The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-03-02

A VERY ABLE OPINION
Auditor Dixon Asked For an Official
Opinion.
NO PRECEDENT IN THIS STATE
The Right to Compensation Does Not Cea:e
Until the Right,f Q fii:. r to The Office
Ce,ses. Rolden and Wilson
Cases Ci'ed.

The impoached judges are entitled to
pay during :heir suspension.
Auditor Dixon Yesterday gave out the
opinion by Attorney General Gilmer TO
this effect. He asked Mr.. Gilmcr several
days ago. for an official opinion on the
matter, and it was handed in yesterday.
IL is a very able and well written opinion,
and is as follows:
Replying to ycur letter OF the 18th
inst in which you ask my opinion of the
law governing the payment or non pay
lucnt of the Chief Justice and Associate
Justice of the Supreme court upon whom
articles OF impeachment have been sery-
"a. under the resolution of the General
Assembly OF North Carolina, | have the
honor 10 submit the following:
In the distribution OF judicial power
IN North Carolina under the Constitu-
Ton. the Jurisdiction in cases Of impeach-
Ment IS vested in tribunal known as
Court Tor the trial of impeachment,
section , article OF the Constitution In
Section OF the same article, it is de-
1!ared that this court shall be the Senate
Every proceeding therefore to impeach
IN officer under these sections is essen
italy a judicial proceeding and with
The utmost propriety mas been confided TO
that branch o. the State Government.
Chapter & volume 2, OF the Code pre-
seiibcs certain regulations to be observed
in conducting impeachment trials, and
section 1884 the same Being part OF the
said CHAPTER is in the following words
Every officer impeached shall be sus-
pended from the exercise of his office IN
til his acouittal.
The statutory suspension relates only
10 the exercise Of the office the constitu
tional right of removal in case of convic-
onto the office itself and the legal
title thereto. mere suspension would
J. OF create vacancy. but the anomalous
and unfortunate condition of an Office
IN officer. but no vacancy. Mecham on
iubic Officers. section 453.'
While the Judges are not now, on ac
ooant OF q statutory inhibition, exercising
,1e functions of office. they are never the
IS officers holding TIE legal title which
carries with it. as an incident the right
ID compensation. which right. in my opin-
IN. exists until declared forfeited by a
court OF competent juIisdiction-th court
81 impeachment.
.rhe Su- rene Court of California, and
thar OF other jurisdictions has held that
The RIGHT 10 receive a salary is an Incl
cen, which attaches itself to the legal
title to the office Ward VS.. Marshall
n American State Reports. page 1913, and
several cases there cited.
The right to compensation is forfeited
only when the right TO the office is for
sSitcd. When does this occur? 1t can
rot be ~ the time cf the commission of
The impeachable offense, for in some
cases this might consist of a series of acts
running through long period OF time and
occurring on different dates; it cannot
he when the proceedings are instituted,
for this is but the invoking of the juris
Ciction to determine the question In my
opinion the right TO the Office is forfeited
only when the judgment of the Court OF
impeachment so declares. The Constitu-
tion evidently contemplates that the per-
IN impeached shall be in the possession