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2 IN FAVOR OF MEARES TIIE SUPREME COURT DECIDES UNANIMOUSLY THAT HE IS JUDGE. OPINION WRITTEN BY FURCHES. Justices Avery and Clark Write Con curring Opinions—The Court Holds That the Office Did Not Exist When Cook Was Elected and That There fore his Election Was Not Valid and the Governor Had a Right to Appoint —Full Text of the Opinions. N. C. Supreme'Court: Feb., term, 1895. 237, New Hanover Co. State ex rel 0. A. Cook, appellant vs O. P. Meares. D. L. Russell, L. C. Edwards and T. P. Devereux for plaintiff; Shepherd aud Busbee for defendant. Furches, J. This is an action in the nature of quo warranto for the office of Judge of the Circuit Criminal Court composed of the Court of New Hanover and others. It appears that the General Assembly' on the Bth, of March 1895 completed the Sissage of an Act through both of its ouses, establishing this “Circuit Crim inal Court” But this act was not sigu ed and ratified by the President of the Senate and Speaker of the House until the 12th., of March, 1895. That in this Act the Legislature d clared there should be one Judge for this criminal district, to be elected by the Legislature. That in pursuanceof this the Legislature proceed ed on the 9th. of March to elect the plaintiff Judge of said court, which vote was reported and confirmed on the 11th. of March. And on the 13th. of March, the Governor appointed the defendant Judge of said Criminal Court, and he is now occupying the office, and holding the courts. * Every question involved in this case is decided in the case of Ewart vs. Jones, at this term, except one. And that is the plaintiff was elected three days before the Act was signed by the President of the Senate and the Speaker of the House. There is no doubt of the plaintiff’s being elected, and it is contended that the Legislative will, so clearly expressed, should not be defeated by a mere tech nicality. It is also said in support of plaintiff's claim that the Act of the 12th. of March was only a part of the expres sion of the legislative will. That it is in pari materia with the acts of leg islation commenced on the 9 th. and completed on the 11th. in reporting and declaring the vote for plaintiff, and that they should be read and con strued together. And they say there are precedents in our own legislative his tory to support plaintiff’s claim. That the Legislature of 1876 passed and rati fied an act establishing a criminal court for the county of Wake, on the 10th day of March, and on the same day elected George V. Strong to fill the office that day created. That on the sth day of March, 1891, the Legislature passed and ratified an act establishing the court of Railroad Commissioners, and on the same day proceeded to elect the officers to fill the same. And they contend that it is not known whether these acts were signed by the Bpeaker and the Presi dent of the Senate before or after said elections. And plaintiff further contends that in March, 1887, the Legislature passed an act proposing an amendment to the Con stitution, increasing the number of As sociate Justices of the Supreme Court from two to four, which amendment was to be submitted to the people in Novem ber following, for their ratification or rejection; and provided that said vote should be reported to the State Board of Canvassers on the second Thursday thereafter. And if upon a canvass it should be found that a majority of the people voted for said amendment: the Governor should so declare by procla mation. And that he should attach hi 3 certificate to the act to that effect, which should be deposited in the office of the Secretary of State. That it was also provided in said act that at the same election, in November, there should be an election held for two Justices to fill the offices “to be created” by said amendment, if it should be adopted. That an election was so held for two justices, the Constitutional amendment was adopted, and the justices so elected qualified and took charge of their offices. And it is contended that these justices were elected when the vote was cast in No vember,like the plaintiff was on the 9th of March. And that the constitutional amendment did not take effect until the vote was counted and ascertained by the canvassing board, and the Governor’s proclamation issued proclaiming its adoption. And that there was no office to fill at the election in November, 1888. While on the other hand, defendant says that the act of the Legislature on the 9th, electing the plaintiff, and the act passed on the Bth., but not ratified until the 12th., were separate and dis tinct acts of legislation, and cannot be considered and construed together. That the rule of pari materia does not apply. That when plaintiff was elected on the 9th, there was no such office; that its passing the Legislature on the Bth, amounted to nothing until it was signed by the President of the Senate and the Speaker of the House on the 18th of March. Defendant further says that this court in Scarborough vs. Robinson, 81 N. C. 409 has decided this. And the case of Rhodes vs. Hampton, 101 N. 0. 629 de cides that a man cannot be elected to an office w T hen there is no office at the time of the election. And therefore admit ting that plaintiff received votes enough to ele*k him, that he was not elected for the reason that the office was not created for three days thereafter. The only point before the court in Scarborough vs. Robinson was as to whether the court could compel Robinson, then Lieut. Gov ernor and President of the Senate, aud Moriug, Speaker of House of Kepre the sentatives, to sigu a school bill passed by the Legislature or not, after the Leg islature had adjourned. And although this was the only question before the court for its judgment, the court pro ceeded to a lengthy discussion of legis lative powers, in the course of which it announced the opinion that an act passed by the Legislature was not a law un til it was signed by the presiding officers. We find very respectable air thority to the contrary. And without passing on this dicta (because it is not necessary we should do so in giving our judgment in this case) we say that it an nouuces a very grave proposition. If what is held in that opinion be true, the presiding officers of the Legislature are clothed with a veto power greater than that vested in the President of the United States, or in any Governor in any State of the Union. Because, where there has been a veto power vested in the Executive, there is also provision made to pass the act over his veto, which is not unfrequently done. Hence there is no such power. The courts will not compel them to sign the act . and there is no means provided by which the Legis lature can pass it over their refusal to sigu. But as we have said, we do not pass upon this question. In the case of Rhodes vs. Hampton, supra, to point as to whether a party could be elected to an office which did not exist at the time of the election, was presented, and the court held that he could not. And we admit that it was the inteution of the Legislature to elect the plaintiff to the office he is claiming in this action. We admit that the point made by the defendant is a technical question. We admit that the journals show that George V. Strong was elected on the day the bill establishing the court was ratified. We admit that the journals show that the railroad commissioners, in 1891, were elected the day the bill was ratified. And we admit the two ad ditional justices were elected at the No vember election in 1888, and that the amendment creating the offices to which they were elected did not go into effect until some time afterwards—when the Governor so proclaimed. But these all took place when there was harmonious action between the legislative and exec utive departments of the government. None of them have been tested in the courts. So they cannot be considered precedents to control our action. But in the case of Judge Strong and in the case of the Railroad Commission, as it was all due on the same day, we must presume that it was rightly done, that is that the act was ratified before the election took place. And in the case of the Justices of the Supreme Court, the election was pro vided for in the same act that provided for the amendment and this may make the difference between their case and that under consideration. We have said we put out of onr consideration in this case the case of Scarborough vs. Robinson, because this act cre creating a criminal court was signed and is now the law. 8o the ques tion presented in Scarborough vs. Robin sou is not presented here. And we put our judgment on this act now the law, which provides that “it shall be in effect from and after its ratification,” which is in effect saying that it £hall not be in ef fect before that time, and this is the 12th day of March, 1895, and upon the opin ion in Rhodes vs. Hampton, supra, which holds that a party cannot be elected to an office that does not exist at the time of the election It is better that the i nten tion of the Legislature should be defeated, for a time, than that we should violate the law. We find no error in the judg ment appealed from, and the same is affirmea. Clark, J., Concurring. It is settled that the Legislature had the power to fill the office created under this act. Ewart vs. Jones, at this term. The statute which is duly and regularly enacted pro vides that it should be “in force from and after its ratification.” This took place March 12, 1895. Neither on that day or at any time since has the Legisla ture elected anyone to fill the office. The statute provides further, that in event of a vacancy the Governor should ap point till the next session of the General Assembly, which shall then elect to fill the unexpired term. Under this au thority the Governor could appoint the defendant, who is now discharging the duties of the office. The Legislature held a ballot and se lected the plaintiff relator to fill the po sition on 9th of March, 1895. But at that time by the very terms of the act it was not in force and could not take effect till ratified, which was three days thereafter. There was then no office which could be filled on March 9th. The attempted election to an office which was not yet in existence was without warrant of law and was practically a merely in formal expression of preference upon the part of members. The failure to elect after the act took effect, and the attempt ed election at a time prior thereto were, it may be supposed, an inadvertence. To fill an office there must be one already created. If the term of the office is to begin in the future (as in this case, on April 1) it is competent for the Legisla ture, or other appointing power, to fill it, provided that there has then been such an office created, but not at a time when there is no such office in existence. By the terms of the statute, the act not taking effect till after its ratification, it is not necessary for us to consider the nature and effect of a ratification. The act itself selects that date as the begin ning of the life of this statute. Prior thereto it was to be dead —of no effect —and after that date it was to live, breathe and be effective. By its terms it could not be retrospective and validate a prior election. And as a wise judge has said “we eanuot be wiser than the law.” We cannot hold that this of fice was in existence prior to the time when the act creating it took effect. The attempt to fill an office before it is in existence, however inadvertent the at tempt, is simply a nullity. Rhodes vs. Hampton, 101 N. C., 629. The courts have no prerogative to step in and cure inadvertences and non-action on the part of the Legislature. This would be unwarrantable assumption and interference by thib co ordinate depart ment and would lead to far greater evils in cases of supposed or alleged inadver tences and omissions hereafter than the postponement for a few months of legis lative action in filling this position. It has been held in Scarborough vs. Robinson, 81 N. €., 409, Smith, €. J., that a bill has no validity till duly rati tied, which is “an essential pre requisite to the existence of the statute * * * which is incomplete and inoperative without it,” and in State vs. Patterson, 98 N. C , 660, that a bill “perfected and passed, is not a statute till ratified.” But The News and Observer, Friday, Hay 17, *95. even conceding, if we could, that, the bill became a law on its third reading in the House on March Bth, (it having pass ed the Senate previously), or that the ratification when made could refer back and make the act valid at, the date of such last reading (a doctrine which has no authority to support, it), this would not help the relator, for if the act dated back to the Bth of March it st ill provides that it was to have no effect till the rati lication, which was March 12. In Com monwealth vs. Fowler, 10 Mas., 290, 304, Parsons, O. J., an act creating a new county provided that, it should take effect on a future day named. Before that day the proper appointing power appointed an officer to till one of the po sitions (judge of probate) created by the act. The appointment was adjudged void. Although a custom of making ap pointments in such cases was shown. In that case were cited Bacon’s Abr. Statute C.; Lord Raymond, 317; and Rex vs. Gale, Plowd., 79, which sustain the proposition that an act which is to take t fleet at a future day has no forco till that time. To like pur port are our own decisions, for it was held in State vs. Bond, 49 N C., 9, that where a statute creating a criminal of fence was to take effect at a future day, the specified act, if committed after the passage of the act but before the day it was to take effect was not indictable under the act. And as to civil matters it was held, Dick, J , in Marvin vs. Bal lard, 66 N. C., 398, that if “the act in express terms is declared to be in force from and after its ratification, it had no operation previous to that day. Statute must, be construed as intended to regu late the future conduct and rights of per sons and not to apply to past transac tions. ... A contrary intention must be expressed by the statute.” If the present statute, in addition to creat ing the office of Judge of a crimiual court, had made certain acts iudictubie, it is clear that such acts, if committed on March 9, before the ratification on March 12, would not be punishable. Till the day named for the act to go into effect, no rights nor liabilities can ac crue under it. 23 Am. & Eng. Ency., 218. In Rhodes vs. Hampton, supra, it was held, Smith, O. J., that the election of a person to an office which did not then exist “was a nullity for the obvious and sufficient reason that there was then no such office to be filled. ” To somewhat similar purport are Kim berlin vs. State, 130 lad., 120; 30 Am. St. Rep., 208, which holds that the elec tion of a person to an office held at a time which was not authorized by law is void, and Brewer vs. Davis, 9 Humph., 208; 49 Am. Dec. 706, which holds that an election on a different day from that provided by an act erecting a new county is void. Sawyer, Haydon 1 Nev. 75, which holds that an election not author ized by law is a nullity. The above are the few precedents bearing on the point, as the instances have been rare, and they are all against the plaintiff. To say that the Legisla ture had power to elect, and did elect, is but begging the question. If the elec tion was made without authority of law (the point iu issue) it was no election at all. Avery, J., concurring: I concur in the conclusion reached by the court, but not entirely in the reasons upon which it is made to rest. While much of the discussion in Scarborough vs. Robinson, 81 N. C., 409 was entirely obiter, the court construed a clause of the Consti tution (Art. 11, Sec. 23) as making rati fication an essential prerequisite to the validity of an act of the Legislature, and the decision of the question involved de pended upon that construction. The purpose of the plaintiff in bringing that action was either to have a declaration from the court that the bill should, in view of the facts shown, be deemed to have the force and effect of an act passed and ratified in the ordinary way or that the presiding officer should be required to sign. It seems to me that the court did not transcend the proper limit of logical ar gument in discussing and passing upon the questions, whether it was competent for the defendant to still impart vitality to an inchoate act or whether, if the compulsory power of the court could not be invoked for such a purpose, it could nevertheless declare that under the pe culiar circumstances, the undersigned bill should be deemed a complete legis lative enactment. Electric Bitters. Electric Bitters is a medicine suited for j any season, but perhaps more generally j needed in the Spring, when the languid j exhausted feeling prevails, when the liver, : is torpid and sluggish and the need of a ; tonic and alterative is felt. A prompt use of this medicine has often averted long and perhaps fatal bilious fevers. No medicine will act more surely in counteracting and freeing the system from the malarial poison. Headache, Indigestion,Constipation, Dizziness yield to Electric Bitters. Only fifty c nts per i bottle at John Y. Macßae’s drug store. . A Bad State ot Affairs. The people of the Sooth arf being deceived in the purchase of tmmitation medicines. It’s poor consolation to a sick man to i>e told that the medicine of fered him certainly won’t do him any harm. Wrong; it wifi do great harm. It allows the dis ease to progrt s instead of stop ping it, and ills is most danger ous, because the disease will soon be beyond cure. This is the best reason why you should be sure to get the right medicine. Don’t risk your health in trying any of the many Liver Medicines which sprung up in the South to be sold in place of Simmons Liver Regulator, put up by J. H. Zeilin A Co., with the Red Z on every package, this was the medicine of your fathers, and they lived long. Have nothing to do with anything else, or any druggist or dealer who would persuade you that the many imitations under different names are just as good. It’s not true. The people who buy them heap up their miseries. Beware 1 Where Is He Going? O Gentle reader, he is hurrying home. And it's house-cleaning time, too think of that! m hifteen years ago, he wouldn’t have done it. ({/ \j' \ Just .it tins tune, he d Ik* “ taking to the woods. \( 'I Hut now, things are different. I lis house is \\ - j cleaned with Pearlinc. That makes house . A cleaning easy. \ hasy for those who do it easy for those /\ >A who have it done. ' / A T No hard work, no wear and tear, no turmoil [J\ \ and confusion, 110 time wasted, no tired women, \ A \ \ no homeless men. \ \ \ \ Everything’s done smoothly, quickh uietly ) L j \ and easily. Try it and see. * QpuiH tellers an<l some unscrupulous grocers will tell you "th-s • , ~.i . °I " t!K 7 ;i r as Pearline -” IUS FALSI it Ra nlr ; UH ls > i o . ur 2 rocer sends you something in place of I’earlinc do the UctUlv honest thing —send it back. »n JAMES PYLE, X. , v Y n. | HAVE mn-m • « • 0 With wa m weather, comes thoughts of more comfortable apparel and these are the stuff just arriving for ouritrade. Mozambiques Hernanls and Lenos, old time fabrics, but nothing more stylish now. CHALLIE3--The real French printed, some with satin stripes, more dainty des gns we have never had. ORGANDIES--Koechl!ns the best of all, fifteen new pieces jus; added to an already liberal supply; these In new floral effects and tiny Dresden designs on both whl'e and tinted grounds. SILKS--Shangh | 8 and Toss etas, a shipment just In, the kinds for sep arate waists or whole gowns, printings and styles different from what we have shown. SEQUIN TRIMMING—The late trimming Idea for lightweight wools and silks. O W. H. & R. S. TUCKER & CO. IF YOUR HEAD ACHES I —T AK E— ANTICEPHALALGINE. I —IT WILL — I CURE IT QUICK AND SURE. I JAS. I. JuHNSON, Manfaeturer, RALEIGH, N. C. | THE ATLANTIC HOTEL, MOREHEAD CITY, N. C., WILLtOPEN JUNE Ist. This deligl tfnl S. a Side icscrt requires no discription or puffing. Its advan tages are already knoWn far and wide. The lessees are pleased to state that they have secured the services of Mr. Wink Taylor, as Manager, an all round Hotel man who knows his business and will leave undone nothing to satisfy his guest They may be assured of the best of everything to eat and drink—with the best music, aud most expert help in every department. Mr. Taylor has employed Mr. D. M. Barns, Cashier and Book keeper; Harry Smith, Room clerk; E. H. Plummer, Night Clerk; Ed. Stagg, late of the Ponce do Leon and now of the Galt House, Bt. Louis, Steward and Caterer; making altogether one of the best EQUIPPED HOUSES IN THE SOUTH. o P. S - -It may be interesting to some to know that no such stock of Wines, Liquors and Cigars have ever before been brought into the State. Mr. Connie Stonebank and his two assistants will preside in this department, and the well-known T. I. Bimons has charge of the dining room. SCHOOL PRINTINGse-A —CATLOGUEO Announcements, Circulars, Reports, Invitations, Printed Stationery, etc. Edwards & Broughton, RALEIGH. N. C. O Having just added a new and fresh apply of Type and Papers to our already large stock, we are prepared as never before to furnish SCHOOL PRINTING A t short, notice and at low rates. Se d | for estimate if preferred. If order is sent direct we will give it prompt attention, and give our lowest prices. Edwards & Broughton, Printers, Binders and Publishers. Raleigh, N. c. I Carolina, Carolina, Heaven’s blessings attend her, While we live we will Cherish, protect and defend her. NORTH STATE is the name and the FLOUR is made in Raleigh by the I I Farina Mills. Quality Guaranteed 1 Equal to best flour made. Prise a* cheap 88 any high grade flour. I sell it. Thos. Pescud. SALE BY TRUSTEES. Very Important TO Country Merchants. Os course you handle School Books and Stationary. Messra Hay wood & Pittman, trustees of Alfred Williams & Co., are closing ap the business of that firm, aud they are offering to dealers a large stock of SCHOOL BOOKS, WRITING PAPERS, INK, BLANK BOOKS, PASS BOOKS, MEMORANDUMS, etc., etc., etc. In lota of $5.00 or more at prices far below anything at which these goods hare ever before been bought in this Sta'e. Now is ti e time and opportunity to re plenish your stock. Haywood & Pittman. Trustees, Ra’eigh, N C., will give any in formation that may be desired by persona intending to purchase. Sales will be made for cash only. A W. HAYWOOD. THOMAS M. PITTMAN. Trustees Sale of Valuable Real Estate. By authority of a judgment of the Su perior of Wake county, made in a spe cial proceedings to make real estate assets, entitled N. B. Broughton, Adm’r vs. Edgar S. Lougee and others, I will on Tuesday 21st of May, 1895, at 12 o’clock m., at the court house door of Wake county sell to the highest bidder the following described real estate; First parcel, situate in the city of Ral eigh, on NortV Person street, and bounded on the north by lot of Mrs. W. M. Shipp, on the east by lot of Mr. J. M. Heck, on the south by lot of C. G. Latta, and on the West by Person street, being a lot 70x205 feet with cottage on same. This is the home of the late Mrs. C. E. Lougee. Second parcel, situate on East Jones street in the city of Raleigh, and is bounded on the north by Jones street, on the west by lot of N. B. Cobb, on ths south by Gatling’s lane, and west by lot of S. V. House, being lot 88x20* feet, with cottage on same. Third parcel, situate near the town of Cary, N. 0., adjoining the laud of N. A. Pleasants and others, contains 78 acres, 2 rods and 31 poles, and is the same land conveyed to Mrs. C. E. Lougee by deed recorded in book 100, page *24, records Register's office for Wake county. Term of sale one-half cash balance in six months from sale day. Title reserv ed until purchase money is paid. N. B. BROUGHTON, Oom’r.
The News & Observer (Raleigh, N.C.)
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May 17, 1895, edition 1
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