The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-10-17
Hoke VS.. Henderson Decis-
ion Run to Seed.
AID ABSURDUM
A SALARY THAT CAME TO LIFE
AFTER TWENTY YEARS.
ADIssENIlNG OPINION BYJusTcE CLARK
The Plaintiff in this Case Was Claiming Sal
airy That Existed Once but Was Abol-
ished Twenty Years Before
He Was Elected.

lSfed twenty Years Before
He Was Elected.
The Supreme courts recent decision
in the case of Nichols VS.. Edenton
shows to what an absurd conclusion the
| reasoning in Hoke VS.. Henderson may
lead.
In fact the decision i'm this case is
Hoke VS.. Henderson run to seed, and the
logical conclusions reached by the court
are:
l. That to abolish an office it mast
be killed outright root and branch, nnd
nothing resembling it must be substitut
ed in its place.
2. That even after twenty vears clap
ses any one diseshargang sinmlar duties
may draw the salary of the abolished
office.
3. That charge upon the nublic
treasury cannot be modified. and there.
fore the powers of the Legislature Ior
reforming the public service are de-
stroyed
-
an action brought by the plaintiff Nichols
70 recover $3.50 salary alleged 10 be
due him for services ns a member cf the
Board of Councimen Of Edenton
The charter OF the town fchapter 123
Acts 1S697O) provides that 1t shall he
regulated and governed by a Bnald of
commissioners, and that each one Of
the commissioners shall receive
qimred to fix the salaries Of the ether
town officers not otherwise provided
for i'm this act"
This charter was amended in 1S1i-.T
tchapter SO and provided that the af
fairs Of the town should be controlled
by tho mayor and six councilmeu,
known as ''the Board Of Colnpflmen cf
Edellton, and that all laws and parts
Of Laws in conflict with this act are re-
pealed. No mention Of compensation to
the eoancilmen is made
On this statement Of facts the court
decides in favor Of Nichols and holds,
Chief Justice Eaircl0th wribng the
opinion, that the duties, functions and
powers of the councimen are the same
as those exercised by the commission
ers. aIhe act Of 1S76-'T7 does not pur-
port to repeal the act Of 1SG9'70, but
expressly to amend it. In such cases
the ulrepealed parts remain in force
as if re-enacted."
From this opinion Justice Walter
Clark dissents and vigorously protests
against the doctrine now so fashionable
with the court That ann office once ere
ated must exist forever. He says in
his opinion:
''Ihe charter of 1SG9'70 Private
Laws. chapter 123) provided for five
commissioners elected each year by the
whole town with slndry specified pow
ers, rights and incidents annexed pecll-
liar to the office, among them that if
amy commissioner should be sick or alb
sent from town amy Justice of the peace
might act in his place. and allot;ng
salary of $50 per aIlnun to each Of the
five commissioners.
''The act of 1S76-'77 (Private Laws.
chapter SS) enlarged and re-crganized
the town into wards and provided that
'the municipal affairs of the town of
Edenton shall be controlled by a mayor
and six eouneilmem who shall be known
as the Board of Councilmen of Edenton,
and provided for their election, two by
each ward and for terms of two years
with provision repeating all laws in
conflict with the new act. The Board
of Comcimen elected in May, 1897
passed a resolution that no SALARY should
be allowed themselves. In january
1890, the plaintiff brought this action
for eighteen months salary at 500 per
year.
when the act of 1S76-'77 reorgan-
lied the town providing THAT it's gov
eFnment should be by six councilmen
elected by wards for TWO YEARS, and re-
pealed all laws in conflict Herewith,
| this was a complete abolition and I'M
| nihiation of the offices cf the five COM
missioners elected for the term Of ONE
year. by the whole town, and with This
abolition all the powers, rights and i'm
cidents annexed TO the abolished office
ceased Councilman lis not cont'al
uation Of the office Of commissioner
with the peculiar or special incidents an
nexed to the latter and was not mad.
such by a provision THAT the FORMER
should continue in office tin the may
officers qualified. Whatever rights and
incidents the two offices have i'm conn
/, mon are due to the nature Of the office
and are simply incidents annexed to
such positions by common law and
statute. I'm claiming the salary of So
the plaintiff lis claiming right not
given to his board by the general law
or any special statute, but a peculiar iI-
cident annexed to an office which was
abolished twenty years before he was
/ elected. 1t is true the act of 1S76-'77 is