The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-11-22
HIS MASTERLY OPINION
DISSENTING FROM COURT
THE OPINION VIOLATES CONSTITUTION
And 0yerruIes the U. S. Supreme Court Upon
the Interpretation of the u. S. Constita-
ton, That Court Having Held That
Tenure of Office Is Not
a Contract.

The Supreme Court yesterday, in an
opinion printed elsewhere, decided that
the act of the last Legislature abolishing
the Railroad Commission and creating
the Corporation Commission, with new
powers and duties, in its place was un-
constitutional because ii deprived ID. IL.
Abbott of his office as Railroad Com
missioner.
From this opinion of the court Mr..
Justice Walter Clark, in the mastery
opinion given below, dissented. Judge
Clark contends:
/. That the constitution confers upon
the Supreme Couri no power 10 nuiiify
or set aside an act of the Legislature,
but that on the contrary it expressly
forbids its use of any such power.
2. That the decision of the court is
based upon the clause of the Federal
constitution which forbids any State to
pass a law 'impairing the obligation of Il
contract
g. That the Supreme Court of the Uni
ted States has repeatedly held that the
tenure of an office is not a contract
with the State, that the Legislature
may abolish or change an office at
will or remove the incumbent unless ex-
pressly prohibited by the State consti-
tuition; and therefore that the Supreme
Court of the State in holding to the
contrary is refusing to accept a ruling OF
the United States Court as to the inter
probation of the United States constitu-
tion.
4. That the ruling of the court is ad-
mittedly based on Hoke V. Henderson,
which was decided seventeen years be-
fore the United States Supreme Court
held that tenure Of office is not con-
tract and that to abolish an office or
remove the incumbent is not to impair
the obligation of Il contract"
>. That the ruling of the court is con-
trary to that of every other State court
and to the highest legal authorities
Jtldge Clark further points out that
Hole v. Henderson is contradictory in
its terms and that as interpreted by the
present court it amounts to usurpa-
tion of power similar to that which pro-
duced the revolt in England against the
tyranny of the Stuarts
The opinion is as follows:
The bill of rights of the freemcn of
-NViih &hlonl1St iNbHStlllfilbli slTI. L.. sec.
81 reads:
All power of snspending laws or 10,
execution of laws, by any authority
without the consent of the representa-
tives of the people is injurious to t. .ir
rights and ought not to be exercised. 2
This copied verbatim from the great
bill Of rights Of 1868 and summed up
in four and half lines, the result Of
/
ancestors in England to maintain the
right of the people to place their will
on the statute book and have it executed
without hindrance or permission of any
authority whatever In those great
struggles the people triumphed; one king
lost his head, and his son not profiting by
his example lost his Kingdom, and his
descendants to the last generation were
wanderers ard aliens in the earth. The
result summed up by Lord Somers in the
above terse lines were placed in the peo-
pies magua charta, and have been retain
ed by us as a memorial. like the twelve
stones set up by the twelve tribes at
the crossing of Jordan. of the sufferings
in the terrible Wilderness through
which our fathers passed, that the people
should enjoy the privilege of making
their own laws and managing their own
affairs in their own way. 1t is also
warning to all in any authority that
the will of free people is the supreme
law, and that none shall interfere with
the execution thereof. 1t would be TO
small advantage if the power to nullify
and suspend or set aside the execution
of the laws" without the consent of the
representatives of the people" was taken
at such cost from the king with the
judges to aid him, if the Judiciary can
now construe that they possess that pow
er which was expressly denied when at
tempted to be exercised by them in con-
junction with the executive The heart
still beats with emotion at the memory
of the trial Of the bishops when the
judges conspired with the king to punish
the defendants for having protested
against the right of the king to stop the
execution Of laws passed by the repre-
scntatives Of the people--we still feel a
glow Of pride over that sturdy English