Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-03-12

other way ?-for if in terms it is confined
to the principal persons in the Legislative
department. and in terms not confined to
the principal persons in the other depart
ments, but extends to ANY "-an-why
the difference in language unless there was
to be difference in the sense :?
We are not called upon to explain a0hy a
difference was made, nor do we know that
we can give the true reason, but Quere, are
there any C6icers in the Legislative depart
ment The members, the principal per-
sons, are not officers. There are not many
persons connected with this department,
except the members and the few that are.
are mere pIacemen. None of their en-
ployes are required to take an oath to
support the Constitution of the State, or
of the United States, and no oath of office
even, is prescribed for them in the Rev.
Code, Chap. Oaths, nor elsewhere, so far
as we know, nor are We aware that 1t Is
usual for them to take any oath at all
But in the other departments all officers
are REQUIRED to take an oath of Office, and
also an oath to support the Constitution of
the State, and of the United States !; and
all mere placemen are required to take an
oath of office, or an oath to perform the
particular duty required.
In the discussion at the Bar, the ques-
ton was considered as if it depended upon
whether the officer might not be ministe-
rial ana In that sense neither Executive
nor Judicial. That learning is useful
when We are considering the questions of
the duties and liabilities of officers, but it
does not help us here, for though he be
ministerial only, yet he is ministerial either
in the Executive or Judicial departments,
AMI his being such and taking an oath to
support the Constitutions, excludes him
from Office. THE oath TO support the COnsti-
tutiOns is lie hst. The idea being that one
who had taken an oath to support the
Constitutions and violated it, ought to be
excluded from taking it again, until re-
lieved by Congress-
Some confusion was caused in the public
and in the professional mind, by reason,
that the Attorney General of the United
States was called upon for an opinion, aud
it was published, as he says, before he had
matured it: In that opinion Oath May,
1867, it was minated that only the prin
cipal State officers, and not the county
officers, Fmight be excluded but on the
18th June, 1867, he published his con-
sidered opinion, and in that he says:
"12. All the executive or judicial officers
of any State, who took an oath to support
the Constitution of the United States are
subject to disqualification, and in these
include county 0ftcers, as to whom l make
reservation in the opinion heretofore
given. After full consideration, have ar.
rived at the conclusion that they are sub
ject to disqualification, if they we're re.
quired to take, as q part of their official
oath, the oath to support the Constitution o.
The United States.
"13. Persons who exercised mere agen
cies, or employments under State authori
ty, are not disqualified such as commits
sioners to lay out roads, commissioners Of
public works, visitors of State Institutions,
directors of State Boards, or other State in
situations, notaries public, commissioners
to take the acknowledgment of deeds, and
lawyers"
There is error in the order for the per
emptory mandamus.
Petition dismissed with costs.
READE, J.
NoTE.-The Chief Justice concurs in re-
gard to the disqualification Of the sheriff
but not as to county attorney.
READE, J.