Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-03-18

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halls from every species of official influence. fifth
Constitution had stopped here in its disqualification
for office tho common law doctrine, which allowed
many ofca to be held by one.person, subject only
to the restriction of compatibility, would baye beer
affected only to the extent of those provisions Blu
with republics the distribution of offices has beer
at all times favor,te doctrine of policy; and W.
find afterwards in section 30, provision "th1t NJ
| person shalt hold more thin one tucrdtire cDace a.
arg one time PROVIDED, that no appointment IA
the militia or to the office Of justice Of tho peace
shall be considered as a luc"atice office"
The effect Of this provision was to greatly limit the
range Of the common law doctrine of Incompatible
Offices; it narrowed but did net annul its operation
| Among other persons 1t did not embrace member Of
the legislature who although he received per dlsm
allowance, was not regarded as holding lucrative
office. Ane it is clear that it did not embrace OH
ces not derived under this State. And by reason
of the p,oviso,sit did not embrace that portion oil
the judiciary establishment constituted OF justices
of the peace nor any officer of the militia So that
militia officer although his Office had been ucra-
tive in fact could notwithstanding this section hold
another lucrative Office provided the only objection
to such holding was the lucratreness Of the office.
All other objections that for instance, OF incorn-
patibiity, were left untouched the only effect OF the
proviso being to- declare that an Office in the mi
ltia should not be deemed lucrative. Whatever
patible with office in the militia by reason of%he
nature of its duties was lett still. That the pro-
viso has been construed to confer license to
hold Incompatible offices is obvious from the acts of
1903, TAI, and 1902 c. 767, Revisal of 1920 IRE.
tanned in the Revisals of 1886 and 1879 which,
among other things, imposes penalty on a justice
OF the peace fer exercising, while he acts as su,h
the Incompatible Offices of clerk deputy clerk, depu-
ty sheriff, constable, county trustee and ja!lor.-
no IN h,rP
S. 8, to embrace sheriff; the omission before was
doubtless because the offices of sheriff and justice
of the peace were held tobe onpatbe at common
law. l Blackstone 49, OF seq to 354, and note 81,
p 353. There never has been made question
about the cons.ltutonality of this legislation and
it may be Safely affirmed that as TO many, if not
all Of tie Offices mentioned, the legislation hut
in atfrmance of the common law.
The next great step to dsqusfy persons from
hold;ng two Offices, made by the Convention .,t
1884 Ey art t. $. 4, of the amendments Of the
State Constitution, it is provided "taat no person
uho shall hold any cJice place of trust or preit
uhter the Confederate States, or any department
thereof, Or ander this Sttte, or any other State or
gosernment she'll h9N or exercise any other egiee
pLlce Of trust or profit under the authority IF this
State, or be eligible TO sent in either loose OF tile
Gensrc] -tssss.oly: ProrideL, that nothing herein
coatained shell eStend to officers in the mii.ia or
justices Of The peace"
The wide range of this provision owes its origin
to two sources. Fist, nice distinctions had often
been attempted to be made, and sometimes success
fully, between offices and places and between such
of them as were of trust and such as were Of profit
Ter !ucrative) Second, the public press and poti-
claHs had been alarming the people for several years
by announcing the lncessant conflict of the public
patronage with the freedom Of elections. This SEC
ton cut up by the roots all distinctions between
offices and tS:aces and rendered nugatsry whether
en- office called one oproft, of trust simply.
The proviso has but one effect and that is to de-
clare that the offices justices Of the peace and the
militia shall stand as they stood before and shall
be treated and regarded as though the section
were stricken from the Constitution. For the office
OF saving clause is to leave the matter saved just
as it was before the enactment to which the saving
Is attached And the section is to be read for in.
depreciation, just if every Office and place EN-
braced in it, had been specified and named and those
not intended to be embraced had been omitted So
THAI it is perfectly clear, that the offices saved stand
unaffected by the section. Indeed if this interpre.
ta'lon be not the true one but that other is to wit
that ust:os Of the peace anu officers in the militia
may hold and exercise, without surren6ering their
own any other and every other office and rlace of
trust or profit, it will follow, that justice may be
judge of the superior and supreme courts clerk of
any Of the courts, sheriff. coroner, constable, &c cor
the legislative power is not competent to add to the
qualifications of an Office when they are ixed by the
Constitution. And SO the wholesome restraints Of
the common law against incompatibility will be al
together abrogated by proviso to clause, the OBJ
Ject OF which was to increase and not to diminish
Of office. This is too unreasonable
to be allowed.
to the 1iSquahications of the common law doctrine
of incompatbtH three otter classes have been
added by the Constitution. l. The political which
is embraced in section % to 30, inclusive 2. The
lucrative. 8. ALL whether political or lucrative
or OF trust, whether called offices or places and
that none OF these constitutional restrictions affect
a militia officer. lie is feft as if the Constitution
had been wholly silent upon the subject of dsqual
is, he is lett to the common law
Assuming then, that the Adjut.nt General is an
OIL ;er in the militia tie question is, wA3:. ...r
discharge the several offices OF Adjntant Gen.
eral OF the State, and of Brigsdier General Ct
the Confederate States regular army? | saw
hold and discharge for.lt is not the ulere hoMiag
which the public regards but the DISCHARGE Of tn.
duties OF an office, which concerns the sovereign
And as it is not pretended that either of these Oil
ces is slnccure le that holds must also discharas
and II is not sufficient that man may be able to
Go 50 or his agents. Certainly not as to such Off
SSo 40 Is selected because
of personal trust and confidence, and as an official
aid and adviser.
Whether these Offices be inconsistent may be
readily ascertaincd by learning the duties of each.
III the officer be not able to discharge the duties at all
times, as we'll when each Office is replete with
pressing duties, as when the duties are easy and
infreqsent in both, and may even abide delay in
their performance, it is clear that the offices are in
compatible. Let US see what are the duties Of III
Nhnxvv l..
the "a extra session, of Sept. 1861, chap II, sec.
], %, 40, so, 81, s., Sc, 81, 70, 80, g.
he is the assistant and chief staff officer of the
of militia Of the State.
He is under the Governor, GeneraEin- chief Of all
the forces OF the State, with the rank of Major
General.
or readily accessible to the Governor, as it is a
part of his duty to issue all orders of the Governor
as Commander tn-clief
He is Inspector General of the entire body of
militia and NC IL 30 ;, d,,tr l.