The news & observer., 1901-03-07


certained legal right, is settled by the
! cases Of Marbury vs.. Madison, Cranch
"a. and Kandally VS.. United States, II
Peters, S34.7
In King VS.. Hunter. 65 y. c., SOB, the
Legislature passed an act on February
/ ,, 1871, authorizing the Board of Com
! mlssioners Of Lincoln county TO appoint
q tax collector for said county.
The sheriff, King. brought an action
! for the tax list. claiming THAI the said
act was unconstitutional in as much as
II took away from him the greater part
! OF his office in which he had vested
right Of property. The Supreme court
held the said act uucoustitutional on the
ground that there was contract be-
! tween the sheriff and the State that he
would discharge the duties of his office
which could not be abrogated or i'm
| paired except by the consent of both
parties Justice Reade. delivering the
| opinion of a unanimous court. copcurreJ
| in by Chief Justice Pearson ana JUS
tices Rodman. Dick ana Boyden, says
in part IS follows:
! Nothing is better settled than that
| an office is property. The incumbent
has the same right to il that he has to
any other property. There is con-
| tract between him and the state that
he win discharge the duties of the office
--snd he is pledged by his bond ana his
oath; and that he shall have the emol-
uments-and the State is pledged by its
| honor. When the contract is struck.
| it is as complete and binding as a con-
tract between individuals; ana it can
! not be abrogated or impaired ex-
! hn
parties. We do not wish to he under
stood as holding that there is any iron
| rule of construction of the details OF the
contract on the contrary. there mus
! be some flexibility 10 suit the public con-
veniencc and the convenience of the Of
/ hcer, such as would be implied from the
nature of the contract and such as cir
! cumstanCes make necessary, ex. gr, that
If il happened that the emolumcnts are
so inadequate that for them the officer
! cannot afford to serve the public. they
may be increased, or if they be so ex.
| trayagant as TO be hurdens0mc TO The
! public, they may be diminished. But
! this must be done in good faith and in
! fair dealing. and with 30 view 10 evadc
! or directly Or indirectly to impair the
! substance of the contract. Nothing needs
/ 10 be better guarded than contracts with
! public officers; for although II is not to
! be supposed hat the Legislature will be
| Influenced by any bur pure motives, vet
/ as officers. and officers are OF fnecessi-
/ ty connected with political parties and
/ are. insensibly, the objects of favor or
! prejudice, it is wise TO protect the public
against the former and the officer against
the latter.
1T is we'll known that the commits
siOns for collecting taxes is an important
and. in many counties. the principal pais
Of the emolUmepts Of the office of sheriff
| Lincoln is small county. end probably
| half of the sherff's emoluments are
| from taxes. There is no allegation that
the emoluments arc large 10 the oppres4
! sion OF tie public. If they were so tac
evil might have been remedied without
! violation OF the contract, by a gen.
eral law reducing the fees OF sherins
! But even in that way Il is at least ques-
! tionabe whether the Legislature coule
1 have deprived him Of all commissions
! for the collection OF taxes--certainly no6
! unless the emoluments we're extravagant
| and burdensomc, and then the reduction
or deprivation must have been for that
] reason. But here, there is no such cX-.
/ CUse. The Legislature without expIa-
I
! apd therefore. in contemplation of law.
wantonly takes the duties and emolu-
/ ments from the sheriff and creates 4
new officer and gives them 10 him! The
| error is so paIpable, that but for tue
/ respect due to the Legislature whose
! act We are reviewing and must sustain
unless plainly unconstitutional. We should
! think il unnecessary. 10 cucumber the
/ case with authorities"
! In bunting V. Gales - n C.. 2SS
! while the Supreme court held the act
/ of the Legislature TO be constitutional
| the opinion, delivered by Justice Rcd
! man and concurred in by Chief Justice
| Pearson and Justices ReaGe, Bynum and
! Faircloth, says, in part:
! 1T is admitted that lucrative ptSalic
! office Is private property, of which no one
! can be diyested except by the law o9
! the land and It may also be admitted. so
/ far as this case is concerned. that after
| law has once fixed the tenure Of the
! office. a Subsequent act of the Legisla.
| ture cannot alter he tenure to the det-
riment of persons then in office, .. e.
| by converting II from an office during
| good behavior or for four years, into
! an cffice for two years. This was the
decision in Hoke v henderson and ia
! Taylor V. Stanley, DeY.. /, 81.
1t may also be admitted that the
Legislature cannot select particular
officer. and by special law applicable
60 him alone, deprive him of any ma
terial part OF his duties and emoluments.
This partakes Of the nature of judicial
forfeiture without a trial This was
the case of King V. Hunter. 65 \. c..
COS. Neither can the Legislature take
away the entire salary of an officer.
Gotten v Ellis, I Jones $40
IN Bailey V. Caldwell, 6s n. G.. 47:.
the plaintiff was appointed o Code COM
missioner. and during his term the Leg
islature Of 1901 passed an act pur.
porting TO repeal the ordinance OF the con-
yention under which ne was appoinseG.
Tic Supreme court unanimously held
that such act was unconstitutional, anc
that the plaintiff Bailey was entitled tC
his compensation for his entire term of
office. and that peremptory writ =
mandamus should issue requiring the
Governor to pay it.
On the argument in Wood Y. Bellamy.
which was heard and decided at tho Sans
time with Lusk Y. Sawyer and Pearson 2.
Switzerland, tho plaintiffs themselves
admitted tho autbaTify of Eoke y Hen