The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-13
AND DISSENTING OPINION
A CONCISE SUMMARY FOR READ
ERS WHO DID NOT READ
THE WHOLE OPINION.
PREPARED BY SAMUEL E. M0RDECAI, ESQ
The Contentious Summed Up Clearly and
Succincty so that Laymen as
Well as Lawyers Can
Understand.

We published yesterday the full text
of the opinion, concurring opinion and
the dissenting opinion Of the Supreme
court in the Day penitentiary case.
This question is one of such Importance
that at our request. Samuel Il. Morde-
cal. Esq. of the Raleigh bar, has pre-
pared Il synopsis of the opinion OF the
court and the dissenting opinion, so that
in a short space the lay reader could get
a clear understanding of the whole ques-
ton. No lawyer in the State is better
qualified than Mr.. Mordecai TO prepare
fairly and succinctly a synopsis OF the
opinion of the court and the dissenting
opinion As prepared by Mr.. Mordecai
they are as follows:
The question for the decision of the
courts is simply this 'TWho of the con-
'tiicting claimants. is or are entitled to
the possession and custody of the prop
criy of the States prison, and of the con-
victs therein confned?'
Only the rights of the parties to this
action are involved. The court will not
anticipate litigation between rival claim
ants for office. Day was appointed by
LIE bONtIuoI ~ Ill du uHtAplItu icflil
1t was not necessary that he should
have been confirmed by the Senate.
Many questions discussed in the argu-
ment of counsel have been fully settled
in former decisions of the court, e. g:
The place of superintendent of the
States prison is a public office; an of
tce Is property aud the officer has the
same right in it that he has TO any other
property. except that he cannot assign
it: the Legislature can abolish an office
created by its authority and can. except
in those instances prohibited by the
constitution, take away some part of the
duties of an office and reduce the salary
to some extent, but cannot take away
the entire salary; nor can the Legislature
select a particular officer and by special
legislation deprive him of any material
part of his duties and emoluments: UNI
der the constitution as amended in 1875
the Legislature has power to fill offices
created by statute.
The above collateral questions being dis
posed of, we come to the real point in
the case: WAS the office of superinten-
dent of the States prison abolished by
the Act of January. 1902
This office is not created by the consti-
triton. Under Section 3, Art-
Gle NJ of the constitution the
duty is imposed upon the Leg
islature of attending to the details as
to the erection of the buildings for the
States prison, buying such real and per-
SERIAL property as is necessary. The
officers. their salaries and the distribu-
lion of their duties are all left with the
Legislature
The first thing to determine in this
controversy is, what constitutes an Of
flee. 1t is the union of the two factors.
duty to preform and agency from the
State TO perform such duty, which con
stitutes an office. "A public office is an
agency from the State and the person
whose duty it is to perform this agency
Is a public officer. The oath. the salary
or fees are mere incidents and they CON
stitute no part OF the office" Il tne
duties of the office of superintendent
We're necessary and useful to the public
and they have been transferred to others.
then the office of superintendent de-
PENDANT 5 property-has been taken from
! him contrary to Art. i. See II of the
State constitution. The State might To
satisfied that another system Of man
agement is better and safer for the pub
nc. but such "a method cannot be put
into operation until defendants term
has expired. if such method consist of
Il transfer or distribution of the powers
ana duties of the superintendent The
answer to the argument that TINS TO
ctrtail the States power might result
disastrously TO the public welfare. *
that II such result ellsue it is the fault
OF the Legislature which cannot be re-
viewed by the judicial department.
he conclusion of the Code turns
upon whether the States prison is sub
slantialiy the same institution that II
was before the Act of 1899: whether the
purposes for which it was established
are the same now as then and whether
the duties performed by the defendant
were the same duties substantially which
were transferred to the Board of Drec-
tors and now being performed by the
Executive Board under the Act OF
1899" This proposition is answered in
the affirmative. Under the Act of 1899
the duties and powers of the Board OF
Directors, acting through the Executive
Board, are in an respects the same as
the duties required of. and the powers
conferred upon the superintendent by tbs
Act of 1897, except as to the power te
sell and lease land. BY the Act of 1879.
no new duties for the government of thu
States prison have been imposed. nol
have any new powers been granted tc
any persons except the power to sci
or lease lands No function or duty Oh
the superintendent rs abolished. The
functions and duties of that office are
still ssary To the public welfare
They have not been abolished, but sim
ply transferred to others. This cannoi
be done under the constitution. The
transfer of the duties and powers of ths
office to three or more instead Of TO on,
individual does not change the principl,
oflaw governing this ease. 1t is not vail,
argument TO contend that as executiy,
under the law of 1897: and to the righ
board can conduct the States prison bet
ter than one man can. This may b
true. hut the contract of the State wit
the defendant must be kept. Under on
decisions you cannot GUST an incumben