The news & observer., 1901-03-07

| question was ever raised. until Februar.
| term. 1899. sixty-flve years after the ren
dition of the original opinion. An ex
i animation Of the Constitutional histor,
| of the State will show that the principles
so clearly enunciated in Hoke VS.. Hender
! son have not only received the PRACTICAL.
| unanimous approval of succeeding judges
but have by, direct implication been re
peatedly ratified by the people themselves
| Since this decision was rendered there
dered there have been five separate anc
| distinct constitutional conventions, all o
which might, but none OF which have
| abrogated or modified the principle o.
that opinion. In addition to these con
| yentions, several constitutional amend
| ments have been made by Legislative ac-
| tion and popular ratification Even re.
| cent Legislatures, knowing the decisions
of this court, and especially the distinc.
| iron drawn between the cases of Wood vs.
Bellamy and Caldwell VS.. Wilson, have
made no attempt to limit in the future the
| application of the doctrine, or to withdraw
any office from it's protection.
Tho ccse Of Hoke VS.. Henderson arose
| as follows The office of clerk of the
Superior and count" courts had been
| established b. the law of 1906. and un-
der said law Henderson had been ap-
pointed clerk of said courts for Lincoln
county to hold during good behavior. The
| law of 1892 provided for filling these
offices throughout the state by election
! by tho people. Under the provisions OF
| this law Hoke was elected clerk OF sald
courts for Lincoln county, and demanded
/ the office from Henderson, who refused
| to surrender. On appeal, the supreme
court decided that Henderson held a
vested right of property in his Office ou-
| ring the term for which he was ap-
pointed, that was during good behavior;
| and that the Legislature could not thus
transfer the office from Henderson 10
Hokc The essential principles involved
can best be stated by the following ex-
/ tracts from the opinion in the words OF
Chief Justice Ruffn: The act transfers
the office of clerk from one of these par
ties to the other, without any default OF
thc former. or any judicial sentence oi re-
moval. The question is, whether TINS
legislative intention. IS ascertaiped, rs
valid and efficaeious, as being within the
powers of the Legislature in the Consti-
tutons of the country; or is null, as be-
ing contrary 10 and inconsistent with the
provisions of those instruments. To the
determination Of this question, the judi
cial function IS competent. 1t involves
no collateral considerations Of abstract
justice or political eXpediency 1t depends
upon the comparison OF the intentions ana
and will OF the people as expressed In the
Constitution. as the fundamental law. un-
alterable except by the people them
selves. with the intentions and viii OF the
agents chosen under that instrument, to
whom is confided the exercise of the
powers therein delegated or not prohib-
tied Such agents arc all public SER
wants in this State; and the agency is
necessarily subordinate 10 the superior
authority OF the Constitution, which ema-
psted directly from the whole people
Legislative representatives may order
and enact what to them may seem meet
and useful, upon all subjects and in al
methods. except those OH which their ac-
tion is restrained by tho Constitution
and such order and enactment is obliga-
tory alike on all citizens, including those
who are by a public duty to execute the
laws. as we'll as those on whom they are
TO be executed Courts therefore must
enforce such cnactments; for they are
laws to them by the mere force Of the
legislative will But when the represen-
tatives pass an act upon subject upon
which the people have said in the Consti-
tuition. they shall not legislate at all OF
when upen \ subject ON which they are
allowed 10 legislate. they enact that tc
bc law which the same instrument says
ehall not be law. then it becomes this
province of those who are 10 eXpound
and enforce the laws. to determine which
will thus declared, is the Law. Neither
the reasons which determined the VIII
OF the people or the ono hand. nor the
will of the representatives on the other
can be permitted TO influence the mind OF
the Judge upon the question, when re-
luced to that simple point. His task Is
the humber and easier one of institutins
a naked comparison between what the
representatives of the people have done
with what the people themselves have
said they might do. or should not do;
and if upon that comparison. IT be lound
that the act is without warrant in the
Constitution and is inconsistent with the
will OF the people as there declared, the
court cannot exempt the act, but must
obey tho superior law, given by the peo-
pIc alike to their judicial and to their
legislative agent.
But even these sanctions are not suf-
ficient TO overturn the Constitution, il
the repugnance do really exist and is
plain. For although the iuputation Is
altogether inadmissible. that the Lesis-
lature intend willfully to violate the Con-
stitution. and still less that the people
themselves contemplate violence to the
instrument consecrated by their own
voices and The consent Of our ancestors,
vet all men are fallible. and in the dis
patch of business the heat of contro+
yersy. and the wish TO effect particular
end NAV inadvertently omit TO scruti-
nize their powers, and adopt means ade-
ouafe indeed 30 the end, but beyond
those powers. 1t ought not to surprise
that such an event should sometimes
happen.
when, unfortunately. such instances
DO occur. the preservation Of the integ-
rity of the Constitution is confided by the
peoplc, as a sacred deposit. to the judi
ciary. in the discharge Of that duty, the
appropriation of the Legislature itself is
10 be anticipated; for the principle OF
virtue which restrains them from known
and willful violation Of it, will induce
them to rejoice at the rescue OF the Con-