity is manifest, and has no support in the legislation on the subject, as no vested right of the defendant is disturbed, for it is only during this interregnum in the Treasurer’s office that the Sheriff is charged with its duties and entitled to compensation for their discharge, and these terminated upon the expiration of the interval when the office is resuscitated and resumed by an appointee.

We decide the case upon the facts and agreement of counsel, and affirm the judgment.

Affirmed.  