The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-04-11

March 9Th and these institutions had no
officers from that day up to the time
weeks later-that the directors met and
elected new officers. No officer can hold
over in an office that is abolished from
the night of March Sth to April the Sth
the insane men and women of North
Carolina were without officers to control
them or any one duly authorized to con-
troll them.
IF the Legislature had passed a law
telling DR.. Miller, DIR. Kirby and DR..
Murphy to- get out and directing some
one else to come in no one would for
moment contend that such a law was
constitutional. No more so is the pre-
sent law. The office must be abolished to
man out of office as long as his term
lasts. This is not done. 1t is attempted
TO be done and re-creating it in the same
act. Not q moment of time is allowed
TO elapse.
The Supreme court has held that the
term of an office already existing and
filled cannot be shortened by legislative
enactment. And in reply to Judge
MacRae's charge that the Democrats
have heretofore done the same thing
that the Republicans tried to do in this
ease Mr.. Aycock said that the unconsti-
tutional act of one Legislature does not
make it constitutional in another Legis-
lature.
The judicial way of getting rid Of an
officer is to prefer charges, bring him
TO trial, find him guilty and turn him
out. That is the judicial, the decent
way of doing the thing. What is the
legislative way? Abolish the whole bust
ness and re-enact it again. Which is
the best, the most decent, the just way?
This act is just as fragrant an out
rage as if the Legislature had said these
offices are hereby transferred from the
present incumbent tOsOmebody else. And
yet they say this is constitutional. Well,
it may be, but if it is there are no rights
which a Legislature is bound to res
pect.'
MIR. BUTTONS ARGUMENT.
Mr.. Burton said that the question had
been so fully discussed that he could add
but little, and that in the way Of illus
tration. In reply to the charge that sew
eral changes had before been made in
these asylums, Mr. Burton said these
changes had never but once before been
brought into the courts and then they
would not stand
He said it had been asserted on both
sides that these We're municipal corpora
TONS and If the decisions in regard to
such corporations be referred to, it would
be found what the decision in this case
would be. Here Mr.. Burton quoted Il
great number of decisions from the State
and United States Supreme courts
enunciating the doctrine in regard to
such cases. In no case, he alleged, have
the courts failed to declare the continuity
OF the corporation where the old charter
has been repealed and new one con-
ferring similar duties and functions en-
acted. An office is as much ii vested
right as is Il debt and can no more be
wiped out by change of name or mode
of government. In the cases under dis
cussion the new charter went into opera
ton simultaneously with the repeal Of
the old law and it may we'll be regarded
az the law in every case has regarded it.
a,S a modification of the old law and not
an abrogatiOn of it.
Mr.. Burton contended that the Gov
ernor only had a right to appoint to
fill the vacancies caused by the expiration
of the terms of office Of directors Fhe
terms of only three expired by limitation.
but instead OF appointing three men to
fill these three places he appointed nine.
and It's he designated none of them for
these vacancies they were all illegal and
void. Further. he said it was a month
after the enactment of this law, abolish
ing the Morganton asylum before the new
directors met and reorganiZed it.
rs it possible that during that interval
there was no hospital at Morganton
Were the insane of the State turned out,
uncared for and unkept? There was
time when he who touched the ark of the
covenant was stricken dead upon the
spot. the time should come again when he
who lays the prOfane hands Of the spoilS-
man upon the institutions for the care
of our unfortunates should have no mer-
cy show him."
JUDGE AVERY'S SPEECH.
In the beginning of his argument
Judge Avery discussed the powers con
ferred upon the Legislature by the con-
stitution, and the consensus of judicial
decisions throughout the Union. He
held that all kinds of corporations were
State. They were created, he
said. by the Legislature and the creator
at all times had the right and power TO
destroy the creature. In the State con-
sttution the right and power to change
or amend charters of corporations is
especially reserved by the State. When
the State breaks down the corporation
it also destroys all the incidents thereto
all the officers that run it. The very pow
er to create involves the right to destroy,
unless there is Il constitutional provision
prohibiting it.
A man that takes an office under such
corporation, Judge Avery maintained,
takes it with this express understanding:
That his office msy at any time be either
modified or entirely abolished.
Replying to Mr. Burton's contention
that the change Of u municipal corpora
tons charter does not abolish its debts.
Judge Avery said he would admit this,
but he had never heard of a case in which
the re-enactment of a city's charter put
tho old mayor hack into office Ono