The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-01-27
WHO '',NOULD HAVE WON
Cause Of Action Dead Yet Republican
Judges Decide.
INVOKE DOCTRINE or HokE VS. HENDERSON
And Expand il to Apply to Matter Of Costs.
Judge Clark Shows that This Doctrine
Mas Been Exploded by the
Highest Courts.
Highest Courts.


We take from the last issue of the
South East Reporter the following ex-
tracts from the dissenting opinions Of
Judges Clark and Montgomery jn Taylor
VS.. Vann. a most remarkable case. II
will be of interest to Others as well as
lawvers.
The extreme to which the Republican
majority of the Saprems court has gone
shows the consequences Ct departing from
the straight line. Had they adhered 10
Hoke VS.. Henderson. md gone no flith-
er, the decision in Days case aud all
subsequent decisions, including the row
celebrated mandamus u tho Public Treas
urer would have been d Terent. But The
court was bent on over ruling the Demo-
cratic Legislature OF 1899 al every point
and they did it,
In the case, which NC give below, suit
was brought for the office of member
OF the Board of Education in Hertford
county and judgment obtained April 1900.
The utmost value OF me Office wius - os
the pay is 81 per session and only ore
more session could then be had The APP
peal came uD in the Supreme court last
action had died. as the office sued Tor
had terminated July |, 1900. In sreli case,
as Judge Montgomery dissent shows,
the court always refuses to decide ~ho
would have Won if thu cause of action
had survived, merely 70 determine The
costs. But Judge Douglas invoked the
doctrine of Hoke Us. Henderson ami
the Republican majority rallied TO him,
of course. We do not give his opinion
as the only precedent he relies IN after
long reiteration Of the "office cascs'l
decisions heretofore made by himself and
two colleagues is a eulogissic paragraph
in an obituary address on Judge Ruffin by
Governor w. n. GTaham nviiently meant
as an estoppel upon Judge Clark, who re-
plies that an obituary con.Ylilnent is not
a legal precedent, and gives Judge
Douglas former opinion that Hoie VS.
Henderson even before the late expansion
Of It vas not law.
We extract the following from the dis
senting opinion of he latter:
Clark, ]. (dissertEg) The Plaintiff re-
covered judgment for the office OF mem
Der of the hoard of education of Hartford
county at April term, 1900, of the Supe-
rior court of that county. The term of
that office expired on the 1st day of July,
$500, pending the appeal here. This court
could now render no judgment that the
plaintiff be admitted to the office, and it
las repeatedly held that in such cases
it will not go on to discuss q pure alb
stracton, and determine who would have
won il the cause of action had not deter
mined; that it will not decide the merits
OF an extinct controversy merely to award
the costs.
The doctrine of Hoke VS.. Henderson has
been greatly expanded by this court since
January, 1899. but never till now was it
held to apply TO matter of costs, nor
has 1t been deemed so sacred that other
and well-considered decisions shall be
overruled, should it be deemed that even
indirectly they irnpinge upon the new
breadth given that case. In its original
restricted limits. that case was based
upon a construction of the clause OF the
Federal Constitution which forbids the
Impairment of the obligation of a con-
tract. The construction placed by the |
United States Supreme Court upon the |
United States Constitution is binding |
upon all. and that high tribunal, in the |
very recent case of Taylor VS.. Beckham, |
i7S Y. S., at pages $40. SIT, cite the uni |
form rulings of that court, notably, But |
Ter VS.. Pennsylvania, 10 How. 402, 416, |
and Crenshaw vs.. U. S. 1874, IT, S. SO. 104, |
in which latter case" the court says
MIR. Justice Lamar stated the primary
question in the case to be whether an |
ofiicer appointed for definite time or |
during good behavior had any vested in |
terest or contract right in his office of |
which Congress could not deprive him, |
and he said, speaking for the court, the |
question is not novel; There seems to be |
U1t little difficulty in deciding that there
was no such interest or right Butler VS.. |
Pennsylvania, supra; Newton VS. Com |
missioners. 100 Y. s.. 54S, Blake VS. u. s., /
lOS Y. s. 227, and many other cases. The
decisions are numerous to the effect that
public offices are mere agencies or trusts. |
and not proRerty, as such. Nor are the |
salary and emoluments property, secured |
by contract. but compensation for SER |
vices actually rendered Nor does the fact
that constitution may forbid tile lepis- /
lature from abolishing a public office
or diminishing the salary thereof during |
the term Of the incumbent change its
character or make it property. True, the |
restrictions limit the power Of the legis- |
lature to deal with the office. but even
such restrictions may be removed by con-
stitutional amendment. In short, gene /
rally speaking, the nature of the relation /
Of public officer to the public is incon-