The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-11-22
Can an Office Be Inherited?

The provision in the statute which
the court there condemned was thar
''the duly elected clerk of the court
shall continue in office for the term of
four years next after qualification, :"
without adding 'determinabe upon
DEATH" yet every officeholder in North
Carolina who holds term today has it
prescribed in the words the court con-
dennis in Hoke V. Henderson. VIII
any court follow that decision in hold
ing that on the death of any incumbent
his office goes to his executor or admins
istrator? In London V. Headen, rs n.
c., -, it was held that one who had
been elected constable was indictable
for refusing to accept and qualify. This
recognized the true ground that public
office is an agency, a duty or privilege
to serve the State, and the salary is the
compensation the State allows, for GER
tainly no one could be indicted for re-
fusing to enter into a contract with the
State.
There are other inconsistencies in the
decision, but is it such a perfect speci-
men of infallibility that, by virtue Of
it, this court, contrary to the prohibit
| tons in the State constitution, contrary
to the construction since placed by the
Supreme Court of the United States
WEon the Federal constitution, can in
wade the legislative department, suspend
the execution of the laws passed by it,
and prohibit the penal institutions of the
State, its educational system the control
of State property, the administration OF
| justice passing into the hands of those
whom the people through their repre-
sentatives have selected for the perform
ance of public service in regard to
| them
Precedent ". the Constitution.
But it is said that Hoke V. Henderson
| is a precedent as to construction of the
| constitution. There can be no judicial
precedent that can avail against the
| express letter of the constitution Be-
sides. that argument cannot be addressed
| to this court. nj 1866, legislation was
| adopted Code sections 80, 3,44S)
| whereby to save taxpayers the punish
ment of paying fines, costs and orders
of maintenance for insolvent convicts.
the courts We're empowered to order that
| if those adjudged to pay should fail or
be unable to pay in money they should
| work ont the amount on the public
roads This legislation was held consti-
| tutional in State v Palm, 63 n. O., All
| Tin 1869, and has been uniformly So
held ever since, by unanimous courts,
down to and including State V. Nelson,
| 40 \. c., 1911. This constitutional pre-
| cedent has been overruled at this term
| in State V. White, though in doing So,
| the court has disregarded the reasonable
| doubt as to the unconStitutionaLty of
| the statute, which must exist when the
courts have held it valid for a third OF
a century; whereas, to override Hoke v.
| Henderson would do no violence to that
cannon of construction, for, on the con-
trary, it would be holding constitutional
/ legislation which Hoke V. Henderson
| held unconstitutional-and the presump-
/ tion is always in favor of the conStitu-
/ tionality of legislation.
| But it is further urged that the legis-
lative department has acquiesced in
Hole V. Henderson. The repeated
cases in which counsel claim that that
/ case has been followed show by the con-
! slant litigation arising from that ill