The news & observer., 1901-02-24

Mr.. Rountree was that Judge Furches
| could not now be impeached because he
| had RESIGNED the office he held when the
act was committed and accepted another.
This objection, Mr.. Rountree considered
hardly worth serious refutation. He
| added
Impeachment is a means of removing
unfaithful officials, and the authorities
relied upon by the advocates Of these
| judges do not apply, because they refer
solely to impeachment of persons who
were at the time the charges were pre-
ferred not officials, but private individ-
uals.
There are, however, numerous cases
| holding that an official cannot escape i'm
| pcachment by resigning before the
charges can be filed"
In this connection he cited the BelAnap
case and added
THAT would be a bad form of govern
ment in which an unfaithful officer could
escape responsibility for his msdeeds by
running away from the charges against
him.
But it is said that the great Chief
Justice Marshall once issued writ
Let's see. President Adams appointed a
man named Marbury as a justice Of the
/ peace and the commission was signed
by Chief Justice Marshall. The appoint
ment was made late at night and left
on the desk. When jefferson came into
office next day he ordered his secretary
! to hold up the appointment Marbury
/ appealed to the courts and the court,
Marshall writing the opinion. held that
Marbury's appointment was complete,
and as the law gave him the right to
| hold for five years. independent Of the
executive, his appointment was not revo-
cable: To withhold his commission,
/ therefore. is an act deemed by the court
not warranted by law, but violative Of a
| legal vested right
Touching this case, Henry Adams in
! his History OF the United States, says:
The decision in Marburys case naturally
exasperated Jefferson; but the Chief
Justice knew the point beyond which be
could not go in asserting the jurisdic-
/ tion OF his court and was content 10
! leave the matter as it stood. Marburv
never applied for the mandamus in the
court below. The opinion i'll the case
/ of Marbury and Madison was allowed to
sleep. and its language was too guarded
to furnish excuse for impeachment.
Wonder what would have happened II
nc had issued the writ? know and
| think you do.
INTENTION OF THEIR OPINIONS.
! "We do not attack these judges merely
! for for declaring acts of the Legislature
! unconstitutional. We do complain that
! the decisions in these so-calied office"
holding cases We're not honestly made
with single desire to administer jus
| tice according TO the rights of the par
! ties, but were partisan, and made with
! the intent and purpose to destroy the
| confidence of the people in the General
/ Assembly as to enable them to usurp
/ legislative functions.
/ The speaker then referred to the first
/ of these cases, Day vs. State Prison,
! aud called attention to the fact that
| a suit by a man claiming TO be q Demo-
! crat and represented by strong Demo
( cratic lawyers, gave them the oppor
/ tunity So ardently desired by the Re
| publican leaders of destroying the con-
| fidence of the people in the Legislature.
! After referring to several other of
/ the cases. in which the court reversed
the principle laid down by them in the
! case OF Ewart Y. Jones, wherein q Demo-
crat was ousted from office. the
speaker declared that the sover-
eighty of the State rested with the
/ people, and was exercised by their rep
rcsentatives in the General Assembly.
| He said that the partisanship Of the
court eliminated in directing a man
damus TO issue in White VS. Aver. Au
ditor. against the. express prohibition of
the General Assembly.
However this may be an official can be
impeached and disqualified for miscon
Duct in other terms or Offices. In
case decided by the Supreme court 'f
! Louisiana reported in 45 Louisiana An
nuaI at page 1855. it is held:
1.-THE great weight Of authority is
that an officer may be impeached while
in office for acts committed in prio~
TEN "
After reading this Mr. Rountree c9n-
tinued:
ut is also said with great confidence
that a judge cannot be inpeached fer
merely declaring an act unconstitution-
al. While this is at least doubtful, Fos-
ter. the latest and an admirable writer
on the Constitution, says, speaking os
impeachable offenses. citing many AZ
thorities:
."It does not consist in an error in
Judgment made in good faith in the
decision of a doubtful question of law
except perhaps in the case Of a violation
of the Constitution
"Also the gentleman from Martin
(Stubbs) claims that the court was JUS
tilted in it's action by Gotten VS.. Ellis
| (52 y. c., 545). That likewise is an un-
tenable position
MANDAMUS MUST NOT ISSUE.
This Ellis case was a petition for an
alternative mandamus. The petitioner
had been appointed Adjutant General
of North Carolina under Governor
Bragg with a salary attached. Subse-
quently the law was changed and an
other gentleman was appointed 70 the
position of Adjutant General. The man
who lost his office brought action 10
compel the Governor TO issue a warrant
upon the Treasurer for his salary. The
court held the subsequent act void and
the petitioner entitled to his salary, but
at the end OF the decision the very
question with which we are now deal
ing, to-wit. how to get the money out
of the Treasury. was presented and the
lid