The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-12-03
TWILL NO LONGER
WALK THE EARTH
Hoke versus Henderson, Like the Ghost in
Hamlet, to Dsquiet the
Peace.
BUSTED SKY HIGH.

BUSTED SKY HIGH.
Would Do Well Enough for Monarchies,
but for this Republic, Nay. Says Su-
preme Court Through Justice Con-
nor---JustiCe Clark Concurs, and
Justices Montgomery and Douglas
Dissent.
''The Doctrine of Hoke VS.. Henderson,
like the ghost in Hamlet will no longer
walk the earth to disquiet the peace"
concludes Chief Justice Walter Clark in
an opinion concurring with that of the
Supreme Court, handed down yesterday
by Justice Connor in the case of Mial VS..
Ellington, the road case from this coun-
ty And so it is Hoke VS.. Henderson IG
Over-ruled.
Judge Clarks concurring opinion is a
brief synopsis of the argument against
the doctrine that Office is property based
on contract and hence protected by the
United States Constitution.
Justice Montgomery wrote a dissenting
opinion, which is partly taken up with a
defense of his course heretofore in the
office holding cases. He writes too, that
within less than two years before the
dissenting opinion in Days case was filed
Judge Clark wrote the unanimous opinion
OF the court In the case of Ward VS..
Elizabeth City, upholding the doctrine
of Hoke VS.. Henderson.
Justice Douglas also dissented from the
opinion of the court, but filed no written
opinion.
This OF course decides against A. r.
Mial in his suit for the office of road
supervisor in this county. 1t will be re.
membered he was elected by the county
commissioners and in the meantime the
Legislature of 1903 passed the new Wake
County Road Law, and this abolished
MIR. Mails office. He then sued for the
office. The Superior court decided against
him, and this opinion affirms that judg-
ment.
The following are extracts from Justice
Connor's exhaustive opinion:
We have no disposition in the decision
of this case to place the conclusion ~
which we have arrived upon the ground
that the position of Supervisor of the
Roads, the title to which is in contro-
versy, is not public Office. Adopting
the settled definition of a public officer,
We hold that the position comes clearly
within such definition. Nor are we dis
posed to enter into a discussion of the
many fine and delicate distinctions which
have been made between the validity OF
an act which distributes the duties of
an office and one which abolishes the
office We prefer rather to discuss and
decide the question which is fairly pre-
sented by this record, whether an officer
appointed for a definite time to a legIs-
lative office has any vested property in
terest or contract right to such office,
of which the Legislature cannot deprive
him. The contention of the relator is
based upon the proposition which was de-
cided by this court in Hoke V. Hender-
son. Is N G. /, which is thus stated by
Ruffin, c.. j.: "'The sole inquiry that re-
mains is, whther the office Of which the
act deprives Mr. Henderson, is property.
| 1t is scarcely possible to make the propo-
sition clearer TO plain mind, accustomed
to regard thing according to practical
results and realities, than by barely
stating it. For what is property; that is,
what do we understand by the torn? 1t
means, in reference to the thing, what
ever a person can possess and enjoy by
right; and, in reference to the person,
he who has that right to the exclusion
of others, is said to have the property.
That an office is the subject of property
has been explained, is well understood by
every one, as well as distinctly stated
in the law books from the earliest times.
An Office is enumerated by commentators
On the law among incorporeal heredita-
ments; and is defined to be the right to
exercise a public or private employment,
and to take the fees and emoluments
thereunto belonging.
"a public office has been we'll described
to be this: when one man is specially
set by law, and is compellable to do
another's business against his will and
without his leave, and can demand there
for such compensation by way of salary
or fees as by law is assigned; to the
doing of which business no other person
but the officer or one deputed by him,
is legally competent" This proposition
was stated by the great Chief Justice and
maintained in an elaborate opinion at the
December term, 1S3v, of this court Thst
it has frequently been cited with approval
and, with some exceptions, followed py
this court cannot be denied; nor can 'I
be successfully denied that there has al
ways been a number of the ablest mem-
bers of the bar in North Carolina who
have questioned it's soundness
The contrary view is thus stated Dy