The news & observer., 1901-03-07

board and countersigncd by the plalntld
who is acting rs chairman. IN place o.
Hill. and the Auditors warrant should
issue upon this certificate.
This opinion might close here. and wcu:G
do. so, but for the arguments urged in
opposition to the views we have eNpress'
cd. some Of which it seems to us shculo
be noticed.
1t is said that chapter, 10 names cei
tain persons as commissioners. and thas
the plaintiff is not one Of those namec
in the act. This is true. But tho act
does not provide that the salary shall be
paid to these parties. co nomine, but to
the commissioners performing tho duties
prescribed by the act. Suppose anv or
ali of the commissioners named in chap
ter 19 had died or resigned, is it con-
tended that still they should receive
the salary, or that the work should STOP
and the commission fall through and fail
on that account? They are out. and SO
far as VIC know. are not claiming any
pay.
II was said this court had no iurls
dction Of this matter. that il only has
appellate Jurisdiction. that the assump>
tion Of such jurtsdictior is unheard OF:
j
ultra wires. unlawful. unconstitutiona;
and void and that the Legislature may
declare II unconstitutional and II il
should do SO. and the Treasurer should
obey tho judgment OF this court be
might be in danger This argument seems
10 proceed upon the idea that this pro
ceeding was commenced in this court,
whereas the record shows that 1t is here
IN he ~
Perquimans county. And 1t would seen,
that the slightest examination would
have shown that It Is not a proceedins
unheard of before
In Marbury v Madison | Cranch, ~,
which was mandamus against James
Madison. Secretary Of the United States.
II was held that the action would lie.
In Cottensv Ellis. Sc ~ c., 545. which
was a proceeding in mandamus by Cot
ten claiming a salsry as hdjutant Gem.
eral of North Carolina, against JonH
w Ellis. Governor of North Croilna,
1t was held that the action would lie,
and the writ was issued
But a more recent case is that Of
Granville County Board of Education '.
State Board of Education. 100 n. c..
81. in which it was held that the action
wcn,l he. and the writ was granted
The opinion Of the court in that case was
written by Justice Clark. and seems 10
be direct authority for issuing tie
writ in this case
The opinion in Gotten Y. Ellis, suTta,
Is not only authority for granting ihe
writ but Il would be we'll 10 aots what
the court says, near the close Of the
opiuion, with regard 10 the execution Of
the writ, which is in these words: eve
do not enter upon the inquiry as 10 how
the writ will be enforced. because we
are not allowed To suppose that the
question viii arise, feeling assured that
the sole purpose OF the Governor is T.
obtain Il judicial construction of tht
statute in question." This opinion Cot
ten V. EIlis) also contains this language:
~ ctatute which reduces salary dur
ing the terri nf Office, aud ono which
takes away the salary altogether. stand
on different footipgs for in the latter
case the object would evidently be 10
starve the incumbent cit Of bis office
and thereby 10 indirectly what could not
be done directly, so as to make applica,
Bile the remarks made in the case OF
Hche V. Henderson, iu which there seemg
TO be much force. that sucE indirect
,
of being unconstitutional as an act di-
rcctly depriviDg one Of his office. y
proper construction OF the statute does
not lead to the inference that it was
tho intention to- abolish the salary, IN the
event that tho applicant still continued
entitled to the office and liable for the
discharge OF its duties. On the contrary.
tbe clause which repcais so much Of tho
-, t,, nc ~11o
4 mere corrollary or incident % the
clauce which repeals so much of that
section as relates to the appointment OF
The Adiutant General and consequently
the enc cannot. by any rule of construc-
tion be made 10 extend liz it's Operations
further than the other"
To hold otherwise. the court says.
would be TO place tho Legislature in
this attitudc-wc mean TO abolish the
office. If we have not the power to do
so. then we mean TO deprive the present
incumbent of his office; if we have not
tho power to do that. then we mean TO
take away his salary"
The facts IN Gotten vs.. ellis are 50
nearly the same as the facts in this case
il our excuse for quoting so much Of the
opinion.
Before the suggestion that the Leglsla-
ture NAV declare the opinion of this
court unconstitutional may be adopted
by any one, VIC ask them to read the
opinion of Chief Justice Marshall In the
case Of Marburv vs.. Madison, supra. 1t
is a full and complete answer to this
suggestion We would like TO incorpo-
rate the whole OF that o1iuton IN the
opinion Of the court in this case. but as
this Is impossible. will again have TO
ask to be pardoned for making some quo
tatons from this very able opinion,
emanating from the mind of probably the
greatest jurist this country has produced.
It fully sustains the doctrine of Hoke Va.
Henderson. Is y. c.. ]. that an Office is
property-a vested right-of which he
cannot be deprived IT discusses the re-
lation of the government to the citizen ;
the supremacy of the constitution over
ordinary legislative acts, the relation OF
the executive legislative and judicial de-
partments of the government. and shows
that all three OF these departments are
equally bound by the Constitution. but
within their own departments; that while
It IS the exclusive right of the legislative
departent tc enact laws. and the duty
Of the executive to enforce them. it is the
exclusive right of the judiciary to con
strlle them and to say whether they are