Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1863-03-17

having accepted an Incompatible office uhatr Tue
Confederate States government aud that by SUI 1
segment act the appointment was eonei'e' WV
Governor. sd, =. 40
C;en. Martin, the present incumbent, having de-
orl his intention of testing the legality oil TINS &C.
tion If the Legislature by an appeal 10 tue Eo"'I
am pluced in position rather embarrassing. 10
avoid the somewhat unpleasant spectacle OF, Ia"
hton to myself, and very important to the public
st This time have concluded with the consent OF
Cen Martin, to make case and ask the opinion OF
the Supreme Court Immediately thereon.
With this view | should be greatly oeN5ed, anu
7 nave no doubt the public interest would also be
subseryed If YOU would have the kindness to call
the Court together and give its opinion upon the
question AS early day as possibleis respectfully
requested. Very respectfully >.
= Your ob't serV't
1850 z. B. VANCE.
Al the recent session of the General Assembly,
th,. legislature having resolved, that by reason
oF the acceptance by Gen. James u. Martin, Aqlu-
tant General of North Carolina Oh the ONCE vi Dig
adler General of the army of the Confederate States
tue hait office of Adjutant General was surrendered
and is declared to be vacant And having enacted
a!Su that the power of appointing to sald ounce Oh
Adiutant General should be vested in the Governor
and his excellency Gov. Vance, having nalcateuto
Gen Martin his purpose to proceed to make an aP-
pointment thereto it was insisted by zen. Mar'h,
that the office was filled, and he was the proper ana
lawful incumbent thereof notwithstanding the res,
olution aforesaid by virtue of his election to sala
Office BY the preceding Legislature under the act OF
the General Assembly entitled Militia Bill, chap
ter H. ratified on the 10th day of September, 1861
Ehercupon, it was agreed by the Governor and Gen.
Martin to request the judges of the Supreme Court
to give their opinions upon the question whether The
Office vas vacant and the Governor might lawfully
proceed to appoint thereto.
The question upon which the opinions ofthej judges
are sought arises of the following agreed facts
In the month of September 1861, Gen. James lr
Martin was duly elected by the Legislature, AdJu-
tan General of the State of North Carolina, IN pur-
suance of statute the sub ject of the State Mill
tia ratified on the Goth day of September 1861, &C
copied the Office, was qualified. and entered upon
the duties thereof and has continued since to cXer-
else the powers and perform the duties OF the same
General Martin held the rank of Captain and Bre-
We: ior in the army of the United States, rendered
his resignation at Fort Riley, Kansas, June LIST,
1861 and by the provisions of the law of the Con-
Tolerate States he became entitled to similar rank
IN the regular army of the Confederate States, and
received and accepted the appointment therein OF
Captain of Artillery. and at the request of the Gov
ern0r of North Carolina, was ordered to report 10
him for duty.
In the Month of NAY, 1862, Gen. Martin accepted
the Office of Brigadier General in the Provisional
army of the Confederate States, under the following
circumstances: The appointment had been some
days rendered but not accepted when Governor
Clark received telegram from the President urg-
ing Kim to send Gen. Martin with four regiments,
then in camp near the city of Raleigh, and which
had not then been mustered into the Confederate
ca-vi Weldon
General Martin then had an interview with the
Governor and it was concluded between them that
he should accept the appointment of Brgader Cen
eral in order to comply with the request. OF the
President but with the understanding that 1t was
not 10 vacate his Office of Adjutant General
In q day or two afterwards, and before the regi-
men:s moved, Gen. Martin was ordered by General
Holmes, commanding in this department, to repair
with these regiments to Kinston, which he did
H. remained there some six weeks, ard while
there had also authority from the Governor, in his
capacity of Adjutant General to call out for active
service, the militia in the adjacent counties.
While the battles near Richmond were being
fought Gov Clark telegraphed the President that
lie thought Gen. Martin and his Brigade could be
spared from the State if he deemed it important
have them and in consequence, Gen. Martin receiv
ing an order from Gen. Holmes, then below Rich
mo,d, repaird with his Brigade to Drurys Bluff,
James river. The battle was over before he reach
that point
A few days after reaching Drury's Bluff Gen.
Martin tentered his resignation as Brgader General
TO- the purpose of returning to North Carolina, to
resume the discharge of the duties of Adutant Gen
eral, in person. About ten days afterwards, he
noti6edof the acceptance Of his resignation. While
at Drurys Bluff, by the request OF. Gov Clark, he
also transacted business as General Of the
State, with the Confederate authorities in Richmond
Upon the interposition of Gen. Lee, and with
the appreciation OF Gov. Clark, and consent of Gen.
Martin, the resignation of Gen. Martin and the
cetance thereof, were annulled and he was rensta-
ted in the office of Brigader General but has never
received any pay either as Brigader General in the
Provisional army Captain in the Regular army
aud has since remained in the City of Raleigh IN
the discharge of the duties OF Adjutant General ex
cept when absent by the orders or assent of the
nF thn Sfofn
ARGUMENT OF COUNSEL.
B. F. Moore ESQ.,, who appeared for the Attorney
General, in his absence from the City, submitted
the following argument:
According to the we'll settled rules Of the common
law the same person might hold so many offices as
lie could discharge the duties Thereof, unless the
duties of some might be incompatible with the du-
ties of some other: In all such cases, the common
law forbade the same person to hold incompatible
Offices, upon the clearest princp pie of reason name
~, that the Offices could not, might not be we'll
and faithfully discharged. Hence the we'll estab-
lishEd maxim that the valid acceptance of one Office
by person already holding another and incompat
BILE office, vacated the former as effectually as an
actual surrender of it. Indeed, it regarded as
an abdcaton, and, therefore, quasi resignaton-
Milward v. Thatcher, I. R. 81. Rex v. Trelawny,
3 Bur. 1916.
1t is manifest as well from reason as from the tenn
per of those times that it was never the purpose of
the provisions the Constitution and laws of the
State, making new cases of disqualification. to abro-
gate those already existing; especially when it is
considered that the latter were because reason
required it, and to no small extent it must be ad-
mied that the former the results of the extreme
jealousies of the times.
The main source Of these Constitutional and leg
isative provisions to be found in the two fod mo-
tive of preventing concentration in one person of
two lucrative offices, and of excluding the influence
which the possession Of one Office might exert to
procure another.
The frst dsqualifcations in this State by reason
OF holding another Office (superadded to those exis
ting at the common law the duties of which were
not deemed incompatible with those of the office in
Eiblted, were introduced into the State Constitution