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Constitution of North Carolina

ARTICLE VI Suffrage and Eligibility to Office

Sec. 9. Dual office holding.

(1) Prohibitions. It is salutary that the responsibilities of self-government be widely shared among the citizens of the State and that the potential abuse of authority inherent in the holding of multiple offices by an individual be avoided. Therefore, no person who holds any office or place of trust or profit under the United States or any department thereof, or under any other state or government, shall be eligible to hold any office in this State that is filled by election by the people. No person shall hold concurrently any two offices in this State that are filled by election of the people. No person shall hold concurrently any two or more appointive offices or places of trust or profit, or any combination of elective and appointive offices or places of trust or profit, except as the General Assembly shall provide by general law.

(2) Exceptions. The provisions of this Section shall not prohibit any officer of the military forces of the State or of the United States not on active duty for an extensive period of time, any notary public, or any delegate to a Convention of the People from holding concurrently another office or place of trust or profit under this State or the United States or any department thereof.

History Note. - The provisions of this section are similar to those of Art. XIV, § 7, Const. 1868, as amended in § 1872-1873, 1944 and 1962.

Cross References. - As to action by Attorney General when a person unlawfully holds office, acts to forfeit his office, etc., see G.S. § 1-515.

CASE NOTES

Editor's Note. - Most of the cases cited below were decided under former Art. XIV, § 7, Const. 1868, as amended.

Purpose. - The manifest intent of this section is to prevent double office holding, that is, that offices and places of public trust should not accumulate in any single person, and the superadded words of "places of trust or profit" were put in to avoid evasion in giving too technical a meaning to the preceding words. Doyle v. Aldermen of Raleigh, 89 N.C. 133 (1883), approved in Groves v. Barden, 169 N.C. 8, 84 S.E. 1042 (1915).

This section was never intended to discourage public officials from assuming military leadership in time of emergency. In re Yelton, 223 N.C. 845, 28 S.E.2d 567 (1944).

One Person May Not Hold Two Offices. - Under this section, which is intended and designed to prevent or inhibit double office holding, except in certain instances, it is not permissible for one person to hold two offices at the same time. In re Yelton, 223 N.C. 845, 28 S.E.2d 567 (1944); In re Advisory Opinion, 226 N.C. 772, 39 S.E.2d 217 (1946).

Dual Candidacy. - The trial court properly refused to declare G.S. § 163-106 and § 163-323 unconstitutional although, taken together, they created a "loophole" which allowed a candidate to run for a superior court seat and another office on the same election day, regardless of the filing periods; the provisions do not create a benefit to lawyers while denying non-lawyers the equal protection of the law, they do not remove the election process from the hands of the voters, and they do not allow dual officeholding in violation of this section although they do allow dual candidacy. Comer v. Ammons, 135 N.C. App. 531, 522 S.E.2d 77 (1999).

Definition of Public Office. - An "office" is a public station or employment conferred by appointment of government; and the term embraces the idea of tenure, duration, emolument, and duties. In re Advisory Opinion, 226 N.C. 772, 39 S.E.2d 217 (1946).

Effect of Local Law. - Chapter 129 of the 1983 N.C. Laws, insofar as it provides for dual office holding in a local law, is unconstitutional. Ratcliff v. County of Buncombe, 663 F. Supp. 1003 (W.D.N.C. 1987).

Where the office which a judge proposed to accept carried with it some of the attributes of sovereignty, and perforce invested him with governmental authority, he would be holding an office or place of trust or profit under the United States, or a department thereof, within the meaning of this section. In re Advisory Opinion, 226 N.C. 772, 39 S.E.2d 217 (1946).

Acceptance of Second Office Vacates First Office. - Where one holding an "office or place of profit" accepts another such office or position in contravention of this section, the first is vacated eo instanti, and any further acts done by him in connection with the first office are without color, and cannot be de facto. Whitehead v. Pittman, 165 N.C. 89, 80 S.E. 976 (1914).

The acceptance of a second office by one holding a public office operates ipso facto to vacate the first. While the officer has a right to elect which he will retain, his election is deemed to have been made when he accepts and qualifies for the second. Thus, the acceptance of the second office is of itself a resignation of the first. State ex rel. Barnhill v. Thompson, 122 N.C. 493, 29 S.E. 720 (1898); Whitehead v. Pittman, 165 N.C. 89, 80 S.E. 976 (1914).

The acceptance of a second office which is forbidden or incompatible with the office already held operates ipso facto to vacate the first. In re Yelton, 223 N.C. 845, 28 S.E.2d 567 (1944); In re Advisory Opinion, 226 N.C. 772, 39 S.E.2d 217 (1946).

Where a man accepts an office under the State, he vacates another held under the same sovereignty. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968).

As of Date of Acceptance. - Where a vacancy in a public office occurs by virtue of the constitutional provision against double office holding, such vacancy occurs as of the date of the acceptance of the second office, unaffected by the fact that the person accepting the second office continues to discharge the duties of the office in good faith, since ignorance of the law excuses no man. State ex rel. Atkins v. Fortner, 236 N.C. 264, 72 S.E.2d 594 (1952).

Unless First Office Is a Federal Office. - The constitutional inhibition against double office holding is enforced in alternative ways, depending on whether the first office is a State or a federal office. Where one holding a first office under the State violates this section by accepting a second office under either the State or the United States without surrendering the first office, he automatically and instantly vacates the first office, and he does not thereafter act as either a de jure or a de facto officer in performing functions of the first office, because he has neither right nor color of right to it. Where one holding a first office under the United States violates the section by accepting a second office under the State without surrendering the first office, his attempt to qualify for the second office is absolutely void, and he does not act as either a de jure or a de facto officer in performing the functions of the second office, because he has neither right nor color of right to it. Edwards v. Board of Educ., 235 N.C. 345, 70 S.E.2d 170 (1952).

Where clerk of county recorder's court accepted the office of justice of the peace without surrendering the first office, he automatically and instantly vacated the first office, and he did not thereafter act as either a de jure or a de facto officer in performing functions of the first office, because he had neither right nor color of right to it. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968).

The jurisdiction of a judge of a municipal recorder's court to impose sentence could not be successfully attacked on the ground that at the time the recorder was appointed as such he was mayor of the municipality and that he therefore held two offices in contravention of this section, since even if it was granted that the statute permitting a mayor to be appointed recorder conferred upon the mayor when chosen recorder other than ex officio duties, the acceptance of the office of recorder would vacate the office of mayor, but would not affect the office of recorder. In re Barnes, 212 N.C. 735, 194 S.E. 499 (1938).

A statute providing that the incumbent of one public office should also fill another public office is unconstitutional as violating this section, and cannot be upheld as merely affording a choice between the offices so that the acceptance of the second office would ipso facto vacate the first, since incumbency in the first is essential to incumbency in the second. State ex rel. Brigman v. Baley, 213 N.C. 119, 195 S.E. 617 (1938).

But a statute which creates no new office and appoints no additional officer, but merely attaches new duties to offices already existing, to be performed by the incumbents therein, does not violate this section. State ex rel. Brigman v. Baley, 213 N.C. 119, 195 S.E. 617 (1938).

Public-Local Laws of 1931, c. 341, providing that the chairmen of certain county boards of Madison County should elect a tax manager for the county, merely imposed additional duties ex officio upon the said chairmen, and did not provide that any one of them should hold two public offices in violation of this section. Freeman v. Board of County Comm'rs, 217 N.C. 209, 7 S.E.2d 354 (1940).

Delegation of Duties of City Manager. - A statute which places the affairs of a municipal corporation in the hands of a city council and a city manager and provides that in the event of a vacancy in the office of city manager, by sickness or otherwise, the council may delegate the duties of this office to one of its members, to be performed ex officio as mere auxiliary duties, with such compensation as the council may determine, but with no salary as a member of the council, did not contravene this section. State ex rel. Grimes v. Holmes, 207 N.C. 293, 176 S.E. 746 (1934).

Appointment of Naval Officer to Office of Zoning Commissioner. - A naval officer holds office under the United States government, and therefore under the provisions of this section he could not hold the office of zoning commissioner, and was neither a de facto nor a de jure commissioner. Vance S. Harrington & Co. v. Renner, 236 N.C. 321, 72 S.E.2d 838 (1952).

Cited in Arnold v. Varnum, 34 N.C. App. 22, 237 S.E.2d 272 (1977); Ratcliff v. County of Buncombe, 759 F.2d 1183 (4th Cir. 1985); Moore v. Knightdale Bd. of Elections, 331 N.C. 1, 413 S.E.2d 541 (1992).

Opinions of Attorney General



Old Department of Mental Health. - A person could not serve at the same time as a member of the North Carolina Department of Mental Health (now Department of Human Resources) and as a member of a county board of commissioners, as this would have constituted double office holding under former Art. XIV, § 7, Const. 1868. See opinion of Attorney General to Mr. F.P. Bodenheimer, Jr., 40 N.C.A.G. 571 (1969).

North Carolina Zoological Authority. - Membership on the Board of Directors of the North Carolina Zoological Authority is a public office. See opinion of Attorney General to Mr. Cecil J. Spears, Member, Board of Town Commissioners of Enfield, 40 N.C.A.G. 589 (1969).

Regional Housing Authority. - A county commissioner may not serve as a commissioner of a regional housing authority created under G.S. § 157-36 without violating former Art. XIV, § 7, Const. 1868. The positions of county commissioner and commissioner of a regional housing authority are public offices, and therefore, one person may not hold both positions at the same time. See opinion of Attorney General to Mr. E. Bruce Beasley, III, Mid-East Economic Development Commission, 40 N.C.A.G. 580 (1969).

Tax Lister. - The mayor of a town may not also serve as county tax lister without violating former Art. XIV, § 7, Const. 1868. The office of mayor is a public office, and the office of tax lister is also a public office, since the tax lister is appointed to a term of office and is required to take an oath of office, and his duties, imposed by statute, involve the exercise of a portion of the sovereign authority of the State. See opinion of Attorney General to Mr. Tom Hanson, Macon County Tax Supervisor, 40 N.C.A.G. 582 (1969).

Watershed Improvement Commission. - Members of a watershed improvement commission created pursuant to (see now G.S. § 139-4) exercise powers and authorities which involve the exercise of a portion of the sovereign authority of the State and thus would be considered public officers within the meaning of former Art. XIV, § 7, Const. 1868. Furthermore, a member of a school board and a member of a redevelopment commission are public officials. Thus, persons may not serve in either of these offices and as a member of the watershed improvement commission at the same time. See Opinion of Attorney General to Mr. William Clarence Kluttz, Rowan County Attorney, 40 N.C.A.G. 588 (1970).

Police Officer Holding Position as Elected Officer. - A person holding an appointive office as a police officer can concurrently hold a position as an elected officer in either State or local government, including as a school board member. See opinion of Attorney General to Captain Bobby Kilgore, Monroe Public Safety Department, 55 N.C.A.G. 34 (1985).

Service of County Commissioner or Board or Commission. - Under G.S. § 128-1.2, whenever a board of county commissioners appoints one of its own members to another board or commission, the county commissioner so appointed is considered to be serving on such board or commission as a part of his or her office as a county commissioner. See opinion of Attorney General to C. Preston Cornelius, Senior Resident, Superior Court Judge, 60 N.C.A.G. 50 (1990).

Tribal Chairman. - The position of Tribal Chairman is neither an elective nor an appointive office subject to the dual office holding prohibitions of the North Carolina Constitution and related statutes. See opinion of Attorney General to The Honorable Ronnie Sutton, N.C. House of Representatives, 2000 N.C. AG LEXIS 6 (11/17/2000).

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