The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-12
COURT DECIDES FOR DAY
CONTINUED From Second Page.)

OF the legislature to abolish it, but it
is its duty to do so. And, as we have
said every man elected or appointed
to an Office created by the legislature
takes it with the implied understanding
that the continuance of the office is a
matter of legislative discretion, the
office depending upon the public neces-
sity for it. In Hoke VS.. Henderson, IL
y. G. /, it is said that it may be quite
competent to abolish an office and true
that the property of the Office is thereby
of necessity lost. Yet it is quite a
different proposition that, although the
office be continued, the officer may be
discharged at pleasure and his office
given to another, the office may be
abolished because the legislature deems
it necessary"
The latest case, Ward VS.. Elizabeth
City, 121 n. G.. /, says: 1.-The city at
torney authorized for the new corpora
ton is an entirely distinct office from,
and is not continuation of the office
of city attorney of the corporation
which was extinguished by Act of the
legislature. This case differs from
Wood VS.. Bellamy, 120 \. G. 212 in
that, there the new charter was so
al
it was held to be merely an amend
ment of the former one, not destruc-
ton of il. and hence the offices under
such charter were not vacated. Every
one who accepts an office created by
legislative enactment takes it with
notice that the Legislature has power to
abolish his office, and is fixed with ac-
ceptance of all provisions in the Act
creating the office"
Furches. J. in Mcdonald VS. Morrow,
119 N. G. 666 (top of p. 67O. The
only restriction upon the legislative
power is that after the officer has ac-
cepted office upon the terms specified
i'll the ACT creating the office, tins
being q contract between him and the
State, the Legislature cannot turn him
out by an Act purporting to abolish the
office, but which in effect continues the
same office in existence"
Mcdonald VS.. Morrow. supra, and
other cases to like purport are cited in
Caldwell VS.. Wilson,. tby Douglas, j.,
121 n. G. 425 Cat top page $780,.
So that the only question is whether
the office of Superintendent has been
actually abolished. as the law-making
power unequivocally has said, or shall
we hold that it has been guilty of sub
terfuge and has really continued the
office in another name, and in fact and
i'll truth merely transferred its duties
and emoluments to another. Is the
office Of Superintendent to-day in ex-
istence under another name? If not,
Judgment must 90 against the defen-
dant.
In Wood VS.. Bellamy, supra, there
was no radical change in the method of
management no destroying and repeal
of previous acts as in the present case,
but the new legislation on its face pur-
ported to be, and was in fact mere
amendment to previous legislation, the
name of the institution and of the offices
were somewhat changed, but it was
clear that there was the same system
of management, and the same offices
with the same functions, the labels be-
ing changed. This being SO. the court
held, following Hoke vss Henderson,
that the office being in truth continued
in existence, the officer could not be
dispossessed. I'M Ward VS.. Elizabeth
City. supra, still later case, tSeptem-
Der term. 1897 it was held that where
a city charter was abolished and a new
corporation created with enlarged terri
tory, it was such change that the city
attorney under the old charter could
not claim his salary under the new.
The change made by the Act before us
is far more searching and complete
than that sustained in Wards case.
The entire government of the penIten-
tiary as provided by the Act of 1897, IS
abolished root and branches; not only
the zone man power which dominated
under the Act of 1897 is swept away,
but a new system of government there
of is established by board of "a dlrec-
tors in which the old office of Super
intendent, not only does not exist, but
such Office is totally Incompatible IN
every particular with the new form OF
government provided by the legislative
will.
review Of the methods of govern
msnt provided for the Penitentiary will
be instructive Under the laws Of 1879,
chapter 333 and 1881, chapter 2S9, the
pennentiary was governed by board
of five directors. In 1885, chapter 524,
the number was increased to nine In
1899. chapter 524, the number was again
reduced to five and this continued until
1893. So that from 1879 to 1873 the
office Of superintendent was not sine
qua non in penitfntiary management. 1t
simply did not exist: just as the Legisia-
ture of 1899 has declared it does not
exist to-day. In 1893 chapter 2S3. a
new system was inaugurated. The of
flee of superintendent of the States
Prison was created. In 1895, chapter
AIT, this system was abolished and
return had to the old system, but it
failed to take effect because the board
of nine directors therein provided for
were elected by the legislature when no
quorum was present, and in consequence
of the decision in Stanford VS.. Ellington,
1T u. c., 15S, there was no contest
over the matter and the superintendent
held on for the lack of any one to sue
ceed him. 1n 1897, chapter 2l9, there
was a return to the -man-power'
provided by the Act of 1893. In 1899,
this system not having worked salts
factorily, the Legislature returned TO the
old system which had obtained from
1879 to 1893, and abolished by express
enactment, root and branch, the oppo-
site method of government which had
been attempted by only two Legislatures
1S93 and 1880, the other nine legisla'
lures, from 1879 TO 1899 inclusive, hay
.