Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1872-03-22
From the Raleigh Sentinel.
THE DEAF AND DUMB IMBROGLIO.
OF COUNSEL.

ing statement of facts, in reply to the sew |
eral questions propounded and appended |
thereto
By the act of the General Assembly en-
titled " An act to alter chapter six of the |
revised code, concerning the North Caro-
lima Institution for the Deaf and Dumb
and the Blind ratified the 21st day of
January, A. ID. 1871, w. III. Mckee, j. r.
Williams, w. w. Vass, L. E. Heart, John
G. Palmer, r. S. Tucker and c.. III. Bus
bee were and are constituted Trustees of
the Institution for the Deaf and Dumb
and the Blind. In pursuance and by vir-
the of that act, on the 1st day of February,
1871, they took possession of that Institu-
ton and entered upon the discharge of the
duties assigned them by law, and from that
until now have exercised powers and acted
as such trustees. They have been so re-
cognized and treated by the public gener-
ally and by the various departments of the
government of the State, until recently the
Governor and some of the heads of depart
ments at the capital have refused to recog-
niZe them as such trustees. The Auditor
refuses to audit acquisitions on the treasury
for money appropriated by law for the
maintenance of the Institution, and the
treasurer refuses to pay out tee money SO
appropriated to them, although these Off
GERS have repeatedly so done, always here
tofore.
The Governor now insists that the act of
Assembly in which the persons named
above are designated as trustees, is uncon-
stitutional and void that they are there
fore not such trustees, and he has under
taken to appoint certain commissioners"
and commission them to take charge and
control of the Institution. In obedience to
his order, these commissioners have
made demand Of the Board of Trustees
for have alC do
requisition on the treasury for money,
which has been audited and approved by
the auditor and the money paid to them by
the Treasurer.
There has been no suit or legal proceed
ines had or instituted to test the validity of
the above mentioned act Or to displace
the Board Of Trustees for any alleged
cause.
In view of this state of facts,
1. Are the persons named in the above
mentioned act Of Assembly, Trustees ofthe
Institution for the Deaf, Dumb and the
Blind?
2. If they are such trustees, can his Ex-
celleney, the Governor, displace or remove
them by appointing commissioners 20
act in their stead?
3. Have the Board of Trustees the right,
and if so, is it their duty to continue to ex-
ercise power and act as such Trustees?
4. If so, are they entitled to receive from
the treasury the money appropriated by
law to carry on the business and purposes
Of the institution?
1t is we'll settled law that every act of
Assembly is presumed to be constitutional
and valid. The Legislature is a co-ordi-
nate branch OF the State gOYerIlment--it is
the law making power under and subject
to, and only to the Constitution, and its
members act under an oath to support the
Constitution i'll all its provisions. This
presumption in favor Of the validity Of all
the acts of that body is so strong, that the
courts cannot Law fully declare any such act
unconstitutional unless in case where
| the repugnancy to the Constitution is gross
| ~ palpable; all doubts are to be solved in
| favor of the validity of the act. This is
upon the plainest and sOundest principle,
and tue courts of this State have SO held in
a great number Of cases. In the case of
| Hoke rs. Henderson, 4 DeV. 1, in which the
| late Chief Justice Kutlin delivered the
| great and learned opinion, the court held
| that it is competent for The judiciary to
declare an act of Assembly to be unconsti-
tutional and void but I>5inN fctcie every
act of the Legislature is within its authori-
| ty, and is TO be declared unconstitutional
| only in eases where no dOubt exists
In the case Of Nicol Us. Roberts, l Dev
& Rat. 81, the Supreme Court say in terms,
|'Acts Of the Legislature are presumed to
he constitutional.
It follows, therefore, that the act of as
sembly in question is presumed to be con-
sttulional and valid. 1t creates and con-
sttutes the persons named in it the Board
of Trustees Of the institution for the Deaf
and Dumb and the Blind and prilud .tdcie
they are in all respects a board under and
| in pursuance of the constitution and laws
of the State. Without reference as to how
! the courts might possibly decide as to the
| validity of the act, the presumption is that
| the board is 4 legal and valid one, and we'll
entitled to be recognized and treated as
! such by every department Of the govern
ment until the courts shall in proper way
| decide otherwise. The courts alone can
properly determine the validity Of the act,
and if the Governor or any one else will
question its validity, the trustees not only
have the rieAt, but it is their plain duty to
have it passed upon by the courts according
to law.
But if it should turn out that the courts
declare the act unconstitutional and void,
and that it is really SO now, there can be
no question that the Board of Trustees are
such de tuctO, and all their acts are valid
and good to all intentS and purposes for
the benefit of the institution, the State,
and the public. This is essentially so, for
the benefit, preservation and protection of
the interests Of society and government.
If it We're otherwise, in every case where
an officer happened to be in office, for one
cause Or another illegally, his acts would
be void and the most absurd, and often
the most ruinOus consequences would
follow, &c.
And the like reasons, if this Board of
Trustees are only such de fUctO, it is their
duty, and they are bound to exercise the
powers wherewith they are charged, as if
they We're in all respects legal Board.
And to this end, they are entitled to have
all the means allowed by law to carry on
the business Of the institution, including
the money in the treasury, appropriated by
law for that purpose. Neither the Gov
ernOr nor the Treasurer can lawfully with
hold the necessary money from them. This
will be the more manifest when it is cor-
sidered that the law allows this Board to
! have the validity of their appointment de-
Glazed by the courts. This will necessarily
j cause delay. The law requires them, in
the meantime, to carry on the business of
the institution as if they were in place in
all respects, legally. How can they do this
without the money appropriated by law for
that purpose, which is essential? The
reason and the conclusion are manifest.
The money is indispensable: and it is the
plain duty Of the Auditor to audit proper
requisition, and that Of the Treasurer to
pay the money.
The truth of this view is fully sustained
by many decisions of the Supreme Court
of this State, and it may serve good pur-
pose to cite two or three leading ones. III
the case Of Burke vs.. Elliott, Ire. 355,
the court hold, Chief Justice Ruffin deliv-
ering the opinion Of the court, that "the
acts of officers de f0ctO are as effectual