The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-15

lISh Legislative office. as mas been re-
|poatedly held by the Supreme court
And this is so Notwithstanding the
term of the incumbent has not expired.
lQuoting from Ho<e VS.. Henderson: He
takes the Office with the tacit under
standing that the existence of the office
depends on the public necessity for it.;
and that the Legislature is to judge of
THAT"
| Replying TO an intiination that the Leg
Iislature abolished the court and thJn re-
Established it simply for the purpose of
removing Wilson and others from office,
Judge Shepherd said he hoped the time
would never come when such sentiments
would be entertained in the court; that
lit i'll became one coordinate branch of
the government to imputc fraud to am
ether. In Hoke VS. Henderson Judge
Ruffn says the court cuillot inquire
into motives not avOwed." The court
cannot set aside an act of the Legislature
as it would Il fraudulent conveyance.
The question in this case, continued
Judge Shepherd. is whether or not the
office was abolished.
The act ratified ON the 9th day of
February, 1899, having abolished the
Circuit court, the office Of clerk thereof
was necessarily abolished with it.
If it should DE held that the act rati-
fled ON February 9th, 1899, did not
have the effect TO abolish the Circuit
court and the office of clerk, then the
court and office were abolished by an
act ratified ON the 9th day of March.
1899. This act not only provides that
the court be abolished, but repeats the
act creating the court and all acts amen
datory thereof
IF the contention of Wilson that the
act ratified on the Bird of March. 1899.
is only an amendment is correct. then
Wilson cannot recover. for certainly the
act ratified on the 9th day of March.
lS99 had the effect TO repeal the acts
of 1893 and all amendments thereto. The
claim Of Wilson being entirely based
upon the idea that the act ratified on
March Bird, 1889, is an amendm; ant of
the acts of 1853 and 1897 must necesSa-
rily fail, because of the repeating act
ratified on March 9th. 1899 In any
event he cannot recover an office which
does not exist. - ps TX.
The contgntion Of Wilson shows the
entire lack Of foundation for his claim
1t must be conceded that the Legislature
odd not intend TO abolish the Western
Criminal District Court of Buncombe
county. established only three days be-
fore. The intention of the Legislature is
made manifest by the fact that it elected
Il judge Of the court after the passage
of the repeating ACT ratified March 9th.
1889, and by that it afterwards provided
by further act for an exchange of
courts y tween the judge so elected
and the judge of the Eastern Criminal
District.
The act ratified on the 3rd day of
March. 1899, was not an amendment Of
the acts of 1895 and 1897. hut a repeal
OF them. and the principle decided in
Wood vs.. Belamy. 100 ~ c. ~, 212,
has lio application to this case In that
case the court held that owing TO the
peculiar language used i'm the statute the
offices Of superintendent and directors
of the asylums were not abolished, nor
the charters of the institutions repealed.
But in this case there is clear, distinct,
unmistakable purpose ON the part of the
Legislature, manifested i'm the acts here
gnbfore mentioned. to completely abolish
one court and establish another The
new court is materially different from
the one abolished 1t embraces several
huhlliVHdi tuuitEtS. itJlu III Iildl respect
this case is weary much like the case
of Ward vs.. Elizabeth City, 121 n. c.
H., i; the clerks and solicitors are APP
pointed in Il different manner; under the
old court there was Il solicitor for the
district under the new there is a solicit
tor for each county with duties different
from those of the old. The act establish
ing the odd court provided that appeals
should lie to said court from Justices of
the peace, and from the old court they go
to the Supreme court direct: under the
act establishing the new court appeals
from justices of the peace go to the
Superior court and appeals from the new
courts 90 TO the Superior court
Many other changes are made in the
new law. as will be readily discovered
On Il comparison of the acts with refer
ence to the two courts
1T would seem from this that the SUI
rreme court will have to decide with
Jordan unless it deliberately says. either
that the Legislature had no right to hon
eStly change its mind after doing a
thing, or that in changing its mind it
designedly and wilfully violated the Con
stitlltion and the members acted in utter