The news & observer., 1901-03-27

doctrine of Hoke against Henderson
which the Respondents made in that oe-
csion.
| Prior to the first of January 1897 the
Respondents not only did not extend II,
| but in two notable decisions, concurrea
| in by both Respondents, they announced
| purpose to confine and limit it's appll-
cation
The speaker went on to show thdt III
Caldwell VS.. Wilson and Ward VS.. Eliza
beth City majority of the Supreme
court, including the two Respondents
almost in so many words, declared that
the doctrine CT Hoke VS.. Henderson should
not be extended further
And assert that up to the first day OF
January, 1899, the doctrine remained as IL
was first enunciated in 1888. The change
came in April, 1899, when the first OF the
office holding cases, arising under the
act of the General Assembly of 1899 came
before this court. Did the Respondents
hold to their declaration in Caldwell
against Wilson that Hoke against Hen
derson had been carried to it's fullest
legitimate extent or did they hold as they
had in Ward against Elizabeth City that
an charged scope of duties or territory
created a new office? Not at all, but they
announced new doctrine. They not only
said that public office was private prop
erty and that it could not be transferred
during the term of an officer from him TO
another, but they said that an office con-
sisted OF its duties and while any of the
duties remained to be performed by any
body the office ortinued, and that the
office could not be transferred from one
during his term to another. | have not
been able to find a precedent for this
decision. If it is correct law, then not
only were Judges Meares and Jones en-
titled to their terms of office, but Judge
Cantwell was wrongfully ousted from HIS
office years ago. This was the first great
extension OF the doctrine that these Re-
spondents made shortly after they had
warned the public against further eXten-
sion. But the further extensions came
quick ard fast.
HOW THE EXTENSION GREW.
THE next decision was Wilson against
Jordan. In this case there was no way
to extend the doctrine of Hoke against
Henderson far enough to protect the old
clerk, for there was an express and dis
tinct act of the Legislature abolishing his
office, and he had been actually out of
office some days before any similar office
had been created. On this occasion the
Respondents invoked what they call the
doctrine Of in oari materia as an adjunct
to Hoke against Henderson, and they
combined these doctrines into system
whereby they might annul the legislative
will Neither doctrine alone was suffi-
cient; they combined them both and as
Sumed the authority to pass upon all the
acts of the Legislature, past and present,
relating to the Western Criminal district,
ard out of that mass of legislation they
practically constructed a law of their
own. The doctrine of in pari materia
means that in constructing a statute,
which is doubtful, the courts shall con-
slider all parts of the statute in order that
they may arrive at the true meaning Of
the portions thereof about which there
is any doubt as to the meaning of the
Legislature, In all other Jurisdiction this
doctrine is a means ofs arriving at the
intention of the Legislature and of carry
ing that intention into effect. Here the
doctrine is a means of reversing the
legislative will and of defeating the legis-
lative intentions.
HIS Is LflS lISI CdoS IdL llhd NhCit-
in this doctrine has been invoked to de-
feat the clearly expressed will of the
General Assembly 1t marks a milestone
in the progress the court made in usurp-
ing the functions of the Legislature. ] he
Respondents claim that this was not the
first case wehrein they had to rccur 10
that doctrine, and TREY say tha. this Coo
trine is unheld in bJth Wood against
Bellamy and in Days case. Thorough
examination will show that the doctrine
was not mentioned N thar 0; these
cases, nor was th6s pri lCii :l of int9r
probation used. No. in pari materia as
we now understand it first appeared III
Wilson against Jordan. Before many
months elapsed other cases came before
the court in which the old doctrine of
Hoke against Henderson and it's hand
maiden in pari materia were together not
sufficient to effect the purposes OF the
Respondents.
ANOTHER MILESTONE PASSED.
''The case of Abbott against Bedding
field is another mlestoaa in the progress
of the court. There he Gcn3r Il Assem-
bly, had by plain statute, clear and ex~
plicit, IN its terms, nowhere doubtful, and
with no room for construction ABOLISHED
the North Carolina Railroad Commission,
which institution had bee nestablished by
the General Assembly of 1891. Tie same
Legislature established the North Caro-
lima Corporation Commission, and provil-.
ed a different manner Of electing it's
members, provided different salaries, AMI
imposed uDon them the duties heretofore
exercised by the Railroad Commission
ebJ important duties in addition which
the Railroad Commission had mover eX-
ercised Here was an Office differing in
Eame, in salary, in method of election,
and in duties from the old office, and here
was an act of the Legislature in terms
abolishing the old office, but the court was
not to be banked of its purpose. 1t ex-
amined the acts of the Legislature as
courts are apt to examine deeds where
there is an issue of fraud; they adjudged
that the office of Corportion Commissioner
was the same as that of Railroad Com
missioner; they adjudged that the Legis-
lature had neved intended to abolish the
Railroad Commission; they declared the
act creating the Corporation Commission
to be mere amendment to the act es-
tablishing the Railroad Commission
passed in 1891. and to the act of 1899
repeating the law of 1891 they gave no
effect whatever In short they judicially
rpnpalpd that of tba Legislature as