The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-04-28
STOP RIGHT THERE
The Supreme Court Stops the
Looting of the Asylums.
JUDGE ADAMS AFFIRMED
WILL BE NO CHANGE IN ASYLUM
SUPERINTENDENTS.
FULL TEXT OF The DECISION
Justice Montgomery Writes the Decis
ion--it is So Plain. Clear and Right
That it Will Be Universally
Endorsed.
JUDGE ADAMS AFFIRMED
FULL TEXT OF The DECISION

noon, without q dissenting voice, afnrmeu
the decision of Judge Adams that the
act repeal:ng the charter of the insane
asylums is not law. The effect of the
decision is to continue the six directors
in each institution whose terms have not
expired.
This will give the Governor the right
to appoint three new directors. 1t VIII
give the Republicans and Populists
majority of the boards, but they cannot
remove any Offices until his term expires.
1t will be two or three years before the
term of either superintendent expires,
and there will be no vacancy in the small
err places until December.
The decision in full, written by Justice
Montgomery is as follows:
The defendant, Kirby, at the time of
his election, and the other defendants,
at the time of their appointment, were
public officers and they are entitled to
hold their offices, their terms not having
yet expired, until their right to the same
has been Invested by an act Of the last
General Assembly, ratified on the stu
day of March, 1897, and entitled, An
Act to Charter the Eastern Hospital for
the Colored Insane, and the Western
Hospital for the Insane, and North Car
DINA Insane, at Raleigh, and to pro-
vide for their government. In eXamln-
ing that act with view of arriving at its
construction and effect, we are not dis
posed to inquire into the motives of the
Legislators in enacting the bill into law,
nor is it necessary to do so to arrive at
proper legal conclusion. If the General
Assembly has in some of the provisions
of the statute gone beyond its powers,
such a course may be attributed TO an
other motive than a wilful attempt to
violate the Constitution. In the great
opinion delivered in the case of Hoke VS..
Henderson, Dew, /, Chief Justice Ruff
fin said for the court: "All men are falli-
BILE. and in the dispatch of business, the
heat of controversy and the wish to effect
a particular end, may inadvertently omit
to scrutiniZe their powers, and adopt
means inadequate indeed to the end, but
beyond those powers" Before proceed
ing to an examination of the statute it
will be in order to announce that after
able argument and after careful ex-
animation of authorities cited by counsel
from the courts of this and other States,
we adhere to the opinion that an office
is property, and is the subject of protec-
ton like any other property under the pro-
visions of section II of Article / of the
Constitution. Hoke VS.. Henderson,
supra: King VS.. Hunter, 65 n. c., SOB;
Gotten VS.. Ellis, Jones. 545; Bailey VS..
Caldwell. 6S n. c., 472; Bunting VS..
Gales, x n. c., 2S3.
And yet it is true that public Offices
being for the public good and public con-
venience, are not so completely the sub
ject of property as are many other species
of possessions. Property in an office is
qualified to some extent by the duties
their performance. AS for instance, =
public office cannot be sold or assigned,
The holder cannot, as a rule depute to
another the performance of the duties of
the office, and for misfeasance or NAL
feasance, the courts or other competent'
authority under such laws as may be
in force on the subject, may deprive the
holder Of the same.
But if such limitations and restrictions
may be excepted, public office is as
much the subject Of property as man
can have in anything. The emouments
of the Office are private property, 'as
much" as was said in Hoke VS.. Hender-
son. supra, "as the land which one fills,
or the horse he rides or the debt which
is owing to him.
The emOluments of public office be-
ing, then, private property, it would seem
to follow logically, that the terms for
which the defendants were elected and
appointed respectively not having ex-
PRED they could not be ousted except for
cause, for the commttal of some mall
feasance in Office, or unless the offices
themselves had been abolished. As long
as the office is continued, the term of
office. it does seem in reason and justice,
ought to be the private property Of the
holder: and to take il from him and give
1T to another by legislation is, in effect
and reality, judicial act, and the SEN
tence is pronounced without a trial and
without a hearing And the law is to
that effect. 1t is clearly decided in Hoke
VS.. Henderson, supra, and approved in
Bunting VS.. Gales, II n. c., 2S3, that
rs long as the Office is in existence, the
term likened to a great for which the
holder has been elected or appointed can
not be lessenPd to the prejudice of the
grantee. In Gotten VS.. Ellis. supra, it
appeared that the Office of Adjutant Gen
eral had not been abolished, but that the
duties of the office had been transferred
to another before the plaintiffs term had
expired, and Chief Justice Pearson, in
delivering the opinion for the court, said:
''The legal effect of the (frsD appoint
ment was to give the Office to the appi-
cant Gin mandamus) and he became en-
titled TO it as vested right for the
term of three years, from which he could
only be removed in the manner prescribed
by law, and of which the Legislature had
10 power to deprive him. This is settled
Hoke VS.. Henderson, 4 Dev., ~
In King VS. Hunter, supra, Judge
Reade, who delivered the opinion Of the
Court, said: Nothing is better settled
than that an Office is pronerty. The in
cumbcnt has the same right to it that he
has to any other property. There is ~.
contract between him and the State that
he will discharge the duties OF the Of
fice-and he is pledged by his bond and
his OATH and that he shall have the emo-
uments--and the State is pledged by it's