The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-12

only with a general supervising author.
ity, but with all the functions and with
all the duties of the superintendent, and
with the power to distribute those func-
tons amongst themselves or others.
If we have not fallen into error in
the above analysis and comparison. and
we feel confident that we have not.
then, no new duties for the government
of the Stare Prison have been imposed,
nor have any new powers been granted
to any persons except the power grant
ed to the board of directors to sell or
lease the lands of the State Prison. and
which additional power we think does
not alter the nature or the character
Of the institution. No function or dutr
that was formerly performed or i'm
posed upon the superintendent is abol-
ished. The functions and duties of that
office are still necessary to the public
welfare. They have not been abolished !:
they have been simply transferred ito
others. That cannot be done according
to the law of the land. Wood VS.. Bel
lamy, and Hoke VS.. Henderson, supra ::
Cotton VS.. Ellis. 81 \. c., $40. That
three of the directors have been made
the governing head of the institution
under the name of the executive board
and that to them the duties and the
functions of the office of superintendent
have been transferred, does not change
the application of the law. 1t is the
same as If the duties of the office had
been transferred to one person. 1t is
not a valid argument to contend that
the executive board can conduct the
State Prison IN better and more salts
factory manner thanacan one man. 1t
may be true III point of fact, and that
plan can be tried at the end of defend
ants term of office. The contract of the
State with the superintendent must be
kept. In Throop ON Public Officers. sec
ton p, it is said: Nor can the legs-
lature take from the officer the sub
stance of the office and transfer it to
another, to be appointed in different
manner and to hold by different tenure,
although the name of the office is
changed. or the office divided and the
duties assigned to two or more officers
under different Names" That principle
of law was announced in Warren VS..
People, DEMO, 272. and also in Peo-
pie VS.. Albertson, 50 y. u, 80. The
decision in ThroGp, and the decisions in
W arfen VS.. 1eople ana HeOple VS.. AL
bertson, supra, are in connection with
offices created by constitutional provi-
sion. But that makes no difference in
North Carolina. Under our decisions
you cannot GUST an incumbent of an
office and continue the office afterwards,
and this rule applies to offices created
by the Constitution as we'll as to those
created by the Legislature
1t was not necessary for the appoint
ment and nomination of the defendant
to have been confirmed by the Senate.
There was a vacancy due to the res
ignation of Mewborne. The Governor
never makes nomination to fill va
cancies i'll office. He does that alone
in all cases, as was decided i'll People
VS.. Mclver, 6S n O., 467.
The defendant is entitled to the pos
session of the property of the States
Prison, to the control of the convicts
as under the law of 1897, and to the
right to execute the duties of the office
of Superintendent of the States Prison.