The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1895-04-16
THE MORTGAGE LAW AGAIN.

Publish, Also Judge Avery's Dis
senting Opinion on the Mort
gage-Assignment Law.
To the Honorable Chief Justice and As.
sOciGte Justices of the Supreme Court,
Raleigh, ~. c.:
SIRs:-There exists q difference of
opinion in the minds of the citizens Of
the State in regard to the term Of Office
of q Judge elected by virtue Of the pro
visions of section 25, Article " of the
Constitution. The Attorney-General,
in an opinion filled at my request in
this office, has advised ms that every
Judge elected under that section, is
elected for a full term of eight 81 years.
A considerable number of able mem
bers of the legal profession differ from
him in his construction, and contend
that q Judg e so elected is only elected
for the unexpired term of his predeces-
sor in Office.
It is all important that the question
should be determined by the highest
court In the State before the election of
Judges shall take place in 1894. The
Importance of having this matter de-
termined will be apparent from section
1853 of the Code, which is as follows:
NNuCu uuO O4CSDAOA 6ANAA w 4Ao4C
the registrars and Judges of election, in
the presence of such of the electors as
may choose to attend, shall open the
boxes and count the ballots, reading
aloud the names of the persons who
shall appear on each ticket; and if
there shall be two or more tickets
rolled UP together, or any ticket shall
contain the names of more persons
than such elector has a right to vote
for, or shall have a device upon it, In
either of these cases such ticket shall
not be numbered in taking the ballots,
but shall be void, and the counting of
votes shall be continued without ad
journment until completed, and the re-
suit thereof declared"
/ am informed by the Attorney Gen
eral that this section has been construed
by the Supreme Court in the case of
DeloRtch vs.. Rogers, Sc N. @. Reports,
page 957, to mean that if q ticket CON
tain the names Of more persons than
the elector has q right to vote for lit is
not only imperative as to the person
improperly voted for, but al to all
others for whom the elector may vote.
The entire ballot for all is vitiated, and
must be rejected from the count" This
section has not been modified or re-
pealed, and is a part of our present
election law. By virtue of its provis-
ions the whole Judicial ticket may be
void If it should contain more names
than the elector has q right to vote for.
1t will contain more names than the
elector has q right to vote for If upon
it is printed OF written the name of q
candidate for the office of Judge when
the term of such office will not have
expired by January 1, 1895.
1t is manifest that this result will
occur if the Attorney Generals opin-
ion contains a correct construction of
section %, Article " of the Constitu
ton, and the electors of the State vote
for judges upon a ticket printed or
written In accordance with the opposite
construction.
In view of the Importance of determ-
lining the doubt prevailing upon the
subject [ respectfully request you to
Indicate what is your construction of
the constitutional provisions relating
thereto.
have the honor to be very respect
fully yours, (Signed)
ELIAS CARR, Governor.
LETTER OF CHIEF JUSTICE SHEPHERD AM
ASSOCIATE JUSTICES AVERY
n BURWELL
RALEIGH, NC, April 8, 1894
To the Governor:
Your communication of the 18th
ultimo, requt sling an opinion respect
ing the term of Office of the Judges
elected under the provisions of section
25. Article IV1of the Constitution, has
been received and dn1y-cQnsidered by
us. We beg to assur your Excelf5nCF-
that we appreciate the Importance of
the question you have submitted for
consideration, and that we would
at n give to it the thorough iuvesti-
cation which its solution would require
If we could feel that, In expressing an
opinion upon the subject, we were not
o~verstepping the bounds which a
proper n of propriety ~prescribes
for III action. As you are aware, Jus,
tices Clark and MacRae of this Court,
and Judges rmfield, Bynum, Shuford,
Whitaker AID Boykin of the Superior
Court, have rights of property in offices
which would be affected by a judicial
determination Of the question which
you ask us to answer, and we find our
perplexity increased by the fact that
these gentlemen do not join your Ex-
ceuency In requesting us to examine
into the matter and express an opinion
thereon. If we could be assured that
such is their desire we should feel less
embarrassed in coming to a conclusion
as to what action we should take in
this emergency.
We desire to state that Justices Clark
and MacRae have deemed it proper
that they should abstain from taking
any part whatever in this correspond
ence. We are,
Yours very respectfully,
Signed) JAS E. SHEPHERD, Chief JUS
tiCe.
" A.C. AVERY, Associate Justice.
ARMIsTEAD BURwELL, Asso-
ciate Justice.