Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-05-31

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within the terms OF executive or judicial offcers
of State? They clearly include so far "a exec,
tive officers are concerned all such officers as are
generally known by the proper DESCRIPTION or
State officers, officers of a State In one
sense, and in popular sense, the description of
executive officers of State is applicable to a well
known class-the Governor, Lieutenant Governor
State Auditor, Treasurer, Secretary and state o9'
Gals proper, who exercise their executive Fnr
TONS at the seat OF government. 1 am not pre-
pared t. say that only these proper State Official.
come within this term of description nor am
prepared as to judicial officers of State r. H. :;
| the description to Judges Of courts whose inris
dlctlon extends over the entire State, Imust 90
tent myself in saying of these officers eyo"t;
! ing Of the law. WIZ ihean-
Now, changing the inquiry from On
affirmative to negative nrocess sra al
ohcers as usually pass under the descrin.
ton, municipal, do not come within the n,,r1iap
VI 1i'e acsuc as ohcers OF cities, towns villages
and subordinate municipal divisions wbet6er
their functions are executive or judicial az IL
sometimes the case where the same officer scts 40
both capacities. Outside of these two repre-
sen tatlVe classes, the first Of which is
clearly actttR, and the last of which il
clearly acHhoW the purview of the clauses
we ma IN each of these States post officer
whose status is, in some wav to be deternoined
1t is possible here to proceed by wav of ennmerS
| ton and to distinguish by name all these who ara
| included, and all those who are excluded All
| that can be done is to establish some rules T
feel the necessity of circumspection here in saw
! ing who are included within the disfranchse
ment, rather than in saying who are not included
for where there is doubt according to the ruIe NJ
construction, which has been referred to- that
doubt must be solved in favor of, rather than
| against the right of the voter The exclusion
| Is all comprehensive as TO time, and
applies not only to those who were in office when
the rebellion commenced but those who have held
the prohibited offices at any previous time al
though they may have ceased TO hold such Office
indefinite number of years prior to the rebel
lion. It is founded the idea of breach of Official
trust to the State as the author donor of the
! trust. 1t is founded the idea of breach OF
trust not arising merely from allegiance as cit
| Gen. but duty to the State, III direct official rels.
ton to that State, and through that to the Federal
government, so far as this act desgnates by name
| the persons who violated such trust. 1t is that
class to whose keeping the trust is especially con
tided, that may be persons who were clothed with
| the legislative power. Whereas in this instance
there is purpose of exclusion on a common ground
and one class is designated coming within the
purpose, and their classes are left indefinite, anl
only to be astertained by construction 1t is al.
lowable to find the indefinite class by tie rule Of
assimilation. We see then in this law purpose
OF exclusion TO the three great departments Of
a State, Legislative, Judicial and Executive We
see further that as to the Legislative department
made up of Legislative body composed OF
numbers and various officers appertaining to such
a body as IL Legislature. The exclusion is only Of
the higher functionaries Of that body the mem
bers-and is not carried to its subordinate officers
The terms OF exclusion are not the members and
officers Of State Legislature, but simply the
members OF a State Legislature. AS therefore,
the exclusion in the Legislative department has
effect only upon the highest class III that depart
ment, it is safe to say the policy of exclusion
attaches rather to such officers exercised func
tiOns of important trust in the Executive and Ju-
dicial departments, than to those whose functions
and duties ere merely limited and subordinate. /
have already called attention to the comprehen-
siveness OF these exclusions as to time. Now to
declare them equally comprehensive as to persons
and to say, that they embrace all officers, large
and small, coming in any sense within the descrip-
ton of Executive Judicial officers, who have,
at any time during their lives, held any one OF
these offices, would have this inevitable result
that in the formation of the Constitution for
State, by the agency of its own people, large pro
portion, perhaps majority, of the most intelligent
and capable Of the people would be excluded.
There is no part Of my duty, i'll attempting give
construction to these laws, i'll which find myself in.
VOlved i'll such painful uncertainty, as in determining
what officers outside of the classes already designated
come within the just range of exclusion.
have said, that in addition to the class Of officers
who clearly come within the terms Of the act judi
cia and executive officers of the State and to those
cipal Officers who clearly not within the terms OF
the act, there remain vast body of officers Whose
status is in some way to be defined. These are known
popular language 10y such Of descriptotiOn
county township and precinct officers Their name is L.
gon Their functions and duties are for the Lmost par
strictly local Some Oten, such as SleriS and justices
Of the county courts have jurisdiction over the entire
county; others restricted to the smallest civil suit
divisions have directed abstracts to be prepared for
each Of these States, which will exhibit all these offices
and the duties which appetan TO them, and the form OF
oath required must reserve for further consideration
after the abstracts made the question whether all
OF tell or IL not all, what classes tllesG OllctlS
come within the disqualification.
As to all other executive judicial officers who
are not, in popular language, characterized "a
county officers, incline to consider them as com
ing under the description of executive and judicial
officers Of a State, within the meaning of these
laws deem it proper here, in reference to that
class of officers, judicial executive, who are by
the rule l have laid down, brought within the op.
Grafton of Acknowledgement, to distinguish class
whose duties not localized who stand in direct
relation to the State, and who in my opinion, can
mr. hn 1nGJ i11fli-
clal officers of State. mean that class OF per-
sons who exercise special public duties, rather III
the nature Of occasional employments than gener-
al and continuing official duty. This distinction
between Office and employment, and between
officer of State and agent of a State, is well
established. Chief Justice Tilghman, in Sergeant
and Rawle 149, recognizes it i'll the case Of com
missioners appointed to lay out roads and canals
and other works OF public improvement. The
question arose upon section i'll the Constitution
of Pennsylvania which provided i" That the Gov
ernor shall appoint all officers whose offices are
established by this constitution, shall be es-
tabliehed by law, and whose appointments are
not herein otherwise provided for" The Chief
Justice says: " It has never been ascertaned, nor
is it easy to ascertain, to what offices this power
of appointment extends. L speak of offices crea-
ted by law since the making Of the Constitution
The word Office is of very vague and indefinite I'M
port Everything concerning the administrator
Of justice, the general interests of society, may
be supposed to be within the meaning of the Con-
sttutiOn, especially if fees or emoluments are an
nexed to the office. But there matters of tenn
pOrary and local concern, which, although compre
hended in the term office, have not been thought
to be embraced by the Constitution; and when Of
fees Of that kind have been created the Legislature
has sometimes made appointment in the law which
created them; sometimes given the appointment
to others than the Governor and sometimes Civ
en- the power Of removal to others, although the
appointment was left to the Governor. The Off
GERS of whom am speaking are often describedn
acts of Assembly by the name Of commissioners.
Such, for instance, as are employed in the laying
out Of roads and canals, and other works of public
nature; yet all these perform a duty. or in
other words, exercise an Office" | cannot emu
merate all of the employments under State au-
thOrlty which in my opinion work no disfranchse-
ment. will name some by way of illustration viz:
Boards of Commissioners of Public Works Drec-
tors ofState Asyiums Visitors of State Universities,
Directors of State Pcnitentiares, State Directors
Of Banks or other Corporations, Special Comm--
sioners or Agents appointed by the Governor or
other State authority to perform special duties as
examiners of Banks, Notares Public and Commits.
sloners to take acknowledgements of deeds.
The rule laid down, and these illustrations will
perhaps be sufficient to determine who come with
in its operations. The next disqualifying clause
is founded ON the oath Of Office The oath as in
cidenta to the Office s not mentioned in the first
disqualifyng clause, but the Office alone. But IN
the second clause. the oath is made to enter as
necessary element in order to work disfranchlse'
ment, and it is applied to the same classes OF OFF,
N,o1s Il. 1..AA lsal