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

under that famous case"
Judge Shepherd then explained the
standing of the plaintiffs and defendants
i'm the case before the court. He
pointed out that the men whom it was
sought to supplant had been duly elected
for certain term and that term had not
yet expired. The question before the
court was as to whether the Act passed
by the Legislature had the effect of
turning out these officers and il so
whether such an Act were constitutional
AS to the character Of the officers,
Judge Shepherd contended that they
were constitutional officers and part
of the government. An opiOn of Justice
Reade Nichols VS.. Mckee, was read in
support of this position. Judge Shepherd
contended further, however, that 1t mace
no difference whether these officers were
statutory or constitutional, the principle
is the same.
IAN office is property. 1t is so recog-
nized in North Carolina and there is
long line Of decisions to this effect and
the constitution declares that no man
can be deprived of his property.
Has the charter of the North Carolina
Insane Asylum been abolished! mat,
said Judge Shepherd, Is the question
before this court. He then took up the
new charter and the old one and COM
pared them, showing that they were eX-
actly the same in every material point.
This being so he held that the new char
ter does not repeal the old one and
quoted Il number of authorities TO sup
port this position.
In Sutton against Sutton, 100 n. c.,
page 474, and again In State against
~ fOind
the principle involved i'll this case in these
words:
IF the Legislature enacts law III the
terms of IA former law, and at the same
time repeals the former, this amounts, IN
law, to a reafiirmance, and not repeal,
of such law; and it continues in force
for all purposes without intermission. A
repeal of statute by implication is not
favored by the court"
Authorities from Il number Of other
States were cited reaffirming precisely
the same doctrine.
There. said Judge Shepherd. has been
no time when the Offices of the superin-
tendent and of the directors ceased to ex-
ist 1t still remains the same as II no
law had been passed. 1t has been so
decided in a number of cases. In this
new charter we have this condition of
things-an act of the Legislature repeats
by its terms Of certain sections of the
charters of these institutions and abol-
ishes board of officers and then the
same act creates precisely the same
board and clothes them with the same
powers and duties enumereated in the Old
charter Can this Ibe done? The act
in question contains the elements of its
own destruction. 1t attempts to kill
and make alive at the 81 me instant, an
| impossibility.
Judge Shepherd said he agreed fully
with Mr.. Harris that the purpose of this
new Act was well known-not to change
the duties or government of the lnstltu-
tions-but to put one set of men ont and
another set IN Fortunately, he said.
they had failed in their purpose.
The new charter was then taken mp
by section. and it was shown that the
only changes made in the old charter
was Il slight change of yerblage IN
name, term Of office and salary. The
duties remain, by express provision, eX-
actly the same as heretofore substan-
TALLY re-enacting the powers of the old
corp )rati0n.
The law might have been so drawn
as to not come in conflict with the prin-
ciples laid down in Coke against Hen
derson, but they didn't do it, didn't even
attempt it seeming to have entirely over
looked the matter. The old Board of
Directors have exactly the same powers
and duties as had the old Board-one
set is called directors the other is deslg-
mated trustees. In no particular is there
"A substantial change and has not the eff
feet of repeating the old charter. The
-. . hau n
any, is to amend the old charter so far
as the change of name is concerned, and
cannot affect the present officers until
their terms expire. To do so violates
the Constitution and impairs the obliga-
ton of contracts. 1t would be taking
one mans property vested right-and
transferring it to another. The powers.
rights and emouments Of the office may
be enlarged or restricted, but they cannot
all be taken unless the whole of il be
taken abolished entirely.
In proof Of his charge that this new
law was colorado and passed TO Gust
one set and put IN new ones, he produced
the approprati ton bill, passed after the
new charter act, purporting to~create
new corporation. This appropriation
bill uses the old names of these three
institutions and speaks of the "superin-
tendent' and directors" as formerly
instead of using the new names of resi-
dent physician" and trustees"
Judge Shepherd summed up his argu-
ment as follows:
/. That unless the office is abolished
the Legislature cannot GUST the directors
and superintendent until their terms ex-
pire. The case was cited of Hoke vs..
Henderson. in which Chief Justice
Rufiin. delivered his celebrated
opinion. holding that legislative
as we'll as constitutional offices were
property, and that they could not, with
out cause, be taken away from the in
cumbents and given to another while the
Office continued.
2 Was the office abolished in this
case? The Supreme court Of this State
has decided that if the Legislature enaets
a law in substantially the same terms OF
former one and at the same time re-
peals the former this amounts to re-
affirmation of the former Law, which 1T
does not in legal contemplation repeal