The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-12-24
LOWER COURT SUSTAINED
WILSON'S ORDERED TO SURREN-
DER Tie OFFICE.
BUT THEY TkKc ANOTHER APPEAL
Ihe Opjoion, VIII Oh is a Very Able and tx
bausiiye One, Written by Judge
Douglas Chief Justice farcloth Writes
Dissenting Opinion.
a Dissenting Opinion.


has been decided by the Supreme court.
IGae decision of the lower court is al
frmed and the Wilson's are directed to
surrender the office st once to Caldwell
and Pearson, the Governors appointees.
and it would have been done last night,
had not Pearson and Caldwell taken an
appeal to the Supreme Court Of the Uni
ted States.
The o,,lnion, is written by Jurgt
Douglas and is a very long one, com
prising twenty-seven typewriter pages.
From this opinion Judge Faircloth dis
sents. The dissenting opinion is short
sne of seven pages.
II will be remembered that on Angus
oath Gov. Russell wrote to Maj. Jas
w. " ileon, chairman, and 5. Ohio VIII
son. member of the Railroad Commls-
sion. calling attention to the act giving
Elm power to dismiss them from office
xeciting certain allegations as to then
connection with the Southern Railway
Company, and requiring them to sho"
cause in writing, on or before September
LIST. why he should not suspend them
from office, and make a report of his ac-
ton to the General Assembly.
The defendants filed their answer or
August Goth, but denied the power of the
Governor to suspend them, alleging the
xnconstitutionalty Of that part of the
act.
But the Governor did not take this
view of the law and not deemlng the
answer of the Wilson's sufficient, he, on
Sept. 23rd, notified them that, after due
investigation and consideration he was
convinced that they had violated the
Elw and had therefore become disquali-
Ged to longer act as impartial judges.
The Governor further added that he
had appointed L. G.. Caldwell, OF States
vile, to succeed Maj. Wilson and John
H. Pearson, of Morganton, to succeed
s. Ohio Wilson; and ordered the office
TO be at once turned over to them. This
the Wilson's refused to do and quo
warranto actions were brought by Caid-
well and Pearson to recover the office.
Pearson's case was heard in Wake conn
" before Judge Robinson and Caldweils
IN Burke county before Judge Coblc.
Both judges refused to submit any issues
to the jury and gave judgment in favor
of the Governors appointees.
JUDGE DOUGLAS OUINION.
In tie course of his decision Judge
fhorities The objections urged against
the law under which the Governor acted
are each taken up and discussed ut
length. Touching the Federal question,
the opinion says:
I'VE are utterly unable to see any
Federal question whatever involved in
this action. The office of Railroad Com
missioner. from which the defendant has
sl,,1 yNFFr -se.4S
solely under the constitution and laws
Of this State, and created to administer
the Railroad Commission act. 1t has no
recognition in the laws of the United
States, does not interfere with inter-
State commerce. and is concerned sole
~ in domestic affairs and internal trade.
The defendant was not deprived of due
process Of law. He was cited to appear
and answer certain charges, and he lid
appear and filed answer. The written
norfce of the Governor, which was adj
mittedly received and acted upon by tie
defendant, was in effect q citation. and
Under the circumstances had all the
force of summons. The only object
OF summons is to bring the defendant
into court by giving him legal notice, and
u ne voluntarily appears, without limit
ing his appearance he is held to waive
n summons, and is as completely in court
as If it had been served. The court,
or any other tribunal having iurisdic-
tion of the subject matter, has there
after complete jurisdiction of the per-
son.
'ln the case at bar there can he no
question Of the right of the Governor to
appoint the plaintiff if a vacancy legal
~ existed. Foster VS.. Kansas. 112 u.
s. POI, 204. The only question really
ut issue is the legality Of the removal
of the defendant, and in this view the
State Of North Carolina is the real
party in interest. as it IS her act. through
Aer chief executive. OF which the defen-
dant complains. The State has surely
as much interest in having her laws
properlv administered by officers Of her
choice in every respect qualified for their
Guties. as the general government can
nave in the collection Of its taxes. And
we con see no reason whv the action of
fhe Governor in susrending the defen
dant from office in strict accordance
with the provisions Of statute which
we hold TO be constitutional. is not fnlIv
es much due process OF law as was the
sole Of real estate under +he warrant
80 distress, SO bold in Murray VS.. Hobo
ZEN. srnra. Under the Same authority
we Feel fully justified in holding that
rte action Of the chief executive OF this
state. certainly an officer of higher rela-
tive rank and greater dignity than a
more solicitor OF the Treasury, is enual-
iy conclusive upon matter committed
to his determination by the constitutions
and laws Of this State. It is at least
Of ecral dignity with n tav sale cortifi-
cate, whose titles are hold 70 he evf-
dence prima facie as 70 all and conclu-
give as 70 many Of the facts therein
@leeed. De Freville VS.. Smalls, 0S e.
2 Ell. 524.
''The defendant has not been denied
access to the courts. In fact he lid
not attempt to appeal from tho action