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

lof ollsting the incumbent before his
term expires, the Office must be abol-
lished. That II IL not sufficient TO de-
clare ii abolished when IL Is not abol-
iShed. That the office is intangible and
consists in the duties Of the office. and
while these duties are combined the
|oftice Is continued. The discussion then
Ieame down to this: are the duties of the
office the defenadtn held abolished.
or are they transferred to others?
In discussing this question j do not
lexpect to enter into q discussion OF poll
cies that might Influence me If | were
acting as Il legislator. nor do / expect
| to count the number of lawyers in the
| Legislature that passed this act, nor do
| expect TO mpugn their motives, as II
seems TO be thought ] win If i am Of
| the opinion the act is unconstitutional.
| This kind OF argument should have no
weight with an independent judiciary.
| If this suggestion is true 1t convicts
every judge that has ever occupied
seat on this court of being guilty OF
| impugning the motives of the Legisla-
Iture-Taylor. Henderson, Ruffin, Pear
son and all their associates. If this
were so, | suppose there would never
be another act OF the Legislature de-
clared unconstitutional. | hope that |
may never be influenced in the discharge
of what | consider my duty, by such
considerations. I propose to regard this
| Legislature just as | would any other
Legislature, and to deal with its legisla-
tion just as l would any other Legisla-
| ture, just as j did the Legislature of
| 1895, and | agreed with the court in
an opinion declaring a similar act passed
And i'll doing so | did not impugn their
motives nor do j suppose any other mem
Der of the court did. j suppose that
Legislature thought the act of 1895, re-
viewed by this court in Wood VS. Bel
lamy, CONSTITUTIONAL; and | suppose the
Legislature of 1899 thought this act
constitutional But when it comes before
us for review 4 can not be governed in
| my opinion of the law by what they
may have thought.
| 1t is contended that if we sustain
| The defense and restore the defendant
| to his office there is danger ahead of
| us. That we might get Legislature
| that would extend the terms of the
office to ten, and evtm TO twenty-five
years. | do not think we are likely to
| have a Legislature that would be so
Revolutionary as that. But what if we
should, is this the forum to be appealed
to for relief? The leading case of Hoke
VS.. Henderson, in which Chief Justice
| Ruffin delivered his great opinion was
a case in which Henderson. the defend
ant. claimed to have an office for life:
and the court sustained his claim.
| 1t seems to me that defendants claim
| is looked upon with disfavor- as resting
| upon an act passed by the Legislature
| of 1897. / don't know that it should
1 be discredited on that account But
when it appears that the act of 1897
was but the re-enactment of this act
| of 1893. under which the party in pos
session of the penitentiary in 1895 (the
same party that passed the act of 1888
held over in violation of the act of
1898, it does not seem to me that it
should be discredited because it was
passed by the Legislature of 1897
If the object of the act of 1899 was
simply to get rid of the office OF SUI
perintendcnt, as contended, why was it
that the Legislature did not simply
abolish that office, and leave the in
| stitution to the management of the
Board of Directors? They were there,
and were substantially the same they
were before the passage of the act of
1893, which created the office of super
| intendent.
Ii the object was simply to abolish
the office of superintendent, why did
they not do this and let the matter
stand there? Why did they appoint
twelve new directors and establish an
Executive Board if their duty was to
do the same thing the superintendent
had to do?
Great stress is laid on the fact that
these are to do what one did and the
"one-man power is appealed to. Is
this one-man power the question be-
fore us? 1t seems almost to he com
coded that if the duties of the super
intendent had been transferred to one
man that the act would have been I'M
constitutional. What difference does it
make to the defendant whether his of
flee is given to one or three?
While we do not propose to discuss
policies, this kind of legislation has a
history in this State, to be learned from
the records of this court and it's report
ed cases. In 1S71-'72 the Legislative
power and the Executive power of the
State were in the hands of different
political parties. The legislative power
undertook to take charge of the penal,
charitable and beneficent institutions
of the State before the terms of those
in office had expired. But they failed,
as may be learned from Battle VS.. Nc
liver, 6S n. c., 467; Badger VS.. johnson,
Ibid, Al; Nichols vs. Mckee, Ibid, 429;
Walker VS.. Bledsoe, Ibid 457.
In 1895 the Legislative power of the
State was in the hands of one political
party and the Executive power il the
hands of another political party: and
the Legislative power undertook to
take charge of the institutions before
the terms of the officers in charge had
expired and they failed. Wood VS. Bel
lamy, 100 n. c., 212 In 1899 the leg
islative power of the State is in the
hands of one of the political parties md
the Executive power in the hands of an
other political party, and the Legisa-
ture has again undertaken 70 take
charge of these institutions before the