The Caucasian. (Clinton, N.C.) 188?-1913, 1895-04-18
THE ASSIGNMENT Law.
Th~ Full Text Of the Opinions Rendered by
the supreme Court


Boone for plaintiff: Fuller, Winston
a Fuller Tor Defendant.
Mont gomery. j. This case vas sub
mi,ted 10 the cour, below under section
so of the the Code, aud Is hereby ap-
pealed. Thl. section of The Code answers
a most excellent and useful purpose, in
that il enables parties to have their
questions in difference settled upon an
agreed state of facts, without delay
and without the cost Of witnesses and "A |
trial below. Ii disregardS forms. a.
such, and the perplexities of pleadings-
II requires only that, by affidavit, il |
shall be made La appear thar "A real case
exists and that he controversy II sub |
mitted in good faith To determine tn. |
rights OF the parties. One of the long |
standing rules Of practice Of this court, |
number 10, provides that, when by |
consent of counsel IT i desired To sub |
nit a case without oral argument, the |
court will receive printed arguments |
without regard to the number Of the |
case on the docket, or date of docketing |
the appeal Rule -, amongst other |
things, provides that the court al the
instance OF party To Il cause directly
involving matter of interest, may as
sign an earlier place in the calendar or
IN Il lOT tHt
which shall take precedence of other
business. [ nder these rules We have feli
| it to be cur duty to give an early hear
| ing to the matters involved in the case
| before US, because of its public and
general interest.
| Upon examination of the proceeding
| before Us, We are not satisfied mat the
| facts are stated with sufficient fulineSs
TO entirely comply with the statute I'M
| der which the matter Is submitted: but
| the question of law which is submitted
is presented with entire distinctness.
| And while ordinarily We might dis
miss the proceeding because the case
is not full enough as to its statement
| of facts, yet where matter involves
great public interest, as does this mat
ter, we have concluded to follow Il late
precedent of this court. Treat the
case as in the nature Of submission OF
the controversy without formal
action" The precedent to which We
refer will be found in Appendix a."
ia, n. e. Reports, and is as follows:
LETTER OF GOVERNOR CARR.
To the Hon. Chief Justice and Associate
Justices of the Supreme Court Raleigh,
N. c.:
SIRs: There exists difference of opinion
in the inds Of the citizens of the State in
| regard to the term of office of Judge elected
| by virtue of the provisions OF section %,
article ", of the constitution. The attorney
general in an opinion filed at my request in
this office, has advised me that every judge
elected under that section is elected for IA full
term of eight 81 years A considerable
| number of able members of the legal pro-
fession differ from him in his construction,
and contend that judge so elected is only
elected for the unexpired term of his pre-
decesoOr in office.
1t is all-important that the question should
5 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 determined will be apparent from
section 2659 of the Code, which is as follows
When the election shall be finished the
registrars and judges of election, in the
t | 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 tickets shall not be numbered in
D taking the ballots, but shall be void, and the
f counting of votes shall be continued without
adjournment until completed and the re-
,, suits thereof declared"
4
that this section has been construed 10y the
Supreme court in the case of Deloatch VS.
Rogers, SO N. c. reports, page 351, to mean
that if ticket contains the names of more
per Ons than the elector has a right o vote
, for lit is not only imperative as to the per.
[ son improperly voted for, but as 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 repealed, and is part of oul
present election law. By virtue of it's provis-
t ions the whole Judicial ticket may be void il
it should contain more names than the
electOr has a right to vote for. 1t will con
tain more names than the electOr has right
to vote for if upon it is printed OF
written the name of a candidate for the
office of Judge when the term of such office
. will not have expired by January l. 1895.
1t is manifest that this result will occur
if the atturney-generals opinion contains a
, correct construction of section %, article "
of the constitution, and the electors of the
t State vote for judges upon upon a ticket
printed or written in accordance with the
opposite construction.
8 In view of the importance of determining
! the doubt prevailing upon the subject,
respectfully request you to indicate what is
your construction of the constitutional pro
visions relating thereto.
l have the honor to be.
Very respectfully yours,
| lSigned. ELIAS CARR,
Governor.
r Letter of Chief Justice Shepherd and
Associate Justices Avery and Burwell
RALEIGH, N. c., April 3, 1894.
To the Governor:
J Your communication of the 29th ultimo
requesting an opinion respecting the term
of office Of the Judges elected under the pro-
, visions of section Is, Article " of the con
stitution, has been received and duly con
: sidered by US. We beg to assure your Elk.
cellency that we appreciate the importance
> of the question you have submitted for oul
consideration, and that we would at once
81 we to it the thorough investigation which
, its solution would require if we could fee
that, in expressing an opinion on the sub
ject we were not overstepping the bounds
which proper sense of propriety prescribes
+. for our action. AS you are aware, Justices
: Clark and McRae of this court. and Judges
l Armfield, Bynum, Shuford, Whitaker and
= Boykin. of the Superior court, have rights
of property in offices which would be af
fected by judicial determination of the
question which you ask US to answer, and
e we find our perplexity increased by the fact
p that these gentlemen do not join your ex-
cellency in requesting US to examine into
the matter and express an opinion thereon
If we could be assured that such is their de
sire we should feel less embarrassed in COM
/, ing to a conclusion as to what action We
q should take in this emergency.
v e desire to state that Justices CLARK and
t McRae have deemed it proper that they
should abstain from taking any part what
= ever in this correspondence.
We are yours, very respectfully,
lSignedI JAS. E. SHEPHERD
q Chief Justice.
[Signedl A. c. AVERY,
II Associate Justice
II Signed ARMIsTEAD BURwELL
Associate Justice.
: The A 'sociate Justices of the Su-
pr me co irt and the judges of the Su
pei or court whose tenure of office wa
affected by the question involved
e Joined in request that the matter
should be left to the decision of Chic
Justice Shepherd and Associate Jus
e tees Avery and Burwell, and the fol
s lowing reply to the Governor contain