The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-12-24


of IN office from which he had been
rightfulIy SUSPENDED, and forced tbs
ulaiutiff to seek redress Ill this action
Ihe Governor in his notification of suS-
nansion 10 the defendant distinctly rec
oyniucd the right of the defendant to
have it's legality tested i'll the courts,
ana made no attempt to diSpossess him
The plaintiff has sought possession only
by the law of the land, as shown by
the bringing of this action.
THE defendant may well be deemed
to have waived his right to trial by
jury, if any such right he ever had. b.
accepting office under statute which
expressly provided that he might b.
suspended by the Governor without re
ference to IA jury.
I'VE see no error in the trial of the
action in the court below, and we affirm
its Judgment after a full hearing of the
defendants appeal.
''11he defendant herein was not sus-
PENDED by the Governor as a punishment
for any crime, as he was not charged
with crime, but simply with a legal dis
qualification. The object of his susren-
sion penang Legislative determination
was to prevent the danger and scandal
Of having important official duties per-
formed by one legally disqualified. The
Railroad Commission was constituted
by the Legislature in obedience to a
strong popular >.emand and the people
have a right to require that the men
charged with the grave duty of decid-
ing between them and the great trans
portation companies, winch practically
control the commerce of the country,
should be absolutely free from the slight
est suspicion of interest or bias. Such
requirement is based upon the highest
principle Of public policy, and is no
more unreasonable than to say that a
clerk or Il ar;fs must give bond for the
faithful performance OF his duties, that
an executor or trustee cannot buy at
his own sale, and that judge shall moi
sit in his own CASE
The court very properly, the opinion
goes on to say, refused to allow any
issues to be submitted to the
jury. There are no disputed facts be-
fore the jury. 1t is not denied that the
Governor notified the defendant to ap-
gear and answer; that the defendant
did so appear and answer; that the
Governor subsequently suspended the
defendant, giving him written notice of
said action and appointing the relator:
kat the relator only qualified, demanded
>osse sion of the office. was refused by
the defendant, and brought suit.
There was absolutely nothing to go
to the jury unless the court went be-
aind the action Of the Governor. which
we think could not be reviewed by the
court The suspension by the Governor
is not a final determination of the de-
PENDANTS rights. which must ultimately
be passed on by the Legislature, sitting
somewhat in the nature of court of
impeachment. If it should determine
that the defendant had been suspended
without just cause he would be at once
reinstated, and be entitled to his full
Pay from the time of his suspension.
The duty Of suspension was imposed
upon the Governor from the highest mo-
tives of public policy, TO prevent the
danger to the public interests which
might arise from leaving such great
powers and responsibilities in the hands
of men legally disqualified. To leave
them in full charge of their office until
the next biennial session Of the Leg:sla-
ture, or pending litigation, which might
he continued for years, would destroy
the very object of the law. AS the
Governor was therefore, by the very
letter and spirit of the law. required to
act and act promptly, necessarily upon
his own findings of fact, we are COM
PEELED to hold that such official action
was, under the circumstances, due pro-
cess of law. oven if it were proper,
the Governor would have no power to
direct an issue, like chancellor. s.
Our decision in the case at bar does
not conflict with that in Hoke VS.. Hen
derson. The statute now under con-
sideration is not retrospective, and does
not interfere with any vested right. Be
ing a part of the act originally creating
the office of Railroad Commissioner, it
'proscribes' a rule of property in said
office, and modifes the extent Of inter
est and tenure therein 'prospectively.'
The defendant, taking under the act,
holds subject to the act; and relying
upon his contract is bound by all It's
provisions. One Of its express provis-
ions was the reserved right Of the Legis-
lature to remove, and the power and
duty of the Governor to suspend under
a given state of facts. This power of
suspension, together with the necessary
method of its enforcement, was assented
to by the defendant in his acceptance
Of the office. +
"ln Ewart vs. Jones, 11G n. c., $40,
which was an action in the nature of a
quo warranto, tins court, in seating the
relator, held that under our present Con-
stitution the Legislature had the power
in establishing the office of Judge of the
criminal court, to prescribe it's powers,
jurisdiction and methods of appoint
ment, of removal and to elect the in
cumbent. (Chief Justice Faircloth de-
liyered this opinion.) If the Legislature
can thus elect a judge of the criminal
court and provide for the manner of
his removal, why can it not also elect
a Railroad Commissioner, and in the
creative act reserve to itself the right
to remove and to the Governor the
power of suspension? Two higher
agencies could not be found, one pecu-
liarly representing the will of the peo-
pie, and the other the chief executive
of the State to whom is committed by
the Constitution itself the supreme