The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-11-22
A FallacY Exploded.

a fdlldCy GAp1Vucu'
I'm neither case can it be said there
was legislative acquiescence in the cor
rectness of the decision. But in truth
there has been an open disavOwal of
the principle of HOke V. Henderson by
the judiciary of this State and by the
people themselves, to which, by some
oversight no one has vet called atten-
ton. If the tenure of office is protected
only by being in the constitution, that is
n prohibition against legislation in re-
gard to it. but is no prohibition upon
convention abolishing such office in
forming new constitution, or changing
it's occupants. But if, on the other
hand. and the ruling in Hoke V. Hender-
son, public office is also a contract, then
it is protected by the contract clause
Of the United States constitution, and
State can no more impair its obligation
Inv an ordinance of convention than by
an act OF the Legislature. Louisiana
Y. Taylor. 105 y. c., 4j4; White V.
Hart. Is Wall GAG; Clay Co. V. So
ciety, 104 u. s., SO: "NO State shall
pass any law impairing the obligation
of a contract" Now in 1865. by author
ity of the President of the United
States. a convention was called in North
Carolina to establish a State govern
ment. Among other things, it elected
for life terms three Supreme Court
Judges and eight Superior Court judges.
That government remained in force un-
til abrogated by the convention of 1868.
All the acts of the executive and legis-
lative departments of the State and all
the decisions of the courts from 1860
to 1868 have ever been held valid and
binding. All contracts of the State
during those years are valid. If public
office is contract, then the judges and
other officers were protected against
these contracts being impaired by the
convention of 1868. In the matter of
Hughes, 81 n. c., 81, Pearson, G. j.,
held that the convention of 1865 was "a
rightful convention of the people and
the officers chosen by it were not merely
de facto but de iura. On page "A he
calls attention to- the fact that Congress
as we'll as the President had recognized
and confirmed the action of the conven-
ton, and on page - closes the opinion by
saving that if the convention was right
fully convened las he had just held 1T
is certain it had power to adopt all
measures necessary and proper for fill
ing the offices of the State, which is
the only question now under cOnsidera-
ton If public office is as a contract,
then the attempt Of the convention of
1868 to provide new Supreme Court and
Superior Court judges, and other pub
lie functionaTies, with exactly the same
titles. exactly the same duties and pow
ers and compensation, in the place of
those elected in 1865, was a nulllty,
and we must either hold that the Occu-
pants of the Supreme and Superior
Court BENCH who went into office by
virtue of the authority of the convention
OF 1868, were conscious usurpers of
other mems property, or they repudiated
the Hoke VS.. Henderson doctrine that
public office was private property.
Not an Authority.
But it may be said by those who do
not recoIlect it, or have not examined
that the action of the convention of
1868 in vacating these and other offices
was by the Wis major of an act of
Congress. If Congress had so enacted
it had no power to authorize a State
to pass an act impairing the obligation
of a contract But in fact no act Of
Congress required the vacation of any
office by the convention of 1868. The
sole requirement in the act of Com
gress (chapter 1913, section 5, ratified
March ., 1867, chapter 6, ratified March
%, 1860 was that the new constitution
should be framed by a convention elect
cd by voters without regard to color,
and the act of Congress admitting the
State to representation in Congress
(CIhapter 20 ratified june %, 1863 com
tains only one fundamental condition
which is thus expressed: ''That the
Constitutions of neither of said States
shall ever be so amended or changed
as to deprive any citizen or class of
citizens of the United States of the
right Ito vote i'm said State. who are
entitled to vote by the Constitution
lCnntinned ON Third Pacal