The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-05-10

it indefinitely. He contends that such
is not a just construction of IlokA vs.
Henderson which was decided just after
in the decision the Dartmouth Col
Ilege case it had been declar-
ed that charter was con
tract not a privilege; he cites that against
| the result of that de,i>
has since protected herself by constitu-
tional amendment. He continues:
"Since the foundation of the decision is
the contract for the salary. it necessarily
follows that the true construction of
Hoke vs.. Henderson, is that if the Of
ficer is removed without abolishiHs his
office his grievance is for breach of the
contract for the transfer of the einn!u-
mentS'' as is expressly said Up. 22) aud
as by virtue of i amendment To The
constitution of the United States the
State can not be sued and forced II FER
form any contract whatsoever the If ice
holder has his sole remedy by petition
in the Supreme court under article ~.
section 8, Of the Constitution of North
Carolina. The only property of which
the defendant could be deprived ,~nce
the decision held that it did MOI apply
to offices without salary is The CON
tract of the State to pay Il salary ana
to grant a mandamus against the Stale
to restore the officer that he may draw
his salary would be to do by indirection
what the court cannot do directly, -
wit: give the removed ofticeholder judt-
ment against the State for the emoIu-
mentS of office.
There is this striking difference be
tween Hoke vs.. Henderson ami cilSaS
like the present and State Prison w.
Day tat this term which has not h"re-
tofore been mentioned. In Hokc ".
Henderson, the defendant was clerk of
the Superior court, he received no Hay
from the State and his only emolumentS
We're fees from individuals Tor services
to he rendered in his office and the
court may have thought that The only
way for him to get them was to remlin
in office But in cases like the present
and the Day case the salary comes IN
tirely from the State and to put he
officer back after the State, through the
Legislature. has passed an act which re-
moves him is in effect an action against
the State to compel the State 20 nay
him a salary and for the courts Gas said
ah0ve) to do by indircction what they
are forbidden to do directly. Henderson
was a county office and counties can ne
sued. The officers removed in this case
and in the Day case are State officers
and to reinstate them is in effect Il
Judgment against the State which no
court has power to render.
If this is to continue 70 be Il govern
ment ''of the people and for the people
it is of the last, Of the highest and most
solemn Importance that the will of the
people as to government matters shall
be expressed by their representatives in
the lawmaking department of the gov
ernment and that when so expressed the
action of the Legislature shall be sub
jet to review in every instance ana
in all matters by the people themselves
through the next or any succeeding Leg
islature, and no Legislature can post
pone the review Of their conduct Icy
filing an office or doing any other act
that is fixed beyond change by the sue
ceeding Legislature The Constitution
alone can place limits upon the Iegisla-
tive power. The Constitution nowhere
restricts the power of Il Legislature %
review, repeal or change the action of
any preceding Legislature in any particu-
lar. * If construction can
be placed upon 'Hoke VS.. Henderson"
which will limit the freedom of each
Legislature to review, repeal or change
any action of preceding Legislature be-
cause it may interfere with the salary
of an office created by legislative enact
ment. then either that construction
should be rejected or the decision tsclf
overruled as has been the fate of many
another Hoke VS. Henderson is no more
sacred than any other decision The
Continued on Third Page)