The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1860-08-06
From the Raleigh Press.
IMPORTANT DECISION.
R. C. Gotten Adjutant General }
vs. Mandamus.

This was an application TO the superior Cour'
of Chatham by Mr. Cantwen, on the part OF the
Adjutant General, for writ OF Mandamus, re-
curing the Governor to issue warrant for the
salary of the Adiutant General, Notwithstanding
the Act of 1853 upon that subject, abolishing the
Office: which being refused appeal was taken to
the Supreme Court, when the following opinion
of the court was delivered
By Pearson. CJ-The matter brought up by the
appeal makes it necessary for this court to decide
two questions lst Is the applicant entitled by
law to the amount claimed for his salary as Adju-
tant General of the State. End Had the Supe-
rior court of law for the county of Chatham power
to require the Governor of the State to make his
warrant on the public Treasurer, for the payment
of the salary to which the applicant is by law en-
titled upon an allegation, that the Governor had
refused to make the warrant:
!. The Constitution Of the United States, Art
l. S. 8. cl. H. 10. provides, "the Congress shall
have power to provide for calling forth the militia
to execute the laws of the Union suppress insur-
rection and repel INVASION" "to provide for Or
ganizing arming and disciplining the militia, and
for governing such part of them as may be en-
poyed in the service of the United States; reserv-
ing to the States respectively the impeachment OF
the officers and the authority of training the mill
tia, according to the discipline presented by Con-
gress" In pursuance of this power, Congress by
ton of the militia and created the offices required
by the plan of organization, and among others, the
Office of "adjutant general" and in accordance
thereto the Legislature appointed field oheers and
an adjutant general by joint ballot, and continued
to do so until the year 1886, having in 1917 liked
the salary of the al ia ant general at s2OO per
annum. R. C. C. 70 5. IL. provided tor the cleo
ton of all field officers by the officers of the respec
tive divisions, and brgades, to continue in office
three years-sec 8 confers the appointment OF Ad-
jutant General (to continue in office three years
by sec. 1l.)-and fixes his salary at $500 to be
paid quarterly by the Treasurer, OIL warrant
from the Governor while by C. lO2. s. ,, salary of
the Adjutant General is fixed at 5000, to be paid
sem-annuay by the public Treasurer upon war
rant from the Governor. The Act of 1858 C. %,
enacts, $50 much Of sect. 8, chapter 10 Revised
code entitled ''militia, relates to the appoint
ment and salary of the Adjutant General, be and
the same is hereby repealed"
We are informed by the Attorney General in
the argument, that the Governor POUNDS his opin-
ion adverse to the claim of the applicant, this
statute SO the question depends upon its construc-
ton.
We have seen that the office of Adjutant Gene
raj was created by an act of Congress in pur-
suance Of the Constitution of the United States,
and that only the right of appointment was re-
served to the State and devolved on the Leglsa-
ture. 1t follows that the Legislature had no pow
or to abolish the Office, and the suggestion, that
such was the effect of the act Of 1858 falls to the
ground; but he assumed the position, that the eff
feet of the act of 1888, to vacate and nullify
the appointment Of the applicant by repeating the
act under which it has been made. In respect to
all vacancies that should thereafter occur the leg
slature unqucstionably had power to take from
the governor the right of appointment, which was
conferred on him by the act Of 1888, and either
exercise it itself, provide some other mode but
in respect to the appointment which had been
made, the question is altogether different. The
legal effect Of the appointment was to give the
Office to the applicant, and he became entitled to
it, as "vested light" for the term OF three years,
from which he could only be removed in the man-
prescribed by law and of which the Legislature
had power to deprive him. This is settled
Hole as Henderson d. 10. SO the act of 1858
cannot have the effect contended for, even if in
the absence of express words were at liberty to
infer that such was their intention; its only effect
is, to take from the governor, the right of filling
future vacancies, and vest it again In the legisla
ture. 1t was then urged, however it may be in
respect to the office, the salary created by the
Legislature and at any rate it has the power to
abolish that 1t is true, the salary of all persons
holding office under the appointment of the State,
are within the control of the Legislature, except
as is the case of the Judges and the salary may
be increased or reduced during the term Of the
Office, for it is presumed, that Offices accepted
with reference to a general power of which the
Legislature has not Invested itself, and in this
particular, the appointment to, or acceptance of an
office with salary, differs from ordinary con-
tract the term of which cannot be altered with
out mutual consent; but in putting construction
upon this statute in respect to the salary, several
considerations are to be weighed A statute which
reduces a salary during the term of office, and one
which takes away the salary altogether, stands on
different footing, for in the latter case the object
would evidently be ''to starve the incumbent out
not be done directly, SO as to make applicable, the
supra, in which there seems to be much force that
such indirect legislation is obnoxious to the
charge of being unconstitutional as ali act directly
deprivine one of his Office.
A proper construction of this statute does not
lead to the inference that it was the intention of
the Legislature to abolish the salary, in the event
that the applicant stl continued entitled to the
Office and liable for tie discharge of his duties on
the contrary the clause which repeats so much Of
the 9th section, as relates to the salary is mere
coroary or incident to the clause which repeats so
much of that section relates the APP, ointment
of the adjutant general, and consequently the one
cannot BY any rule Of construction be made to ex-
tend in its operations farther than the other; in
deed to make the clause in respect to the salary
apply to the present incumbent when we have seen
the other clause does not deprive him of the office
would be to place the legislature in this attitude;
1--WE mean to abolish the Office, and if We have not