The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-02-19
DAY FILES HIS ANSWER.
Alleges the Unconstitutionai:y of tho
New Act.

New ACT.
Yesterday afternoon Capt. w. IT..
Day filed his answer to the complaint
in the suit brought against him in Wake
Superior court on Friday.
Among other things recited in the al
swer is the following:
That as he is advised. informed and
believes. that the act passed on the 26th
of January. 1899, copy of which is
attached to the complaint. is unconsti
tutional and void. because the evident
object and intent of said act is to con-
tinue in force the State Prison or Peni-
Tertiary. as established by the act of
the General Assembly of North Carolina
of 1897. chapter 219. under another
name, and to take from the superin-
tendent of the said institute the man
agement of the same under the Board Of
Directors. and to abolish the office of
superintendent thereof and provide for
the performance of the duties now de-
volved by law upon said superintendent
by the executive board and wardens,
managers and others to be appointed by
the Board of Directors or through
such agencies as they may establish. :"
That by the provisions of section 4
of chapter 219 of the acts of the Gen
eral Assembly of North Carolina, rati-
fed the Sd day of March, 1897, it was
provided that the Governor shall. by and
with the advice and consent of the Sen
ate, appoint chief officer of the States
prison or penitentiary, who shall be
known as the superintendent of the
States prison." whose term of office
shall be four years from and after his
appointment. qualification and filing of
bond as hereinafter provided or until
his successor shall qualify and file his
bond according to law and whose COM
pensation shall be a salary of twenty
FIVE hundred dollars per annum," and
said act in section prescribes the duties
of the said superintendent.
That in pursuance of said law, on
the 25th day of March, 1897, the Gov
ernor of North Carolina, by and with
the advice and consent of the Senate.
then in session, appointed to said office
one John r. Smith for the full term
of four years beginning on said day. And
that said Smith duly qualified and hello
said office until the first day of January.
1898, when he resigned the same, and
one James NJ Mewborne was duly APP
pointed ny the Sdlu 'ON6EUOI " III
the vacancy in said office caused by said
resignation, for the uneXpired part of
said term And the said J. NJ. New
born was duly qualified and held said
office until the first day of January,
1899, when he resigned his office and
defendant was duly appointed by the
Governor of North Carolina superirrtend-
ent of the States prison, to fill the va
cancy caused by the resignation of said
Newborn, to begin on the first day o.
January, 1899, and expire at the end of
four years from the fifth day of March,
1897, or when his successor shall be APP
pointed and qualify according to law.
And thereupon defendant was duly. quail
fled by taking the oaths and giving the
bond prescribed by law, and entered
INTO and assumed the duties of said office
and has continued to perform the duties
of same up to the present time.
That as he is advised and believes,
he act of the General Assembly of
North Carolina in SO far as it purports
and ATTEMPTS to abolish the office of
superintendent of the States prison, is
unconstitutional and void because the
said act continues in existence the said
States prison. and the duties and func-
lions of the office of superintendent
hereof. but seeks to distribute those du-
Ties and functions among the Board of
Directors the executive board and such
managers as they may hereafter APP
pont and to deprive the defendant of
his office with its functions and emolu-
mentS.
That as defendant is informed and
believes the plaintiffs intend aud threat
on to deprive defendant of his office, and
to take possession of the same.