The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-12
THE OPINION OF The COURT
As Handed Down by Justice Montgomery.


North Carolina Supreme Court, Feb
ruary term, 1899, No. 145, Wake coun-
ty, State Prison of North Carolina ct
al. vs.. w. II. Day, appellant.
Jas. G. McRae, Argo & Snow and
'Ihos. y. Hill for appellant; X. @. Bur-
ton and Shepherd & Basbee for APP
pellees. Montgomery, j.
This action was brought under section
i OF an Act eff the General Assembly,
ratliied ON the 10Th day of Febraury'
lS.99 The language of that section is as
follows: THAT in addition to the remedy
prescribed by the Code sections GU TO
62l inclusive, the Board of Directors OF
the states prison OF North Carolina
or the executive board thereof, or both'
with or without the jointure OF the
State, shall have the right, i'll acton for
injunction or mandamus, to test in the
courts the claims of any claimant or
ciaimamts to the possession, custody ana
control of the property of the States
prison. and of the convicts therein con
fned.'
The object of the status then was
simply to have a decision by the courts
of this question: Who of the conHic1-
ing claimants is, or are entitled, 10y law
TO the possession and custody of the
property of the States prison and of the
ccnvicts therein confined? The claimants
$50 far as this record shows are the
plaintiffs, on the one side, and the de-
PENDANT on the othtr The rights of
any other person or persons that may
be connected with the conduct and man
agement of the States prison are not
now before us for consideration. This
court Will not anticipate litigation be-
tween rival claimants fer Office, and It
such litigation should occur, each case
must be heard and decided on rs merits
on case properly constituted in the
courts.
The Governor of the State, under the
provisions of chapter 219 of the Acrs of
1897, appointed John Il. Smith superin-
tendent of the States prison for the
term of four years and his nomination
was consented to by the Senate. The
compensation attached 70 the office WIS
a salaTy of $500. ,4fttr adjournment
! Of the General Asseg1bly of 1897. Smith
I resigned the superintendent and J. Nj.
Mewborne was appointed by the Cover
nor III Smiths place. On the first day of
January, 1889. a few days before the
General Assembly of that year convened,
Mewborne resigned and the defendant,
w. III. Day, was appointed superinten-
dent to fiji the vacancy. Days nominal
ton by the Governor was never sent
to this Senate, nor did that body con-
firm the appointment. Day, under his
appointment, took possession Of all the
property of the States prison, and the
tantrtJ ff cnnyiftsy
This action was brought by the plain
tiffs to recover of the defendant the
property in possession belonging to the
State and appertaining to the States
prison. ana to get the control of the
conVicts aud to have the rights of the
parties declared. In that way the plain
tiffs sue to get a decision by the court
on the matter which it was desired to
have settled by the Act Of February,
1899.
The plaintiffs alleged right of recovery
is founded on the provisions of an Act of
the General Assembly ratified on the
Goth day Of January, 1899, to go into
effect on the 10Th day of February
1899. as TO its requirement for the de-
livery OF the States PRISON and the
convicts therein by the persons then
ill charge of the States prison to the
Board of Directors provided for i'm the
Act As to the other provisions they
went into effect from the date of ratif-
cation of the act.
Under the provisions of the last
named act, the plaintiffs, claiming to
be a board of directors duly elected and
appointed by the General Assembly.
.. aIIege that the office of superintendent
has been abolished, that the property of
ffea States prison. the control of the
convicfsand the conduct of the prison
were vested in them sby the Act of Jan