Semi-weekly North-Carolina standard. [volume] (Raleigh, N.C.) 1852-1853, 1853-02-09

columns. II is abstract of case TO be found in
M4rPhy's Reports, col 3. p. 181.
John Beard
John =" !. Cameron, From B'''s".
s. The object of the pleadings in this to
get the opinion of the Court upon the question, whe
ther, where Judge of the Superior Court dies
during The sitting of the General Assembly, the Gov
ernor has the power 4 10 fill the vacancy
the 2O section Of the Constitution having declared,
that the Governor shall have such power, where the
death happens d"ri.g the recess of the General AS
sembly. -
The action was brought in case; the declaration is
not given.
The plea, which sworn to, is, in substance.
that a judge is necessary part or the Court; and
| that Blake Baker, Esq. (who presiding) is no
Judge; and therefore. the defendant opprehends the
said Baker will take cognizance of the action
aforesaid.
having been appointed by Cor. Branch. 10 supply IA
vacancy occasioned by the death Of the Hon. Samuel
LoDrie, who had died during of the General
Assembly; and that his commission had not vet ex-
! Pired.
The defendant reioins that in 1917 the General
Assembly continued in session until the 24h day Of
! December, and adjourned sine die about 10 o'clock,
A. M. of said day that Judge Lowrie died on the
22nd of December, 1917, about s o'clock, A. Nj. at
/ his residence, in Mecklenburg County, about $50
miles from Raleigh; and that this might have
been known to the General Assembly before its ad-
! journment.
BY demurring to this statement the plaintiff ad-
mitted all the facts therein ged [ha is if a0eH plea
ded, which, perhaps SIR Edmund Saunders might
have thought, did include ei; and, both par
ties believed, secured the means of testing the ques-
ton before the Supreme Court. The defendant
Joined in tie demurrer, and the was up.
The Supreme Court held that the question not
properly presented. That the defendant had, plea
ding before him, admitted Mr.. Baker be Judge !;
that in effect he had asked that gentleman to giUe
judgment, whether he fit person 10 gre judy
ncnt. Other criticisms were INDUCED in, the result
: o beD he Cont
opinion upon the constitutional difficulty.
We may well regret the obstacle which prevented
our having Judicial determination of the sense of
this article of our constitution. dlsqulSltion upon
that feature by TAYLOR and HENDERSON would in all
probability have dissolved every doubt and secured
the confidence of their fellow citizens in their con-
cusions. What l most regret in the failure is, the
aid which argument by these great lights of our
jurisprudence would have afforded in the solution OF
that class Of constitutional problems, the difficulties
about which akin tc that raised or attempted to
be raised in the of Mr.. i'aker. Difficulties
which suppose may be summed up in the question ::
Is this grant of power 10 the Governor merely decIa
ratory of the common law to Executive competen
cy; does it confer upon him rights which without
it he would not have? 1t was minated during the
late session of the Legislature that the opinion of
some of our first lawyers was, that it deciaTa'oy
only. The matter is not free from doubt, the more
especially on account of the turn that is gIven-and
necessarily TOTO :heir arguments namei y-lhat
must look to the Common law for an explanation
of the rights and duties of Governor in such
In other words. that derive our nOtlOnS o.
an Executive from England, and that, except So far
as they have been expressly restrained by oar Con-
! suon, his powers to be earned from the COM
mon law of that country suppose these gentlemen
will ingenIously argue that any conclusion in behalf
of arbitrary power this ground is saecualIy cut
off by the Matute which provides that such parts of
the common law as are rePugnant to the genius or
free Institutions shall not be in force North
Carolina. This explanation, to a mind quick with
those apprehensions in behalf of civil liberty which
all history is calculated 10 arouse, may be net
by two objections. In the first place, granting 1t 10
be true, it has the unavoidable prejudice adherng to
it-that it removes chief buwark of freedom
from The firm foundation of organic enactment, to the
shifting sands of Legislative whims ;-a thing not to
be admitted, unless unavoidable. Secondly, ii sup
poses that constitutional guarantees may be affected
by subsequent legislation, and thereby rendered
or jess firm. An opinion, however it may be horne
ont by lanced instances in which it is carried into
effect. not to be tolerated by any good citizen. AS
did not set out to make argument, begging par
don, | return to the case of Beard rs. Cameron
Although without judicial commentary
upon the competency of Judge Baker, his appoint
ment under the circumstances mentioned above. and
the acquescence OF the whole State therein for thirty
four years. makes the precedent one of some value
The reader hardly needs be reminded that circuit
passes in which is not to be found of
party the other to which is not deeply inter.
ested in finding flaws in portion of the proceed
ings. If then there had been any hope of succeeding
by taking the objection surely some one whose case
otherwise deSpaITed would have allowed Judg-
10 90 against him by default land then questioned
its vadyCr would have resisted process issuing from
because of that term; either of which steps, sCF-
pose would have brought the question before the Su
preme Court But bar parties, criminals and II seem
TO have acquesced; and there it remains until this
day, unquestioned precedent for the right of the
Governor to make appointments not expressly dele
gated by the constitution.
Beard rs. COzaeron TO have been made up for
the occasion. The defendant, who appears for him
SELF you recognize that time distinguished
member of the legal profession upon Cape Fear,
afterwards Judge in Florida. For the plaintiff ap-
peared James j. Mckay, subseq ncnty well known
have said that question attempted to be raised
for it might have fallen out that the Supreme Court
held Mr.. Bakers appointment valid even under the
2OM article; a construction requiring in all GENTS
recess, would in like this, where according 10
the ordinary of the mails the Governor could
not be informed of it until after ad journment, be
rather sticking in the bank.
On referring to the I'd volume of the Revised Sta
tues l see that although Mr.. Lowrie died in Deem
bet 1917, Mr. Baker not appointed until August
I1th, 1918, that Gov. Branch apparently hesitated
about his highland that SO much as to allow the
Spring Circuit to pass before coming to decision.
Perhaps the records OF the Executive Office may con-
tain explanation of the result at which he finally
arrived possibly, the opinions Of some of our dstin-
guished jurists of that day whom the Governor may
have felt himself warranted in calling into council.
Jui ge Baker died at the close Of his first circuit I'M
der that commission.
! For the rest am free to confess that all know
Of the facts of this derived from NIrPhy'S
| Reports and the Revised Statutes. If any one can
throw other light upon the subject, shall be glad &c
be better Informed. A CITIZEN.