The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-05-10

! "A L
board of internal improvements were
thus elected; they met on February 24th
and by virtue of the aforesaid provi-
sion in the charter removed the State
directors. thereby removing also the
president as the charter requires that he
bc a director. and appointed others as
directors. who met on February 18TH
| with > of the directors elected by the
stockholders and elected one of their
number president. These are the plain
| tilfs in this action. and the defendants
are the : State directors appointed by
the former board of internal improve
ment. together with one of the directors
elected by the stockholders who is ad-
verse to them. This action. is for posses
sion and control of said railroad and for
| the offices of president and DIRECTORS,
| which the defendants refuse to Surrend-
! En-
| 1t is conceded. and indeed is beyond
| controversy. that the Legislature could
repeal Section .6SS Of the Code aud
! abolish the former board of internal i'm
| provement. and that. being legislative
| Offices the General Assembly by virtue
| of the constitutional amendment Of lSIo,
can elect the new board of internal i'm
provement itself. Ewart VS.. Jones,
! 116 \. c. $40.
| But it is contended that the old board
| of internal improvement having been
elected on March 3. 1897. under IN act
| providing for their appointment bien-
nially could not be repealed by new
| board till after March :, 1899, and there
fore the removal of the State directors
and the appointment of others ii their
stead by the new board on February
24th 1899, is null | and of no effect,
and for that the defendants
rely upon Hoke VS.. Henderson. - n.
c. / decided in 1888. That decision
holds that while the legislature can
abolish any office whose tenure is not
fixed by the constitution it can not
change the occupants of the office if the
office is not abolished. provided it is an
office with pay. But it also holds that
if no pay is attached the Legislature can
change the officer without abolishing the
office p. 81 for the reason therein
given that where there is any pay at
tached the officer has private interest
in the office TO the extent of his emolu-
ments. (p. 49, and his right thereto il
property of which he cannot be deprived
Now under Section 1868. the Governor
serves eX-officio and without compe3Sa
ton. on the board of internal improve
ments, it is no part of his duty as Gov
ernor conferred on him by the constitu-
ton. but simply an honorary appoint
ment conferred on him by legislative en-
actment, and therefore under HOke VS..
Henderson it is clear such duty can be
taken from him. not only by abolishing
the office of director of internal improve
ment. but by legislative enactment even
when the office is continued. But the
other two directors get three dollars each
day they are in session, and as 1t appears
from the auditors report that on an
average this board sits only one or some
times two days per year and therefore
has at most a salary of SO per year, it
is claimed that the Legislature was
powerless to abolish the old board and
substitute new board of 3 elected by
themselves to take charge of this great
property of the State, till after the
term of the two old directors had eX
PRED. 1t is extremely improbable that
the old board would have held another
meeting before March S, or that they
have lost one cent of emolument, which
alone Hoke Us. Henderson protects, yet
for that possibility of that intintesimal
salary we are asked to set aside
solemn act of the Legislature i'll pro-
vidng for the management of great
State property. 1t is true that If the
salary and not the public interest is the
test small salary is as sacred as a
large one, but this emphasizes the logl-
cal result of the doctrine that the salary
of the officer takes precedence of the
right of the people to change the. CON
troll of their State institutions.
Let us look this proposition squarely
in the face: The statute Code. Sec.
1853 directed the appointment of these
Two directors biennially, conferred on the
board the power to fill up vacancies Oc-
curing in their own body and to APP
point the directors (Sec. 1115) for the
State in all corporations in which the
State shall hold stock, and shall have
charge of all the States interest i'll all
railroads and canals and other works
of internal improvements. and shall also
all public buildings which are the prop
erty of the State
The charter of the Atlantic and North
Carolina railroad also provides that the
s directors on the part of the State shall
be appointed by the board of internal
improvements. Now, if by reason or
their receipt of a compensation ayerag-
ing three dollars per year, the directors
of the board of internal improvements
are beyond legislative change until after
the lapse of their term of years, then if
the legislature had written in the act
30 years instead of biennial as the
term of office, inasmuch as a part of
their office is to fill up vacancies in
their own body from time TO time, and
the appointment of directors for the
State by them is provided i'll the chart
er of the railroad company, it follows
that for fifty years a self perpetuatlng
body could in any way control the States
interest because the members thereof
have salary of SD per year and hence
have Il property" in their offices. though
it would be entirely otherwise and the
incumbents could be changed at the will
of the Legislature, if this onerous duty
CASUALLY one session per year, had been
devolved upon its members without pay.
If this is a correct Interpretation of
"Hoke vs. Henderson" the abSurdity of
that decision is so palpable and its di-
rect conflict with provisions of both