The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-13

/ S SSion or the property OF the STATE
prison: to the contract Of the conyicts
under thea law of 1897; and to the right
/ to execute the duties of the office of
superintendent of the States prison.
| The judgment below is reversed.
SYNOPSIS OF THE DISSENTING
OPINION OF CLARK
/ 1. The management and control OF
the States Prison is essentially 4
| function of governments and an indis.
pensable part of the administration OF
the criminal laws of the State which
the Legislature has no power to divest
itself of or bargain away.
The proposition, that because the Leg
islature of 1897 placed the control of
the States Prison under the control OF
superintendent. at the same time CON
ferring vast powers and privileges upon
him. Il subsequent legislature is power
less to resume control of the States
property and change the management of
this institution, is startling. and like
wise unsound in law. 1t is to make the
incident control the principal and subor-
dinate the inalienabe rights of the
State to an offce-holders demand for
salary If the Legislature of 1897 had
the power to confer such ordinary
powers upon one man as it conferred
upon the Superintendent, and thereby
bind future legislators for ii period of
four years, the same thing could have
been done for fifty years. Governments
are established for the benefit of the
people and no; that office-holders may
receive compensation; the latter is pure
ly incidental.
,. The Legislature of 1899 had the
same power to abolish the office of
superintendent that the Legislature of
1897 had to create it. The only Dues
ton is, has that office been abolished?
This is answered in the affirmative.
The act of 1899 III SO many words. cX-
pressIy and not merely by implication,
abolishes the office, and repeats all laws
by which the appointment, duties and
compensation of such an office are
prescribed and authorized. The power
of the Legislature to abolish an office
of its creation is unquestionable, and
one who accepts such an office takes
it subject to such reserved power of the
Legislature.
Such being the power of the Legisla-
ture and such the exercise of that
power in this case, the question arises
whether the office of superintendent
has been actually abolished, as the Leg
islature has unequivocally said. or has
the Legislature been guilty of subterfuge
and really continued the office in another
name; and in fact and in truth merely
transferred its duties and emoluments
to another lis the office of snperin-
tendent to-day in existence under anoth-
er name? If not, judgment must 90
against the defendant"
THE entire government of the peni-
tertiary as provided by the act of 1897,
is abolished. root and branches: not only
the .one man power. which dominated
under the act of 1897, is swept away.
but new system of government there
of is established by board of twenty
one directors. in which the old office of
superintendent, not only does not exist,
but such office is totally Incompatible IN
every particular with the new form of
government provided by the Legislative
will. 1t is not the case of the same old
horse under Il new blanket. Admittedly
the Legislature had power to abolish
this office 1t could not possibly have
done so more completely, unless it had
abolished the penitentiary itself. The
courts have no supervisory power, nor
veto, upon legislation, and one Legis-
lature cannot tie the hands of a future
Legislature No Legislature elected for
two years can pass amy act whatever.
which is not revocable by future Leg
islature. and this is as true when 1t
creates an office as in any other case.
IL L., -, -
forty-fiye that holds that II legislative
office is a contract; in the other States
such offices are held to be mere
agencies revocable by the Legislature
without restriction.
3. The case of Hoke VS.. Henderson
4 Div. /. holds that the property in
an office which is protected is the right
to compensation. and i'll offices without
nav the incumbent can be removed and
d new officer installed, though the office
be not abolished. 1t follows that if the
incumbent of lucrative office. is re-
moved while the office is unrepealed, his
remedy is not reinstatement III
the office. but damages for the
loss of his property rights. Neither
Hoke VS.. Henderson nor any
subsequent case has come within sight
or hailing distance of the contention that
an office created by one Legislature can.
in no emergency, whatever the urgency
or the manifest wisdom of the step. be
abolished by another Legislature, unless
the institution to which it is attached
is abolished.
If a private corporation elect a super
intendent for four years and discharge
him without cause, no court would re-
instate him in office. but would leave
him to his action of damages
for this breach of the contract Of hiring
There is no decision holding that this
is not the remedy of legislative office
! holder who is illegally turned out of his
| office.
| The ground of an office-holder's rights
/ as fixed by Hoke VS.. Henderson, Il
that he has a contract with tho
| State and his interest or property Il
! the contract is the emolument attached
TO the office For the breach o
contract the measure of damages il
/ the same in the case of the State ant
that of an individual, the difference il
the remedies being solely that the STATE
I can be sued only i'll the Supreme cour
by petition. The State cannot, b.
breach of contract of hiring, be at ;
4 hon amy iyiH IN