Opinion
17 October, 1950
Subject: Article IV, Section 25, North Carolina Constitution; Vacancy Appointment of Justice of the Supreme Court; Length of Time for which Appointment by Governor can be made.
Honorable W. Kerr Scott
Governor of North Carolina
Raleigh, North Carolina
Dear Governor Scott:
In conference with you on yesterday you requested my opinion as to the proper construction of Section 25 of Article IV of the Constitution of North Carolina with respect to the filling of the vacancy of a Justice of the Supreme Court of North Carolina caused by the death of Associate Justice A. A. F. Seawell on October 14, 1950. The precise question which has arisen is as to whether, under the authority of this constitutional provision, the appointment by you to fill this vacancy would be for a term which would terminate when the General Election for members of the General Assembly is held on November 7, 1950, or whether the person appointed by you would hold said position until the succeeding General Election for members of the General Assembly in 1952.
A subsidiary question arises as to whether if the appointment by you to this office would hold only until the General Election of 1950 relates to whether the State Board of Elections should take the necessary steps for holding an election on November 7, 1950, for the purpose of filling the vacancy in said office caused by the death of the late Justice Seawell. The additional question arises as to how the nominations may be made for candidates who may run in said elections by the political parties of the State in the event such election has to be held.
Careful consideration has been given to these very important questions, and I greatly regret to advise you that after having made a careful investigation of the constitutional provision, applicable North Carolina Statutes and decided cases in this State, I am unable to furnish you with any opinion upon which you could safely rely.
The Constitution, Section 25, Article IV, provides as follows: 'All vacancies occurring in the offices provided for by this article of the Constitution shall be filled by the appointment of the Governor, unless otherwise provided for, and the appointees shall hold their places until the next regular election for members of the General Assembly, when elections shall be held to fill such offices. If any person, elected or appointed to any of said offices, shall neglect and fail to qualify, such offices shall be appointed to, held and filled as provided in case of vacancies occurring therein. All incumbents of said offices shall hold until their successors are qualified.'
Section 13, of Article III of the Constitution provides as follows: 'The respective duties of the Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, and Attorney-General shall be prescribed by law. If the office of any of said officers shall be vacated by death, resignation, or otherwise, it shall be the duty of the Governor to appoint another until the disability be removed or his successor be elected and qualified. Every such vacancy shall be filled by election at the first general election that occurs more than thirty days after the vacancy has taken place, and the person chosen shall hold the office for the remainder of the unexpired term fixed in the first section of this article.'
Section 25, Article IV of the Constitution was formerly Section 31 of the Constitution of 1868 and was amended by the constitutional convention of 1875 by adding to the section following the words 'the next regular election' the words 'for members of the General Assembly'.
Prior to this constitutional amendment, the Supreme Court of this State held in the case of Cloud v. Wilson, 72 N.C. 155, that the language 'next regular election' had reference to the next regular election for the office in which the vacancy occurred which, in the case of a Justice of the Supreme Court, might have postponed the election for as much as almost eight years and in the case of other state offices for as much as almost four years. The amendment in 1875 evidently intended to override the Court's decision in the case above mentioned.
The General Assembly of 1876-77 enacted Chapter 275 of the Public Laws of that Session and Section 65 of this Act was brought forward as Section 2736 of the Code of North Carolina of 1883. This section provides as follows: 'Whenever any vacancies shall exist by reason of death, resignation or otherwise, in any of the following offices, to wit: secretary of state, auditor, treasurer, superintendent of public instruction, attorney general, solicitor, justices of the supreme court, and judges of the superior court, the same shall be filled by elections, to be held in the manner and places, and under the same regulations and rules as prescribed for general elections, at the next regular election for members of the general assembly which shall occur more than thirty days after such vacancy, except as otherwise provided for in the constitution.'
The Act of 1876-77, Code Section 2736 above referred to, was cited in the advisory opinion of the Court found in Appendix A, page 925, 114 North Carolina Reports, which was handed down on May 11, 1894. This advisory opinion, however, had to do only with the question as to the length of term for which a vacancy appointment of the provision on the Statute reading as follows: '* * * at the next regular election for members of the general assembly which shall occur more than thirty days after such vacancy, except as otherwise provided for in the constitution.'
The Statute above referred to was reenacted by Chapter 89 of the Public Laws of 1901 in sections 4 and 73 and was brought forward in the Revisal as Section 4299 and in the Consolidated Statutes as Section 5920. It now appears as G.S. § 163-7 and reads as follows: 'Whenever any vacancy shall exist by reason of death, resignation, or otherwise, in any of the following offices, to wit, secretary of state, auditor, treasurer, superintendent of public instruction, attorney-general, solicitor, justices of the supreme court, judges of the superior court, or any other state officer elected by the people, the same shall be filled by elections, to be held in the manner and places and under the same regulations and rules as prescribed for general elections, at the next regular election for members of the general assembly which shall occur more than thirty days after such vacancy, except as otherwise provided for in the constitution.'
Another Statute affecting this matter is G.S. § 7-48, which reads as follows: 'All vacancies occurring by death, resignation or otherwise in the offices of justice of the supreme or judge of the superior court of the state shall be filled for the unexpired term at the next general election for members of the general assembly held after such vacancy is created. The persons elected at such election shall be commissioned by the governor immediately after the ascertainment of the result in the manner provided by law, and shall qualify and enter upon the discharge of the duties of the office within ten days after receiving such commission.'
A third Statute having a bearing on the question is G.S. § 163-145. This statute relates to filling vacancies among candidates nominated in primary elections but contains the following language: 'Provided, that should a vacancy occur in any office after the primary has been held, a nomination shall be made in like manner as above provided, and the name of the person so nominated shall be placed on the official ballot'.
As to a state office, the statute provides that the nomination to fill a vacancy as a candidate be made by the State Executive Committee of the political party in which the vacancy occurs.
Apparently the exact question with which we are concerned has never been presented for determination by our Supreme Court. I am unable to find any case in which this question has been raised and settled.
In the case of Rodwell v. Rowland, 137 N.C. 617, 618, 50 S.E. 319, which involved a question as to the time when a vacancy appointment in the office of the Clerk of the Superior Court had to be filled under the constitutional provision relating to that office, the Court makes reference to Article IV, Section 25 of the Constitution and Chapter 89, Section 4 of the Laws of 1901 but did not consider and pass upon the questions involved in this matter.
In view of the uncertainty which exists as to the proper answer to the question, I recommend that you request from the Chief Justice and Associate Justices of the Supreme Court of North Carolina an advisory opinion in order that you may be able to inform the State Board of Elections as to their duty in the premises and in order that you may be informed as to the length of time when a vacancy appointment may be made by you. I feel quite confident that the members of the Court will be willing to render an advisory opinion in this very urgent and important matter.
Respectfully yours,
Harry McMullan
Attorney General
H McM :rd/am
State of North Carolina Governor's Office Raleigh
W. Kerr Scott
Governor October 17, 1950
Honorable W. P. Stacy
Chief Justice
Honorable W. A. Devin
Honorable M. V. Barnhill
Honorable J. Wallace Winborne
Honorable E. B. Denny
Honorable S. J. Ervin, Jr.
Associate Justices
Of the Supreme Court of North Carolina
Raleigh, North Carolina
My dear Sirs:
A question of great public importance has arisen in connection with the performance of my duties as Governor of North Carolina, upon which I find it necessary to request an opinion of the Chief Justice and the Associate Justices of the Supreme Court of North Carolina.
In conference with Attorney General Harry McMullan, I have requested his opinion as to whether or not the person appointed by me to fill the vacancy caused by the death of Associate Justice A. A. F. Seawell would be appointed to hold the position until the next general election to be held November 7, 1950, or the succeeding general election in 1952. If an election must be held on November 7, 1950, it will be necessary for the State Board of Elections to be so informed in order that they may take the steps required to prepare for this election, including the printing and distribution of ballots. It will also be necessary, if an election is to be held, that the officials of the political parties of the State be informed in order that legal nominations of the respective parties for the position might be made.
I am enclosing to you a letter received by me from the Attorney General in which he advises me that the question presented has never been decided by the Supreme Court, and that in view of the uncertainties arising in connection therewith, he recommends that I request from you an advisory opinion upon the following question. Under the provisions of the Constitution of North Carolina, Article IV, Section 25, should an election be held on November 7, 1950, to fill the vacancy in the office of Associate Justice of the Supreme Court of North Carolina occasioned by the death of Associate Justice A. A. F. Seawell on October 14, 1950?
The answer to this question will enable the Attorney General to advise the State Board of Elections and me as to our duty in the premises. I respectfully request the members of the Court to furnish this advisory opinion at the earliest possible time on account of the urgency of the matter if an election must be held to fill this vacancy on November 7, 1950.
Respectfully submitted,
W. Kerr Scott
Governor
Enclosure
Raleigh, N. C.
Oct. 18, 1950
Honorable W. Kerr Scott,
Governor of North Carolina.
Dear Governor:
Your communication of the 17th inst., requesting an advisory opinion from the members of the Supreme Court as to whether 'under the provisions of the Constitution of North Carolina Article IV, section 25, an election should be held on November 7, 1950, to fill the vacancy in the office of Associate Justice of the Supreme Court of North Carolina occasioned by the death of Associate Justice A. A. F. Seawell,' has been received and considered by the members of the Court.
In the opinion of the Chief Justice and the undersigned Associate Justices Article IV, section 25, of the constitution requires that vacancies in the office of Associate Justice of the Supreme Court shall be filled by the appointment of the Governor, and that 'the appointees shall hold their places until the next regular election for members of the general Assembly, when elections shall be held to fill such offices.'
The provisions of the quoted section of the Constitution are clear and unambiguous, and you are advised the question you propound is answered in the affirmative.
Respectfully,
Signed W. P. STACY
Chief Justice.
W. A. DEVIN
Associate Justice.
J. WALLACE WINBORNE
Associate Justice.
EMERY B. DENNY
Associate Justice.
S. J. ERVIN, Jr.
Associate Justice.
October 18, 1950
Honorable W. Kerr Scott
Governor of North Carolina
Dear Governor:
Your letter of the 17th, requesting an advisory opinion from the members of the Supreme Court as to whether, under the provisions of the Constitution of North Carolina, art. IV, sec. 25, an election should be held on November 7, 1950, to fill the vacancy in the office of Associate Justice of the Supreme Court of North Carolina occasioned by the death of Associate Justice A. A. F. Seawell, has been received and considered.
Under our Constitution the Attorney General is the legal advisor to the Governor and the several State departments and agencies. We do not lightly assume his prerogative in this respect. Indeed, ordinarily, we interpose advisory opinions only in the event of an emergency gravely affecting the public interest. No such emergency is presented by the situation you outline.
However, you present this situation: the Attorney General is reluctant to give you an unqualified answer, but, instead, advises you to seek an opinion from us. You are compelled by the circumstances to act promptly, and, yet, you should not be required to do so without competent legal advice. In the light of these conditions, I feel constrained to join my associates in complying with your request.
From a legal standpoint the question you pose presents no difficulty. The pertinent section of our Constitution, art. IV, sec. 25, provides that a vacancy on the Supreme Court shall be filled by appointment of the Governor and that his appointee shall hold the office to which he is appointed until the next regular election for members of the General Assembly, at which election his successor shall be elected.
The language of this section is so clear and unambiguous it does not require interpretation. You appoint a successor to Justice Seawell. The successor of your appointee must be elected at the election to be held November 7, 1950.
Of course the General Assembly has no power to modify the provisions of the Constitution. Therefore, on the question you present, Chap. 89, P.L.1901, now G.S. § 163-7 is without force and effect.
Respectfully yours,
(s) M. V. Barnhill
Associate Justice
MVB :s