The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-12-04

A brief allusion was made yesterday to
the decision of the Supreme Court over
ruling the case of Hoke v. Henderson, an
opinion that has vexed North Carolina
for many years. We published copiou5
extracts from the learned and logical
opinion of Justice Connor who wrote the
opinion OF majority of the court. 1t is
full, able, complete, leaving not an inch
of ground for the old and absurd doctrine
that an office holders property right in
an office is superior to the rights of The
public 1t is to be regretted that the en-
tire court did not concur in this decis-
ion, which is in keeping with the en-
lightened view of every country In the
world, which has a republican form of
government. Chief Justice Clark wrote
concurring opinion and Justice Mont
gomery wrote a dissenting opinion. JUS
tice Douglass will later file a dissenting
opinion.
The filing of the opinion of the court on
doctrine, which was simply an assertion
by the court of this State land found
nowhere else) that it could veto the ac-
ton of the Legislature in controlling the
political appointments of the State. The
act of 1906 made Superior Court clerks
appointed by the Judges FOR life. The act
al
for four years. This decision set aside
that statute and was based upon the
ground that office was a contract. In
1868 all the judges accepted office by cleo
ton for years, turning out their pre-
decessors who had been chosen for life.
Notwithstanding this denial of Hoke V.
Henderson by themselves, after the Dem
ocratic victory of 1870, the Republican
Supreme Court revived Hoke v. Hender
son and kept in their fellow Republicans
Matters thus stood (the doctrine being
quietly ignored in some later cases as
Winslow V. Morton and Bunting
Gales,) till brought to the front again
of the legislature of 1897 which tried to
change the asylum management, simply
by changing the title of office and putting
in new men. The court felt bound &c
hold under Hoke v. Henderson that this
was invalid. The case of Ward v.
Elizabeth City written by Mr.. Justice
arIy ha fod Oft
to the fact that the doctrine was re
pudiated in all the other courts, and while
admitting it had been so held in North
Carolina put limit to the doctrine and
denied Ward his office claimed under it,
Had the court never gone beyond these
last two cases all the office holding cases
from Days case on would have been de-
cided otherwise for, the legislature of 1899
contained many able lawyers who drew
the statutes changing the administration
of the penitentiary, asylum, R. RS anG
the school system, strictly in conformity
with Hoke V. Henderson by bona fide
abolishing the old offices and creating
a board OF 81 for a superintendent of the
penitentiary, adding many new duties and
taking off old ones as in the corporation
commission and likewise in the oyster
industry and other cases. 1t was all in
vain, for the Republican majority of the
court promptly expanded Hoke V. Hen
derson to mean (what it had never meant
oefore) that as long as the duties t.
manned anywhere and in any shape, the
old office-holder could follow up his office
and retake it, like following diverted
trust funds AS the duties of govern
ment remain essentially the same, this
was to put a veto on the control of the
government by the legislature. 1t led
the court logically into ordering one OF
the reinstated office holders to be paid,
contrary to an act of the legislature, by
the Treasurer and the Impeachment OF the
Judges responsible for it followed.
The great expansion given to Hoke v.
Henderson inevitably led to the entire
destruction of the whole illogical doctrine
and we have now seen the last of It,
No judge will ever try to breathe life into
it again.