2 Six Political Decisions SUPREME COURT DECIDES ALL THE OFFICE CONTEST CASES. Fusionists Win the A* & N* C* R* R. and Western Criminal Circuit Cases; Demo crats Take Public Printing, Keeper of Capitol and the Agricul tural Board Cases* The Supreme court will adjourn today. Three more opinions are to be tiled lids morning, then the spring term ilS5)!.)) of the Supreme court of North Carolina will pass into history. In one respect it has been a very re markable term. A greater number of political eases than has ever before beta known in a similar length of time have bgeii tried and decided. All these eases involved title to office, and arose from attempts of the last legislature to either abolish the eflice or to elect a new officer. The first of these eases was that of the State's I'risen Vs. \V. 11. Hay. It was deeided in favor of Day. This decision was rendered about a month ago. and then the court stepped until yesterday when it handed down an even half dozen devisions in ol'tiee eontest cases. They are as follows: Wil son vs. .Jordan, from Buncombe, decided in favor of plaintiff. This suit was for the office of clerk of the Crimi nal court of Buncombe county. Wilson is the old Republican clerk. Cunningham vs. Sprinkle, affirmed. This is the ease of the new Agricultural Board against the old one. The new one wins. Cherry vs. Burns, affirmed. Contest for the office of Keeper of the Capitol. 'Cherry was elected by the last Legisla ture. lie gets the office. ( Capital Printing Co. vs. Tloey. no error. The Capital Printing Company is the Barneses. who were Public Print ers during the past two years. They lose. Atlantic and North Carolina Raiiroa 1 Company vs. Dortch, reversed. The <>!d I board of directors (Republican) will serve out their term. , Bryan vs. Patrick, reversed. Patrick is the Republican president of the Atlantic and North Carolina Railroad. He will stay in till his term expires in September, i Other opinions handed down yesterday , were as follows: Charlotte Fertilizer Co. vs. Itippy, pe- ; t'it'ion to rehear dismissed. Whitman vs. Dickey, reversed. State vs. Rhyne, new trial. Norwood .vs. Pratt, motion for certio rari denied. | Trollinger vs. Railroad Co., motion to ' reinstate denied. I Collins vs. Bryan, new trial. Collins vs. Pettit, |ietitioii to rehear dis missed. Wilkinson vs. Brim, reversed. Iluss vs. Craig, error. BRYAN VS. PATRICK. Chief Justice Faircloth Endorses Dart mouth College Decision. Atlantic and North Carolina Railroad Company (old board) vs. Dortch (new proxy). Decided in favor of the old board. Chief Justice Fa 1 relot a writing the opinion of the court says: t “This action is for the possession and control of the property or the Atlantic . and North Carolina Railroad Comnroy. j From the agreed facts and admissions : we are informed as follows: That sab! road was chartered in 1 852 and said ] charter was amended in 1854-’5, where- j in it is provided that the State is eivti- t lied to eight directors and the private | stockholders to four directors; also that j the Board of Internal Improvements, | consisting of the Governor and his two i appointees, shall appoint the eight State j directors; that said board lias oontlnu- j oiisly till the present time, annually, | made su< h appointments; that said Board of Internal Improvements, of which the j (Jovernor is ex-officio president ; s to be appointed bi-ennially with the advice i of the Senate, and is a corporate body, | Code section Hi.NN; that said Board of Internal I improvements was appointed l»,v the (Jovernor and confirmed by the Sen ate on .Man'll «S, 185)7. and their com- i mission were issued on March !), ISDN; I that defendant Patrick in September, i 185)8 was duly elected president of the ! road for the term of one year. “By an Act of the Assembly, rat ; fn"l 1 February 10. 185(5), The Code section 1(588 was declared repealed and a sulmli- j title therefor was adopted, making the j Board of Internal Improvements eon- I sist of nine members to be elected by the I (Jeneral Assembly on joint ballot, Incor- j porating the same, and requiring it to meet on the tilth of February, ISI ID. j “On February RJth. 181)5) the LcgisTa- ! lure elected a new board of Internal j '1 improvements who met and organized on February 24. 185(5) and ordered that the State proxy and the Board of Directors ‘ (defendants) be removed from their es- 1 lices, and that said offices bo declared vacant, and elected the plaintiffs to fill said vacancies. “These new directors met on Februa- 1 ry 28. 185)5). and elected the plaintiff, ! Bryan, president of said company and on the same day demanded of tlurdefcii- 1 daivts possession of the property, He*, of the road, which was declined. “It will be observed that if defendants’ , office was for two years, it did not ex pire until March 5), 185)5). and that plain- J tiff's claim rests on legislation in Feb- I ruary, 185)5). The single question then j is, lias the Legislature power to remove one from his office and confer it on an otlierV The plaintiffs counsel in his well j considered argument, insists that: ‘To be appointed biennially’ means that the appointment must be made every two 1 years, but that it does not fix any term of office, if we understood him. Sup pose that the Legislature enacts that an official board (for it is not disputed that the members of the Board of Internal } Improvements are officers) shall appoint A. B. bi-ennially to perforin the duties proscribed in the Act, would it fail to occur to intelligent minds that A. B. has lan office between any two such appoint ments? Tile long recognition of such a would at least raise a doubt <>f the plaintiff's construction. Do the duties of the Board cease as soon as it ; has made a hi-eiinial appointment? Sup pose the State proxy or any State direc tor should prove unfaithful to the State's 1 interest in the railroad at any time Idling the two years, how would he be removed and his place be supplied except by the action of the Board, which it |could not be according to the plaintiff s ! contention. The Act of 185)7. chapter i 122, section 1. expressly requires the Board to remove for cause and till the j vacancy in such cases, and the Act rati j fied March (5, 185)1). does not repeal said [section 1. but only amends it by elimin ating the word ‘(Jovernor’ from the Board. It appears to this court tint ‘to i be appointed biennially’ ex vi termini implies a two years term of office. | “The simple question of the power of the (Jeneral Assembly to remove a legal incumbent from his office and confer it on another has been so much discuss ed, decided and settled, that it seems to have become axiomatic. ’lhe law is a legal standard, based on experience in the past and established to avoid un certainty. that it may he known of 1 all men. Facts seldom repeat themselves exactly, but in different cases they ap proach each other so closely that they fall into the same class and are necessar ily governed by the same legal standard. | "Tilis, question* of legislative power over the property of the citizen was pre sented to this court in 1805 in the inter esting ease of the University vs. Fny, 5N.G.58 (1 Murphy 58, 81J By the Act of 1755). the Legislature granted to jthe Trustees of the Fniversity all the property that had escheated, or should j thereafter escheat to the State. The I Act of 1800 repealed the Act of 1785) and declared that any property, real or personal, that had in the meanwhile escheated and was held by the Univer sity should revert to the State as the .property of the same, as if the Act of j 178!) had not been passed. In the mean time, valuable property in the Wilming ton district had escheated, and was sued for by the Fniversity. The court after elaborate consideration held that the Fniversity should recover and that the Act of 1800 was invalid as to the prop erty. The opinion was > ele.tr and strong that Mr. Webster, in his able ar gument in the famous case of Dart mouth College, cited and quoted from the opinion, and the court, he was ad dressing adopted the same principle that I had been announced in the above ease against Foy. Some modernized sugges tions have been made against the Dart mouth College opinion, but none of them have offered any reasoh or cited any au thority to supimrt their suggestions— presumably for the reason that none were convenient. | "In 1822 a similar question arose in ‘ Iloke vs. Henderson, 15 N. C. C. 1. This referred to property in an office, i It is now admitted that an office is prop erty. and that it is protected by the 'rule which applies to property of a more I tangible character. It was held that the ■ Act. ndertaking to deprive the legal in- Jeumhent of his office without his con sent. was void. j “It may not la* amiss here to remark 'that the people of North Carolina, when assembled in convention, were desirous of having some rights secured to them : beyond the control of the Legislature, 'and those they have expressed in their bill of Rights and Constitution, j “The principle involved In Iloke vs. ■Henderson has been followed by a full list of decisions without exception to the present time. That principle is the basis of the recent decisions in Wood vs. j Bellamy, 120 N. ('. 212, and Sta f “'s I’ris ,on vs. I)a.v, at the present term. I “It has been suggested further, not by j the counsel, that if one legislature can confer an office for two years and the officer cannot be removed by the nexl legislature without his consent otherwise it hail by abolishing tile office, then if may J confer an office for life, for 50 years, for 100 or 000 years. However, logical j such a projwiKition might be in a mon i archival form of government, it has no standing or logic under our government. { When our people were organizing a new j State, they did not leave themselves to j any mere chance. They intended to relieve themselves from burdensome fet ters and' trammels, and did whatever .was necessary for their safety and to promote the general welfare. This ren i soiling is not a mere question of eon ■ struct ion. Passing by the unreasonable ness of the proposition we are Consider .ing, we turn to positive law against it. lit is declared in the Constitution Arti cle 1, section 7: ‘No man or set of j men are entitled to exclusive or sepa rate emoluments or privileges from the ;community, but hi consideration of pub lic services;’ in Section .“>(): ‘No heredi tary emoluments, privileges or honors | "light to be granted or conferred in this | State;' and in Section 21; 'Perpetuities j and monopolies are contrary to the geni us of a free State and ought not to be ' allowed.’ j ’if therefore the apprehended danger should be attempted, which has not for a century, the fundamental provisions 'above mentioned would prove efficient. Take for illustration Section 14 of the same Article, which forbids unusual pun ishments, etc. Bail may be • required, tines imposed and punishments inflicted, i but if they are excessive, unusual or THE NEWS AND OBSERVED, WEDNESDAY MORNING. MAY 10, 1800. grossly unreasonable, a remedy will be found under such provisions of tile or ganic law. It was found and promptly applied, for unusual punishment, in State vs. Driver, 78 N. 42,“.. "The truth is. under our system gov ernment. with cheeks and balances, in all the departments, the suggested dan ger is imaginary and may he dismissed. “The reasoning in the eases we have referred to on tins subject has been so often stated and so often written, that there is* no need to re-write them in the present ease. " *An office is a sepcial trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will he the consideration for its being conferred upon a particular indi vidual, who for the time will he the officer.' Throop vs. Langdon, 4t) Mich. G 72 (Cooley, J). “ •The term embraces the ideas of ten ure. duration, emolument and duties.’ V. S. vs. Hartwell. G Wall. 285. 25)2. "The taking of the oath ol' oftiee is not an indispensable criterion, for the office may exist without it. It is a mere incident and constitutes no part of the office. State vs. Stanly. (!(! N. ('. 551: Comm. vs. Evans, 74 Penn. St. 124, 12!) tSharswood. J.) “ 'Like the requirement of an oath, the fact of the payment of a salary or fees may aid in determining the nature of the position, but if is not conclusive, for while a salary or fees are usually annex ed to the office it is not necessarily so. As in the ease of the oath, the salarv or fees are mere incidents and form no part of the office.’ State vs. Keniion. 7 Ohio St. 71G; IT. S. vs. Hartwell, ti Wall. 285; Howerton vs. Tate. f the directors elected by the stockholders who is ad verse to them. This action, is for posses sion and control of said railroad and for the offices of president and uirectors, which the defendants refuse to surrend er. It is conceded, and indeed is beyond controversy, that the Legislature could repeal Section 1,(588 of the Code and abolish the former hoard of internal im provement. and that, being legislative offices the General Assembly by virtue of the constitutional amendment of 1875, can elect the new board of internal im provement itself. Ewart vs. Jones, m; N. C. 570. But it is contended that the old hoard of internal improvement having been elected on March 8. 185)7. under an act providing for their appointment bien nially could not he repealed by a new board till after March 8, 185)5), and there fore the removal of the 8 State directors and the appointment of 8 others in their stead by the new hoard on February ! 24th. 185)5). is mil 1 and of no effect, and for that the defendants rely upon. Hoke vs. Henderson. 15 N. (’. 1 (decided in 1822). That decision holds that while the legislature can abolish any office whose tenure is not fixed by the constitution it can not change the occupants of the office if tbs office is not abolished, provided it is an office with pay. But it also holds that if no pay is attached the Legislature "an change the officer w ithout abolishing the office (p. 21) for the reason therein given that where there is any pay at tached the officer has a private interest in the office to the extent of his emolu ments, fp. 18) and his right thereto is property of which he cannot he deprived unless the office is abolished. Now under Section 1(588, the Governor serves ex-officio and without compeesa tion, on the hoard of internal improve ments, it is no part of his duty as Gov ernor conferred on him by the constitu tion, hut simply an honorary appoint ment conferred on him by legislative eii- I nctment, and therefore under Hoke vs. ! Henderson it is clear such duty can he ! taken from him, not only by abolishing | the office of director of internal improve ment. hut by legislative enactment even when the office is continued. But the other two directors get three dollars each day they are in session, and as it appears from the auditor's report that on an average this hoard sits only one or some times two days per year and therefore has at most a salary of .$(5 per year, it is claimed that the Legislature was powerless to abolish the old hoard and substitute a new hoard of 5) elected by j themselves to take charge of this great property of the State, till after the j term of the two old directors had ex pired. It is extremely improbable that | the old hoard would have held another i meeting before March 8. or that they : have lost one cent of emolument, which alone Iloke vs. Henderson protects, yet. | for that possibility of that infinitesimal j salary we are asked to set aside a ; solemn act of the Legislature in pro j viiiing for the management of a great j State property. It is true that if the . salary and not the public interest is the j | test, a small salary is as sacred as a • large one, hut this emphasises the logi • cal result of the doctrine that the salary of the officer takes precedence of the right of the people to change the. con trol of their State institutions. Let us look this proposition squarely in the face: The statute (Code, Sec. 1(588) directed the appointment of these two directors biennially, conferred on the hoard the power to fill up vacancies oc curring in their own body and to ap point the directors (See. 1715) for the State in all corporations in which the State shall hold stock, and “shall have charge of all the State's interest in all railroads and canals and other works of internal improvements, and shall also all public buildings which are the prop erty of the State.” The charter of the Atlantic and North Carolina railroad also provides that the 8 directors on the part of the State shall he appointed by the board of internal improvements. Now, if by reason or their receipt of a compensation averag j ing three dollars per year, the directors I of the hoard qf internal improvements j are beyond legislative change until after the lapse of their term of years, then if the legislature had written in the act “50 years” instead of "biennial” as the term of office, inasmuch as a part of their office is to till up vacancies in tlieir own body from time to time, and the appointment of directors for the State by them is provided in the chart er of the railroad company, it follows that for fifty years a self perpetuating body could in any way control the State's interest because the members thereof have a salary of $2 per year and hence have a "property” in their offices, though it would he entirely otherwise and the incumbents could be changed at the will of the Legislature, if this onerous duty (usually one session per year) had been devolved upon its members without pay. If this is a correct interpretation of “Iloke vs. Henderson” the absurdity of that decision is so palpable and its di rect conflict with provisions of both State and Federal constitutions is so clear that it should not. he deemed au thority for a moment, yet it is upon this construction, with its inevitable reductio ad absurduni that rests the right of the defendants to set at defiance the will of the people, as expressed by their chosen representatives, in reference to the man agement of a property in which as ap pears from the record the State has in vested $2,000,000. The $2,000,000 the people have invested in the property is outweighed by the $2 per year which two officeholders have been receiving, and of which "property” it is said they must not he deprived! Justice Clark then cites that under this holding the Legislature mirut ly affixing a merely nominal sal irv ti an office and making it for life or lot) rears deprive the people of he power in change Bears the —- sign r r e it indefinitely, lie contends that such as not a just, construction of link' vs Henderson which was dccieled jn*t alt»r in the decision the Dartmouth Col lege ease it had been declar ed that a charter was a con tract not a privilege; he cites that against 'the result of that de< t lias since protected herself by constitu tional amendment. He continues; “Since the foundation of the'deeisiou is the contract for the salary, it necessarily follows that the true construction of Hoke vs. Henderson, is that if the of ficer is removed without abolishing his (»ffice. his grievance is for breach of the contract for ‘the transfer of the emolu ments" as is expressly said (p. 22) and as by Virtue of 11 amendment to the constitution of the Fluted States the State.can not be sued and forced t > per form any contract whatsoever (lie of lee holder has his sole remedy by petition in the Supreme court junior article IV. section 5). of the Constitution of North Carolina. The only property of which the defendant coil id he deprived i since the decision held that it did not apply to offices without a salary) is the c on trait of the State to pay a salary and to grant a mandamus against the S'.it" to restore the officer that he may draw lfis salary would he to do by indirection what the court cannot do directly. •■»- [wit; give the removed office-holder judg ment against the State for the emolu ments of office." sjc sft # * V “There is this striking difference be tween Hoke vs. Henderson and cases like the present and State Frisoii is. Day tat this term) which has not Iptc toforo been mentioned. In Hoke vs. Henderson, the defendant was clerk of the Superior court, he received no pay from the State and his only emoluments were fees from individuals for services to he rendered in his office and the court may have thought that the only way for him to get them was to remain [in office. But in cases like the present land the Day case the salary conies en tirely from the State and to put ihe officer hack after the Slate, through the Legislature, has passed an act which re moves him is in effect an action against the State to compel the State to pay him a salary and for the courts (as said above) to do by indirection what they are forbidden to do directly. 1 leiidersou’s was a county office and counties can ue sued. 'lhe officers removed in this case and in the Day ease are State officers and to reinstate them is in effect a judgment against the State which no court has power to render. If this is to continue to be a govern ment “of the people and for the people” it is of the last, of the highest and most solemn importance that the will of the people as to government matters shall he expressed by tlieir representatives in the law-nvaking department of the gov ernment and that when so expressed the action of the Legislature shall lie sub ject to review in every instance and in ail matters by the people themselves through the next or any succeeding Leg islature, and no Legislature can post pone the review of their conduct l*y tilling an office or doing any other mi i that is fixed heyoiwl change by the suc ceeding Legislature. The Constitulion alone can place limits upon the legisla tive power. The Constitution nowhere restricts the power of a Legislature to review, repeal or change the action of any preceding Legislature in any particu lar. * * * If a construction can Jte placed upon "Hoke vs. Henderson” \yhich will limit the freedom of each Legislature to review, repeal or change any action of a preceding Legislature be cause it may interfere with the salary of an office created by legislative enact ment. then either that construct ion should he rejected or the decision, itself overruled as has been the fate of many another, iloke vs. Henderson is no more sacred than any other decision. The (Continued on Third Page.) THE REST PRESCRIPTION FOR MALARIA. Chills and Fever is a bottle of Grove’s Tasteless Chill Tonic. It is simply Iron and Quinine in a tasteless form. No cure, no pay. Price 50c. wed & sat G ra & w Gm “ Only the First Step is Difficult The first step in Spring should be to cleanse Nature's house from Winter's accumu lations. 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Notice is accordingly lierebv given to all creditors who have not previous ly done so- to make themselves par ties before the undersigned on or before the Ist day of June. 1899. R. T. GRAY, Referee. May 9, 1899. o w CAPE fear and NORTHERN RAILWAY. Is Now Open for Business. 1 rain leaves Apex for Angier (hiil.Yg (except Sunday) with ••oacli. upon (he arrival of the bound S. A. 1,, local passenger 1 I rain leaves Angier daily . in lime lo connect \v!^| A. ml train for Raleigh.