Opinion
(June Term, 1879.)
Title to Office — Quo Warranto.
A civil action in the nature of a writ of quo warranto is the proper mode of trying the title to a public office; the submission of a controversy without action under Section 315 of The Code for that purpose, can not be sustained.
PETITION by plaintiff to rehear, filed and heard at June Term, 1879, of the Supreme Court.
Messrs. E. G. Haywood and H. F. Murray for plaintiff.
Messrs. Gilliam Gatling for defendant.
The petitioner is informed and believes there is error in the judgment rendered in this case and reported in 80 N.C. 141, and among the errors assigned, he stated that the Court substantially held that the Justices of the Peace of Wilson County appointed the defendant to the Clerkship of the Inferior Court for two years, whereas, the case agreed states that they declined to make any appointment; and if such appointment had been made, it would have been a nullity for the reason that defendant being Superior Court Clerk, was disqualified by Article XIV, Section 7, of the Constitution, from holding any other office under the State, of the nature of the one in controversy.
This is a petition to rehear the judgment rendered in this case at the last term of the Court. It is a submission of a controversy without action to determine the title to the office of the Clerk of the Inferior Court of Wilson County For the reasons assigned in the case of Saunders v. Gatling, decided at this term, ante, 298, the proceeding can not be sustained. The attention of the Court was not called at the last term in the argument of this case to the (304) provisions of Section 366 of The Code, or the action would have been dismissed.
The judgment, therefore, rendered at the last term is reversed, and the proceeding is dismissed.
Reversed.
Cited: S. v. Norman, 82 N.C. 689.