Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-06-28
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
DIGESTED BY ". B. MARTIN.
tExclusIvely for virGlnian-P ilot.)
STATES PRISON ". DAY.
Supreme Court of North Carolina.
April 18th. 1899.

Supreme Court of North Carolina
April 18th. 1899.
THE OFFICE OF SUPERINTEN-
DENT OF THE STATES PRISON
is NOT CREATED BY THE CON-
STITUTION. AND THE LEGISLA-
TURE MAY ABOLISH 1T.
THE ACT OF 1899. PURPORTING TO
ABOLISH THIS OFFICE DID NOT
DO SO.
AN APPOINTMENT TO THIS OF
FlCE BY THE GOVERNOR. TO
FILL A VACANCY. NEED NOT BE
CONFIRMED BY THE SENATE
This action was brought to recover of
defendant, who had been appointed by
the Governor superintendent of the
States prison, on the resignation of the
former superintendent, the property in
his possession appertaining TO the
prison. and TO get control of the con-
victs and have the rights of the par
ties declared. The suit was brought un-
der section Of an act of the 18th Feb
ruary. 1899. The plaintiffs alleged that
the office of superintendent of the pris
on had been abolished by the act of
January 26, 1899. under which they were
elected board of directors for said
prison with power TO control 1t. There
was a Judgment for plaintiffs and de-
PENDANTS appealed.
The Court says: We may say. in
limine. that we have had no trouble in
arriving at the conclusion that the Of
flee of. superintendent is not an Office
created by the constitution. Section 3
OF article III OF the constitution Ordain
ed. that the general assembly shall at
It's first meeting make provision for the
erection and conduct ofa-S tate's prison
or penitentiary;" and that provision. in
our opinion, imposes upon the legiSla-
4 ~ uf intr tn t1af dat, ils-
as 10 the erection of the necessary
buildings. the purchase Of such proper
ty real and personal. ms may be nee
essary for the uses of the prison. and
also to form such rcgula tons for the
government and conduct of the prison
ms may seem proper. The officers or
place-men. their salaries and the dis
trihutinn Of their duties. are all left
with the general assembly.
On the real question in controversy
the contention Of the plaintiffs Is that
the Office of superintendent of the pris-
on was abolished by the act of 1899 Cd
because the act declared. in so many
words, that The office was abolished:
t2) because the responsibility and ac-
tuai management Of the prison are
placed upon the board OF directors, and
taken from the onc-man powcr.-that
of the observation-disclosures that the in
cumbent had mn implied notice that
the general assembly might, when il
saw iit take that course; (3) because
the act incorporated the state prison:
(D because 1t increased the number OF
directors: go because 1t transferred the
duties attendant upon the office to the
board of directors for performance.
Then, the conclusion of the case turns
upon whether the States prison is sub
stantlally the same institution that 1t
was before the act of 1899. whether the
purposes for which It was established
nre 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
directors. and now being performed by
the executive board, under the act Of
1899.
With the exception of the power given
In the act of 1899 to the directors to sell
or lease the lands or other property OF
the states prison, the duties and the
powers in all respects of the board OF
directors, acting through the executive
hoard az their head. are in all respects
the same MS the duties required of and
the powers conferred upon, the super
intendent under the act OF 1897, as the
following analysis and comparison will
luosIIrdHoo sMoUoJ oIoHI NOUS
IL we have not fallen into error in
the above analysis and comparison,-
and we feel confident that we have not.
then no new duties the-gnvern-
ment of the States prison have been
imposed. nor have any new powers been
granted to any person. except the power
granted to the board of directors to sell
or lease the lands of the States prison.
and which additional power. we think
does not alter the nature or the char
acter of the institution. No function or
duty that was formerly performed or
imposed upon the superintendent is
anolishcd. The functions and duties of
mat Office are still necessary to the
public welfare. They have not been
abolished: they have been simply trans
ferrcd to others. That cannot be- done
according to the law of the land Thai
three of the directors have been made
the governing head of the institution
under the name OF executive board "
and that 10 them the duties and func
tions or the Office Of superintendent
nave peen transferred. does not change
the arbitration OF the law IT is the
same as If the duties Of tho office had
been transferred 10 one person. IT is
not valid argument to contend that
the executive board can conduct the
STATE prison in a better and more sat
1siactory manner than can one man. If
may be true in point of fact. and that
pian can be tried at the end Of defen-
dhnts term of office. Under our deci
sions, You cannot onst an incumbent
or an Office. and continue the office af-
terwarcs, ana this rule applies to Offices
created by the constitution as wei! as
to those created by the Legislature.
1t is not necessary for the annoint-
ment and nomination of the defendant
10 have been confirmed by the senate
Ihere was vacancy, due to the resip-
nation OF MewbOrne. The Governor
never makes nomination to fill vacan.
cies in office He does that alone in all
cases. The defendant is entitled to the