Is a notary public considered a public officer in North Carolina, and if so, can a notary hold one appointive office with a city and one appointive office with a county at the same time, or does that count as three public offices and run afoul of the constitutional limit?
Plain-English summary
The Hickory City Attorney asked a precise constitutional puzzle: someone in his jurisdiction was a notary public, an appointive city officer, and an appointive county officer all at once. Was the notary commission a "public office" for purposes of North Carolina's dual-office prohibition, and if so, did stacking three offices violate the State Constitution?
The 1979 AG split the question into three parts and answered each.
Is a notary public a public officer? Yes. The AG cited Harris v. Watson, 201 N.C. 661, 161 S.E. 215 (1931); State v. Knight, 169 N.C. 333, 85 S.E. 418 (1915); and Nelson v. Comer, 21 N.C. App. 636 (1974), all holding that the notary commission carries public-officer status under North Carolina law.
Does Article VI, Section 9 allow a notary to hold another office concurrently? Yes, but only one. Section 9 generally forbids holding "any two offices in this State filled by election of the people," and forbids "any two or more appointive offices, or any combination of elective and appointive offices, except as the General Assembly shall provide by general law." But Section 9 contains an explicit exception: "The provisions of this Section shall not prohibit any . . . notary public . . . from holding concurrently another office under this State or the United States or any department thereof." The constitutional text says "another office" (singular). The AG read it as authorizing exactly one additional office on top of the notary commission.
The General Assembly's enactment of G.S. 128-1.1 reinforced this reading. That statute authorizes any person holding an appointive office in State or local government to hold concurrently one other appointive or elective office. Either source standing alone (the constitutional exception or the statute) would authorize the notary's combination of two offices.
Does Section 9 allow a notary to hold two other offices on top of the notary commission? No. That would be three offices total, which exceeds both the constitutional exception's "another office" language and G.S. 128-1.1's "one other" authorization. The AG cited Edwards v. Board of Education, 235 N.C. 345, 70 S.E. 2d 170 (1952), for the consequence: where a person tries to accept a third office in violation of the dual-office restriction, "his attempt to accept the third office was void and he was neither a defacto or de jure officer in the third office." The third appointment never legally took effect.
So the man in Hickory's situation needed to surrender one of the three offices (the notary commission, the city appointive position, or the county appointive position). Until he did, no acts purportedly taken in the third office had legal validity.
Currency note
This opinion was issued in 1979. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article VI, Section 9 of the North Carolina Constitution and G.S. 128-1.1 have continued to be the framework for dual office holding in North Carolina, but the General Assembly has occasionally enacted exceptions, and the AG has issued later opinions on specific position combinations. Anyone evaluating a current multiple-office question should re-verify both the constitutional text and the current statutory exceptions and recent AG guidance.
Historical context: what the AG concluded
The opinion is short but does three pieces of careful work.
First, it confirms the public-officer status of the notary commission with three direct case citations. That status is what brings the notary commission inside Section 9's dual-office count. If a notary were merely a private functionary or an attestation clerk, the dual-office cap would not apply at all. The AG anchored the public-officer characterization in three decisions spanning more than four decades, two from the Supreme Court of North Carolina and one from the Court of Appeals.
Second, the AG reads the Section 9 exception narrowly, by its literal text. The exception lets the notary hold "another office," not "any other offices." That singular phrasing was the operative limit. The AG reinforced the reading with G.S. 128-1.1, which provides the same single-additional-office cap by general legislation. Either source independently produces the cap; the AG mentioned both as belt-and-suspenders.
Third, the AG explained the consequence of an over-cap appointment. The third office is not voidable; it is void. The person in the third office is neither de facto nor de jure an officer. The AG cited Edwards v. Board of Education for this proposition. The practical implication: official acts the person purported to take in the third office are without legal force, and the office is treated as vacant from the start.
The opinion does not specify which office the Hickory individual should surrender, nor whether the city or county appointing authority can choose which to deem void. The void-third-office holding likely runs to the latest-accepted office in time, because that is the office whose acceptance violated the constitutional ceiling, but the opinion does not articulate that rule. Edwards, the cited authority, is the place to look for the specifics.
For an appointing authority making vetting decisions in 1979, the takeaway was: ask candidates whether they hold any other public office, and treat a notary commission as one of the offices to count.
Common questions
Is a notary public considered an "office holder" in North Carolina?
Yes. The 1979 AG opinion confirmed (citing Harris v. Watson, 201 N.C. 661 (1931); State v. Knight, 169 N.C. 333 (1915); and Nelson v. Comer, 21 N.C. App. 636 (1974)) that a notary public is a public officer under North Carolina law. That status pulls the notary commission inside the Article VI, Section 9 dual-office count.
Can a notary serve on a city or county board at the same time?
Yes. Article VI, Section 9 carves out an explicit exception allowing a notary to hold "another office under this State or the United States or any department thereof" concurrently. And G.S. 128-1.1 separately authorizes any person holding one appointive office to hold one other appointive or elective office. Either source supports a notary plus one additional appointive position.
Can a notary serve on both a city board and a county board at the same time?
No, under the 1979 opinion. That would be three offices (notary + city + county). The constitutional exception authorizes "another office," singular, and G.S. 128-1.1 authorizes "one other" office. Three is one too many.
What happens if someone accepts a third office anyway?
The third office acceptance is void from the outset under Edwards v. Board of Education, 235 N.C. 345 (1952). The person is neither a de facto nor a de jure officer in the third position. Acts purportedly taken in the third office lack legal force.
Which of the three offices is the void one?
The 1979 opinion does not say. Edwards is the source the AG cites, and the traditional rule is that acceptance of a later, incompatible office vacates the earlier one (or, where a constitutional cap is involved, the later acceptance is the act that breaches the cap and is void). The opinion treats the third-in-time acceptance as the one that fails, but it does not state a rule for cases where the order is contested.
Does the General Assembly have power to allow more than two offices?
The constitutional exception is independent of the statute, and G.S. 128-1.1 is the legislature's general-law authorization permitted by Section 9. The General Assembly could in theory enact other specific dual-office exceptions, but at the time of this opinion the only general-law provision was the single-additional-office cap in G.S. 128-1.1.
Background and statutory framework
The opinion sits on three legal pillars.
The constitutional text. Article VI, Section 9 of the North Carolina Constitution sets the dual-office holding rule. The relevant subsections forbid concurrent holding of (1) any two offices filed by election of the people, and (2) any two or more appointive offices, or any combination of elective and appointive offices, except as the General Assembly shall provide by general law. The exception clause at issue reads: "The provisions of this Section shall not prohibit any . . . notary public . . . from holding concurrently another office under this State or the United States or any department thereof."
The statute. G.S. 128-1.1, the General Assembly's general-law exception authorized by Section 9, allows any person holding an appointive office in State or local government to hold concurrently one other appointive or elective office. It allows any person holding an elective office under State or local government to hold concurrently one other appointive office.
The case law on notary status. Harris v. Watson, 201 N.C. 661 (1931); State v. Knight, 169 N.C. 333 (1915); and Nelson v. Comer, 21 N.C. App. 636 (1974), all hold that a notary public is a public officer. The 1979 AG also referenced In Re Yelton, 223 N.C. 845, for parallel construction of the predecessor dual-office clause (Article XIV, Section 7 of the 1868 Constitution), even though no North Carolina case directly construed Section 9 with respect to a notary.
The case law on consequences. Edwards v. Board of Education, 235 N.C. 345, 70 S.E. 2d 170 (1952), establishes that acceptance of an office in violation of the dual-office restriction is void from the outset, and the person is neither a de facto nor de jure officer in that office.
Citations
- N.C. Const. art. VI, § 9
- N.C. Const. art. XIV, § 7 (1868)
- G.S. 128-1.1
- Harris v. Watson, 201 N.C. 661, 161 S.E. 215 (1931)
- State v. Knight, 169 N.C. 333, 85 S.E. 418 (1915)
- Nelson v. Comer, 21 N.C. App. 636 (1974)
- In Re Yelton, 223 N.C. 845
- Edwards v. Board of Education, 235 N.C. 345, 70 S.E. 2d 170 (1952)
Source
Original opinion text
Requested By: E. Murray Tate, Jr. Hickory City Attorney
Question: Is a notary public a public officer, and if so, may the notary hold one appointive office with a city and one appointive office with a county concurrently.
Conclusion: A notary public is a public officer. A notary public may hold one other appointive or one other elective office concurrently. However, a notary may not hold three public offices concurrently.
The facts indicate a person is a notary public and also holds one appointive office with a city and one appointive office with a county. The question arises as to whether this person is holding three public offices in violation of Article VI, Sec. 9 of the North Carolina Constitution.
Article VI, Sec. 9 provides 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 one person shall be avoided. No person holds any office under the United States, or any department thereof, or under any other state or government, shall be eligible to hold any elective office in this State.
Sec. 9 further provides that no person shall hold concurrently:
- (1) Any two offices in this State filed by election of the people.
- (2) Any two or more appointive offices, or any combination of elective and appointive offices, except as the General Assembly shall provide by general law.
Sec. 9 also contains an exception, to-wit: "The provisions of this Section shall not prohibit any . . . notary public . . . from holding concurrently another office under this State or the United States or any department thereof."
By general law, the General Assembly enacted G.S. 128-1.1, which authorizes any person who holds an appointive office in State or local government to hold concurrently one other appointive or elective office. Also, any person who holds an elective office under either State or local government may hold concurrently one other appointive office under State or local government.
In North Carolina, a notary public is a public officer. Harris v. Watson, 201 NC 661, 161 SE 215 (1931); State v. Knight, 169 NC 333, 85 SE 418 (1915); Nelson v. Comer, 21 NC App. 636 (1974).
Although we find no North Carolina cases construing Article VI, Sec. 9 with respect to a notary, the advisory opinion of In Re Yelton, 223 NC 845, is helpful since it dealt with the similar exceptions to Article XIV, Sec. 7 of the Constitution of 1868 relating to dual office holding.
The language of the exception in Article VI, Sec. 9 clearly indicates that a notary public may hold another office concurrently. Thus, even if the General Assembly had not enacted G.S. 128-1.1, by force of the Constitution, a notary public could hold concurrently one other office without being in violation of the dual office prohibition of Sec. 9. The General Assembly in G.S. 128-1.1 authorizes a person to hold two appointive offices or one elective and one appointive office concurrently.
Thus, we conclude that a person, pursuant to the exception contained in Article VI, Sec. 9 of the Constitution may hold concurrently the office of notary public and one other appointive office.
A person who holds the office of notary public may not hold concurrently two or more other offices since he would then hold more offices than is permitted by the Constitution.
For your information, we feel that since the person is holding more than two offices, that his attempt to accept the third office was void and he was neither a defacto or de jure officer in the third office. Edwards v. Board of Education, 235 NC 345, 70 SE 2d 170 (1952).
Rufus L. Edmisten
Attorney General
James F. Bullock
Senior Deputy Attorney General