Year: 1867

present week, the interesting question
Of the valility of the recent Legislative
Stay-Law was presented to Judge
Barnes, AMI rs it involved grave consid-
erations, he reduced the opinion to writ
ing. At the request of he Bar, he kind
ly consented to furnish j copy for pub
Hcatlon:


Opinion of Daci9 Il. Barnes, Judge


oresiaing at Spring Term, 1867, Of


the Martin Superior Court Of Law,


de.ivered an a case involving the CUES


tioa on the ca!iaity Of an act ot'the


General assembly, passed at 5tspres-


e,.t Session, entitled" -1n act to change


the Jurisdiction eth Courts and the


rules ofpleadiag Merein."


In the matter of William H. Hughes,
recently decided by the Supreme Court
of North Carolina, it is held that the
Convention of1s65 "was rightful Con-
vention of the people," but the Court
declined to enter upon discussion OF
its powers. 1t having been decided
then, that it was a rightful Convention,
the question arises was it unlimited or
restricted in its powers Neither the
proclamation of the President of the
United States authorizing it to be call
ed. or the Proclamation of the Provis
ional Governor calling it, attempted to
limit it's powers. Many of the ablest
minds in the Convention of 1885 held
that Convention Of the people could
not be limited, eUen by an act of the
Legislature calling it into existence, up
on the principle that no limitation can
be imposed upon the people when as
sembled in their sovereign capacity, a
Convention in theory being but such
an assemblage of the people. But,
however this may be, no limitation Of
power was attempted to be placed upon
the Convention by the President, who
through Provisional Governor provi-
ded "that the people might, in quiet
and orderly manner, elect delegates to
Convention" The people upon that
invitation assembled in Convention and
passed certain ordinances and among
them one entitled can ordinance to
change the jurisdiction OF the Courts
and the rules of pleading therein" and
by the oath section thereof, provided
that " the General Assembly shall have
no power to repeal, alter or nullify this
ordinance until the 3rd Monday in No
yemher, 1865"


The Convention subsequently provi-
ded for the election of members of 4
General Assembly, and made an ap-
portionment of representatives in the
House of Commons. The General AS
sembly thus authorized to be elected,
passed an act altering and modifying
in essential particulars this ordinance,
and in express words repeating so much
of said ordinance as comes in conflict
with said act.


The very grave and important ques-
ton is presented, which of these is the
law of the land, which is binding upon
the Courts to administer, the officers of
justice to execute, and the people to
obey. Both come from sources entitled
to our highest consideration and res
spect; but both cannot be obeyed, as
they were repugnant to each other, and
it is impossible to reconcile them. EN-
barrassing as this position is, the duty
in which a Judge must walk is plain
and unmistakable. He must patiently
and industriousiy seek TO enlighten his
Judgment upon all questions, and espe-
cially must he do this, when it involves
the right of the Legislative department
to legislate upon particular subject
body for whose opinions he should
always have the highest regard, and
whose action he should always sustain,
if he can conscientiously do so. When
his judgment is thus enlightened, and
he clearly sees the path of duty and
right, he must walk steadily, frml y land
fearlessly in it.


The Convention having been decided
to he rightful one, presume it will
not be questioned that it had the pow
er to amend the Constitution or even
adopt new one, which would have
had binding efficacy upon all, even if it
had not been submitted to the people
for ratification. Whether under the
circumstances, the Convention should
have done SO is different question and
does not affect the question of power
which l am now discussing. They |
could have incorporated in the Consti- |
tuition or organic a law provision that |
the General Assembly should never
thereafter change the jurisdiction of the
courts and the rules of pleading therein,
or they could have placed any other |
limitation upon the power of the Legis-
lature. Our present State Constitution
furnishes evidence that Convention
has the power to place perpetual pro
hibition upon the action of the General
Assembly, even in matters purely leg
islative in their character. Section
42nd is as follows: "That no Dur,
chase of lands shall be made of the In
dian nations, but on behalf of the pub
lie by authority of the General Assem-
bly," The third clause of the fourth
section of the first Article of the amend
ed Constitution provides that, "The
General Assembly shall have power to
pass general laws, regulating divorce
and alimony, but shall not have power
to grant divorce or secure alimonv in
any individual case" The 4th clause
OF the same section and Article pro-
vides that, "The General Assembly
shall not have power to pass any pri-
vate law, to alter the name of any per-
son, or to legitimate any person not
born In lawful wedlock, or to restore
to the rights of citizenship any person
convicted of an infamous crime. but
shall have power to pass general laws
regulating the same" The fifth clouSo