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

all officers having the charge of money or property
belonging to the State, in such form as he may pre-
scribe; and it's expressly enacted, that these re-
turns shah be /" CAREFULLY examined by him, and
the accounts passed upon and adjusted for settle
Haent" 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
superintend his assistants-to observe their course
Of conduct-insure their industry and vigilance,
and solve all difficulties and questions which may
ariSe-elSe the returns may be delayed; or II MADE
may remain unpassed upon, to the prejudice OF the
public the officer and often to the great injustice
eff 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 anu talents
of man both industrious and able.
Let us now turn to theOfice of Brigadier- Cen
eral in the Confederate service and ascertain his
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 nfidence-of great labor and re-
/ spOnSl6ility-and he cannot resign or quit the SER
vice until his resignation shall have been duly &C
ccpted by the proper authorities.
| He takes an oath to obey the orders OF the Pres
ident, as Commander;in.ch of the regular army
Of the Confederate States.
He 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
COnlmanu-amOng WHICH Is 10 Oe ever WIFI
brigade having no control Of his own movements,
except such may be extended to him by the grace
Of his superiors who are in no wise responsible to
the Governor. By accepting the office, he binds
himself to go whithersoever the President may d.
rect, and there to remain during his pleasure, so
that he c.s:not of his own mere will, and without
permission of the President remain one hour in the
State of North Carolina In a word, he becomes as
much the Presidents servant as any soldier in the
ranks. .....f''
1t is manifest, then that if the duties of each Of
fee required to he performed, the same man
cannot dp them; and this is the test to offices
incompatible, when from the multiplicity OF bust
II. ress in them, they cannot be executed with care
and ability" .Bac Abr. Offices, K.
The test cannot depend on the quantum Of duties
which may be exacted forgiven by two ndepen-
dent superiOrS, 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
able to be RENTED by law, necessarily devolves on
others tile duties RENTED, which is contrary to
public policy. The salaries of offices have no
nectOn with their duties, aud never oe cOnSid'
cred in determining the question Of their conpati
bility. And how completely soever the refusal to
receive the two salaries of incompatible Offices may
cxonerate the incumbent from the cenSure o! coYet-
business, 1t cannot change the nature diminish
the duties of either Office; and in law tho Obliga-
ton is just great discharge that office for which
pay is refused, that for which pay is taken. II,
therefore, the offices Incompatible that Of Adm
tant General became on the acceptance of The Brig
adierShIp absolutely vacant, and was then as open
for appointment as if it had been at that time
prcSsly surrendered. Milward " Thatcher, and
Rex v. l.lawny, NH supra. If it did not then be-
come absolutely vacant because there
thoriy in being to accept the implied resignation;
Il certainly became so when that authority gave its
assent by declaring the vacancy, as dir the rcSolu
tinp Of b,a 4 rba ina ID
tcrSon, D. E. c. IsR. | l. In all such cases all ap.
ponncnt to the office thus vacated, liable to he
vacated, is amOtion of the incumbent de tiLcto.
The King v. Pateman, ,, I. r., ~. | conclude,
therefore, that the Governor may appoint to me
Office Of AdJutant-General
We regret that could not obtain the notes of
the able argument OF Elk Gov. Bragg who appeared
for Gen. Martin.
OPINION OF THE JUDGES
In the matter Of the ddjutaat Genrra2Mjp.
At the request OF His Excelency 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 in 1.-The agreed"
and certify their option to be, that the office of
Brgadier General Under the Confederate States is
incompatible with the office of Adjutant General I'M
der the State of North Carolina and that on the
facts stated 1.-THE Office of Adjutant General is va
cant, and the Governor may lawfully proceed to APP
point thereto"
1t is proper 10 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 if the
case had been regularly before the Court, upon a
proceeding appropriate to present the-question.
We were induced to take this action, ard felt not
only at liberty to do so, but conceived it in
some measure duty thus to aid co or,lininate
department of the government, because we were
informed by HIS Excellency tho Governor that the
subject would in that way be relieved from all fur
Their embaUas$ment and that the public interest
required thdt 1t 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 during the year.. Berry rs Waddell, 9th
lredell 3IS appendix.
r. NJ. PEARSON, C.J.S.C.
WILL: H. BATTLE, Us. G.
NJ. f. MANLY, j. S. Z.
Raleigh, March H. 1863