The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1899-04-14

ITOI lHdH One1, ana Sucn cnOlce cannot
be made until the defendants term has
expired. The states prison is substan-
TALLY the same institution it was be-
fore the act Of 1899. The purposes for
which it was established are the same
now as then and the duties performed
by the superintendent are substan-
TALLY the same As these transferred to
the board of directors and now being
performed by the executive commit
tee. No new duties have been imposed
and no new powers granted, except
that to lease or sell lands, which does
not alter the nature Or Of
the institution. No function or duty
which was formerly performed by or
imposed upon the superintendent is
abolished. The functions and duties of
that office are still necessary to the
public welfare. They have not been
abolished; they have been simply
transferred to others. That cannot be
done, according to the law Of the land.
The contract Of the state with the SUI
perintendent must be kept. It is not a
valid argument to contend hat the ex-
ecutive board can conduct the states
prison in better and more satisfactory
manner than can one man. You can
not Gust the incumbent of an office
and continue the office afterwards, and
this rule applies to offices created by
the constitution as well as those ere
ated by the Legislature.
1t was not necessary for the appoint
ment n nomination of Defendant Day
to have been confirmed by the senate
There was a vacancy due to the res
ignation of M~ewboorne. The governor
never makes a %noination to fill vacan-
cies in an office. He does that alone in
all cases.
The Defendant Day is entitled to the
N@-r@rr;~~ 1f H. 80 ~ -
prison, to the control Of the cOnvictS
as under the law of 1897, and to the
right to execute the duties of the Of
flee of superintendent.
JUSTICE FURCHES' OPINION.
Justice Furches writes a concurring
opinion, saying it is too plain for ar
gument that Days position was a pub
lie office; that this is not denied and
that he had a property in this office
which could not be transferred to an
other or others; that this is the law
of North Carolina, and that this court
has so held in every case involving this
question. 1t was so laid dow in the
great case of Hoke against Henderson,
held ever since 1888 to be the leading
case on this subject, and styled by
Chief Justice Pearson that great min
of learning" Judge Furches then says:
Il do not expect to enter into a discus
sion of the politics that might n1u-
enc me if I were acting as the legis-
lature, nor do I expect to count the
number Of lawyers in the legislature
which passed this act; nor do I expect
to impunge their motives, as it seems
to be thought I will if I am not Of the
opinion that the act is unconstitution-
al. This kind of argument should have
no weight with an Independent judi
ciary. If this suggestion is true, it con-
victs every judge who has ever Occu-
pied a seat on this court of being gull
ty of impugning the motives of the
observation-disclosures, Henderson,, Ruff
fin, Pearson, and all their associates.
If this were so 1 suppose there would
never be another legislative act de-
clared unconstitutional. This court,
constituted now as then, declared the
act of 1897, which attempted to take
charge Of the insane asylum, %unconsti-
tutional. I must hold now as I did
then"
JUSTICE CLARK DISSENTS.
Judge Clark dissents. He say the
management and control of the states
prison is essentially a governmental
function N is indisputably a part Of
the administration of the criminal laws
of the state. No legislature can de-
nude the state of that power by Civ
ing it away or bargaining it away. 1t
is a startling contention of the defend
ant, Day, that because the Legislature
of 1897 placed control Of the states
prison in the superintendent with vast
powers and privileges n 81, 500 salary;
therefore a subsequent legislature is
powerless to resume control and
change the management because that
woul deprive him of his pay. This is
to make the incident greater than the
subject and the inalienable right of the
state to control it's own institutions
subject to an officeholder'S claim for
a salary. The only question is whether
he office of superintendent has been
actually abolished as the law making
power has uneQuivocally said. The en-
tire government of the penitentiary is
abolished root and branch. lone man
power" is swept away. The old office
Of superintendent not only does not
exist but such office is totally incom-
patible in every particular with the
new form of government provided by
the legislature. The office of superin-
tendent does not exist either potential
ly or colorably. No one exercises it or
draws its emoluments. The legislature
, had the power to abolish it and has
done so in unmistakable language and
we must take it that it has lone so in
| good faith. In all this there is surely
no indication that there has been any
4 SuOlCALNSS PidSNlCcU ny ne IeSISldtuTc
or that the office of superintendent is
| still in existence. If one were disposed
to charge a coordinate department
! with subterfuge we must recall that
there sat in that body fifty-fve law
yers, among them many of the most
eminent members of the profession,
thoroughly acquainted with the decis-
ions of the courts, and that if there
had been subterfuge it was not unin-
territorial, but deliberate, n they were
not capable of it. In making laws the
legislature is acting within it's exclu-
sive province and discharging a duty
for which it has been elected. It is a
cardinal principle that courts canno,
enter the legislative department and
set aside a law it has made unless il
is clearly in conflict with the constitu.
ton.
On careful review it would seem tina
the ruling CT the court below was il
every particular a just and true dec,
laration Of the law under all q pre-
vious declarations; to wit, that the OF
fee of superintendent created by thu
act of 1897 has been abolished; hat i