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


der the Act of 1897. If so, with whom
did the plaintiff make the contract? With
the State. If the office is a contract
who has attempted to break it? The
State. The court having in White VS..
Hill, supra, put White back into office
is now asked to order the State Treasurer
to open his vaults and pay the plaintiff,
as it would order any private individual
under similar circumstances. Has the
court that jurisdiction? The Constitution
Article ", Section Q, says not 1t says:
The Supreme Court shall have original
jurisdiction to hear claims against the
State, but it's decision shall he merely
recommendatory; no process IN THE Ma
TURE OF EXECUTION SHALL ISSUE
THEREUPON; they shall be reported
to the next session of the General AS
sembly for it's action
1.-THE Constitution Article XIV, Sec
| ton 5, says: No money shall be drawn
| from the treasury but in consequence of
appropriations made by law This is an
| exact repetition of the United States Con-
| stitution, Article L. section 9, clause 7.
| Where is the appropriation to pay the
| plaintiff? There was an appropriation In
| the Act of 1897 of 5000 per annum to pay
| him for supervising the oyster industry.
| But in the Act of 1899, chapter 10, placed
| the exclusive supervision in the hands
| of seven commissioners named therein,
| and appropriated $500 per annum to pay
| each of them and repealed all laws in
| conflict Herewith, and Chapter q for
| bids the State Treasurer to pay any one
| else. 1t is true the court has held that
| the Act was unconstitutional in putting
| the seven commissioners in the discharge
| of duties which the plaintiff had CON
| tracted' with the State to perform. But
| that does not repeal legislative prohibit
| ton upon the Treasurer against the
| plaintiff
| COURT HAS AUDITED THE CLAIM.
THE court has audited this claim, and
| holds it fixed not at the $500 allowed the
| Chief Inspector by the Act of 1897 but at
| $500, which is the sum allowed each OF
the seven commissioners for discharging
| that and other duties under the Act of
| 1899. 1t directs its mandamus to issue
| to the State Treasurer to pay that sum
| to the plaintiff, which is process in the
| nature of execution, to enforce collection
| out Of the State, Notwithstanding the
! statute prohibiting payment to any one
| unless authorized under the provision
of chapter 49, Acts 1899, which provision
| names those alone are authorized
THE courts have often held that if
| the Legislature attempts to do a judi
cial act it is null and unconstitutional
because beyond their powers. 1t follows
| that when the court attempts to do Il
| purely legislative act, such as orderina
| payment of a State liability, ii is null and
unconstitutional because beyond our pow
| Crs.
A NOVEL ADJUDICATION.
can assertion of such power in the
| court is so novel, so opposed to all pre-
| vious adjudications, that it will challenge
| attention not only in this State but else
where. 1t is doubtless the first time. in
| this or in any country, that court has
| issued its orders to public treasurer to
| pay a claim which the legislative depart
ment has forbidden him to pay If this
| can be done, this court can direct the
| public treasurer to pay the Special Tax
| bonds issued under the broad seal of the
| State and signed by the Governor and
| Treasurer, and which the w-making
| power, for reasons as satisfactory to it
| self as the Act here in question, has
| forbidden the Treasurer to pay, for { a
| contract can be enforced against a State
! o constitutional amendment can no more
| impair the obligation of such contract
| than a mere legislative Cuactnept
Louisiana VS.. Taylor. 105 L. s., 445 Clay
Co VS.. Society, 104 L. S. 519. If the con
| tract of the plaintiff in 1897 to hold an
office and receive salary for four years
is a vested constitutional right which
the courts can enforce by directing the
| public treasurer to pay, Notwithstanding
a legislative prohibition, certainly, q
contract evidenced by bonds issued by au-
thority of the General Assembly and
signed by the Governor and Treasurer
! with the public seal attached, which is
| unquestionably contract can be en-
| forced by mandamus on the same ground
| that an Act of the legislative must be
| observed and enforced unless it conflicts
| with the vested constitutional rights of
the plaintiff to receive his money, which
the court may think the State justly owes
/ him. And the same would be true as to
any other claim which the court might
| deem a valid Indebtedness of the State
but which the Legislature failed to ap-
Tropriate money to pay. An office holder
| has no greater vested constitutional
| rights in his salary than any other credi-
| tor of this State.
THE will of the Legislature has been
| here plainly expressed that the plaintiff
shall not be paid out of the States treas
ury, and the action being really against
| the State, no court has jurisdiction. =
| The will of the Legislature has been
| plainly expressed that the plaintiff shall
not be paid out of the States Treas
ury.
MODIFYING THE ORGANIC LAW
Under our Constitution, Article, sec
| ton g. the three departments of govern
| ment are forever separate and distinct
| from each other To the Legislature be-
| longs exclusively the function of raising
| money for the public treasury and direct
| ing its disbursement. AS said in the late
| case of Garner VS.. Worth the court is
| powerless to issue a mandamus to the
| Treasurer to pay out a single cent, how
| ever just and unquestionable the claim
| unless there is a Legislative enactment
| directing him to pay it.
''The legislative department may, if
! it sees fit. acquieSce in this novel asser-
| ion of power on the part of the court If
| So we are witnessing a new development
| in our history, a profound modification of
our organic law which places the power
of the purse for the first time in the
history Of the world in The DOSSpSSiOn Of