DAY'S CASE. that the Act of January 26, 1899, set out in the complaint, is unconstitutional and void, in that its object is to deprive him of his office of Superintendent of the State's Prison and to continue the functions of said office to be performed by others. His Honor sustained the validity of the Act and rendered judgment against defendant, who appealed. Messrs. Joseph B. Batchelor, James C. MacRae, C. F. MacRae, Argo & Snow, and Thos. N. Hill, for defendant (appellant). Messrs. R. O. Burton and Shepherd & Busbee, for plain tiffs. MONTGOMERY, J., delivers the opinion of the Court. CLARK, J., delivers dissenting opinion. MONTGOMERY, J. This action was brought under section 1 of an Act of the General Assembly, ratified on the 15th of February, 1899. The language of that section is as follows: "That in addition to the remedy prescribed by The Code, sections 603 to 621 inclusive, the Board of Directors of the State's Prison of North Carolina, or the Executive Board thereof, or both, with or without the jointure of the State, shall have the right, in an action for injunction or mandamus, to test in the Courts the claims of any claimant or claimants to the possession, custody and control of the property of the State's Prison, and of the convicts therein confined." The object of the statute, then, was simply to have a decision by the Courts of this question: Who of the conflicting claimants is, or are, entitled by law, to the possession and custody of the property of the State's Prison and of the convicts therein confined? The claimants (so far as this record DAY'S CASE. shows) are the plaintiffs, on the one side, and the defendant on the other. The rights of any other person or persons that may be connected with the conduct and management of the State's Prison are not now before us for consideration. This Court will not anticipate litigation between rival claimants for office, and if such litigation should occur, each case must be heard and decided on its merits on cases properly constituted in the Courts. The Governor of the State, under the provisions of Chapter 219 of the Acts of 1897, appointed John R. Smith Superintendent of the State's Prison for the term of four years, and his nomination was consented to by the Senate. The compensation attached to the office was a salary of $2,500. After the adjournment of the General Assembly of 1897 Smith resigned the superintendency, and J. M. Mewborne was appointed by the Governor in Smith's place. On the 1st day of January, 1899, a few days before the General Assembly of that year convened, Mewborne resigned, and the defendant, W. H. Day, was appointed Superintendent to fill the vacancy. Day's nomination by the Governor was never sent to the Senate, nor did that body confirm the appointment. Day, under his appointment, took possession of all the property of the State's Prison, and the control of the convicts. This action was brought by the plaintiffs to recover of the defendant the property in his possession belonging to the State and appertaining to the State's Prison, and to get the control of the convicts and to have the rights of the parties declared. In that way the plaintiffs seek to get a decision by the Court on the matter which it was desired to have settled by the Act of February, 1899. The plaintiffs' alleged right of recovery is founded on the provisions of an Act of the General Assembly ratified on the 26th day of January, 1899, to go into effect on the 10th day DAY'S CASE. of February, 1899, as to its requirement for the delivery of the State's Prison and the convicts therein by the persons then in charge of the State's Prison to the Board of Directors provided for in the Act. As to the other provisions, they went into effect from the date of ratification of the Act. Under the provisions of the last-mentioned Act, the plaintiffs, claiming to be a Board of Directors, duly elected and appointed by the General Assembly, allege that the office of Superintendent has been abolished; that the property of the State Prison, the control of the convicts and the conduct of the Prison were vested in them by the Act of January, 1899, and that therefore they are entitled to the possession of the property and the control of the convicts, to the end that they may properly execute their trust. And again, the plaintiffs allege that if it be so that the office of Superintendent was not abolished by the Act of 1899 yet the defendant Day's 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 avers that the Act of January, 1899, though on its face it purports to abolish the office of Superintendent of the State's 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 such an attempt to deprive the defendant of his office on the part of the General Assembly is contrary to the provisions of our State Constitution, Article I, section 17 (Bill of Rights) and to those of the constitution of the United States, Article XIV, section 1. The defendant further avers that the whole Act of 1899 is void. The great public importance of the matter involved and the appearance on both sides of counsel eminent in the pro DAY'S CASE. fession and learned in the philosophy as well as in the details of the law, naturally 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 the questions discussed had been so often and so consistently decided by the adjudications of this Court that they could not be held to be open questions, as, for instance, that such a place as that of Superintendent of the State's Prison, with its attendant duties, is a public office (Clark v. Stanley, 66 N. C., 59; Hoke v. Henderson, 15 N. C., 1; Wood v. Bellamy, 120 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 can not sell or assign it (Hoke v. Henderson, supra; King v. Hunter, 65 N. C., page 603; Cotton v. Ellis, 52 N. C., 545; Wood v. Bellamy, supra): That the General Assembly has the power to abolish an office created by legislative authority (Cotton v. Ellis, 52 N. C., 545; State v. Smith, 65 N. C., 369; Wood v. Bellamy, supra; Ward v. Elizabeth City, 121 N. C., 1): That the Legislature can, except in those instances prohibited by the Constitution, take away some parts of the duties of an officer and make a not inequitable reduction of the officer's salary (Cotton v. Ellis, 52 N. C., 545; Bunting v. Gales, 77 N. C., 283; King v. Hunter, 65 N. C., 603. But in those cases it is also held that the officer's entire salary can not be taken from him and thereby starve him, nor could the Legislature select a particular officer and by a special law applicable to him alone, deprive him of any material part of his duties and emoluments): That the words, in section 10, Article III, of the Constitution of 1868, viz.: "That the Governor shall nominate.... and appoint all officers whose offices are established by this Constitution, or which shall be created by DAY'S CASE. law, and whose appointments 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 that Constitution; and therefore, the Governor had under that Constitution the general power of appointing to office (the exceptions being in cases where the appointments were otherwise provided for in that Constitution) to the exclusion of the Legislature (McKee v. Nichols, 68 N. C., 429); but, that the words which we have quoted from Article III, section 10 of the Constitution, and which appear in italics in the quotation, being omitted in the present Constitution, it is clear that the Convention of 1875 intended to alter the Constitution as interpreted in McKee v. Nichols, supra, on that point, and to confer upon the General Assembly the power to fill offices created by statute. Ewart v. Jones, 116 N. C., 570. Having disposed of all the above-mentioned collateral questions which were the subject of argument in the case, interesting more as matters of constitutional and judicial history than as strictly 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 State's Prison abolished by the Act of Assembly ratified January, 1899? We may say in limine that we have had no trouble in arriving at the conclusion that the office of Superintendent is not an office created by the Constitution. Section 3 of Article XI of the Constitution ordained: "That the General Assembly shall, at its first meeting, make provision for the erection and conduct of a State's Prison or Penitentiary," and that provision, in our opinion, imposes upon the Legislature the duty of attending to the details as to the erection of the necessary buildings, the pur " * * * |