Evening journal. [volume] (Wilmington, Del.) 1888-1932, 1901-06-17
M'VRY MAKES
FIGHT FOR OFFICE
Argument Made Before Court
in Banc to Establish
His Status

Argument In the mandamus proceeding
OF Bernard ]. Ncvey VS.. Martin b. Bur
ris. state treasurer. TO compel the payment
OF salary alleged to be due. followed that
in the railroad road bed taxes before
Cours in Banc Saturday afternoon. Mr..
Money was represented by John hiEs3'
while Attorney-C General Ward and Dep
utv Attorney General Richards repre-
scented the State Treasurer argument was
made on an application for writ of pre-
emptory mandamus on the state treasurer
10 compel him 10 pay over to The relator
500. being his salary as state detective
for the month OF March. The rolator ned
the Office OF state detective under an act
passed by the Legislature on March is,
1898. AT the session OF the Delaware Leg.
isiature on March r. 1901 the office o.
state detective was abolished. But on
March Is the Office was re-established by
the passage of an act by the same LeGis-
lature. Under Article Is. Section 4, OF the
Constitution. the Legislature cannot d.
minish the salary or emoluments % ONCE
OF any officer during his term.
Counsel for Detective McNey held that
10 abolish Is TO diminish, for the meaning
of diminish Is to make less This rela-
ror's salary was diminished In the most
effectual way by abolishing the office. Mr..
Biggs argued that the act of the Lesisla~
ture was only to diminish, make less and
take away the salary OF the relator nnd
besto=v Il elsewhere.
Here sook place lively tilt as 10 the
good faith and the power OF the i-cgisla-
ture to act as e did.
Mr.. Biggs contended that this was a
constitutional office and he claimed the
office OF State detective had not been
abolished. Toe wording Of the acts OF 1875
and 1911 was this same he-FaA The
whole thing I'm nutshell was. ia his he
hef. 20 trrn ons psu out and put another
mar IN lis o Aso.
Judge spruance- asked; Mr.. Bggs,
what difference would It make II the re-
pealing act had been passed and no new
act created three days later?"
Mr. Biggs replied MY contention Is
that the act had to be abolished In good
faith This act in my belief is a manlfekt
fraud 10 turn two men out put two men
In their places and pay them their salar-
les, and is against public policy"
Judge Boyce asked: do ! Understand
you claim the act Of March - abolished
the act OF March 1872"
Chief Justice Lore said: "A man must
hold an office IN order that his salary
may be diminished"
Judge Grubb asked: What Is there IN
the Constitution to show the Legislature
gid not have the power 10 abolish this
act?"
Mr. Biggs replied "That part already
quoted which says that no law may be
passed to prolong an office OF to diminish
an officers salary
Deputy Attorney General Richards re-
plying said that there was no section II
the Constitution that precluded the Leg
stature from abolishing the office Of
state detective. Nothing Is said In the
Constitution that the Legislature shall no,
abolish the term OF public officer The
constitutional Convention intended and the
Constitution means that the Legislature
Is restricted only as the extension OF a
public Office, or the reduction OF an Of
nc'alF pay or emoluments- There is moth
Ing but implication that the salary was
diminished when the office was abolished
Not being public officer and not havins
a vested interest the relaror is not entitled
70 any salary after March 10 when the
office Of state detective was abolished.
Attorney-General Ward said that the
ground had been so lucidly covered by his
colleague that he would but briefly refer
to tho case. Sf
Ihere Is a public policy. he said. main
taiinns me power In the Legislature 70
ABOLISH an Office where there Is no pro.
,noiuoh IN the Constitution. II by statute
isN public office ceases then the salary
o. tne public officer does not continue. II
= pubic officer dies his salary ceases and
ppohc Office is abolished then the sal.
afy or the public officer does not continue
Aiier a brief argument on the same
Tines the case was submitted
a decision in the Wilmington and North.
ern case Is expected tomorrow