# State Ex Rel. Caldwell v. Wilson

> Supreme Court of North Carolina · September 5, 1897 · 121 N.C. 425

URL: https://www.frixlaw.com/law-library/cases/9811958

## Case

- **Full name:** State Ex Rel. L. C. Caldwell v. James W. Wilson.
- **Court:** Supreme Court of North Carolina
- **Decided:** September 5, 1897
- **Citations:** 121 N.C. 425; 28 S.E. 554
- **Precedential status:** Published
- **Opinion:** Dissent by Faircloth
- **Judges:** Douglas, Faircloth
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9811958

## Opinion text

Faircloth, C. J.,
dissenting: As I do not agree with the majority of the Court, in this case, I feel it my duty to state why I do not. I concede the right of the Legislature to abolish any office of its own creation, in which event the officer goes with the office, not upon any notion of implied notice in the acceptance, hut because the Legislature has the power to abolish. By the Act of 1891, Chapter 320, the Legislature created the office of a Railroad Commission with the powers and duties' therein enumerated, and elected the members of the Commission, the term of office being six years. That said Commission is a Court of Record with the powers and jurisdiction of a Court of general jurisdiction, to the extent- of all subjects embraced in said Act, is settled. Express Co. v. Railroad, 111 N. C., 463 ; Railroad v. Telegraph Co. 113 N. C., 213 ; Leavell v. Telegraph Co., 116 N. C., 211 . That an office is property lias been uniformly held since 1833. Hoke v. Henderson, 15 N. C., 1 . Section 1 of said Act provides: “Said Commissioners shall not jointly, or severally, or in any way be the holder of any stock or bonds, or be the agent or attorney or employee of any such company, or have any interest in any way in such company, and shall so continue, during the term of his office, and in case any Commissioner shall, as distributee or legatee or in any other *475 way, liave or become entitled to any stock or bonds or interest therein of any such company, lie shall at once dispose of the same; and in case any Commissioner shall fail in this, or in case any one of them shall become disqualified to act, then it shall he the duty of the Governor to suspend him from office and to report the fact of his suspension, together with the reason therefor, to the next General Assembly, and the question of his removal from office shall he determined by a majority of the General Assembly in joint session. In any case of suspension the Governor shall fill the vacancy, and, if the General Assembly shall determine that the Commissioner suspended shall be removed, then the appointee of the Governor shall hold until his successor is elected and qualified as hereinbefore provided, &c.”
Thus we see that the Governor suspends whenever he deems proper and the Legislature removes at its will and pleasure, as an ex pnrie proceeding, the officer (commissioner) having no opportunity to be heard. This proceeding is at least a novelty and so ' far as I remember is without precedent, certainly so in North Carolina. Such proceedings no doubt are found under some forms of government, but they are at variance with all fundamental rules of government in the United States of America. Those rules protect life, liberty and property in the due administration of law.
My conception is that the act of the Governor in suspending the defendant was not an executive function, but simply the act of an agent of the Legislature with such power as they attempted to confer on their agent, and that the term “Governor” was simply used to identify the agent. I can see no reason why the Secretary of State could not as well have been the agent, with directions,for the causes mentioned in the Act, to suspend the Governor from his office until the Legislature should have an opportunity to remove or restore him, as they might choose to do, without any hearing for him. If this can be done for the causes specified in Section 1 of the *476 Act, then other like causes might be added. Let us then, suppose that the Legislature in addition, had said “if the Governor shall own any stock in any railroad in this State, or shall receive any benefit, convenience or accommodation from any railroad, -then the Secretary of State shall suspend him from office, and report his Act to the next Legislature, and that they will remove or restore him, as seems good to them.” It seems to me that such action would be in derogation of his rights under Article III, Section 12 and Article IV, Section 3 and ' 4 of the Constitution, providing for his conviction, removal and disqualification for office. It is true that he is a constitutional officer, and so is the defendant, under the authority of Article IV, Section 2.
So, tire real question is the power of the Legislature to suspend and remove a judicial officer from his office and thus forfeit his property without giving him a trial.
Under our form of government the source of all power is the people. At the outset they declared their will in the Constitution and adopted by common consent, general rules for governing themselves, ’known as the law of the land, and each Department, with its many sub-divisions, is subordinate to those fundamental principles. The Constitution is a brief and condensed expression of law and must be taken as expressed, with all of its reasonable implications-Among its utterances we find: “The legislative, executive and supremo judicial powers of the government ought to be forever separate and distinct from each other.” Article I, Section 8.
“The Executive Department shall consist of a Governor, in whom shall be vested the Supreme Executive power of the State,” &c. Article III, Section 1.
“The judicial power of the State shall be vested in a Court for the trial of impeachments, a Supreme Court, Superior Courts, Courts of Justices of the Peace and such other Courts *477 inferior to the Supreme Court, as may be established by law.” Article IV, Section 2.
“The General Assembly shall have no power to deprive-the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government.” Article IV, Section 12. And this article provides further that the Legislature may distribute the power and jurisdiction, provide for appeals, and regulate the method of proceeding, as it may deem best, “so far as the' same may be done without conflict with other provisions of this Constitution.” “No person ought to be taken, imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled or in any manner deprived of his life, liberty, or property, but by- the law of the land.” Article I, Section 17.
“In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.” Article I, Section 19.
The terms “due process of law” and “the law of the land” when the rights of property are under consideration, are not easily distinguished. I have seen no better definition of the latter than that given by Mr. Webster in Dartmouth College v. Woodward, 4 Wheat, 519, (Works of Webster Vol. V, p. 487). “By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one *478 man’s estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land. 'Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the Legislature. There would be no general permanent law for Courts to administer or men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or administer the justice of the country.”
A glance at the above recitals would seem to answer, without further argument, the question “Pías the Legislature the power, directly or indirectly, to suspend or remove a judicial officer, and declare his right and property in his office forfeited?”
It has been universally held in-this country, wherever freemen live, that no forfeiture of an office nor vacancy therein can be judicially declared, until the accused has had a trial and sufficient cause is established. Hoke v. Henderson, 15 N. C., 1 ; People v. Heaton, 77 N. C., 38 ; Vann v. Pipkin, 77 N. C., 408 ; State v. Norman, 82 N. C., 687 .
“The term ‘law of the land’ does not mean merely an act of the General Assembly. If it did every restriction upon the legislative authority would be at once abrogated.” Hoke v. Henderson, supra.
Suppose the General Assembly at its next meeting shall examine the Governor’s report and, finding no sufficient cause, shall adjudge that defendant was not duly suspended and that he has not forfeited his office, and the plaintiff shall refuse to surrender his possession of the office; what then? With these conflicting decisions, to what tribunal can the parties appeal for a finality? Any legislative Act that can lead to such a result must be a nullity. Any legislative *479 sentence declaring a forfeiture of property is judicial in its nature and, wlien rendered without a hearing and trial, is in the nature of things void. The Constitutionality of an Act is determined by its effect, rather than the intent of the Legislature. Bank Tax Case, 2 Wallace, 200; Provident Insurance Co. v. Massachusetts, 6 Wallace, 611. It may be competent, as I have said, to abolish an office, when the property therein is necessarily lost, but it is (pite a different proposition to continue the office, discharge the officer at pleasure, and give his office to another. I am told that every office is accepted with notice that the officer may be displaced or removed. That is not an express condition, but at most is only an implied condition, and it is equally implied that such removal, when personal and property rights have vested, can be made, only after cause established, by a Court having jurisdiction and by proceedings recognized by the general and fundamental rules of law and by judicial authority. Conditions precedent may bar an entry, but a condition subsequent, even if it be illegal or immoral, cannot divest an estate. A subsequent condition is not self-executing, and when invoked for the purpose of convicting and declaring a forfeiture, it becomes effective only under the rule and the manner above'stated.
There is no allegation of incompetency, bad faith or maladministration against the defendant in the discharge of his duties in office. The matters preferred by the Governor in his suspending order, rather vaguely stated and based upon private information and newspaper reports, are inserted in the complaint. and substantially constitute the complaint. The defendant specifically denies each material allegation. When brought before the Superior Court under the form of a trial, the defendant demanded to hear the proof of the matters alleged, to confront his accusers, to cross-examine, to introduce his own evidence, and to have the issues de *480 termined by a jury of his peers. These requests were all refused by the Court and judgment was pronounced declaring that defendant had been duly suspended from his office, and ordering his ouster therefrom. This Court is now appealed to, to affirm said judgment and approve the procedure below in this case.
Without exhausting the argument, my excuse for tediousness is the importance of this question. I think the plaintiff’s contention is injurious, subversive and contrary to the organic law of our system of government, and that it is unreasonable and unjust, and that the decisions of any Court in any State, disregarding those principles, must soon fall under the condemnation of the legal mind in this country.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9811958. Public record. Not legal advice.