The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-12

which it is attached is abolished, for
this is his naked contention, stripped of
its stperfluities. if it is true. that mas
much as essentially the same duties in
carrying on the institution must be per
formed therefore The office is still in
existence.
If this I've sound doctrine, it is abso-
lUsely new doctrine. and there is a
paradise ahead for legislative officehold-
ers, who, like Millions fallen agens,
Can only by humiliation die"
If the office is abolished, of course the
defendant is entitled to no salary. but
even if The court could hold that the
defendant is still in Office after the Leg
stature has decreed its abolition mo
money can lie drawn ont of the State
Treasury except by authority of law"
There is no law allowing the defendant
any salary. 1t is expressly repealed.
In 'HolSa vs.. Henderson, it is said
that unless it could be seen that the
object was to starve the officer out. the
act could not DE held unconstitutional
and no such intent is here shown. for
if it is true. as defendant contends that
-
directors who are discharging, as
he says, the functions he formerly dis
charged, and he must reassume it from
them. then he is only entitled to the
salary allowed them as his substitutes,
and 1t world take an expert accountant
70 state how much of the salary al
lowed them is for the duties devolved
upon them before the abolition Of the
middle-man. and how much is added by
reason of dispensing with his services
for it is unquest.onable law that the
Legislature can at will reduce the salary
OF any officer, the reduction of whose
compensation is not forbidden by the
constitution. In Hoke VS.. Henderson
II is further said TO y. c.. p. 20 that if
the Legislature should refuse salaries
to officers elected by it. the office re-
manning still in force, while such an
act would be unconstitutional. the courts
could give no remsdy but it must be left
to the action of the citizens to change
unfaithful for more faithful representa-
tiyes." Even if the court could hold
that the removal of the defendant was
unconstitutional, it is expressly held in
the late case of Garner VS. Worth, 122
y. c., 2J0. that no court could enforce
the payment of any salary TO him. most
especially whan. as here the sovereign
acting through the Legislature has for
hidden it, This is true as to an admitted
~ valid state bond under the great
seal, which is certainly of as high dignity
as salary which the legislature has ex-
pressly forbidden to be paid. which
therefore the Treasurer can have no
power to pay and the courts can give
him mons. He holds the peoples money
to be paid out only when the Legislature
directs. The courts can only issue a
mandanIus to the treasurer when the
Statute directs payment, never when
the Statute is silent, certainly not when
it forbids payment.
In Gotten VS. Ellis. II \. c.. 545, the
court puts its decision expressly on the
ground that the office was created by
the United States government and there
fore. unlike legislative office, the State
could not abolish it, and addd that If
they We're to give a mandamus to pay
salary, they We're not sure they could
enforce it. In Garner VS.. North, supra,
1t is held the court cannot except where
the salary is prescribed by the constitu-
tfGn. In Bailey vs. Caldwell. 6S n. c.,
AZ, also. tho decision rested upon the
ground that the Qfhca having been
created by the Constitutional convention,
the Legislature could not abolish it.
If the defendant is entitled to any
salary, it is an equitable part of that
Nallowed these he asserts are the inctm-
beIss placed in his office 1t is the new
salary not the old to which NE is entitled.
Besides if the defendant had be N
superintendent of Il private corporation
under a four years contract and he
was without cause discharged thrrefrom.
no court would reinstate him in office,
his remedy would be to recover as dam
ages the salary for the unexpired tine,
reduced by whatever he made or ought
to have made at his regular vocation
during that time. Thsre is no decision
holding that this is not the remedy of
legislative offceholder who is evicted
illegally. 1t must be so, for the ground
of his right is placed by Hoke VS. Htn-
Continued ON Sixth pagel