Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-01-28
TERM OF GENERAL ASSEMBLY.
OPINION OF CHIEF JUSTICE PEARSON.
STATE OF North CAROLINA,
SUPREME COURT,
Raleigh, Jan. 10th, 1870.

SUPREME COURT,
Raleigh, Jan. 10th, 1870
To the Honorable Tod r. Caldwell. Lieate'a-
ant Governor, e.c Otfcio President Of the
Senate, and the Honorable 10. w. Holden,
Speaker Of the House Of Representatives, ::
The joint resolution of the Senate and
House of Representatives, requesting the
Justices of the Supreme Court, in sub
stance, to give their opinions as to the
terms of the present members of the Gen
eral Assembly, that is, according to the
provisions of the Constitution do they
hold their seats until the first Thursday in
August 1872, or are other members. to be
elected on the first Thursday in August
1870 ?-has received full consideration.
The question is more easy of solution
now, when it can be treated as a dry mat
ter of constitutional law, than it might be
hereafter when complicated with collateral
considerations. Should the General AS
sembly, for the two years referred to, be
composed of new members, and it turns
out that the body ought to have been COM
be state of confusion. On the other
hand, should the General Assembly, for
the two years referred to, be composed of
the present members, and it turns out that
the body ought to have been composed of
new members, there will be the like con-
fusion so it is of importance to have the
matter settled at the outset.
A preliminary question presented itself
do the constitutional duties of the JUS
tees forbid compliance with this request
of the General Assembly u?
am relieved from all doubt by the pre-
cedent in the matter of Waddell vS. Berry,
8 Iredells reports. appendiX-which is in
point. There the right to a seat IN tile
Senate was contested and the Judges of the
Supreme Court, at the request of the Sen
ate, expressed opinions not as q Court but
as Judges, as to the right of certain citi-
zens to vote and this action of the Judges
is put on the ground that the main pur-
pose being to determine the right to seat
in the Senate. although " not an act of Of
fetal obligation the Judges deemed it q
duty of courtesy and respect to comply
with the request. Here the main and only
purpose is to aid the General Assembly to
determine the right to all Of the seats in
both Houses. So the question is of the
same character and of much greater mag
nitude. The action of the Judges of the
Supreme Court in giving an opinion on
the meaning of the word "crime," at the
request of Governor Worth, is also pre-
cedent in point. (See In the matter of
Hughes, Phillips Reports, 64.') The &C.
ton of the Justices of this Court in de-
quest of the General Assembly, in regard
to Homestead Act, affecting pre-existing
debts, is not relevant to the subject now
under consideration, for it is put on the
ground that the question involved the
rights of property" and "would in all
probability come before the Court for de-
cision," and the Justices were of opinion
that their constitutional duties did not per-
NIT them to PREJUDICE it.
The Constitution fixes the terms of Office
as general and fundamental principle
that is to say-of the Governor four years
of the Justices of the Supreme Court, e
confine myself to these to avoid pr lixity)
eight years-of the members of the Gen
eral Assembly two years. Whoever alleges
an exception to this general principle must
assume the burtl1en OF proving it. /. In
regard to the Governor, Justices and mem
bers, elected at the first election, a reason
appears on the face of the instrument for
making an exception to the extent of ad-
ding few months to the beginning of the
terms. This election was ordained to be
held ''when the vote shall be taken on the
ratification of the Constitution. which
would be more than two years before the
first regular election, and il was necessary
to add some time to the beginning of these
terms, to make the subsequent terms fit in
and run on smoothly. So this exception
is admitted.
2. In regard to the Governor, a reason
appears on the face of the instrument, for
also adding from August to the first day of
January next ensuing, to the end of this
term-his successor is not to be Inaugural
ted until that day. So this exception is
admitted.
3. In regard to the Justices of the Su-
preme Court, no reason appears on the
face of the instrument for making an ex
ception by also adding two years to the
end of their terms-and in the absence OF
a reason, it will require words SO plain and
positive as to admit OF no other reasonable
construction. to have that effect-Article
4, section 30, of the Constitution, is relied
on
1.-THE officers elected at the first election
held under this Constitution shall hold
their offices for the terms prescribed fol
them respectively, next ensuing after the
next regular election for members of the
General Assembly. But their terms shall
begin upon the approval of this Constita
ton by the Congress of the United
States"
The next regular election for members
of the General Assembly is to be held or
the first Thursday in August, 1870
Article IL, section 20. So the Justices are
to hold their Offices for the terms prescri
bed for them respectively, ''aert ensuing
after " that date. These words are plai1
and positive and admit of no other con
struction. There is no other section which
conflicts with Or can controvert this con.
struction, and it will be observed the
wording differs very materially from tina
in respect to the members of the Genera
Assembly. I am led to this conclusion
although NO reason for adding to the tern
appears on the face of the Constitution
simply because IL IS so aOri1en. This is the
only matter which has any weight in my
judgment, in support of the position tina
some time is also to be added to the enc
of the terms of the members of the Gen
eral Assembly elected at the first election
and full and candid exposition of my
conclusion upon that subject, made re
ference to this necessary and proper.
4. In regard to the members of the Gen
eral Assembly no reason appears on thu
face of the instrument for making al