I was not in attendance, owing to sickness, when the Associate Justices at the last term of the Court, had this case under consideration.
They inform me there was no difference of opinion upon the *Page 88 question as to the ratification by the people at the election in August, 1873, of all of the amendments to the Constitution which were submitted to a vote, and the Associate Justices concurred in the conclusion that the amendments were duly adopted, and form a part of the Constitution. I concur in this opinion.
The Associate Justices further inform me there was a difference of opinion on the question as to the constitutionality of the act which provides "the General Assembly shall elect the Trustees of the University;" an advisari was taken for the purpose of enabling me to take part in the decision of that question.
The amendment under consideration strikes out sections 5, 13, 14 and 15 of Article 9, "Education," and enacts, "The General Assembly shall have power to provide for the election of Trustees of the University of North Carolina."
It is said this general power is restricted by a prohibition in section 5, Art. 3, "Executive Department." "And no such officer shall be appointed or elected by the General Assembly." No reference to this prohibition is made in the amendment, and the argument is: The original Constitution and the amendment are to be construed together. "The amendment is to be considered as if it had been inserted in the original Constitution. An express prohibition cannot be made to yield to an inference drawn from the general words used in conferring the power. Therefore, the General Assembly has power to provide for the election of Trustees, in any other mode, save that of an election by the members of its own body.
This conclusion follows, provided the premises be admitted: Is the proposition true, an amendment to the Constitution is to be considered, as if it had been in the original instrument?
In support of this proposition, reliance is put upon the analogy of a settled rule of construction in regard to amendments in pleadings, both in courts of law and of equity; but in my opinion this is not in point. A party cannot amend his pleading without obtaining the leave of the Court; in order to prevent the party from having benefit by his omission to *Page 89 insert the matter in the original pleadings, the leave of the Court is given on the condition, that the amendment shall be considered, as if it had been inserted in the first instance. The people, voting in accordance to the provisions of the Constitution, have power, without asking the leave of anybody — to make, amend, alter or modify the Constitution at any time, and to any extent a majority may see fit. There is no occasion for any condition or for a resort to legal fiction, but in putting a construction upon the amendment, the Court is to take the fact as it is, the amendment was made after the adoption of the Constitution, and is bound to give full effect to the amendment, as the last expression of the will of the people; true, the Constitution and the amendment are to be construed together; but the object is to see how far the original Constitution must yield, in order to give full effect to the amendment. As the power conferred upon the General Assembly is without any restriction, full effect cannot be given to the amendment without making the prohibition contained in the original instrument yield to the extent of allowing an exception in respect to the appointment or election of Trustees of the University.
The rules adopted by the Courts for the construction of codicils, furnish a more apt analogy and are doubly in point. The testator, observing the formula required by law, can revoke, amend, alter or modify his will, at anytime and to such extent as he is minded; the Courts look upon the codicil as the last expression of his will, and give full effect to it, by making "the will" yield as far as is necessary for that purpose. The fiction that the codicil must be considered as if it had been inserted in the will is not resorted to, and the Courts give full weight to the fact that the codicil was made after the will, and the extent to which the intention of the testator had been changed is judged of by the words of the codicil, giving effect to the will and construing it with the codicil only, so far as the will can be allowed to operate without detracting from the effect of the codicil.
So, in reference to the General Assembly, that body has *Page 90 power to repeal or amend any prior statute. An amendatory statute is construed with reference to the fact that it was enacted after the original statute, and the portion of the second statute being considered as if it had been inserted in the first, as never has been suggested.
So, in reference to deeds; the party to a deed may rescind or alter it by the execution of a second deed. There is no necessity for the leave of any one to enable them to do so, and the Courts give full effect to the last deed, as expressing the intention of the parties, the first deed being referred to only for the purpose of seeing how far he must yield in order to give full effect to the last.
Thus, it is seen that in construing codicils, amendments to Constitution, amendments of statutes, and the alteration of deeds, the Courts give weight to the fact that the one is made after the other, and the fiction that an amendment to pleading is to be considered as if it had been inserted in the first instance, stands isolated, and is confined to the case of an amendment to pleading, because of the special ground on which it rests.
The mode of electing Trustees by "the Board of Education" had not been attended with a favorable result; under the old mode of electing Trustees "by the members of the General Assembly," the institution had flourished until blighted by the desolation of war; so, when the former was discarded by the amendment and struck out of the Constitution, it was naturally to be expected that the old mode would be again adopted. These are parts of history, to be taken into consideration as bearing upon the construction of the amendment, and seems to me to be conclusive.
Had the amendment provided: "The Trustees shall be elected by the members of the General Assembly," so as to adopt the old mode, in so many words, it would have had the advantage of being direct and free from all room for construction, but it would have been exposed to one objection urged against the mode adopted in the Constitution, which the amendment *Page 91 strikes out, to-wit: there could be no change in the mode without delay and expense incident to all changes of the fundamental law; whereas, by conferring an unrestricted power upon the General Assembly, that body could adopt the old mode, or some other, and if the mode adopted in the first instance proved unsuccessful, set aside and substitute another by ordinary legislation; for instance, if the General Assembly adopted the old mode, and that, under the new conditions resulting from the war, did not prove a success — then another mode — an election by the Alumni of the University, could be tried, or any other which circumstances might, in the wisdom of the General Assembly, be deemed expedient.
The objections, that under the power to provide for the election of Trustees, conferred upon the General Assembly, that body could not provide for an election by its own members, besides being met by reference to the past history of the University, is opposed by the analogy of the law. It is settled — a will of property to A to do with, as he pleases, confers absolute ownership. If an unrestricted power of appoinment [appointment] be given it confers the ownership, for, if the party to whom the power is given, does not exercise it, the presumption is that he makes an appointment to himself. This inference of the law is based on a knowledge of human nature, and the effect of self-interest, which is presumed to prevail among corporate bodies, whether political or merely civil, as well as among individuals; and with deference to the opinion of others, my conviction is, according to the principles of human nature and the analogies of the law, based upon them, in granting this unmistakable power to the General Assembly, it was not only expected, but it was the intention of the amendment, that the General Assembly should adopt the old mode of election, and should that not answer, then that body has power to substitute another.
PER CURIAM. Judgment reversed, and judgment for the plaintiffs upon the demurrer. *Page 92