The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-12-23
RODWELL LOST
THE CLERK SUIT
Rowland Holds on in
Warren County.
SUPREME COURT NEXT
Judge ]. L. Webb Decides That the
Appointee of Judge PEBBLES Holds
For Unexpired Term Despite
ReguIOr Election by the
People.

49, oAAACC ~ -
the Superior Court of Warren Mr..
James r. Rodwell. elected to that Of
| flee at the last election and to GUST
MI. O. L. Rowland, the appointee of
Judge r. B. PEBBLES, resulted in a vic
tory for Rowland.
The case was heard here At Cham
bers yesterday by Judge James l..
| Webb, of Shelby, and IN it there ap-
peared for RodWell MeSsrs. T. M. Pitt
man. of Henderson, and J. II. Kerr,
of Warrenton, while for Rowland the
attorneys were Messrs. T. w. Beckett,
of LouIsburg, Tasker Polk ana u. u.
Green, of Warrenton.
AT the conclusion of the argument
Judge Webb announced that he under
stood the law to be that the appoint
ment to the office of Superior Court
Clerk by Judge was that the ap'
pointee hold for the entire unexpireo
term Of his predecessor, and that as
Mr.. Rowland was appointed to fill the
vacancy caused by the resignation or
Mr.. William A. White, whose tern.
would not expire till after election
in 1906, that Mr.. Rowland was there
fore entitled to hold the office till that
time, despite the fact that at the gen
eral election in 1904 Mr.. Rodwel was
elected and had given bond. The at
torney for Rowland at once appealed.
The points agreed upon by the at
torneys for both sides are that White
was elected in 1909 to hold for four
years, that Mr.. White resigned, TIN!
taking effect the Goth of September,
that on the 21st of September Judge
PEBBLES appointed Oliver L. Rowland
as clerk, that Rowland's bond was az.
copied for the entire uneXpired tern
upon which he entered the first of Oc-
tober: that at the general election IN
1904 James r. Rodwell was electeo
by the voters of the county; that his
election was judicially determined and
proclaimed by the Board of Canvas
sers, that Rowland did not participate
i'm or agree to the election; that OF
the first Monday in December, 1904
Rowland ten iered to the County Com
missioners his renewal bond under the
PEBBLES appointment, and that at tht
same time Rodwell rendered his bona
by virtue of the election, that the
Rowland bond was rejected, the Rod
we'll bond accepted, the board holdinf
that Rowland was no1onger entitled to
the office; that Etodwell took the oath
Of office and was declared by the board
% be indicted into office, having
taken the oath; that on December si1
RodWell made demand on Rowland fol
the office, that this was declined anr
Rowland still holds it, refusing tC
surrender, and finally that leave haC
been obtained from the Attorney-Gen-
eral to bring the suit in the name 'o1
the State on the relation of Jame%
r. Rodwell it being agreed that the
right and title to the office would b.
determined and final judgment, the
right Of appeal being reserved, by a
hearing At Chambers, either in or out
Of the district or county.
These facts being agreed upon the
case came before Judge Webb yester
day and the decision was in favor OF
Rowland.
Rowlaud's Contention.
In the argument of this case the
attorneys for the defendant Rowland
contended that no election for Clerk
of the Superior Court could be helC
iii 1904 for that:
1. That the Constitution provides
that the judge shall appoint to fill the
vacancy until an election can be regu-
larry held, and the Supreme Court In
Cloud " Wilson says that means the
next regular election for the office In
which the vacancy occurs. That the
constitutional convention of 1875 by
reason of the above decision amended
the section in regard to judges but left
| it unchanged in regaiN to clerks Of the
court.
Q That in a number of cases the
Supreme court hadexpressly said thai
vacancy in the office of the Clerh
of Superior Court could not be filled
| by a. popular election, Deiooch V.
| Rogers, SO n. c., 1851, $50. and other
cases.
g. That the General Assembly had
construed the Constitution in accord
ance with the contention of the de-
PENDANT for that while it had care
| fullyp rovided in all the election laws
| the machinery for holding elections TO
| fill vacancies in other offices. but no
provision is anywhere made for hold
| ing elections to fill vacancies in the
clerks office.
! 4. That the election law of 1901 was
| formed with great care-and that
no provision is made for electing to
| fill a vacancy in the clerks Office-and
! that no election can be held except
such as are ordered and provided for
! by the election law.
! The law says that an election shall
be held in 1902 and every four years
| thereafter-and that is all it does say
RodweIIs Contention.
Messrs. Thomas NJ. Pittman and
John II. Kerr argued Rodwell's right
to the office by virtue of his choice
| by the people at the regular e4b2tlon
| last November.
| They commended that Art ", sec
ton 70 of the Constitution, which pro-
vides that in case Of vacancy in the
office of Clerk of the superior Court
the Judge shall appoint to fill the va
cancy until an election can be regu-
Iarly held" contemplated an eventual
filing OF the vacancy by popular cleo
| ton, and inconsistent with defendants
contention in no event can there be
popular election to fill any vacancy
/ in that Office. That the judicial ap-
!pointment could be only temporary.
and terminated with the election in
November Until an election can be
regularly held"-are words Oh llmlta-
ton Ipon the appointing power, and
must be so construed.
Art. ". section Is of the Constitu-
! ton prescribes that the time and
manner of electing clerks of the SUI
periur Court. shall be as provided for
election of members of the General
Assembly, therefore an election lor
members of the General Assembly is
- o1lntin,, ..reenlnrlN held" at which