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


removing therefore the life judges, SUI
preme and Superior, who had been elect
ed in 1865 and had taken their seats,
the new Judiciary declared most un.
eouiyocally that the Hoke VS.. Hender-
SON doctrine that public office WaS
held by contract was over-ruled.
1t is matter of astonishment that, af-
ter that date, any one could be found to
urge before the courts that Hoke VS..
Henderson was an authority in North
Carolina.
If Hoke VS.. Henderson, for any one Of
the above reasons, should not be re-
garded as law, then the whole of the
frail scaffolding upon which the plain
tiff's ease rests goes down.
But even If it were possible for it still
to stand. still the plaintiff could not re-
cover for Hol1e VS.. Henderson only held
that an officer, whose office had been
transferred to another, was still en-
titled to receive its emoluments, for it
says 10 n. G. bottom of page Fl that
the property in the office is the right
to receive its compensation. Clearly
that. in no aspect. woul Dust tho de
PENDANT whom the State could also pay
nor would it deny to the people the
right to elect a Corporation Commits
sion at the next general election.
A Case of Expansion.
I'm Days case, 124 n G. 362, the
doctrine of IIoke VS. Henderson re
ceived a sudden and vast expansion, for
it was then held for the first time that
The dismissed office-holder was entitled,
If his duties were continued in any
was divided As the duties of almost
any office which is abolished whether
for economy or any other reason must
necessarily be devolyed upon some one,
this made it almost impossible for the
legislature to abolish any office during
the term of the incumbent, though
Hoke VS.. Henderson had expressly held
that any Office, not created by the Con-
stitution, could be abolished at the will
of the legislature.
And More Expansion.
The doctrine of lHoke VS.. Henderson
received still further expansion in Will
son VS.. Jordan, 124 n. C. GS3, in which
the doctrine of I'M pari nlateria was held
to AlT1ly, and hence il an office was
abolished. yet if the Legislature. at
that or q subsequent term, legislated
upon the same subject matter, the act
abolishing the office would be held null.
and the officer reinstated not merely in
the receipt of his salary, but in the per-
Torrance of the duties of the similar
office under the new statute.
But far as these two cases expanded
the doctrine of H0lle VS.. Henderson, they
still fall short of being sufficient to
sustain the plaintiffs claim, unless there
is another expansion. The Railroad
Commission was abolished, afterwards
a Corporation Commission was created,
to which was entrusted the duties for
merly discharged by the Railroad Conn
lllissiom plus the duties of the former
Bank Examiner (whose office is abel
ished). plus certain duties formerly dis
charged by the State Treasurer, plus
certain duties formerly discharged by
the State Auditor, plus some entirely
new dnties. If the plaintiff can claim
the office of Corporation Commissioner
because all his duties are performed
by the new Commissioner, the Bank
Examiner with equal force may claim
that he also is entitled to the defend
ants office because all his duties are
embraced in those entrusted to the Cor
poraition Commission; and the State
Treasurer and the State Auditor might
also make like claim because certain
of their duties have likewise been trans,
ferresl and swallowed up.
Jonah and the Whale.
IT, when the whale swallowed Jonah,
he was I'M law merely a continuation
of Jonah, how shall we decide when
this whale has swallowed two Jonahs
and parts of two of others? Which
one is ne?
In a late case i'm the United States
Circuit Court it was held that the Rail-
road Commission and the Corporation
Commission were not the same body
and that was given as a reason why the
State Treasury Should lose the assessed
taxation upon twelve millions of rail-
road property; that is, that other tax
payers should make it good. while now
this court is about to hold that the
two commissions are one and the same
body, and therefore the plaintiff lis en-
titled to the office of Corporation Com
missioner, to which the legislature elect
ed the defendant. The people have been
lost in the shuttle"
Judicial Legislation,
To ask the court to hold that the
plaintiff is entitled to the title powers
and pay of Corporation Commissioner
because he was member of the Rail-
road Commission which was abolished
and its duties transferred among others
to the Corporation Commission, is to
ask it not only to deny the Legislature
the right to legislate in matters purely
governmental, but is asking the court to
legislate by giving to the plaintiff the
powers of a former Bank Examiner and
the duties transferred from the Treasurer
and the Auditor and the new duties, for
as to none of these is there now or has
ever been a shadow of legislative alI-
thority given the plaintiff to discharge
them. If such expansion can be given
to the incorrect but moderate doctrine
of .sHoke VS. Henderson" then legisla
ton will not depend upon the will of the
people at the ballot box in electing theil
representatives in a Legislative body, but
upon what the majority of this court
may let the legislature enact, or III
the striking language of some recent
opinions what effect we will give tt
the statute" The statute should get itS
effect from it's passage and ratification
by those elected to pass legislation. I'ht
courts are given no power to interfere