concurring. While I fully concur in the opinion of the Court, I hope I will be pardoned for briefly expressing my views upon this important question.
• It is too plain for argument that the position the defendant *374beld was a public office. I do not think this is denied by plaintiff. This being so, he had a property in this office, that could not be transferred to another or to others. This is the law of this State, and it has been so held by this Court in every case involving this question from Hoke v. Henderson, 15 N. C., 1, to the present time, without a single exception. It is true that it is argued for plaintiff that McDonald v. Morrow, 119 N. C., 666, and Ward v. Elizabeth City, are not in accord with Hoke v. Henderson, but upon examination it will be found that this is not so. Hoke v. Henderson is cited with approval in both these cases.
The Act under discussion in McDonald v. Morrow was the Election Law of 1895, and in that Act it was provided that such appointments as those under consideration were void, and the Court in considering the case stated that as they claimed to hold under that Act, it must be held that they took subject to the terms of the Act they claimed to hold under. There was no question presented in that case as to the repeal of the statute or the abolition of the offices claimed by the defendants.
In Ward v. Elizabeth City, 121 N. C., 1, the plaintiff failed in his action upon two grounds: that the corporation under which he claimed to hold office had been abolished, and a new corporation created out of new territory and new population to a very great extent, and for the further reason that he had abandoned his claim to the office. Justice Clark wrote the opinion of the Court in Ward v. Elizabeth City, in which he cited with approval both Hoke v. Henderson and McDonald v. Morrow, and distinguished that case from Wood v. Bellamy. So I repeat that there is not a ease to be found in our reports that does not recognize the doctrine laid down in Iloke v. Henderson, to be the law in this State. It has been held ever since it was delivered in 1833 to be the *375leading case on this subject, and is styled by Chief Justice Peaxson'as “that great mine of learning.”
That case, and every case since that case, discussing the right of an incumbent to hold his office, recognizes the right of the Legislature to abolish a legislative office, and that when the office is abolished the right of the incumbent to hold it is gone, because there is no office to hold. But all the reported cases from Hoke v. Henderson down to and including Wood v. Bellamy, 120 N. C., 212, hold that to have the effect of ousting the incumbent before his term expires the office must be abolished. That it is not sufficient to declare that it is abolished when it is not abolished. That the office is intangible, and consists in the duties of the office, and while these duties are continued the office is continued. The discussion then comes down to this: are the duties of the office the de<-fendant held abolished or are they transferred to others ?
In discussing this question I do not expect to enter into a discussion of policies that might influence me if I were acting as a legislator. Nor do I expect to count the number of lawyers in the Legislature that passed this Act; nor do I expect to impugn their motives, as it seems to be thought I will if I am of the opinion that the Act is unconstitutional. This kind of argument should have no weight with an independent judiciary. If this suggestion is true it convicts every Judge that has ever occupied a seat on this Court of being guilty of impugning the motives of the Legislature — Taylor, Henderson, Ruffin, Pearson and all their associates. If this were so, I suppose there would never be another Act of the Legislature declared unconstitutional. I hope that I may never be influenced in the discharge of what I consider my duty by such considerations. I propose to regard this Legislature just as I would any other Legislature, and to deal with its legislation just as I would any other Legislature — just as I *376did the Legislature of 1895, and I agreed with the Court in an opinion declaring a similar Act passed by that Legislature unconstitutional. And in doing so I did not impugn their motives nor do I suppose any other member of the Court did. I suppose that Legislature thought the Act of 1895, reviewed by this Court in Wood v. Bellamy, constitutional; and I suppose the Legislature of 1899 thought this Act constitutional. But when it comes before us for review I can not be governed in my opinion of the law by what they may have thought.
It is contended that if we sustain the defence and restore the defendant to his office there is danger ahead of us: That we might get a Legislature that would extend the terms of office to ten and even to twenty-five years. I do not think we are likely to have a Legislature that would be so revolutionary as that. But what if we should, is this the forum to be appealed to for relief ? The leading case of Hoke v. Henderson, in which Chief Justice Ruffin delivered his great opinion, was a case in which Henderson, the defendant, claimed to have an office for life; and the Court sustained his claim.
It seems to me that defendant’s claim is looked upon with disfavor as resting upon an Act passed by the Legislature of 1897. I don’t know that it should be discredited on that account. But when it appears that the Act of 1897 was but the re-enactment of the Act of 1893, under which the party in possession of the Penitentiary in 1895 (the same party that passed the Act of 1893) held over in violation of the Act of 1895, it does not seem to me that it should be discredited because it was passed by the Legislature of 1897.
If the object of the Act of 1899 was simply to get rid of the office of Superintendent, as contended, why was it that the Legislature did not simply abolish that office and leave the institution to the management of the Board of Directors? *377They were there, and were substantially tbe same they were before the passage of the Act of 1893, which created the office of Superintendent.
If the object was simply to abolish the office of Superintendent, why did they not do this and let the matter stand there ? Why did they appoint twelve new Directors and establish an Executive Board of three to do the same thing the Superintendent had to do ?
Great stress is laid on the fact that three are to do what one did, and the “one-man power” is appealed to. Is this “one-man power” the question before us ? It seems almost to be conceded that if the duties of the Superintendent had been transferred to one man that the Act would have been unconstitutional. AVhat difference does it make to the defendant whether his office is given to one or to three f
While we do' not propose to discuss policies, this kind o.f legislation has a history in this State, to be learned from the records of this Court and its reported cases. In 1871--72 the legislative power and the executive power of the State were in the hands of different political parties. The legislative power undertook to take charge of the penal, charitable andbenefieent institutions of the State before the terms of those in office had expired. But they failed, as may be learned from Battle v. McIver, 68 N. C., 467; Badger v. Johnson, Ibid, 471; Nichols v. McKee, Ibid, 429; Wether v. Bledsoe, Ibid, 457.
In 1895 the legislative power of the State was in the hands of one political party and the executive power in the hands of another political party; and the legislative power undertook to take charge of the institutions before the terms of the officers in charge had expired. And they failed. Wood v. Bellamy, 120 N. C., 212. In 1899 the legislative power of the State is in the hands of one of the political parties and the executive power is in the hands of another *378political party; andtheLegislaturehas again undertaken to take charge of this institution before the terms of the officers have expired, and they must fail. The Act considered in Wood v. Bellamy, in express terms, abolished the office of Superintendent; the Board of Directors, created a new corporation, provided for the reception of patients from Durham and Robeson Counties, established an insane division in the Penitentiary, and repealed all laws in conflict with that Act. In fact, every substantial question involved in this case was involved and considered by the Court in that case. The Court, constituted then as it is now, declared that the Act was unconstitutional By a full bench and without a dissenting voice. I must hold now as I did then, and I do this without impugning the motives of anyone, as I suppose they thought the Act constitutional!