The news & observer., 1901-03-07


Justice his legal rights ar shan forbid a
court to listen TO The claim or TO issue
mandamus directing tho performance of
ou'y not depending on executive dis
'ic''on' put UPON particular acts of Con
srSSS ana lhe general principles of law?
"n page DO The doctrine therefore
DO" advanced is r no means novel
enc"
On page 81; "If Congress remains at
liberty TO give this court appellate iuris
dictlon, when the Constitution has de-
clared their jurisdiction shall be original.
and original jurisdiction when the Cousti-
tntion has declared 1t shall be appellate.
the distribution of jurisdiction made in
the Constitution is form without sub
stance"
On page 90: The Constitution is either
superior. paramount law. Interchangeable
bv ordinar.' means, or ii is on a level
with ordinary legislative acts. and. like
other acts. is alterable when the Legis-
lature shall rlease TO alter il. II the
former part of the alternative be true
then legislative act contrary TO the
Constitution is no law: if the latter part
be true. then written constitutions are
absured attempts on the part of the peo-
pie 10 limit power in it's own illimit
able. If an act OF the Legisla
ture, repugnant to the Constitution, is
void. does 1t, Notwithstanding its invalid
ty. bind the court and oblige them to give
It effect? Or. in other words, though 1t
be no law. does it constitute a rule as
operative as If it was law?"
On page 20: "It is emphatically the
province and duty of the judiciary to say
what the law is (the italics are 0urs)
3 So, if law he in opposition to
the constitution. if both the law aud the
Constitution apply to particular case, so
that tho court must either decide the case
conformably TO the law. disregarding the
Constitution, or conformably to the Con-
stituti0n, disregarding the law. the court
must determine which Of these conflicting
1ules governs the case This is of the
very essence Of judicial duty
We cannot .uote all of this able and
exhaustive opinion. but we trust that we
have quoted sufficiently from it to estab-
lish the separate independent jurisdic-
tion and power OF courts to decide the
law, and TO sbcw that neither the eXecu-
tive nor the legislative department has
any such power.
Our opinion. then. is that the plaintil
Is entitled to the salary and conpeBsd-
tion provided for in the act of 1899. chap
ter u (aDd the same that Hill would
have been entitled TO u he had remained
in officel 10 be paid bv the Treasurer Of
The state ont of the oyster fund appro-
priatcd b. the act Of 1899 and the act of
1899. admitted to be now in his hands.
provided that tho expenses Of this com
mission do not exceed the sum OF S6o
per aunum. and that the certificate and
warrant shall be issued in the manner VIC
have indicated.
This action is TO recover the salary Of
public officer. The facts are agreed
and from these facts il annears that
there is now money in the hands Of the
Treasurer. more than sufficient to pay the
plaintiff. which arose from the oyster fund
under the acts Of 1897 and 1899 That
this fund is specially appropriated to the
payment Of the salaries OF officers serv-
ing under the act Of 1899 that the Audit
ter and Treasurer are honest men and
faithful ruhlic officers and want 10 do
their duty. The wanted the opinion of
the court as to what that was, end neither
of them nor their counsel made any Oh
lection to both being defendants: but II
is made. and II would seem that the party
making :. can see no difference between
the salary of public officer and claim
against the state nor can be see the
distinction between Garner VS. Worth and
Gotten vs. Ellis.
The judgment of the court below will
be modified in conformity with this opin-
ion. and being so reformed, judgment will
be entered in this court.
Modified and affirmed.
Douglas, j.. concurring--T shall be glad
indeed when all the office holding cases
are finally decided. not only from their
intrinsic difficulty, but more so from the
vast amount of discussion to which they
have given rise Much OF this discussion.
viewed from my standpoint he's seemed
irrelevant and indeed liable to mislead
Hence, upon one or two occasions / have
felt compelled 10 explain myself in con-
curing opinion as did not wish 10 be
misunderstood upon important constitG.
tional questions. My personal views are
fully set out IN Wilson VS.. Jordan, l24 n.
c.. 707. and Green VS.. Owen, 125 ~ c., 2i2.
have given this case most careful
consideration, especially in view Of the
division of opinion. and | see no reason
to overrule the unanimous opinion of this
court AS expressed in Wood vs.. Bellamy
120 n. c., 212. If follow that opinion to
it's necessary and legitimate results / am
forced to concur with the court in the case
at bar. In fact the case as now before
us presents no substantial difficulties to
my mind. Whatever complications may
have existed werc solved when we decid-
ed that the plaintiff was entitled 10 the
office. The only question now before us
is whether he shall receive the compen-
sation which the Legislature attached to
the performance of its duties. We are
not creating any office, for the Office was
admittedly created by the act OF 1897, and
it does not appear TO us that 1t was
abolished by the act of 1899. We are not
aflixing am salary to the office further
than that we find expressly provided IN
he act Of 1899 the last expression OF leg
islative will. We are not levying any pub
lie taxes, nor appropriating any pubic
money. This was done to the fullest
necessary extent by both acts. That or
1899 raised and appropriated 10 the spe-
ciiic purposes OF this case au ample fund'
much of which still remains in the treas
| ury unexpended and rot otherwise appro-
priated. The case comes before US cn
u 49,