The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1899-04-14
Decided by the State Supreme Court in Favor
of Superintendent Day.
DEFENDANTS VESTED RIGHT
In the Office Cannot be TAKEN Away by the legislature Opinions a to
the Effect of This Decision Upon Changes in Other State Insrtu.
tons Made by the Last LegisIature-The Right of the Leg.
isIature to Appoint to Statutory Offices Not Denied
by the Court. Judge CIarks Dissent.
ing Opinion.
Especial to The Messenger.)

Raleigh, n. c., April 1.-THE supreme
4 court files the following opinions: Mer-
rimon VS.. Lyman, from Buncombe, at
irmed; Sprinkle VS.. Indemnity Com
pany, from Madison, new trial; Webb
VS.. Atkinson, from Buncombe, affirm
ed; Wyman VS.. Taylor, from Swain,
affirmed; Leak VS.. Railroad, from
Mecklenburg, error; Wittowsky VS..
Il Gidney, from Cleveland, affirmed; Leh
Lman VS.. Tice, from Forsyth, new trial.
Sashion VS.. Telegraph Company, from
&Iredell, new trial; Ross VS.. Insurance
Company, from Randolph, affirmed;
u Hall VS.. Cottingham, from Robson,
affirmed; Brown VS.. Nimocks, from
n Cumberland, new trial; Slingluff VS..
II Hail., from Duplin, affirmed; Mitchell
VS.. Sims, from Person, new trial;
81 State Prosin VS.. Day, from Wake, re-
versed; Kornegay VS.. Morris, from
4 Wayne, petition to rehear dismissed.
There was no surprise at the de-
cision of the supreme court in Days
y favor. He had always stoutly main
tanned it would be so. He was asked
what was the status and what he pro-
~ pOScu uOluS, anu ISpllc0. L "hi w my
best to make the penitentiary pay and
save the state all L can. I have two
men who will help me do that, Falc
Arendall at the central prison and
q Dick Tillery at the farms. 1 don't know
when I will take charge. Will Osborne
and Will Newland are at the peniten-
tiary and they are very good and eff
n cient men,"
Osborne and Newland had been at
the p~enitentiary. Day went out there
and the three came into the city to-
gether. Osborne and Newland were
then interviewed. They said when ask
ed what was the status of the offices:
VI 1--WE will have a consultation tonight
with out attorneys as to what we shall
N do. We understand from Day that un-
der the supreme courts decision we
will still have twenty-one directors,
4 /and that he will so recognize. 1t seems
that the decision leaves him as super
= ~&Fntendent with the same powers as be-
- fore. These powers are pretty absolute,
and leave but little for directors to do.
~ Travis, the other member of our ex-
# ,ecutive committee, comes tomorrow
and we are then to have a conference
with Day and arrive at some conclu-
I'M sion. AS the matter stands, we simply
N don't know where we are. We cannot
81 say yet whether the new, or demo-
cratic, directors will retire or not. We
M will be guided by the advice of our at
torneys. Day tells us he wants us to
N continue to act"
# SCOPE OF THE DECISION.
J. c.. L. Harris, Governor Russelrs
III right hand man, came in the supreme
# court building soon after the Day de-
cision was filed and at once said it
q carried with it the cases of Burns as
keeper of the capitol, and of DR.. Abb
& bott as railway COMMISSIONS and keeps
both in office.
A few minutes later State Chairman
81 Simmons came in n read the opinion
# in the Day case and was then asked
# his view. He said he did not know as
to Burns and hen added: MY view
is that Abbott's case is not in the
III slightest degree affected, except that
this decision removes Abbott's con-
tention that the legislature did not
have the power to appoint. The act
abolishing the railway commission was
succeeded, with a distinct interval, by
the act creating the corporation COM
N mission, thus making a period Of time
when there was 40 law to support Alb
bolts office. While in the penitentiary
case both acts were in one, as, other
wise when the penitentiary was abol-
III ished the convists' terms would neces-
sarily END Nor does this Day case de-
Z cision affect the Atlantic and North
fNCarolina railway case, because one of
main contentious of the fuSionists
m charge of that road is that the leg
4 fislature did not have power to ap-
point the board Of internal improve
ments, while this decision settles that
the legislature did have the right to
n appoint it. This decision really helps
in that railway case. The court holds
that Days office as superintendent is
81 not a constitutional office, but one
which is a creature of the legislature"
81 Some of the leading democrats assure
me that the decision is really more in
favor of the democrats than against,
as it decides the question, much moot
ed of late, of the power of the legis-
KAT lature to appoint to statutory offices
If this had been decided in favor OF
the governors right to appoint, ii
would have probably ousted fifty or
sixty democrats from office.
After conference tonight Osborne ano
Newland decided to call all t~wenty-one
directors to meet at the earliest pos
sible moment to decide the status. Di-
%rectors' places are not affected by the
supreme court decision.
THE OPINION OF THE COURT.
Justice Montgomery writes the opin.
N ion in the case, which reverses the de-
cision of the superior court and de.
clares Day entitled to the office of SUI
q pSlAhbOhuShs' AN OplhIOh says III W.
ject was simply to have a decision as
to who is entitled to the custody of the
states prison and the convicts therein
The question is: Was the office of su.
perintendent abolished by act of 1899
The court says it had no rouble in ar.
irving at a conclusion that the office
of superintendent is not an office ere,
4 ated by the constitution. There is &
contract existing between the state ant
the defendant, Day, as to his office
and it cannot be vitiated during hi.
term. The state, through the legisla
ture, might be satisfied that the man
& agement under the executive boar,
created by the directors under the &C
of 1899 is a better plan and a safe
one for the public, yet that is only
matter of method of management,
choice between two modes Chat is