The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-10-02
WILSON'S ENTITLED TO PAY.
The Attorney General Says so, but the
Auditor Says Not

Attorney OeneraI NalSer yesterday
rendered an opinion deciding that Maj.
]. w. Wilson and S. Ohio Wilson, the
Railroad Commissioners, whom Governor
Russell has suspended from office, are
entitled to pay while they are actually
in the discharge of the duties of the Of
fee. The opinion was given by the At
torney General at the request of Audi
tor Aver and is as follows:
at is, a fact that two of the Com
missioners in question are in possession,
and discharging the duties of the office
of Railroad Commissioners. The APP
pointees of the Governor reconiZe this
fact in bringing quo warranto proceed
ings for recovery of these offices. '.
by reference to the Railroad Commits
sion act, chapter 800, section 1, laws of
1891, you will find the following lam
guage: ''In any case of suspension the
Governor shall fill the vacancy, and if the
General Assembly shall determine that
the commissioner suspended shall be re-
moved, then the appointee of the Govern
or shall hold until his successor is elect
ed and qualified as hereinbefore provid-
ed, but il the General Assembly shall
determine that the suspended commits
sioner shall not be removed from his Of
fee. then the effect shall be to rein
state him in said office. The person dis
charging the duties of said office shall
be entitled to the salary for the time he
is so engaged, but commissioner who
is suspended shall be allowed the salary
during his suspension in case he should
be reinstated by the next General AS
sembly.'
The act contemplates the APP
pointees by the Governor, taking pos
session Of the office and entering upon
the discharge of the duties thereof If
they could have taken possession of the
offices, and had done, so and the next
legislature should re:nstate the suspend
cd commissioners, then and in such cases,
both sets of commissioners under the
act would receive compensation. But
statutes must be construed in pari ma
terra. I"
"Acts of 1885, chapter 4O6 section ?,
requires, THAT no appeal by defendant
from the judgment of the superior court
in such action to the Supreme court shall
stay the execution of the Judgment I'M
less n justified undertaking be executed
on the part of the appellant by one or
more sureties, in a sum to be fixed by
the court, conditioned that the appellant
will pay to the party entitled to the same.
the salary, fees. emoluments, and all
moneys whatsoever received by such ap-
pellant by virtue or under color of his
said office: Provided. that in no event
shall said judgment be executed pending
said appeal. unless a justified undertake
ing be executed on the part of the an
pellee by one or more persons in sum
to be fixed by the court, conditioned
that the appellee will pay to the party
entitled to the same, the salary. fees
emoluments and all moneys whatsoever,
received hyf the appellee by virtue or un-
der color of his said office during his
occupancy thereof: Provided, this acc
shall not apply to any pending suit
1T is clear from the statutes inst
quoted that it is your legal duty to issue
a warrant for salary to the Commission
ers who are actually engaged in the dis
charge of the functions of the office OF
Railroad Commissioner. In so doing no
harm or loss can come to the State or to
either of the parties claiming to be right
fully entitled to the office of Railroad
Commissioner.
This office has already granted leave
to the appointees of the Governor,
Messrs. L. G. Caldwell and John I'll.
Pearson, to bring two several actions
to test the question under cons dera ton.
Before the defendants Messrs. J. w.
Wilson and S. Ohio Wilson are permit
ted to answer or demur, the Superior
court may require them to execute an
to secure to the plaintiffs
damages for the loss of such fees and
emoluments as may come into the hands
of defendants by virtue of holding said
Offices.
'In case the defendants for any rea-
son fail to answer or demur, and iudg-
ment be given in favor of the plaintiffs.
a writ of mandamus would issue to car
ry the judgment into effect.
If the defendants answer or demur,
and judgment should be taken against
them, and an appeal taken by them to
the Supreme court. they must execute an
"""ertaking to pay to the plaintiffs the
emoluments received anu to be received
by such appellants by virtue or under
color of their said office. If and in case
the defendants should appeal from
Judgment taken against them but for
some reason not give the bond as re-
quired by law, then the appellees, Messrs.
Pearson and Caldwell would be put in
dertaking to pay to the party entitled TO
the same, the emoluments and all moneys
whatsoever received or to be received
by the appellees. And in no event I'M
der the statutes above named shall any
one, pending an appeal to the Supreme
court, be permitted to discharge the du-
ties of the office of Railroad Commits
sioner and receive the emOluments of the
office without first giving good and
sufficient bond conditioned to pay to the
party entitled to the same, whenever the
right to the office shall have been de-
termined, all moneys whatsoever receiv-
ed or to be received by such person, by
virtue or Under color of his said office.
And this bond would relate back To the
time of suspension.
1.-THE State is saved harmless, no mat
ter who wins. And when the courts
have ruled as to the rights of all parties
concerned. the statutes cited above and
commented upon, will give the emolu-
ments of the office to him who shall be
legally entitled thereto"
When questioned as to what action he