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T I HI WEVTHIW TO k DAY: ♦ For North Carolina: Rain or Snow. VOL. LIV NO. 71. Leads all North Carolina Dailies in News am«- ! Sb"julation EIGHTEEN-SEVEN THUS THEY VOTED Senator F. M. Simmons and Dr. T. N. Ivey Led the Fight Against the Retention of Professor A BURST OF APPLAUSE Dr. Kilgo. Loosing Vitriolic Floods Upon the Press of the State and Upon the News and Observer in Particular. Begins Reading Edito rials From the Latter and these Arouse the only Unanimous Applause of the Trustees. (Special to News and Observer.) Durham, N. C., Dec. 2. —It was at an early hour this morning, after excited dijaate lasting about seven hours that the vote was taken on the Bassett matter. The trustees present voted as follows: IN FAVOR OF BASSETT’S RESIGNA TION. HON. F. M- SIMMONS, of Raleigh, United States Senator. COD JOHN F. BRUTON, of Wilson, President of the First National Bank. REV. JOHN N. COLE, of Rockingham, presiding elder of the Rockingham district. REV. T. N. IVEY, of Raleigh, editor of the Raleigh Christian Advocate. REV. ANDREW P. TYER, of Wilson. REV. F. A. BISHOP, of Raleigh, new pastor of Central Methodist church- REV. N. M. JURNEY, of Mt. Olive. OPPOSED TO BASSETTS RESIGNA TION. J. H. SOUTHGATE, of Durham, presi dent of the Board of Trustees. B. N. DUKE, of Durham and New York, Treasurer of the American Tobacco Com pany. CAPT. V. BALLARD, of Durham. C. W- TOMS, of Durham. Superintend ent of W. Duke, Sons & Co.’s factory. H. A. PAGE, of Aberdeen, leader of the anti-Clark forces in 1902. J. A. LONG, of Roxboro, banker, mer chant, dealer in tobacco. J. W. ALSPAUGH, of Winston, ex- President of the Board of Trustees. W. R. ODELL, of Concord, co-defendant with Duke and Kilgo in the Gattis suit. REV. S. B. TURRENTINE, of Greens boro. REV. T. F. MARP cf Charlotte. COL. G. W. FLOWERS, of Taylorsville, father o? Prof. Flowers. DRED PEACOCK, former president of Greensboro Female College. DR. W. G. BRADSHAW, of High Point. DR. E- T. WHITE, of Oxford, banker and business n*: \ R. L. DURI A. of Spartanburg, S. C., brother of P ,t. Plato Durham. REV. G. A. OGLESBY, of Aberdeen, JOSEPH G. BROWN, of Raleigh, Presi dent of the Citizen- National Bank- REV. J. B. HURLEY, of Fayetteville. Just as adjournment was rea.ched one trustee spoke up and said: “I suggest that the matter of how each trustee voted be kept a secret.” Another trustee said: “Dr. Ivey has gone to catch his train.” Somebody started after Dr. Ivey, but he had already gone a considerable distance and could not be reached, and so no ac tion looking to secrecy could be had. Hence I am able to give the vote as it was cast as stated above. The proceedings opened by reading a letter from Dr. Bassett. It was curiously worded. It seemed to be a resignation with a string tied to it. Most trustees regarded it as a resignation and the de bate was had upon the idea that it was a bona fide resignation, but later it was stated by some of Dr. Bassett’s champions that it was not a resignation—only an offer to resign if called upon to do so. Tl’.e next thing on the orogramme was for President Kilgo to be invited to come in and state his wishes and the wishes of the faculty. He did so in a speech making about one hour and a half, made up of three parts: 1- A tirade of abuse of the newspapers of North Carolina, with an extra vitriolic dash at “the Old Reliable” News and Observer; 2. Ajfpeal to stand by Bassett as an exposition that freedom of speech is permitted at Trinity College; 3. Reading with approv - from the News and Observer, bearing on the enforced resignation of President E. Benjamin Andrews, of Brown University. It is needless to say that the best parts of his speech were the News and Ob server's editorials. During the entire meeting, nothin' » was said or done that met the unanimous and hearty ap proval of every trustee present. It was rather novel to see Dr. Kilgo standing up reading editorials from the News and Ob mver, and using their wisdom as climax of his speech. But it shows that, in spite of his lack of love for the State’s greatest daily, he knows a good thing. The News and Observer came in for a good deal of denunciation during the long drawn out debate. One trustee actually proposed that a pronouncement be made to the effect that “the News and Observer is an enemy of Trinity College.’’ It was not passed and no action was taken. One trustee, speaking of the suggestion, said this morning: “The News and Observer has never been an enemy of Trinity Col lege. It has criticized Dr. Kilgo and Dr. Bassett, but it has never been an enemy of Trinity College.” A prominent Meth- The News and Observer. Bassett. odist added: “As a matter of fact, the News and Observer is a better friend of Trinity College than the men who wish to make it and keep it an annex of the cigarette trust-” Every member of the board of trustees made a speech. Some of them spoke two or three times. The debate was pretty vigorous and opinion clashed against opin ion. One trustee declared that there would have been no indignation over the Bassett article but for the News and Ob server. Another —a Kilgo man —declared it to be his opinion that the News and Observer had more influence than any newspaper published in North Carolina. Others roasted it to a turn. All other papers—(and that includes all but six in the State of North Carolina that, have spoken)—that had criticized the Bassett article came in for a roast from Kilgo and his followers. The contest from beginning to end was quite a sharp one. In his opening speech Kilgo said that much of the trouble had been made by newspapers, some of them inspired by hostility to him and the col lege, and that but for these publications, he contended, but little notoriety would have been given to what he characterized as the useless and foolish utterances of Bassett. The faculty sent in a lengthy communi cation. disapproving the utterances, but making a plea for freedom of thought. Kilgo said the students disapprove the ar ticle, but wish Bassett to be retained. (Continued on Fourth Page.) THE RAILROAD LOSES. Williamson Awarded Six Hundred Dollars in Suit Against Southern. 1 .-! ' j: . V t ’ A-• (Special to News and Observer.) New Bern, N. C.. Dec. 2.—The jury in the case of Williamson against the South ern Railway rendered a verdict today for the plaintiff for six Hundred dollars. Tnis is the case reported in Tuesday’s papers as being for failure to make connection. W. D. Mclver, attorney for plaintiff, said today that the action was not for missing connection nor being late, but because the railway monopoly stopped its train, scheduled from Wilkesboro to Greensboro at Winston and ordered all passengers, including the plaintiff, off and for this the plaintiff demanded and has received punitive damages. The court excluded all evidence as to fees lost by the plaintiff by not reaching his home court. Attorney General Gilmer appeared in our court today to argue the liability of the Wrought Iron Range Company for peddler’s tax. Jay Counts on a Pardon. (Special to News and Observer.) Asheville. N. C.. Dec. 2—The attorneys for Dr. J. V. Jay, the man who was yes terday convicted of murder in the second degree and sentenced to the penitentiary for a term of thirty years, have given notice of appeal to the Supreme court, but it is considered very doubtful if an apreal will be taken. The prisoner him self is said to be opposed to having the case appealed. In fact Jay told the offi cers yesterday that he was anxious to begin serving the sentence immediately. ”1 want to go to the penitentiary as soon as possible,” he said, “so that I can the sooner secure a pardon.” Manager Toxaway Company Dead. (Special to News and Observer.) Asheville, N. C., Dec. I—Ed.1 —Ed. C. Wilson, General Manager for Toxaway Company, died at his home in Brevard yesterday afternoon of heart failure- Mr. Wilson was about forty-two years old and leaves } a family. Mr. Wilson was a brother-in law of J. S. Hayes, president of the Toxa way Company. He was a native of Penn sylvania. but had resided in Brevard since tlie beginning of the extensive operations of the company. He was an excellent business man and well known throughout this section. A. W. Reiger Dies Suddenly. (Special to News and Observer.) Wilmington, N. C.. Dec. 2.—A. W. Reiger, a leading rice planter of Bruns wick county, died suddenly today at noon at his home, four miles from Wilming | ton. He was about sixty years of age i and was referee in bankruptcy here just after the war. He leaves a wife, one son and two daughters. The interment will be at Southport tomorrow. Accidentally Shot His Friend. (Special to News and Observer.) Asheboro, N. C.. Doc. 2.—This morning i while Will Burrow and his friend, J. M. jehrisco, were hunting turkeys about two miles from town. Mr. Chrisco was ac- I cidentaily shot by Mr. Burrow- The in jury is quite painful, but it is hoped not fatal. Mr. Burrow' is deeply grieved over the accident. KALIGH, NORTH CAROLINA, THLKSIUY MORNING. DEC. 3. ISOS HANG THE EDITOR THERE IN EFFIGY “Libera!" Spirit Toward News and Observer. 4 EFFECT OF TEACHING Some of Trinity Students Imbibing the False Notion That the Coliege was Attacked. Lynch a Stuffed Figure Labelled Jose phus Daniels. (Special to News ami Observer.) Durham, N- C., Dec. 2. —Shortly after the announcement of the decision of the trustees of Trinity College to reject the you shall-have-it-if-you-insist-on-it resigna tion of Professor Bassett, a number of students with loud shouts and cries, rushed to the campus and proceeded to relieve their wrought up feelings by hang ing in effigy Mr. Josephus Dauiels, editor of the News and Observer, One of the students had climbed into the bell tower and started the bell to pealing, and a good sized crowd had gathered be low. Then the march for the campus be gan and in a few minutes a figure was swinging from the end of a limb with a scrap of paper pinned on the breast an nouncing that it was Editor Daniels, whose paper, the News and Observer, had led the anti-Bassett fight. The scene was one of great excite ment. The air rang with shouts and cries. It looked as if the students had been impressed with the idea that it was the college and Dr. Bassett himself that were attacked, instead of the doctrines that had been promulgated by the pro fessor. They, therefore, looked upon the decision of the trustees as a triumph over a common enemy, and the shouts and yells, the building of bon fires and the hanging of Mr. Daniels in effigy plainly revealed the spirit animating them. All through the hours of the early j morning the figure swung from the limb over the race track. The grey dawn came and found it still hanging there. Soon after, however, it disappeared. Some hands had taken it down. This was a fitting close of the triumph of “liberality of thought and freedom of speech’’ as seen in the Kilgo policy of “rule or ruin.” BOARD OF AGRICULTURE. Session Began Yesterday With Report of Commissioner Patterson. Wiggins-Mcßae. The State Board of Agriculture met yes terday morning at half-past eleven o'clock in the office of the Commissioner. There were present Messrs. Wm. Dunn, of New Bern; C. N. Allen, of Auburn; R. W. Scott, of Melville; A. T. McCallum, of Red Springs; J. I’. Mcßae, of Laurinburg: ‘R. L. Doughton, of Laurel Springs; W. A. Graham, of Machpelah, and A. Can non, of Horse Shoe. Messrs. J. M. Fore hand, of Roekyhoeh, and J. B. Stokes, cl Windsor, were absent. Yesterday was occupied with hearing the reports of Commissioner S. L. Pat terson; Dr. B. W. Kilgore, the State Chemist, and Dr. Tait Butler, State Veter inarian. There was considerable discus sion of the reports. Last night the members of the Board were entertained at a reception by Fros. and Mrs. C. W. Burkett, at whose home in West Raleigh they met the students and faculty of the Agricultural depart ment of the A. and M. College. This morning early the quarantine and finance oemmittees will meet, before the Board begins its session at ten o’clock. THE CAMDEN BANK CASE. The Stock Holders Lose $72,370. Creditors and Depositors to be Paid. (By the Associated Press.) Charleston, S. C., Dec. 2.—The statement of the Farmers and Merchants Bank of Camden, the president and cashier of which killed themselves on the same day, is not encouraging. The depositors and creditors will get their money eventually, but $72,370 belonging to' the stockholders will not l>e realized. On the day of the double tragedy on which the bank was closed the cash on hand was $171.99. To Lecture Thursday Night. Mrs. M. E. Cartland, who was for eight years State president of the North Caro lina Woman’s Christian Temperance Un ion ,will lecture at the Christian church on Hillsboro street on Thursday evening. There will also be an excellent musical program. Everybody is invited to this lecture. Mrs. Cartland is a charming woman and a splendid speaker, and a treat awaits all who come. The young people are espe cially invited. Berlin, Dec. I.—'The Neuc Politische Correspondent which has so often been the course of ministerial announcements, says that owing to the condition of his throat Emperor William will not open the Reich stag on Thursday, but that Chancellor Von Buelovv will act in his stead. CONVENTION FOR CANAL IS SIGNED Panama Waits to Make No Changes. NAY, IT IS RAILROADED Cablegrams are Then Flashed to Washington Announcing the Mo mentous Event. CensulGudger Will now Forward the Ap proved Treaty Here. (By (he Associated Press.) Panama, Dec. 2.—The canal treaty was signed at 11:33 a. m. today. There were no amendments to the treaty. When every preparation had been com pleted for the actual signing of the treaty a government decree was adopt set ting forth that: “Whereas, a guarantee of the inde pendence of the isthmus lias b*en ob tained, and, “Whereas, celerity is indispensable to securing an efficacious and immediate ful filment of this obligation on the part of the United States and the junta of the provisional government formed by the unanimous will of the people of the isth mus and possessing full, sovereign pow ers over the isthmus territory, be it “Resolved and decreed, that the treaty be approved in all its parts." Minister of Foreign Affairs Espriella arrived here from Colon yesterday with the new canal treaty. Senors Arango and Arias, with some of the ministers of the new republic, met the party at the railway station. Senor Espriella drove immediately to the gov ernment place, where the chest contain ing the treaty was placed on a table in the main office. Members of the Junta and of the ministry assembled in the grand salon of the pipace. The chest and two small tin bo addressed to the members of the Junta and bearing tbe j seals of Minister Bunau-Varilla, were j placed on a table in the centre of the j room. Surrounded by the spectators who j were seated about the table. Senor Es priella opened the chest and withdrew the cotton wrappers, finally bringing light the treaty, enveloped in the Pana maian flag. The document was addressed to the Ministers of the Junta by Minister Bunau-Varilla. Senor Artas then broke the seal and formally handed the paper to the mem bers of the Junta. There was only one copy in the English language. News Cabled to Washington. (By the Associated Press.) Washington, Dec. 2.—Two cablegrams, one from the Junta and the other from the Minister for Foreign Affairs of the Re public of Panama, announcing the ap proval of the Hay-Bunau-Varilla treaty were received by Minister Bunau-\ arilla today. They are as follows: “Panama, Dec. 3. At 11:30 a. m. the Junta has finished the examination and approved and signed the canal treaty. “(Signed) ESPRIELLA, (“Minister of Foreign Relations.’’) “Panama, Dec. 2- “We are happy to communicate to Your Excellency that we have just ratified the Hay-Bunau-Varilla treaty without modifi cation and unanimously. This official act has been received with unanimous appro bation. (Signed) “J- ARNAGO, “TOMAS ARIAS, “M. ESPINOSA, (“Members of the Junta.") Mr. Banau-Varilla will communicate the news received by hi mto Secretary Hay. The treaty as approved and signed by the Panama Junta will be promptly re turned to Minister Banau-Varilla at Wash ington. To insure its safe and prompt transmission without interference by offi cials anywhere the treaty will be entrusted to Consul General Gudger at Panama, who will forward it to Washington in the American diplomatic mail pouch. In structions to this effect already have been sent to Mr. Gudger by Secretary Hay. This courtesy was extended at the request of Minister Banau-Varilla, who is anxious that there shall be no interruption to the safe return of the approved treaty to Washington. Tour of Inspection. Messrs. John Skelton Williams, Blair, of New York; Cooledge, of Boston; J. M. Barr, and F. K. Huger, of the Seaboard Air Line, all passed through here last night on a tour of inspection over the Sea board lines. They meet Mr. Ryan in Jacksonville, Fla., this morning. This is the first trip of wme of these gentlemen since their acquisition of stock. Pittsburg, Pa., Dec. L—A semi-official announcement today is to the effect that the retirement of President George G. McMurlcy from the American Sheet Steel Company which takes place within a few weeks is to be followed bv the organiza tion of a large independent sheet steel conce-n wit** MffMurley at its head. One of 1’ ers t of ihe u new company Prc *g m ' " f h ° re l cently re ,e ° f l^d viee-presi. nted Statos Steel .Commissii KNIGHTS OF THE PEN 111 COUNCIL North Carolina Press As sociation Meets. SEVERAL ADDRESSES Elijah the Second. Who Has Never Heard of Dowie and Who Reg ulates the Sun, Arrives in Washington From Mount Holly. (Special to News and Observer.) Washington, Dec. 2.—At 9 o’clock tills morning at the National Hotel, the North Carolina Press Association was called to order by President H. B. Varner, of the Lexington Dispatch. After a prayer by Rev. J. O. Atkinson, editor of the Chris tian Sun, Commissioner McFarland, ol Washington, was introduced and delivered the address of welcome. In the course of his remarks Mr. Mc- Farland referred to North Carolina’s place in history and to the many emiment men she had contributed to public life in Wash ington. Responding on behalf of the asso ciation, Editor H. A. London thanked the commissioner for the words of welcome and said that as editors, more than any other class of men perhaps, had to deal with the recording of history, they had thought it well to come here for a few days and look upon history making at first hand. President Varner then read his annual address which contained two important re commendations. One was that it would be of great advantage to members if the as sociation would establish a minimum rate j tor advertising, beginning, say at a thous : and circulation, and increasing so mucli I for every five hundred additional- He thought it absolutely necessary that some such action be taken to preserve a uni form rate and he advised that all editors who did not conform to this be blacklisted. The second recommendation was that the annual dues of the association be raised ten dollars a year in order that a com petent man might be employed to look af ter foreign advertising. These recommendations will be referred to committees and will likely provoke con siderable discussion during the session. Also the report of the executive com mittee was received and approved, after which an address on subscriptions was de livered by H. E. C. Bryant, of the Char lotte Observer. This afternoon an excursion on the steamer McAllister was taken to Mount Vernon and tonight the members of the association attended a theatre party at Chase’s Theatre. Tomorrow morning another business ses sion will be held and tomorrow afternoon a trolley ride will te taken around the city. Some of those who are here attending the meetings of the association are: H. B. Varner, J. B. Sherrill and wife, Rev. P. R. Law, H. A. London, Benj. Bell, D- H- Pc tree and wife, R. F. Beasley, A. Johnson —. wife, Thad R. Manning and wife, Rev. P. D. Gold and wife, C. M. Ray and wife, J. J. Farriss, B. A. Brooks and wife, W- J. Jordan and wife, F. M. William, Jno. M. Julian and wife, M. W. Lincke, A. J. Connor, Rev. E. T. Phil lips and son, J. D. Bivins, W. B. Thomp son and wife, J. X. Rourche, Rev. J. O. Atkinson and wife, W. C. Hammer and wife, J. A. Thomas and daughter, J. H. Quinn and Avife, A. S. Carson and Avife, C. 11. Poo. W. K. Jacobson, D. H. Petree and Avife, Theo. M. Cooper, J. F. Hurley and wife, T. C. Cobb and daughters, J- T. Britt and wife, C. L. Stevens and sister, Rev. H. M. Blair and Avife, J. B. Spill man, J. A. Robinson, Rev'. L. L. Wil liams and Avife, J. A. Hartness and wife, J. A. Stradley,, and H. E- C. Bryant and Avife. TAR HEEL ELIJAH ON DECK. Late yesterday afternoon a policeman here arrested Daniel V. Cliffard, who gives his residence as Mt. Holly, N. C., and claims he is “Elijah II.” He says he has ne\ T er heard of “Elijah” Dowie and is in clined to discredit his claims. Cliffard is evidently crazy and Avas to day sent to St. Elizabeth Insane Asylum. According to Cliffard's story he came from Charlotte here in an effort to keep a promise which he says he made in 1900 to Admiral DeAvey, to discuss Avith him the big reward to be paid him for furnishing the admiral with suggestions Avhieh led to his victory in Manila Bay. All the time “WILL NO LONGER WALK THE EARTH’’ Hoke versus Henderson, Like the Ghost in Hamlet, to Disquiet the Peace. he was sent for he was in Deeth, Nev., and Avas not able to come here. Recently, he states he Avas sent for by the United States Senate and came here in obedience to its summons. He had the further mo tive of securing aid in getting patents on a medicine he had invented, and a scheme for controlling the solar system so as to regulate seasons. When arrested, Cliffard was armed, having a dangerous knife, Avhieh was taken aAvay from him by the police man making the arrest. He also had a lot of money, including a $5 gold piece, which he had wrapped in forty consecutive pieces of paper. * * * BRISTOW'S ANNUAL REPORT. The annual report of Fourth Assistant Postmaster General BristoAV, for the fis cal year ended June 30, 1903, gives inter esting statistics regarding the postal af fairs of this country and makes some im portant recommendations. Perhaps the most striking feature of it is that part relating to free delivery, which it says is “expanding more rapidly than any other branch of the postal ser vice.” Its popularity and growth arc (Continued on Page Six.) OIL ROARS DOOM. Wreck and Fire Follow on Explosion of Naptha at Doon. (By the Associated Press.) DoA’c-r, Del., Dec. 2. —An explosion of a tank car of naptha in the center of a freight train on the DelaAvare division ot the Philadelphia, Baltimore and Wash ington Railroad today caused two and probably three deaths, the injuring of a number of persons, the Avrecking of sev eral buildings and a number of freight cars. The accident occurred at Green- AA r ood, twenty-fi\'e miles south of this city. The explosion is thought to luiA’b resulted from spontaneous combustion. The burn ing fluid was scattered in all directions. Fifteen cars were wrecked, three of Avhieh Avere destroyed by fire and several build ings near the railroad caught fire. En gineer B. W. Shepherd, of Wilmington, is missing and is believed to be buried under the A\reekage. The knoAA-n cead are: BRAKEMAN EDWARD J. ROACH, of Georgetown, taken from the wreck dead. An infant child died from the shock. Injured trainmeht: Conductor Cornelius J. Hill, Wilmington, badly burned; Fire man John Barker, Wilmington, badly burned;. ToAver Man Horance Lynch, Greenwood. A dozen or more citizens AA'ere injured or suffered seriously from shock. Os these the condition of Mrs. W. Morris is serious. Telephone and telegraph wires were broken and communication with other tOAvns AA'as impossible. As soon as avail able a locomotive Avas sent back to Sea ford and it returned with a special train carrying fi\ T e physicians from Harrington. While the physicians Avere looking after the injured, citizens and trainmen of the party of rescuers Avas at Avork around tho wrecked train, and another party directed its efforts to the burning buildings. De spite hard work of the fire fighters the residences of Dr. H. C. Johnson and the public school building Avere consumed and a dozen other houses were rendered unin habitable. { , LIEUT. BONHAM IS DEAD A Son of the Late Governor Bonham of South Carolina. (Special to Xcaa's and Observer.) Asheville, N. C., Dec. 2. —Lieutenant W. B. Bonham, U. S. A., died at the Brexton, on Starnes avenue, last evening, after an illness of several months. The remains were taken this evening to Columbia, S. C. accompanied by Mrs. Bonham and W. L. Bonham, of Anderson, S. C., brother of the deceased, Avho arrived yesterday afternoon. Lieutenant Bonham was a son of the late Governor Bonham, of South Carolina, and was a native of Edgefield. He Avas a lieutenant in Company E, Second Infan try, and was 37 years old. He leaves a wife and one child. St. Petersburg, Dec. I—At1 —At the weekly re ception of the members of the diplomatic corps Saturday, Foreign Minister Lams dorff spoke optimistically of the crisis in the Far East, and expressed the opinion that the Russo-Japanese negotiations AA'ouJd result in a pacific settlement. A jj.A.A.AAJLA A A. A A kAAAA, AA AA f f ▼▼▼ f ▼ ▼ ▼ ▼ TT'T *T"W WW f Ts t THI WEATHER TO-OAY.t 4 Wmr Raio!*h- ♦ | Fair; Cold. | A. A. A A. A A > a PRICK FIVK CENTS. BUSTED SKY HIGH. Would Do Well Enough for Monarchies, but for this Republic. Nay. Says Su preme Court Through Justice Con nor—Justice Clark Concurs, and Justices Montgomery and Douglas Dissent. ‘‘The Doctrine of Hoke vs. Henderson, like the ghost in Hamlet ‘will no longer walk the earth’ to disquiet the peace," concludes Chief Justice Walter Clark in an opinion concurring with that of the Supreme Court, handed down yesterday by Justice Connor in the case of Mial vs. Ellington, the road case from this coun ty. And so it is. Hoke vs. Henderson 1 over-ruled. Judge Clark’s concurring opinion is a brief synopsis of the argument against the doctrine that office is property based on contract and hence protected by the Lnited States Constitution. Justice Montgomery wrote a dissenting opinion, which is partly taken up with a defense of his course heretofore in the office-holding eases. He writes, too, that within less than two years before the dissenting opinion in Day’s case was filed Judge Clark wrote the unanimous opinion of the court in the case of Ward vs. Elizabeth City, upholding the doctrine of Hoke vs. Henderson. Justice Douglas also dissented from the opinion of the court, but filed no written opinion. This of course decides against A. T. Mial in his suit for the office of road supervisor in this county. It will be re membered he was elected by the county commissioners and in the meantime the Legislature of 1903 passed the neAv Wake County Road Law, and this abolished Mr. Mini’s office. He then sued for the office. The Superior court decided against him, and this opinion affirms that judg ment. The following are extracts from Justice Connor’s exhaustive opinion: We have no disposition in the decision of this case to place the conclusion to which we have arrived upon the ground that the position of Supervisoi of the Roads, the title to which is in contro versy, is not a public office. Adopting the settled definition of a public officer, we hold that the position come-, clearly within such definition. Nor arc we dis posed to enter into a discussion of the many fine and delicate distinctions which have been made between the validity of an act which distributes the duties of an office and one which abolishes the office. We prefer rather to discuss and decide the question which is fairly pre sented by this record., whether an officer apointed for a definite time to a legis lative office has any vested property in terest or contract right to such office, of which the Legislature cannot deprive him. The contention of the relator is based upon the proposition which was de cided by this court in Hoke v. Hender son, 15 N. 0. 1, which is thus stated by Ruffin, €. J.: ’“The sole inquiry that re mains is, whthcr the office of which the act deprives Mr. Henderson, is property. It is scarcely possible to make the propo sition clearer to a plain mind, accustomed to regard a thing according to practical results and realities, than by barely stating it. For what is property; that is, what do we understand by the term? it means, in reference to the thing, what ever a person can possess and enjoy by right; and, in reference to the person, (he Who has that right to the exclusion of others, is said to have the property. That an office is the subject of property has been explained, is well understood by every one, as well as distinctly stated in the law books from the earliest times. An office is enumerated by commentators cn the law among incorporeal heredita ments; and is defined to be the right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging. “A public office has been well described to be this: when one man is specially set by law, and Is compellable to do another’s business against his will and without his leave, and can demand there for such compensation byway of salary or fees, as by law is assigned; to the doing of which business no other person but the officer, or one deputed by him, is legally competent.’’ This proposition was stated by the great Chief Justice and maintained in an elaborate opinion at the December term, 183 v, of this court. That it has frequently been cited with approval and, with some exceptions, followed by this court, cannot be denied; nor can 't be successfully denied that there has al ways been a number of the ablest mem bers of the bar in North Carolina who have questioned its soundness. The contrary view is thus stated by (Continued on Third Page.)
The News & Observer (Raleigh, N.C.)
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Dec. 3, 1903, edition 1
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