The news & observer., 1901-03-27

before these two fetishes. They have cx.
| allied these two doctrines to such an ex'
tent that the jurists who first promulga-
| ted these doctrines could not recognize
| them. They have combined them an(
| made of them a very Frankenstein, un-
! controlled and uncomfortable in the do
main of legal construction ready to de-
stroy any dstateful legislation. Let us
| see what these doctrines are. In 1888 the
| Supreme court rendered the decision II
Hoke against Henderson, and held that
public office was, to limited extent, the
| property of the person holding the office
and that while the office remained II
could not be transferred from one person
during the term of office, to another per-
son. This briefly stated is the doctrine OF
Hoke against Henderson, now so famous
! The decision expressly states that the
Legislature has full power to abolish an
| office, to lessen Or increase its emolu-
ments or to change its duties whenever
the public interest requires. 1t expressly
| holds that the right of the officer is to
the emoluments of the office, and that his
rgh to the office is qualified in it's ma
ture and is subservient to public good
that when the office is no longer neces-
sary the Legislature can abolish it.
This doctrine was at variance with the
decisions of the United States courts and
all the courts of all the other States in
the Union. Many thought it was a decis-
ion not in harmony with the genius of
Republican institutions. The statement of
the Chief Justice that office is an
incorporal hereditament called forth much
comment as it was held nowhere else on
this side of the water that public office
was a subject of inheritance. Shortly
after this decision was rendered our court
took occasion to restrict and confine it.
At the December term, 1887, of the Su-
preme court the same Chief Justice who
delivered the opinion in Hoke against
Henderson delivered the opinion in Raj
eigh and CASTOR Railroad Company
against Davis. In that case Hoke against
Henderson was insisted upon, and the
Chief Justice apparently went out of his
way to limit and restrict the scope Of
that decision. He says. speaking of that
case there the office, a subject of prop
erty to a certain extent, was taken from
one and vested in anothr exactly in the
same State and in the same public pur-
poses as it was held by the first. The
public interest was in the service of the
officer, being precisely the same with
either person for the incumbent" And
again certain clerks had allowed newly
elected clerks of the court to assume
duties of their office. After the decision
in Hoke against Henderson these clerks
claimed their offices, but the same court
which had rendered the decision in Hoke
against Henderson said that these old
clerks had lost their offices by mere
non user. little later it was held the
doctrine of Hoke against Henderson did
not protect officers of a new county in
the tenure of their offices, if the Legis-
lature saw fit to legislate them out even
during the term of their office. This was
decided in Mills against Williams
DID NOT INTEND TO EXTEND.
These decisions were all rendered
years ago, and they show that it was the
purpose of the courts not to extend the
doctrine of Hoke against Henderson. In
more recent years the same purpose not
to extend that doctrine is seen in the de-
cisions of the court. criminal court
was established at Wilmington, and. dur
ing the terms of the officers, and while
they were performing the duties of their
Offices. the General Assembly saw fit to
abolish the court and transfer it's duties
to the Superior court of New Hanover
county The officers of that court pro-
tested, but the Supreme court held that
the General Assembly had the right to
legislate them out of their office during
their terms. and to transfer all the du-
ties that they had been performing to
the Superior court of New Hanover
COUNTY.
"A criminal court was set up in Wake
county and large portion of the duties
of the clerk of the Superior court of
Wake turned over to the clerk of the
Criminal court The clerk of the Superior
court resisted, but the Supreme court
held that the Legislature had the right
to make this transfer of his duties and
emoluments. There was no extension OF
this doctrine during all these years. and
it appeared that it had reached it's ulti-
mate limit When the present Supreme
court was elected it was we'll understood
that the doctrine of Hoke VS.. Henderson
only protected the tenure of an office
while the office retained its identity 1t
was we'll understood that If another Of
flee was created, with larger duties, even
though the office embraced the duties CT
the office this doctrine did not apply.
WHERE THE EXTENSION BEGAN.
"At the first term held by the present
Supreme court two cases were decided
which showed how fully the legal profess
sion of this State was imbued with the
idea that the doctrine of Hoke against
Henderson did not apply when the duties
or scope of the office had been enlarged
by legislative enactment. There were
two criminal districts created by the
Legislature, one in Western North Caro-
lina and the other in the East; both
were presided over by judges whose terms
had not expired and who were of poll
tical faith differing from that of ma
iority of the Supreme court. The General
Assembly of 1895 attempted to abolish
these criminal districts and to create new
districts with larger territories and with
a larger jurisdiction, but including all the
territory embraced in the old districts and
having all the jurisdiction of the old
courts with additional jurisdiction. The
Legislature chose men to fill the judge
ships to these new districts. The old Of
fcers resisted, and although we may as
sumo the old officers were judges learned
in the law, and were familiar with the
Jurisprudence of their native State, and
were represented by able lawyers, like
wise familiar with the laws Of their State,