The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-01-27

| tract right. There can De no nlSneI
authority as to rights or immunities
claimed under the Federal Constitution
than the decisions of the United States
Supreme Court.
Hoke VS.. Henderson rests upon the doc
trine that public officer has contract
or property rights in his office, which are
protected against legislative action by
the clause of the Federal Constitution
which forbids the impairment of the obli-
CATION of contracts. The above explicit
statement in the latest case (Taylor VS..
Beckham, 17S n. c., at page SIT, reciting
the uniform decisions of the highest Uni
ted States court and reiterating them,
that the nature of a public office is in
consistent with either property or con-
tract right therein by the officer, neces-
sarily puts an end to any right claimed
under Hoke VS.. Henderson 1t is hence
/ forward derelict floating upon the ocean
of Jurisprudence, and to be avoided The
| opinion in Taylor VS.. Beckham was filed
| May 81, 1900. Though there are some dis
| sents, there is none as to the PROPOSE
tion above cited.
in our own courts every judge who took
his seat upon the bench in 1868 neeessar-
/ lily negatives the doctrine of Holle VS..
Henderson, since they recognized thereby
| the validity of the action of the conven-
| ton in vacating the life judgeships held
| by their predecessors, which the conven
| ton could not do if those offices were
contracts. In Ward VS.. City of Eliza
beth City, 121 n c. /, the court, composed
of the same judges as now denied the
| application of Hoke VS.. Henderson to the
| facts OF that case. and said. This is
! IL.
| that doctrine l. e. of contract or prop
erty rights in an office
In State VS. Wilson, 121 n. c., at page
| 467. Douglas, j., says, With the excep-
| ton of this State. it is the well-settled
doctrine of the United States that an of
| flee is not regarded as held under grant
or contract within the constitutional
provision protecting contracts" And fur
Their on he says: tThroop. Pub. OF No
| 10, citing 90 decisions from the United
States Supreme Court and 80 different
States; ALSO Black, Const. Law, p. $780,
and cases cited; Mechem, Pub. Off. .....
463, 464 citing numerous cases,-says that,
except in North Carolina, it is we'll settled
that there is no contract. either express
or implied, between a public officer and
the government whose agent he is, nor
erty of the incumbent And on page
46S, 121 Y. c., Douglas j., further says
of Hoke VS.. Henderson: ''The fact that we
are the only State in the Union recognize
ing the doctrine may well cause us to
pause and consider if we have not car
ried it to the fullest legitimate extent.
1t may be doubted if the great chief JUS
tice ever contemplated the extent to which
ho ;a1 pIif Gil hot RI
cision the doctrine has been carried to
still greater and most unexpected ex-
pansion by Days Case, l24 n. C. 362,
Wilson VS.. Jordan, 124 ~. G. $50, White
VS. Auditor, 126 n c. $40, and numerous
other office cases The ''92 decisions from
the United States and 80 States Supreme
Courts cited by Douglas, j., as holding
that there is no property or contract
rights in a public office have been in
creased in number since. and still with
out any case to support Hoke VS.. Hem
derson. 1t is unnecessary to cite them,
especially as the utterance of the United |
States Supreme Court in Taylor VS.. Beck |
ham has given the coup de grace to Hoke |
VS.. Henderson, even in it's comparatively |
modest limits, before it was extended by |
the recent cases in this court
But it may be interesting and instruc- |
tive TO cite a few of the comments passed |
upon Hoke VS. Henderson by the highest |
courts of our sister States. The Supreme |
Court OF South Carolina. in Alexander |
VS.. Mckensie. S. c., at page 80, after |
laying down the doctrine that the Iegis- |
lature may at will remove the incum- |
bents OF offices created by the legisla-
ture, and put others in their place" says: /
I0i-n
the contrary doctrine, but is without the |
support OF reason or authority"
The Supreme Court of Kentucky in |
Standeford VS.. Wingate Duv. at page |
44S, says: Within the range of our re-
searches, the only adiudged case which |
could give any countenanee to such an
unreasonable doctrine is Hoke VS.. Hender-
son, 10 y. G. /. That anomalous
decision is not. in our opinion. sustained |
by consistent argument, which with all
proper respect, We regard as. in princi-
pie, felo de Sc, even under the consti
tuition Of North Carolina
In Conner VS.. Mayor, etc, Sandf., IN. |
W, at pages S73, "A, it is said: THE |
North Carolina case (Hoke vs. Hender
SOM stands out in strong contrast to every
public decision and opinion on the subject |
which we have seen. and accounts for
the anomaly thus: 1T appears to us.
with much respect for the learned tribunal
which pronounced this judgment, that it
was unduly influenced by the common /
law rule derived from prescriptive offices,
and operating in a government whose
genius and spirit are perhaps in no re-
spect more unlike ours than in this very
subject, the source and nature of the |
rights and interests acquired by public |
In Is Am. Dec, at page 704, the learn |
ed annotator Judge Freeman, annotat-
ing Hoke VS.. Henderson. says Such
a doctrine would certainly receive coun7
tenance nowhere else. With all
Difference to the North Carolina courts.
the conclusion may yet be drawn, with |
Mr.. Pomeroy (Const. Law, No $685. that
1T may therefore be considered as set
tied point of constitutional law-settied
both by the national and State courts
that public office bears no resemblance
to contract, and that legislatures have
full power over the public offices OF /
except so far as they are
restrained by the local constitutions. The I
clause of the United States Constitution