The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-05-23

warrant for doing, hold that the man
damus issued by this court to the public
treasurer, contrary to legislative enact
n,ent is beyond the constitutional power
of the Judiciary, the condition of the pub
lie treasurer would not be an enviable
one. for an order Of this court outside
its constitutional jurisdiction is no great
or protection to one who obeyS it than
writ of ejectment, or to execute CAPT
tai sentence, issued by a magistrate,
would be to an officer who chooses to
obey that.
| "No one who reads chapter 81, Acts
| 1899 can doubt that the Legislature meant
| to prohibit and does prohibit the Treas
urer from paying the plaintiff, or any
| one else claiming his office, as the court
| says the plaintiff does under the Act of
1897 The court has held that public Of
| fee is property. and that, by virtue of
that property in his office, the plaintiff
is entitled to continue to discharge the
| duties of his office, Notwithstanding the
Act of 1899 gave those duties to others.
and that as a consequence the plaintiff
is entitled to his salary. If that be grant
the court can certainly go no further It
| cannot take charge of the public tras-
ury and adjudge that because the Safe
|
| has restored the plaintiff, the State shall
| pay him.
NO OTHER DECISION LIKE IT.
| at is true Hoke VS.. Henderson, - =.
c.. /, held that public office was private
property--a decision unsupported by any
decision of any other court, anywhere
but it limited the decision to saying thai
the office holders property was in his
'emoluments and expressly says (p 30
| that if the Legislature should refuse to
| give officers salaries or to pay them,
| this would be plain breach of constitu
tional duty, and yet the court could give
no remedy and Hoke VS.. Henderson also
expressly admitted that the Legislature
could abolish any office created by the
| Legislature.
1.-The recent decision in Days case 124
Y. c., 1922, which holds that an office
holder has property not merely in the
| emouments but in the duties of his Of
| fee which he may claim as long as those
| duties are continued, makes it practically
impossible to abolish any office having
duties necessary to be continued Gas is
the case with most offces), and the later
case of Wilson VS.. Jordan (124 N. c., $3.50
| and Abbott vs. Beddingfeld OPS n. c.,
1860, hold that as long as there is legisla-
| ton on the subject matter-in pari mate
ria as it is termed, the former office is
not abolished, though the new act may
expressly so declare Gas in Wilson VS..
Jordan, and though the new office may
have a different title and different duties,
and AIDED duties, as in Abbott VS.. Bed
dingfield and White VS.. Hill If to this
indestructibility of a legislative office.
| for the term of the incumbent. however
long the court has the power, now as
serted for the first time i'll the history
| of Jurisprudence, to coerce by its writ
| payment by the State of the old officer
| legislative power over government, which
is most largely exercised by the shaping
| of public agencies, is at an end. When
ever our Legislature shall create on Of
fee for no matter how long a term, so
| long as similar duties are discharged
! subsequent legislatures are powerless to
| get rid of the incumbent and the court
will see that the public pays him.
! ASSERTION OF VAST POWER
"The assertion of such vast power by
the court over the operations of the
legislative department challenges its de-
NAL by that department Should the
Treasurer under legal advice deem the
action of the court in excess of it's just
constitutional powers. will the court put
him in Jail for disobedience? Should the
Legislature. whose action in forbidding
| payment the court treats as unconstitu
| tional because impairing the vested con-
| stitutional rights of an officer to receive
| q salary. return to complainant by hold
ing unconstitutional the action of the
| court in assuming jurisdiction over the
public treasury, what then will be our
! condition?
CONTROL OF THE TREASURY.
'"The people of North Carolina control
their treasury through their representa-
tives in the General Assembly. If the
General Assembly levies taxes in excess
of what should be levied, or less than
| is necessary, the court cannot correct
| this If the General Assembly be too
| extravagant in its appropriations on the
one hand or on the other shall Withhold
| appropriations to pay debts which the
| court deems just and meritorious, the
| court cannot compel a different conduct
on the part of the coordinate branch in
| the discharge of the functions entrusted
| to it. The people alone can supervise
such action of their representatives when
acting within the sphere or their dutleS,
by the election of another General As
sembly, or. as was said in Hoke VS.. Hen
derson: 1T must be left to the action
of the citizens at large to change I'M
faithful for more faithful representatives.
at is true that, if the court cannot
coerce the payment of an officers salary,
the decisions, peculiar to this State, that
an office is property based upon a con-
tract, are futile since the Legislature
hereafter, in removing the incumbents in
legislative office, need only to add a
| clause that the removed officer shall not
be paid But may it not be that such
result demonstrates the possibility that
| the decisions of this State are incorrect
and the uniform rulings of other courts
are correct, based as they are upon the
| principle that the Legislature alone has
| the power to create officers and to pay
to to refuse to pay them, when not
created by the constitution? But, at any
rate, a claim for salary is of no higher
| dignity than any other Indebtedness of
the State, and the office-h holder has the
| same remedy as all other creditors of the
| State-an appeal to the sense OF right
j l. 49,, IL. mill he