The news & observer., 1901-03-07

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| law of the land (Bill of Rights 10) BY
the fourth section it is declared. that
: the legislative, executive and supreme
judicial powers of government ought TO
be forever separate, ana distinct from
| each other.
"In absolute governments, whether
hereditary or representative, the divis-
ion of the powers of government is un-
I important, because that body in which
resides the superior authority can. at
! will, make it supreme and absorb all
{ the other departments. ii does not fol-
low, therefore. that because the British
! Parliament, whose supremacy is ac-
knowledged, decides questions of pr-
/ vate right and puts that decision, as it
| does its other determinations, into the
| form of a statute. that whatever ii does
! is legislative in its nature. 1t can aGju-
| dicate and often does substantially adj
! judicate, when it processes to enact new
! laws. That faculty is expressly denied
! TO our Legislature, as much as legisla-
ton is denied to our judiciary When
ever an act of the Assembly therefore
j is a decision of titles between individ-
uals. or classes of individuals, although
! il may in terms purport to be the in
essentially a Judgment against the old
| claim of right, which is not a legisla
| tive. but judicial function.
"'The sole inquiry that remains is,
whether the office Of which the act de-
| prives Mr.. Henderson, is property. IT
! is scarcely possible to make the propo-
! sition clearer to plain mind, accustom-
ed to regard things according TO prac-
/ tical results and realities than by bare
ly stating it. For what is property:
| that is, what do we understand by the
| term? 1t means, in reference to the
| thing. whatever q person can possess
| and enjoy by right: and in reference to
/ the person. he who has that right to
| the exclusion Of others, is said to have
| the property. That an office is the sub
| ject OF property thus explained. is well
! understood by every one. as We'll as dis
| tiuctly stated in the law books from
| the earliest time. An office is enumer-
| ated by commentators on the law
among incorporeal hcreditaments: and
( is defined TO be the right to exercise a
/ public or private employment. and to
take the fees ana cmoluments there-
| unto belonging, G. Bl. Com. Ca &
! But with these limitations and the
! like, a public office is the subject OF
/ property. as every other thing corporeal
] or incoFporeaI. from which men can
! earn livelihood and make gain.
| The office is created for public pur-
! poses: but 1t is conferred on particu-
lar man and accepted by him as a source
OF individual emolument TO the extent
! Of that emolument it is private proper
/ ty. as much as the land which he tills.
7 =, 4.
| is owing to him. Between him and an
other man. none Will deny the right Of
property For il one usurp an office
which belongs to another, the owner
/ may have an action for damages for the
expulsion. for the fees OF office received.
and remedy by quo warranto 10 en-
| quire into the right Of the usurpar, and
by mandamus TO be himself restored
| When we find these remedies establish
ed to enforce the right of admission in
/ TO office. to secure the possession OF II
/ and its emoluments, we can no longer
! doubt that in law, an office is deemed
the subject Of property and valuable
! property TO the officer, as well as an in
| stituton for the convenience of the peo-
! pie. If it be SO it falls within those
, provisions Of the Constitution which Sc
vested without some default cf the Of
i iicer. or the cessor of the office itself.
These are the general principles that
lead the court to the conclusion that the
| act of Assembly is invalid"
In Cotton vs. Ellis, ~ y. c.. 545. the
plaintiff Cotton had been appointed adj
jutant general for three years. with q
/ salary of 500. The Legislature passed
an act repeating the law under which
! Cotton had been appointed. both as to
t his appointment and salary. Cotton
served out his term and demanded pay
which the governor. Ellis, refused. The
/ Supreme court decided that he was en-
| titled to it, and to q mandamus upon
| the governor to enforce its payment.
/ Chief Justice Pearson. delivering the
| opinion Of a unanimous court coneurrcd
! in by Justices Battle ana Manly, saws
in part:
The legal effect of the appointment
! was to give the office to the applicant
and he became entitled to it as vest
: ell right for the term of three wears
/ from which he could only be removed in
(; the manner prescribed by law. and Of
| which the Legislature had no power to
deprive him. This is settled; Hoke VS.
A'Nh0@ASOi1s z i'NNs Il liC act OF lSSS
cannot have the effect contended for.
even il, in the absence of express words
we were at liberty TO infer that such
| was tho Intention. and its only effect is
to take from the governor the right q,
Fl ling future vacancies and vest il
i again in the Legislature
"a statute which reduces salary
during the term of office. and one which
takes away the salary altogether. stand
| OH a different footing. for. in the latter
case, the object would evidently be to
starvc the incumbent ort of his Office.
and thereby do indirectly what could
not bc done directly. So as to make
applicable the remarks made i'm the cas.,
of Toke vs. Henderson supra. in which
there seems TO be much force. that such
indirect legislation is as obnoxious to
the charge of being unconstitutionaI as
an act directly depriving one OF his Of
flee.
Having arrived at the conclusion
that the applicant is. by law. entitled
to the salary claimed by him the solu
tion OF the second question is an eas,-
ore. for as there is legal right. thu
courts. as matter of course. have pow
81, rs enforce it, The power Of A court