Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1868-07-24


municipal officers and appointing "loil "
| NEGRO and scalawag) successors. But
| defer this to another time, as we'll as my
! promised pOrtraiture of some of the person.
mel of the Rump Legislature. Dor.
| For the journal.
The Power OF appointment and Removal
vested in the Governor and General
Assembly by the New Constitution.
Messrs. Editors The attempt on the
part of Governor Holden to remove the
Commissioners of Raleigh and to appoint
others in their stead, has elected good
deal of discussion DIS to the power of ap-
pointment and removal vested in the Execu-
tive and the General Assembly by the
| New Constitution. That Constitution
is now the fundamental law of North
Carolina, or, at least, must be so regarded
until set aside by the proper authority,
aud the question must be discussed with
reference solely to it's provisions.
The opinion of three eminent Counsel
has been given to the effect that the Gov
ernor has no power, under the New Con-
stitution, to remove the Raleigh Co nmis-
sioners and to appoint Others The q 4 n
tlemen have too high a regard f." III II
legal reputation to allow themseiv t. he
aCtuated by any motives whatever. save -
anxious desire to cOnstrne the State Con
stitution Alright, or to hazard an opinion
without full consideration of the point
involved. The fact that the Genera. As
sembly are engaged on bill vestns hi
power in the Governor, is sufficient evI-
dence that the conclusion arrived at on las
point bv the Counsel referred to, is indis-
putably correct.
Bat a question arises as to the power Of
the General Assembly, under the new Con
stitution, to clothe the Governor with the
power to renoove electiUe officers and appoint
others in their stead.
BY the operation of the "Omnibus
bill' North Carolina became g a State of
Howard Amendment" The Govern
ment OF the State then ceased so be provis-
ional-the power OF the military satraps
was then, as to North Carolina. at an end
the reconstruction acts were no longer ap-
plicable to US, and the State then became,
to all lntents and purposes, ga State of
the Union" Governor Holden is then
Governor by the authority of the New Con-
stitution, or he is a usurper.
The offices which may be filled by the
appointment of the General Assembly, or
~ the Governor, are expressly provided
for in the Constitution. The Governor
can make no appointment to office, when
the office Ia electjUe save In case of q Uacu1cy,
except Justices of the peace, whom he may
appoint until sections 4, 5 and of Article
VII "shall have been carried into effect.
Section 5, Article XIV, of the New Con-
stltutlon, Is the clause which must govern
this question, and is as follows:
''In the absence of any contrary provision all
officers III this State, whether heretofore elected
or appointed by the Governor, shall hold their po
siuOns Until other appointments made by the
Governor, or, II the officers elective until their
successors shall have been chosen and duly quail
fed according to the provisions OF this Oonstitu
ton
"In the absence of any other provis-
ion" evidently must be construed as refer
ring to some provision by the Constitu-
ton ITSELF The words are used in the
same sense as the words unless other
wise provided for" to be met with in sew
eral clauses of the Constitution. Funda-
mental laws are construed strictly, and
upon the principle that powers not there
i'll expressly delegated are reserved to the
people !; indeed, this is set forth in the
Bill Of Rights 1t would be total sub
version of this declaration, as we'll as an
unheard of latitude of construction, to
hold that the above words refer to some
II
eral Assembly. When powers are so
strictly defined, it would be dangerous to
adopt a loose, In this instance, very loose
rule of Interpretation, especially when a
) strict rule OF Interpretation can result in
no Inconvenience, and can work no in Jury
to any one.
The true construction evidently is, that
the Governor may remove officers and APP
point others IN their stead, belonging to
that class who take Office by his appoint
ment merely, and who were in Office when
the Constitution was adopted. But all
whose offices are to be flied by election, ex-
cept Magistrates, remain III office until their
} successors are elected and qualified, and
neither the General Assembly, nor the Gov
ernor, nor any other power, can remove
such officers by any warrant of law. If the
7 Constitution cOnfers any power at all Of
this character, it confers it on the Governor
without the aid of the General ASSEMBLY.
But it does not confer it upon either and
the attempt to exercise it on the part of
either, should be legally resisted.
In this connection it may not be amiss
to notice the fact that the Commission to
report "Code of Practice and Procedure"
are reported to be engaged ON he ,lraft of
a bill comforting the power in Question on
the Governor. On this Commission am i'll
formed that there are two Judges of the
Supreme Court and one of the Superior
Court. If the fact be as reported, it is
simply prejudging the case by the Judges
on the Commission, and is an outrage
which no Judge, having proper regard to
his position, would perpetrate.
My purpose is simply to call public at
tention to the point referred to, and I will
not elaborate it. The clause quoted seems
to me to be too plain to admit of any in
depreciation different from that which I
have given it, and I am unable to find any
other clause in the Constitution bearing
directly on the point. Surely our Radical
friends will not so soon attempt to disre-
gard their own work. C1y1s
In their hot haste to make out that Gov.
Seymour melted the New York mob, the
Radical papers leave out of the story the
fact that he denounced all mobs as holding
the bloody, REASONABLE and REVOLUTIONARY
doctrine of public necessity -.
The Radicals would make this a canvass
LIZ -