The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-12


property and control of the convits, to
the end that they might properly exc
cute their trust.
And again. the plaintiffs allege that
If it be so that the office of Superinten-
dent Days tenure ceased upon the
ratification of the act because he was
not nominated by the Governor nor his
appointment confirmed by the Senate.
The defendant AYERS that the Act of
January, 1899. though ON its face it pur-
ports 10 abolish the office OF superin-
temdent of the States prison does not
in law have that effect: that it simply
transfers the duties and functions of
the office of superintendent. to the three
plaintiffs, who allege that they compose
an Executive Board, to be performed
by them, and that sucn an attempt to
deprive the defendant of his office, on
the part of the General Assembly, is
contrary to the provisions of the State
Constitution, Article /, Section II (Bill
Of Rights and to those Of the Constitu-
ton of the United States, Article 10,
Section i. The defendants further aver
that the whole act of 1899 is void.
The great Importance of the matter
involved. and the appearance ON both
sides of counsel eminent in the profess
sion and learned in the philosophy as
well as in the details of the law, natur-
ally prepared the court for elaborate and
discurSive argument (oral and by brief
and we were not disappointed in our
anticipations.
A great deal of the learning which
was displayed, however, was not new
Many of thea questions discussed had
been so often and so consistently de-
cided by the adjudications of this court
that they could not be held to be open
questions; as, for instance: That such
a place as Superintendent of the State
prison, with its attendant duties. is a
public office CLARK VS.. Stanly 66 n. c..
30; Hoke VS.. Henderson, Is \. G.. L:
Wood VS.. Bellamy 20 n C. 212): That
an office is property and the incumbent
has the same right in it as he has to any
other property, except that he cannot
assign it (Hoke VS.. Henderson,, Supra.
King VS.. Hunter 65 n G. p. 603 Cot
ton VS.. Ellis, 50 n. G.. 545; Wood VS..
Bellamy, SUPRA: That the General AS
sembly has the power to abolish an
office created by legislative authority.
Cotton VS.. Ellis - y. G. 545: State
VS.. Smith 60 n. G. 1863; Wood VS.. Bella
my, supra; Woodvs. Elizabeth City. 121
n. G. u: That the Legislature can. ex-
cept in those instances prohibited by the
Constitution, take away some parts of
the duties of an officer and make a
inequitahle reduction of the officers
salary Cotton VS.. Ellis. 80 y. G.. 545.
Bunting VS.. Gales, II n. G. 2S3; King
vs. Hunter, G5 n C. 603). But in those
cases it is also held that the officers
entire salary can not be taken from
him and thereby starve him, nor, could
the Legislature select a particular off
Ger and by a special law applicable to
him alone, deprive him of any material
part of his duties and emouments.
That the words, i'll section 10. article
III of the Constitution of 1868 viz:
THAT the Governor shall nominate
and appoint ali officers whose offices are
established by this constitution. OR
WHICH SHALL BE CREATED BY
LAW AND WHOSE APPOINT
MENTS ARE NOT OTHERWISE
PROVIDED FOR, AND NO SUCH
OFFICER SHALL BE APPOINTED
OR ELECTED By THE GENERAL
ASSEMBLY, meant appointments not
otherwise provided for in the Constitu-
ton; and therefore, the Governor had.
under that Constitution, the general
power of appointing to office (the ex-
ceptions being the cases where the APP
pointments were otherwise provided for
in that constitution to the exclusion of
the Legislature, Mckee VS.. Nichols.
6S \. G. 429); but. that the words
which we have quoted from~article III.
section 10 of the Constitution, and
which appear in italics in the quota
ton, being omitted in the present Con-
stitution, it is clear that the conyen-
ton of 1875 intended to alter the Con-
stitution as interpreted in Mckee VS..
Nichols, supra, ON that point, and to
confer upon the General Assembly the
power to fill offices created by statute.
Ewart VS.. Jones, 116 n G.. $40. Hav-
ing disposed of all the above mentioned
collateral questions which were the
subject of argument in the case, inter-
esting, more as matters of Constitu-
tional and judicial history than as strict
ly applicable TO the controversy, before
the court, by the citations of repeated
decisions of this court, we can now
come down to the discussion of the point.
the real controversy in the case that
is, was the office of Superintendent of
the States prison abolished by the act
of the General Assembly, ratified Jan
uary, 1890? We may say in that
we have had no trouble in arriving at
the conclusion that the office of super
intendent is not an office created by
the Constitution. Section 3 of the
article XI of the Constitution, ordained,
THAT the General Assembly shall at its
first meeting make provision for the
erection and conduct of States prison
| or penitentiary," and that provision, in
our opinion, imposes upon the Legisla-
ture the duty of attending to the de-
tails as to the erection of the neces-
sary buildings, the purchase of such
proprty, real and personal as may be
| necessary for the uses of the prison;
and also as may seem proper. The
officers or their salaries and the
distribution of their duties are all left
with the General Assembly.
On the real question in controversy
the contention Of the plaintiff is that
the office of Superintendent OF
Prison was abolished by the
act of 1899, because ID The
act declared in so many words that the
office was abolished; because CD The
rnSnonSihility and oefllal management