The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-12
COURT DECIDE FOR DAY.
Continued From Third page.)

derson expressly on contract. aud the
contract i'm his favor is only as TO the
emoluments, and for the breach of com
tract the measure of damages is the
same as to an individual and the State
the difference being solely IN the proce-
dure which in the latter case must be
by petition i'm the Supreme Court. The
State cannot be at greater disadvan-
tage than a private corporation or an in-
diyidual 1t is different as TO an office
established by the constitution, for that
does not rest on contract Cooley
Const. lin and Black Const. Law.
supra) and the Legislature is prohibited
from meddling with it. But except where
restrained by the constitution the Legis-
lature is all powerful as the representa-
tive of the people. As was well said
by Faircloth. c. j., in Ewart VS.. Jones,
116 n. c., $40, (since cited with appro-
val by Douglas. j.. in Caldwell VS.. Will
son, 121 n c., 470) ''under our form
of government the sovereign power re-
sides with the people and rs exercised by
their representatives in the General AS
sembly. The only limitation upon this
power is found in the organic law as de-
clared by the delegates of the people
i'm convention assembled" There is no
constitutional inhibition upon ONE Legis-
lature's abolishing an office created by
the Legislature. except the restraint read
into the constitution by Hoke VS.. Hen
derson, that while the Legislature can
abolish. it cannot give the emoluments of
the office ito another if it is continued
in existence. This rests solely upon the
ground that to do so would be a breach
of contract As such, there can logically
he no remedy by reinstatement, but sim
ply proceeding for damages. the meas
IRE thereof to be ascertained as in the
case of any private individual or corpo-
ration. The line of decisions, like Me-
Kee VS.. Nichols, 6S n. c., 400, that all
appointments to office must be by the
Governor was rendered nun and is now
absolute, as to office created by Statute,
by virtue of the amendment to the con-
stitution in 1875. Ewart VS.. Jones, 116
N. c., $40.
In making laws, the Legislature is
acting within their exclusive province
and discharging a duty for which they
have been elected 1t is a cardinal prin-
ciple that the courts cannot enter the
deglSldtlNe department anu SET dSlue d
law they have made, unless it is clearly
in conflict with the constitution. IF
there is any reasonable doubt it will be
resolved in favor of the lawful exercise
of their powers by the representatives
of the people" Sutton VS.. Phillips, 116
n, c., 500. To do more than this, would
be usurpation by the courts.
On careful review. it would seem
that the ruling of his Honor below
was in particular just and true
declaration of the law under all previ
Gus decisions. to-wit: THAT the office
of the Superintendent of the Peniten
tiary created by the act of 1897 has
been abolished by the act of January
26. 1899: that said office has not beer
substantially re-established in another
form. nor has it's emoluments. powers
and duties been conferred on others fol
the purpose of ousting the defendant
that by the act of January 20, 1899
the General Assembly has made ;
radical change in. the method of man
aging and conducting the penal institu
tons of the State which it was clearly
within the scope and power of the Leg
islative department to do. and that san
act creates corporation with all neces
sary and sufficient powers TO carry int
effect the purpose of the act, and
should be affirmed.