The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1899-04-18

CIV" ~6GOS 010 b44S GuA6 6pPAASS
Offices created by the Constitution, as
we'll as those created by the legislature.
1t lie no necessary for the ap Oointment
and nomination of the defendant Day
to have been confirmed by the Senate.
There was a vacancy due to the resig.
nation OF Mewboorne. The Governor
never makes nominations to Gil vacan.
cies in eff % H does that alone in all
cases The detendsnt Day is entitled
to che possession of the property OF the
States prison, to the control Of con-
victs, al under the law of 1897, and to
the right to execute the duties OF b
off "a OF suO erintendent.
j Istices Fdrches writes q concur
ring opinion That it is too plain for ar
gument that Days position was a pub
lIc fiji &c; that this is not denied and
that he had property in this office
which could not be transferred to an
9th r or others; that this is the law OF
North Caroline, and that this court
has go held Ia every case involving
tins q Iestion. IL was so laid down IN
che great case of Hoke vs.. Henderson,
held YER since 1888 TO be the leading
case of this sunj &C and styled by Chief
Justice Pearson, THAT Great Nine OF
Learning" Judge Furches then says:
II do not expect to enter into discus,
sion, of politics hat might Influence
me II I were acting as the legislature,
nor do I expect to count the number OF
lawy ers in the legislaI ure which passed
this act, nor do l expect to impugn
their motives, as it seemst to be thought
[ will if am not of the opinion that
the act Is unconstitutional. This kind
of argument sbould have no weight
with an independent Judiciary. II
this suggestion is true, it convicts every
ju tRe VINO has ever occupied a seat on
this court of being guilty Of impugn.
ing the motives of the legislature
Cay lor, Henderson, Rufi1, Pearson
and all their associates. If this were
80 l suppose there would never be an
other legislative act declared uncon-
stitutional. This court constituted
now, as then, declal ed the act of 1897,
which attempted TO take charge of the
insane asyIums. unconstitutional. !
must no. hold as | did then"
Judge Clark dissents. He says the
management and control of the States
prison is essentially a government
function and is an indisputable part of
administration of the criminal laws OF
the State. M Legislature a denude
the State OF that power by giving 1t
away or bargaining it away. 1t is a
startling contention of the defendant,
Dav, that because the legislature Of
1897 placed the control IF the States
pr,sOn in a superintendents hands,
with vast powers and privileges and
81 500 salary, therefore q subsequent
legIsla ture is powerless to resume con
/ troll and change the management, be-
, cause that would deprive him of his
pay. TINS is to make the incident
greater than the subject and the inal'
| ienaole right of the State to control its
2 own institutions, subject to an office
holder aud for a salary. The only
question is whether the Cfice Of super
lntendent has been actually abolished,
? as a law making power has uneQuIvo
cally said the entire government oil
the pe~nitenti8ry is abolished, root and
branch. One man power is swept
3 away, the old eff ,e Of su~pintendent
? not only does not exist, but such Office
10 totally incompatible in every partIc
] ular with the new form Of government
provided by the legislature. The office
of superintendent does not exlst either
j potentially or colorably; no one exer
D cises iG or draws it's emoluments. The
legislature had the power to abolish L
and has done 80 in unmistekaOle Ian
t guage, and we must take it that it has
@ done so in good faith. In all this there
r is surely no indie alton that there hat
been any suoterfuge practlced by the
3 legislature, or thai the fl e Of sup er
= intendent is still in existence. II un
g Dartment with subterfuge, we mus
Q recall that there sat in that BODY 81
lawyers, among them many of toe mos
g eminent members Of the PROBES son
. thoroughly acquainted with the de
cisIons of courts, and that il there haC
been subterfuge it vas not uninten
territorial, but deliberate, and they
we're not capable of it. In making
8 laws the legislature is acting withir
!, it's exclusive province and di. charging
g a duty for which has been elected. l