The sun., 1901-03-22

DECISION
Lengthy Argument is Held in
Judgeship Contest.
JUDGE MUST BE CONFIRMED
This Was the Contention of Messrs.
Ward and Hayes, Counsel for
Mr.. Churchman-Salary
Exceeds $500
JUDGE MUST BE CONFIRMED

Argument was heard yesterday by
Chief Justice Lore and Associate Judges
Pennewill and Boyce in the Superior
Court in the matter of the controversy
between edwin r. Cochran, Jr., and
Philip Q. Churchman, as to who is leg
ally entitled to the position of Judge of
the City Court.
The argument was concluded shortly
after 4 o'clock when court adjourned to
next Tuesday. The decision was re-
served.
The case came before the court on
quo warranto proceedings, instituted by
Attorney General Ward on the relation
of Mr.. Cochran, who was represented
by Robert G. Harman and j. Harvey
Whiteman. Mr.. Churchman was repre-
>ented by Herbert III. Ward and Walter
III. Hayes.
Mr.. Harman read an agreement of
counsel that the Mayor and Council
had accepted the State Constitution.
The reading Of the original petition,
which related the incidents of Judge
Cochran's appointment and ousting, was
dispensed with. Mr.. Ward read the
pleas filed in behalf of Mr.. Churchman,
which alleged that Judge Cochrans ap-
pointment was not confirmed by the
State Senate and that his salary was
greater than the $500 limit as to neces-
;ity for confirmation.
Mr.. Harman read demurrer to the
eas, claiming that they were not suffi-
lent to bar the plaintiff; that the con-
cent of the majority of the Senate was
not necessary. He then presented a
lengthy brief and proceeded to argue the
ase.
He made four claims as follows:
First-The city judge is a municipal
office and does not require confirmation
by the State Senate.
Second-Section Of article 3 of the
State Constitution does not refer to mum
icipal officers. Section 9 gives the gov
,rnor authority to make appointments,
by and with the consent of majority of
the Senate.
Third-Section 32 of article of the
State Constitution refers solely to in
'erior courts that may be afterwards
reated and not to the present municipal
.ourt That section reads: "Justices of
The peace and the judges of such courts
MS the General Assembly may establish
pursuant to the provisions of section l.,
" section 80 of this article shall be ap-
pointed by the governor, by and with the
consent of majority of all the members
elected to the Senate, for such terms as
hall be fixed by this Constitution or by
law"
Fourth--The City Judge is Il creature
Of statute and the sole requisite of the
statute is that he shall be appointed by
The governor. not that his appointment
must be confirmed.
Mr.. Harman declared that the muni-
pal Judge does not come under the con-
stitution at all. He gave reasons why
The judge is city judge and included
the following:
The act creating the office is entitled.
An act to revise and consolidate the
statutes relating to the city of Will
mington and is the city charter;to amend
II repeal the charter requires two-thirds
vote of the legislature; all prosecutions
brought before the city judge for breach
Of municipal laws, ordinances and reg
ulations are required to be brought in
the name of ''The Mayor and Council OF
| Wilmington"
The salary Of the judge is paid by the
city. All fines for violations in cases
before him are paid into the city treas
h ury. Where cases are dismissed, wit
nesses for the prosecution are paid by
he city. The city judge practices law
md takes fees for his professional servi
es. The official title of the judge is
'"city judge.
| He said there was no illusion in the
constitution to the city judge.
| II. H. Ward argued on behalf OF
Mr.. Churchman and presented lengthy
brief He denied the four claims. HI
held that the municipal judge did re
luire confirmation by the State Senate
He held that section 8, article of tn,
State constitution gave the governor au
lthority to appoint officers as directed b.
the constitution and the laws.
In the matter of State offenses tn,
municipal judge had the authority of
committing magistrate and such pro
cesses are made out in the name of th
State.
Walter III. Hayes followed Mr.. War,
land also argued in behalf of Mr.. Church
Imam.
He held that the appointment of Judg
Cochran was recess appointment an
that when his appointment was no
confirmed he ceased to be judge, tina
whether a State official or not, as hi
salary exceeded $500 his appointment
had to be confirmed by the Senate. HI
cited one case where the question a
whether the municipal court had th
right to impose an Imprisonment Of owe
six months and fine exceeding $40
was involved. An appeal was taken t
the court of General Sessions, where
was held that it had jurisdiction of al
peal and ordered it docketed. He hel
that the municipal judge. was really a
agent for the State for certain offense.
He claimed that if the trainers of tn
constitution had intended that the nun
cipal judge should not have to be col
firmed they would have said so. Thf
the object of the amendment was [
curb the power of the governor and Il
was to make certain appointments, onl
with the consent of the Senate.
! Mr.. Whiteman. speaking on behalf {
Judge Cochran concluded the argumen
l Mr.. Whiteman asked the question as
whether patrolman would have to |
confirmed by the Senate simply becar
his salary exceeded $500.
Mr.. Ward replied that he would if Il
0 General Assembly directed his appoin
itnont ht- ho unvapnn,,