The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-12-03

eanization of the departments TO which
they are attached as to leave them with
out a place Mechem on Pub. officers,
Sec. 463 ct seq; Throop on Pub. OF.
Sections l719; % Am. and Eng. Enc. of
Law 32s.
In the case of State ", Hawkins, IA
Ohio ST. 109, Minshall, j., says: The
incumbent of an office has not, under
our system of government, any property
in it, His right to exercise it is not based
lon any contract or grant. 1t is con-
ferred on him by the public trust to be
exercised for the benefit of the pub ic.
such SAL ry as may be attached to it is
not given him because of any duty on
the part of the public to do so, but to
enable the incumbent ,ne better to per-
form the duties Of his Office by the more
exclusive devotion of time thereto.
IN the case OF Donahue V. Will Co 1r0
III. 81, it is said: 1T is impossible to
conceive how, under our form of COVE n
ment a person can own or have title o
a governmental office Offices are created
for the administration Of public affairs.
When person is inducted into an office
he thereby becomes empowered to exer-
Use its powe-s nd perform it's duties,
not for his, but for the public benefit.
It would be misnomer and a Ierversior
of terms to say that an incumbent owned
an office or had any title to it,
Some of the decisions have adopted
the theory that an office is property
.nder a mistaken view that the
Common law doctrine that an office
IS a h reditament \. piled to offices
Of this country. which is undoubt-
ed fallacious = Pubic offices pe4ono
to the people, and are to be both con-
4eIred and taken away according 10 their
Will and appointment, and person WRo
accepts a puDlIc onice does so subject 10
all the constitutional and legislative pro-
visions thereto" Moore V. strickland, rs
West Va, SIS. The court, in this case
refers to Hoke V. Henderson and ak
grossly rejects the doctrine enunciateG
therein. A careful research fully sus-
,alrs the remark Of Mr. Justice Doug IS,
supra.
Mr. Irving Blown, in his note 20 Grant
V. sec. OF state Tor Indiana, Eng. Ku..
Cas-. 266, states the doctrine as ned il
the cases CITED by US with this conclusion:
Both the office itself and the comper
sauon, upon general principles OF l~w,
are naturally within the control of the
government to diminish increase or
abolish. This is the general doctrine as
70 statutory offices IN this county. An
appointment TO an office is not q contract
the Impairment OF the obligation ol
y hich IS forbidden by the Federal Con
stilulion." He notes the singIe excep-
,lon in the North Carolina court, and
:, VS.: I'm al the other States, the legls-
ID ture may do what it pleases with sun
Offices unless it is expressly restrained
~ the Constitution, an Office not being
regarded as pl operty nor the subject o.
contract III any sense"
In speaking OF the sanctity of judicial
,recedents. great jurist uses the fol-
owing language: 'On the other hand,
hold 1t to be the duty of this cour,,
d. we'll as eve4y other, to revise It's own
dec.sions nd when satisfied that it has
iellen into mistake, to correct the
error by overruling its own decisions.
Another Justice says: cit is going quite
too far to say that single decision of
any court is absolutely conclusive as a
srecedent. 1t is an elementary principle
that an erroneous decision is not bad law;
It is 10 law at Ill 1t may be final upon
lie parties before the court, but it does
cot conclude other parties having right,
.elending upon the same question.
''Iy is no doubt true that even single
adjudication of this court, upon ques-
uon properly before it, is not to be
Questioned or dsrc garded except tor the
most eogent reasons and then only III q
ese where it is plain that the judgment
was the result of mistt ken view OF the
condition OF the law applicable to che
question. But the doctrine of sta. de
cisis like almost every other legal rue,
is not without its exceF items. 1t dos
OF apply to a case where 1t can be
hown that the Jaw has been m'sunder-
stood or misapplied, or where the former
determination is contrary to re: son. The
authorities are abundant to show that
n such cases it is the duty of the courts
to re-examine the question. Chancellor
Kent, commenting upon the rule
stare decisis, said that more than a
thousand cases could then be pointed out
the English and Americ: courts,
which had been overruled, doubted
limited in their apphca ton" Rumsey
tailroad, 1873 N. Y. 70.
While it is our duty to search for and,
If haply We find the law, to apply TO i
the case, we think 1t not improper, IL
lew Of the range which the discussion
f the principle involved in this case has
taken N our reIo.ts, 10 say, IL es. lis
10 the argument tn t If the legislature
DE permitted to change, modify, abolish
r otherwise deal with pubic Office an,
rs incurnbents, uncertainty in securit.
and constant disturbance in the admin
.stration of the domestic affairs OF til
tale will tol ow, that ours is a govern
ment "of the people, by the Eeop.e an
.or the people," that, except in so far
as they have in their org. mic law lin
ed their POWER to speak and act til. ough
heir representatives, sovereignty resus
with them. We, VINO are commissioned
to perform judicial iunctlons may not
claim to be wiser Ian they, or find aLv
other guide for our conduct than the
constitution which they have ordained l. |
the people have not authorized their leg
asIallve deIal tment TO parcel out their
sovereignty by grants OF pubic on4oes J
S private properly, we dare not do so |
The legis ature having been entruste4 |
With the power of either electlng or pro-
v.ding Tor the lection OF officers
lative creation, must az the representa-
tives of the people, be entrusted to make
UGH changes in the tenure, duties and |
ov,oI,ron,tc of sl1ch offices as in its |