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

all omcers having the charge OF money or property
belonging to the State in such form as he NAV pre-
scribe; and it expressly enacted that these re.
turns shall be " carsfully er1mined by him, and
.ths accounts passed upon und adjusted for, settle
nent" He may certainly do many of these duties
by assistants if he have no time to do them him
SELF. But his presence is at all times necessary to
superntend his assisarts-to observe their course
| of conduct-insure their industry and vigilance,
and solve all difficulties and questions which may
arise-ese the returns may be delayed; or if made
may remain unpassed upon, to the prejudice of the
public the officer and often to the great injustice
Of both. Such and so many are the constant Ger.
tain duties Of the Adjutant General, and it is
scarcely necessary to add that their faithful per.
| formance will command the entire time and talents
of man both Industrious and able.
Let US now turn to the Office of Brigadier- Gen.
eral in the Confederate service, and ascertain bis
duties. This officer is appointed BY the Senate of
the Confederate States, upon nomination BY the
President, with fixed salary. The Office is one of
high trust and c,nfidence-of great labor and re-.
sponsibility-and he cannot resign or quit the SER
vice until his resignation shall have been duly &C.
cepted by the proper authorities.
tie takes an oath to obey'th orders Of the Pres.
ident Commander. in chief of tho regular army
of the Confederate States.
lie is Commander OF Brigade, which contains
from three to five Thousand men; and as such, he
is liable to be required to fill all the duties Of his
command-among which is to be ever with his
brigade, having no control of his own movements
except such as ay be extended to him by the grace
Of his Superiors who are in no wise responsible to
the Governor. By accepting the Office he binihk
himself to 60 whithersoever the President may d.
rect and there to remain during his pleasure, SO
that he Cannot of his own mere will, and without
permission of the President, remain one hour in the
State of North Carolina. In word, he becomes rs
much the Presidents servant as any soldier in the
ranks.
1t is manifest then that if the duties Of each Of
flee are required to be performed, the same man
cannot do them; end this is the test as to Offices
Incompatible, when from the multiplicity Of husi-
ress In them, they cannot be executed with care
and ability" BAG Abr. Offices, X.
The test cannot depend on the quantum of duties
which may oe exacted or forgiven by two indepen-
dent siiperiors, having different and divers duties
to perform for that Quantum must depend on the
caprice or independent will of such superiors-
Moreover, the remission of duties not clearly allow
athletic be RENTED by law necessarily devolves on
others the duties remtted, which is contrary to
public policy The salaries Of Offices have no con-
necton with their duties, and never oe consid-
Ged in determining the question. of their conpati-
bility. And how completely soever the refusal to
receive the two salaries of incompatible Offices may
exonerate the incumbent from the censure Of covet
business, it Snnot change the nature, nor diminish
ton is just great to discharge that office for which
pay is refused, as tina. for which pay is taken. If
therefore, the offices Incompatible that of Adu
tant General became on the acceptance of The Brig
adIershlp absolutely vacant, and was then as open
for appointment as if it had been at that time ex
pressly surrendered. Mward v. Thatcher, and
RG v. Treiawny, ubi supra. If it did not then Le
come absolutely vacant because there was no au
Shortly in being to accept the implied resignation,
hpra rho,tt
assent by declaring the vacancy, as di, the reSolu
lions ofihc General Assembly. The King v. Pat.
tcrSon, "a, E. g. l.. R.ll. In all such cases an ap-
pont;nent to the office thus vacated or liable to he
vacated, is an alnotiOn OF the incumbent de frcto
The King v. Pateman, 2, 7. R., III. conclude,
therefore, that the Governor may appoint to the
office of: Adjutant.G General
We regret that We could not obtain the notes of
the able argument of Ex- Gov. Bragg, who appeared
for Gen. Martin.
=. crINI"y OF THE JuDaEs
In the matter Of tho Adjutaat Gene-uis1;p.
At the request OF His Exceencv Gov. Vance, and
OF Gen. Martin. the Judges of the Supreme Court
have heard full! argument on the questions of law
presented by the facts set out in 1.-THE case agreed
and certify their opinion to:be, that the office Of
Brigader General .nder the Confederate States is
incompatible with the Office of Adjutant General un-
der the State of North-Carolina and that, on the
facts stated, the office of Adjutant General is va.
can't, and the Governor may lawfully proceed to ap-
point thereto"
1t is proper to state, that in giving this opinion
we do not act as Court, but merely as Judges of
the Court, and have treated the matter in the same
light and with the same full consideration as if the
case had been regularly before the Court, upon
proceeding appropriate to present the question.
We were Induced to take this action, and felt not
only at liberty to do SO, but conceived it was in
some measure our duty thus 20 aid co or,iininate
department OF the government, because We were
informed by HIS ExceiAncy the Governor that the
subject would in that way be relieved from all fur.
Their embarrassment and that the public interest
required that it should be adjusted sooner than it
could be done by the regular mode Of proceeding
in Court particularly as the Court now holds but
one term curing the year. Berry rs. Waddell 9Th
lredell 3lS, appendix.
r. NJ. PEARSON, G. J. C.
WILL: II. BATTLE, J. s. c.
" E MANLY, j. S. c.
Raleigh, March II, 1868.