The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1905-04-18
Tuesday, April 10, 1905
THE LAWS ~MUTARILITY.

In writing a dissenting opinion in
the case of Mayo VS.. Commissioners
in the 122 ". G. Reports in which he
took the ground hat municipal water
works constitute a necessary ex-
pense' within the MEANING of the con-
stitution. Chief Justice Clark took the
trouble t. collate for the o1
his argument some interesting figures
as to the growth of the idea CT mlinlc-
ipaI ownership of public utilities.
AS is we'll known through a series
of more recent decisions Of n court.
the opinion written ~ Judge clark as
O dissent in that case has since De
come the law of the state. that water
works. lights. sewerage. ETC.. are nee
essary Since that OPINION
was written, also. the cause OF mun1cl-
nal Ownership Of these necessities
and other public utilities has con-
Stantly gained strength
the country.-News and observer.
Two things are shown by the above.
One is that our law is unstable, though
we have q court of last resort to de-
clare what the law is. The law of this
state is what that court prOnOunces 1t
to be in the construction it puts upon
the various clauses of the constitution
and the acts of the legislature. The
last decision of the supreme court IS
binding as being the law until 1t is
o%verruled by a subsequent declaration.
This overruling Of former decisions has
been so frequent of late years that
lawyers hardly know what the law is,
or, rather, will be, on any important
question until a pending case in which
it is raised has beer passed upon by
the supreme court. What the court
today declares to be the law may to-
corrow be denied by the same court
and the reverse of the former holding
declared to be the law. There are two
reasons for this-the changing of the
personnel of the court every few years
and the election of judges by the peo-
pie, making the office somewhat Of a
political one.
The second thing shown by the
above editorial from The News and
Observer is that public opinion has
much to do with the conclusions to
which our judges come in constituting
the statutes and constitution of the
state. We do not mean to charge the
judges with pandering to public opin-
ion. They are unconsciously biased by
the change of public views on certain
matters. Take the case above alluded
10 ONLY Snynn uno ,c n rc tho 70 ~
court Of this state decided that munic-
ipal waterwOrks were not a necessary
expense of q town within the meaning
OF the clause of the constitution which
restricted the powers of municipal au-
thOrities in levying taxes and incur
ring Indebtedness. In the meantime
the d of municipal ownership of
utilities has gained greatly in public
favor. Then the question again comes
up before the court, which, in constru-
ing the identical clause of the consti-
tuition, declares just the reverse of the
former decision to be the correct con-
struction of that clause.
Every time there is a change in the
personnel of the court of last resort
lawyers who have had adverse decis
ions in cases before the old court carry
up the very same point in hopes that
the new court will overrule the former
decision.
To show that our contention is cor
rect that Il change in public opinion is
liable to effect the rulings of the courts
We call attention to the statement in
the above quotation that Judge Clark
embodied in his dissenting opinion fig
ures as to the growth Of the idea of
municipal ownership of public utili-
ties in other words, statistics show
that more people now favor municipal
ownership. therefore the clause of the
state constitution under consideration
places water-works and the like in the
class of necessary expenses"