1. The only effect of the act of 1858, ch. 22, repealing so much of sec. 9, ch. 70, Rev. Code, as relates to the appointment and salary of the Adjutant General, is to take from the Governor the right to fill future vacancies in that office and to revest it in the Legislature, and to leave the salary to be paid semiannually as provided by Rev. Code, ch. 102, sec. 2.
2. The Legislature, whilst it continues an office, cannot oust an incumbent during the term for which he is chosen. ( Hoke v. Henderson, 15 N.C. 1, cited and approved.)
3. The Legislature may reduce or increase the salaries of such officers as are not protected by the Constitution, during their term of office, but cannot deprive them of the whole.
4. A Superior Court may issue a writ of mandamus requiring the Governor to do an act merely ministerial.
The petition sets out that the petitioner had been appointed, on 1 April, 1857, to the office of Adjutant General by Thomas Bragg, then Governor of North Carolina; that he entered upon and discharged the duties of the office, and was recognized as the legal incumbent from the date of his appointment up to 1 April, 1858; that there is now due him the sum of $100, as his salary for the half-year ending 1 October, 1859, and there will be due him the further sum of $100 for the half-year ending on 1 April, 1860; that this salary is payable only on the warrant of the Governor; that petitioner has applied to the Governor to make his warrant upon the Public Treasurer, who refuses to do so, and that he has applied to the Public Treasurer, who refuses to pay said salary without the warrant from the Governor. "And your petitioner further shows that the duties of his said office have been devolved by the Governor upon Graham Daves, Esq., private secretary to the Governor, and are in fact, by his Excellency's special command, constantly and daily performed by him, and that by reason of the refusal aforesaid, and the substitution just stated, he has been, and is, deprived (546) and ousted of his said office, and denied the privileges and emoluments it confers upon him." It then prays a writ of mandamus, commanding the said John W. Ellis and D. W. Courts, respectively, to admit the petitioner to his office, to give the warrant and pay the salary aforesaid, or show cause to the contrary.
The following is the entry on the minute docket of said term: "Upon the hearing of the petition in this case, for a writ of mandamus, and the argument of counsel, it is considered and adjudged by the court that, by virtue of the provisions of an act of the General Assembly of 1858 and 1859, there is now no salary due or payable to the Adjutant General of North Carolina. Wherefore, it is ordered that the petition be dismissed."
From this order and judgment the plaintiff appealed.
PEARSON, C. J.
The matter brought up by the appeal makes it necessary for this Court to decide two questions: (1) Is the applicant entitled by law to the amount claimed for his salary as Adjutant General of the State? (2) Had the Superior Court of Law for the county of Chatham power to require the Governor of the State to make his warrant on the public Treasurer for the payment of the salary to which the applicant is by law entitled, upon an allegation that the Governor had refused to make the warrant?
1. The Constitution of the United States, Article I, sec. 8, part 14, 15, provides: "The Congress shall have power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions." "To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers and the authority (547) of training the militia according to the discipline prescribed by Congress." In pursuance of this power, Congress, by the act of May, 1792, provided for the organization of the militia, and created the offices required by the plan of organization, and among others the office of "Adjutant General," and in accordance thereto the Legislature appointed field officers and an Adjutant General by joint ballot, and continued to do so until 1856; having in 1812, fixed the salary of the Adjutant General at $200 per annum. In 1856, Revised Code, ch. 70, sec. 11, provides for the election of all field officers by the officers of the respective divisions, brigades, etc., to continue in office three years, and section 9 confers the appointment of Adjutant General on the Governor, to continue in office three years, by section 11, and fixes his salary at $200, to be paid quarterly by the Treasurer on a warrant from the Governor, while by chapter 102, sec. 2, the salary of the Adjutant General is fixed at $200, to be paid semiannually by the public Treasurer, upon warrant from the Governor. Laws 1858, ch. 22, enacts: "So much of the 9th section of the 70th chapter, Revised Code, entitled `Militia,' as relates to the appointment and salary of Adjutant General be and the same is hereby repealed."
We were informed by the Attorney General, on the argument, that the Governor found his opinion adverse to the claim of the applicant on this statute. So the question depends on its construction. We have seen the office of Adjutant General was created by an act of Congress, in pursuance of the Constitution of the United States, and that only the right of appointment was reserved to the State and devolved upon the legislature. It follows that the Legislature had no power to abolish the office, and the suggestion that such was the effect of the act of 1858 falls to the ground; indeed, it was not pressed by the Attorney General, but he assumed the position that the effect of the act of 1858 was to vacate and nullify the appointment of the applicant by repealing the act under which it had been made. We do not concur in this view of the subject. In respect to all vacancies that should thereafter occur, the Legislature, unquestionably, had power to take from the (548) Governor the right of appointment which was conferred on him by the act of 1856, and either exercise it itself to provide some other mode for having the appointment made; but in respect to the appointment which had been made, the question is altogether different. The legal effect of the appointment was to give the office to the applicant, and he became entitled to it as a "vested right" for the term of three years, from which he could only be removed in the manner prescribed by law, and of which the Legislature had no power to deprive him. This is settled. Hoke v. Henderson, 15 N.C. 1. So the act of 1858 cannot have the effect contended for, even if in the absence of express words we were at liberty to infer that such was the intention, and its only effect is to take from the Governor the right of filling future vacancies and vest it again in the Legislature.
It was then urged that however it might be in respect to the office, the salary was created by the Legislature, and, at any rate, it has the power to abolish that! It is true, the salaries of all persons holding office under the appointment of the State are within the control of the Legislature, except those officers who are protected by the Constitution, as in the case of the judges, and the salary may be increased or reduced during the term of the office, for it is presumed offices are accepted with reference to a general power, of which the Legislature has not divested itself, and in this particular the appointment to and acceptance of an office with a salary differs from an ordinary contract, the terms of which cannot be altered without mutual consent. But in putting a construction upon this statute in respect to the salary, several considerations are to be weighed. A statute which reduces a salary during the term of office, and one which takes away the salary altogether, stand on a different footing, for, in the latter case, the object would evidently be to starve the incumbent out of his office, and thereby do indirectly what could not be done directly. So as to make applicable the remarks made in Hoke v. Henderson, supra, in which there seems to be much force, that (549) such indirect legislation is as obnoxious to the charge of being unconstitutional as an act directly depriving one of his office.
A proper construction of the statute does not lead to the inference that it was the intention to abolish the salary in the event that the applicant still continued entitled to the office and liable for the discharge of his duties. On the contrary, the clause which repeals so much of section 9 as relates to the salary is a mere corollary or incident to the clause which repeals so much of that section as relates to the appointment of the Adjutant General, and, consequently, the one cannot, by any rule of construction, be made to extend in its operation further than the other. Indeed, to make the clause in respect to the salary apply to the present incumbent, when, as we have seen, the other does not deprive him of the office, would be to place the Legislature in this attitude: "We mean to abolish the office. If we have not the power to do so, then we mean to deprive the present incumbent of his office. If we have not the power to do that, then we mean to take away his salary!" A construction leading to such a result is inadmissible in the absence of express words showing such to have been the intention.
A suggestion was made by Mr. Cantwell which we think explains the clause in relation to the salary. It is this: by section 9, ch. 70, Rev. Code, the salary is payable quarterly; by section 2, ch. 102, the salary is payable semiannually, and the purpose of this provision of the act of 1858 was to remove that incongruity and leave the salary to be paid semiannually. So our conclusion is that the act of 1858 should be so construed as to take from the Governor the right to fill future vacancies and restore it to the Legislature, and to leave the salary to be paid semiannually, according to the provision of ch. 102, sec. 2.
2. Having arrived at the conclusion that the applicant is, by law, entitled to the salary claimed by him, the solution of the second question is an easy one, for as there is a legal right, the courts, as a matter (550) of course, have power to enforce it. The power of a court, by the writ of mandamus, to compel an executive officer to do an act merely ministerial, in order to enforce an ascertained legal right, is settled by Mabry v. Madison, 1 Cranche, 64, and Kendal v. United States, 12 Peters, 834. In the latter case, by an act of Congress, the Solicitor of the Treasury was authorized and directed to adjust the balance to which the relators were entitled for extra services in carrying the mail, and the Postmaster General was directed to give them a credit for whatever sum the solicitor should decide to be due to them. The solicitor accordingly ascertained the balance, but the Postmaster General refused to give credit for the amount, and the court, by the writ of mandamus, compelled him to do so, on the ground that it was not an official duty about which he had a discretion, but a mere ministerial act; and in the argument it is assumed that, under like circumstances, the writ might be issued against the President himself, and the stress of the decision is put upon the question of its being a ministerial or an official act.
The alleged ouster from office set out in the petition is not a mere ministerial act, but evidently involves an inquiry into the official conduct of the Governor, which cannot be passed on its mode of proceeding. That portion of the petition which relates to it should be rejected.
We do not enter upon the inquiry as to how the writ will be enforced, because we are not allowed to suppose that the question will arise, feeling assured that the sole purpose of the Governor is to obtain a judicial construction of the statute in question. This opinion will be certified, to the end that an alternative mandamus may issue requiring John W. Ellis, Governor, to make his warrant to the Public Treasurer for the payment of the salary of the applicant, R. C. Cotten, Adjutant General, according to the prayer of his petition.
PER CURIAM. Reversed.
Cited: S. v. Smith, 65 N.C. 371; King v. Hunter, id., 612; Bailey v. Caldwell, 68 N.C. 475; Brown v. Turner, 70 N.C. 106; Malpass v. Governor, id., 131; Shaffer v. Jenkins, 72 N.C. 278; Bunting v. Gales, 77 N.C. 285, 287; Prairie v. Worth, 78 N.C. 173; Wood v. Bellamy, 120, N.C. 217; Russell v. Ayer, id., 197; Caldwell v. Wilson, 121 N.C. 436; Garner v. Worth, 122 N.C. 257; Day's case, 124 N.C. 366, 372, 392; Greene v. Owen, 125 N.C. 215, 225; White v. Auditor, 126 N.C. 576, 580, 612; Mial v. Ellington, 134 N.C. 165, 170.
Dist.: Scarborough v. Robinson, 81 N.C. 424.
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