dissenting. The management and control of the State’s Prison is essentially a governmental function. It is an indispensable part of the administration of the criminal laws of the State. No Legislature can denude the State of that power by giving it away or bargaining it away. It is a startling contention of the defendant that, because the Legislature of 1897 placed the control of the State’s Prison in a Superintendent with vast powers and privileges, accompanied by a salary of $2,500, therefore, a subsequent Legislature is powerless to resume control and change the management because that would deprive him of his pay. This is to make the incident of greater importance than the subject, and the inalienable right of the State to control its own institutions subordinate to an office-holder’s demand for a salary. If the Legislature could by creating a four years’ term of office put it out of the power of the next Legislature to assert State control of its most important institution and a branch of its administration of the criminal laws, it could, by making the *379term ten years, twenty-five years or fifty years, have forbidden the people of North Carolina from touching the institution during those periods. If the Legislature of 1897 could confer the great powers they did upon the Superintendent, without power of repeal, they could have conferred greater powers, the sole and absolute control in every respect. To change this would necessarily continue the same duties in the hands of other parties, and the defendant’s contention is that would be to substantially continue his office in other hands, and illegal. That is the proposition before us. The defendant claims control of more than 1,000 of the State’s convicts, possession of $200,000 of the State’s property and to receive $100,000 annually from sale of the products of the State’s farms with the appointment of 169 place-holders in the State’s service, and to fix their salaries and other large powers, with no security to the State but a bond of $5,000, and it is gravely argued to us that the Legislature could not, in discharge of its governmental functions, change that system of government, because under the new Act necessarily the same duties would be discharged by the Directors and Executive Board and others, and the defendant would lose profitable employment. But governments are established for the benefit of the people, and not that office-holders may receive compensation — the last is purely incidental and only to be rendered when the State desires and receives the services. The office of Superintendent of the State’s Prison or Penitentiary was created by legis-* lative enactment (Laws 1897, Chapter 219, section 4), and therefore it can be abolished in the same mode and at the will of the Legislature. “The Legislature (of 1899) had the same power to abolish it that the Legislature (of 1897) had to create it.” State v. Walker, 65 N. C., 461. ' The only question before us should be, has the office been abolished. The Act of 26th January, 1899, “To provide for the government of *380tbe State’s Prison,” provides (section 12) : “Tbe office of Superintendent of tbe Penitentiary is hereby abolished, and all laws and clauses of laws, providing for tbe appointment of or imposing any duties upon, or providing for, any compensation for such officer are hereby expressly repealed.” As tbe Legislature had power to abolish tbe office, tbe above would seem a clear-cut unmistakable expression of their will that tbe office has been abolished. Two late decisions of this Court are decisive of tbe point. In Wood v. Bellamy, 120 N. C,, 212, after a careful review of our authorities, it is said by MONTGOMERY, J.: “It is undoubtedly tbe law in North Carolina that an office (not created by tbe Constitution) can be abolished, and that as a result tbe officer loses bis office and tbe property in it. This is no breach of tbe contract on tbe part of tbe State. Tbe bolder accepted tbe office subject to this contingency. No one would contend that because an office was in tbe estimation of tbe Legislature useful and necessary at tbe time of its creation, such an office would continue to be forever a public necessity. If an office once useful should become useless and an unnecessary charge upon tbe people, it is not only a right of tbe Legislature to abolish it, but it is its duty to do so. And, as we have said, every man elected or appointed to an office created by tbe Legislature takes it with tbe implied understanding that tbe continuance of tbe office is a matter of legislative discretion, tbe office depending upon tbe public necessity for it. In Hoke v. Henderson, 15 N. C., 1, it is said that it may be quite competent to abolish an office and true that tbe property of tbe office is thereby of necessity lost. Yet it is quite a different proposition that, although tbe office be continued, tbe officer may be discharged at pleasure and bis office given to another; the office may be abolished because tbe Legislature deems it necessary.”
Tbe latest case, Ward v. Elizabeth City, 121 N. C., 1, says: *381“The city attorney authorized for the new corporation is an entirely distinct office from, and is not a continuation of the office of city attorney of tbe corporation which was extinguished by Act of the Legislature. This case differs from Wood v. Bellamy, 120 N. C., 212, in that, there the new charter was so nearly a repetition of the old one that it was held to be merely an amendment of the former one, not a destruction of it, and hence the offices under such charter were not vacated. Every one who accepts an office created by legislative enactment takes it with notice that the legislature has power to abolish his office, and is fixed with acceptance of all provisions in the Act creating the office.” Fubches, J., in McDonald v. Morrow, 119 N. C., 666 (top of page 677) says: “The only restriction upon the legislative power is that after the officer has accepted office upon the terms specified in the Act creating the office, this being a contract between him and the State, the Legislature can not turn him out by an Act purporting to abolish the office, but which in effect continues the same office in existence.”
McDonald v. Morrow, supra, and other cases to like purport are cited in Caldwell v. Wilson (by Douglas, J.), 121 N.C., 425, seepages 468,469, especially lines in italics on p. 468.
So that the only question is, whether the office of Superintendent has been actually abolished, as the law-making power unequivocally has said, or shall we hold that it has been guilty of subterfuge and has really continued the office, in another name, and in fact and in truth merely transferred its duties and emoluments to another? Is the office of Superintendent to-day in existence under another name? If not, judgment must go against the defendant.
In Wood v. Bellamy, supra, there was no radical change in the method of management, no destroying and repeal of previous acts as in the present case, but the new legislation *382on its face purported to be, and was in fact, a mere amendment to previous legislation; the name of the institution and of the offices was somewhat changed, but it was clear that there was the same system of management, and the same offices with the same fumctions, the labels being changed. This being so, the Court held, following Hoke v. Henderson, that the office, being in truth continued in existence, the officer could not be dispossessed. In Ward v. Elizabeth City, supra, a still later case (September Term, 1891) it was held that where a city charter was abolished and a new corporation created with enlarged territory, it was such a change that the city attorney under the old charter could not claim his salary under the new. The change made by the Act before us is far more searching and complete than that sustained in Ward’s case. The entire government of the penitentiary, as provided by the Act of 1891, is abolished root and branch, not only the “one-man power” which dominated under the Act of 1891 is swept away, but a new system of government thereof is established by a Board of twenty-one Directors, in which the old office of Superintendent not only does not exist, but such office is totally incompatible in every particular with the new form of government provided by the legislative will.
A review of the methods of government provided for the Penitentiary will be instructive. Under the Laws of 1879, Oh. 333 and 1881, Oh. 289, the Penitentiary was governed by a Board of five Directors. In 1885, Oh. 524, the number was increased to nine. In 1889, Oh. 524, the number was again reduced to five, and this continued until 1893. So that from 1879 to 1893 the office of Superintendent was not a sine qua non in Penitentiary management. It simply did not exist. Just as the Legislature of 1899 has declared, it does not exist to-day'. In 1893, Chapter 283, a new system was inaugurated. The office of “Superintendent of the State’s Prison” *383was created. In 1895, Chapter 417, this system was abolished and a return had to the old system, bnt it failed to take effect because the Roard of nine Directors therein provided for were elected by the Legislature when no quorum was present, and in consequence of the decision in Stanford v. Ellington, 117 N. C., 158, there was no contest over the matter and the Superintendent held on for the lack of any one to succeed him. In 1897, Chapter 219, there was a return to the “one-man power” provided by the Act of 1893. In 1899, this system, not having worked satisfactorily, the Legislature returned to the old system which had obtained from 1879 to 1893, and abolished by express enactment, root and branch, the opposite method of government which had been attempted by only two Legislatures (1893 and 1897), the tho other nine Legislatures, from 1879 to 1899 inclusive, having approved the system of government by a Board.
The argument for the defendant is that the Penitentiary must be governed by the discharge of substantially the same duties by some person or persons, and, therefore, though the office of Superintendent is abolished and not reestablished either in form or in any other name, yet as those duties must be performed by the Board itself, and agents appointed by it, therefore the office of Superintendent is still in existence, no matter how it is divided up; that as the duties exist therefore the office exists, and the defendant must have it and its emoluments. This is the fallacy of his argument. The office does not exist either potentially or color ably. No one exercises it or draws its emoluments. The Legislature had power to abolish it, and it has done so in unmistakable language, and we must take it that they have done so in good faith. Wood v. Bellamy says the officer is entitled “so long as the office exists,” not so long as the same duties must be performed by some one in some way. The duties of management remain *384and tbe Legislature bas apportioned those duties as it thought best. If the office of Superintendent is necessarily beyond annihilation unless the Penitentiary itself is annihilated, where was it in hiding from 1879 to 1893 ? There is a wide distinction between the office of Superintendent with certain fixed duties prescribed by the Legislature which can not be taken from the incumbent as long as the office is continued (or if it is only colorably, not truly abolished) and the duties of managing the Penitentiary which remain substantially the same under every form of government, however much the Legislature as representatives of the Sovereign people may change the method of its government. The functions of government remain -substantially the same under an absolute monarchy in Russia as in a free country like ours, but should Russia come to be administered by the elected representatives of its people, the office of Czar would cease to exist. The powers and duties of absolute sovereignty would remain.
By the Act of 1897, Chapter 219, creating the office of Superintendent of the State’s Prison, under which the defendant claims, there was a Board of nine Directors, who had (section 3) “general supervision of the State’s Prison or Penitentiary, and of the employment of all convicts sentenced to imprisonment therein by the Courts of the State.” Then, by section 4, there was created a middle-man, a Superintendent, with large powers, which he was to exercise under the general supervision of the Directors, as provided by section 2, including the power to appoint all subordinates (169 in number it seems) and fix their salaries, but his appointments and adjustment of salaries were subject to approval or rejection by the Board (section 7) and he was required to make itemized reports which were subject to their approval, and he was allowed’a salary of $2,500.
The experience of this system of government, not having *385made it acceptable to the Legislature, the Act of 1899 abolished the middle-man and his salary of $2,500, and required the Board of Directors to govern the Penitentiary by direct contract with the subordinates and not, as under the Act of 1897, through the medium of a Superintendent with powers prescribed by the Legislature not to be changed by the Board and he himself not removable by them. No such office or powers now exist. The Board of Directors are to appoint all subordinates themselves and fix their salaries in the first pla'ce and discharge all other duties of general supervision directly, instead of at second-hand, by approving or rejecting the appointments, actions and reports of a Superintendent, as under the Act of 1897. The office of middle-man or Superintendent, having proved expensive and unnecessary (Wood v. Bellamy, supra), the Legislature in its wisdom abolished it, and no vestige of it remains. It is true the Penitentiary must be governed, but not necessarily by a Superintendent. It is none the less abolished because the Board shall discharge their duties hereafter directly instead of supervising the discharge of them through a Superintendent. To provide for the increased burden of direct supervision, the Board was increased from 9 to 21, and an executive committee of three was provided to be selected by the Board among its own members, who are to meet twice a month, to act for and in behalf of the full Board between its sessions, with its acts subject to approval by the full Board. In all this, there is surely no indication that there has been any subterfuge practiced by the Legislature or that the office of Superintendent is still in existence. If we were disposed to charge a co-ordinate department with subterfuge, we must recall that there sat in that body fifty-five lawyers, among them many of the most eminent members of the profession, thoroughly acquainted with the decisions of the Courts, and that if there had been subter-*386fnge it was not unintentional, but deliberate. Certainly it does not appear upon the face of the statute, and we can not presume bad intentions in the Legislature. Angle v. R. Co., 151 U. S., 18. In Wood v. Bellamy the Act on its face was an amendatory Act, and there was no subterfuge, but simply a naive attempt to vacate offices by merely changing their titles. The Court held that would not do, and the Legislature of 1899 had knowledge that nothing less than an actual abolition of an office would vacate it. The office of Superintendent is not only expressly abolished, but, as above said, its very existence is incompatible with the very essence of the new government prescribed, which is by the Board itself without any intermediate, as heretofore, to malee contracts, appointments and regulations. It is not the case of “the same old horse under a new blanket.” Admittedly, the Legislature had power to abolish this office. It could not possibly have done so more completely, unless it had abolished the Penitentiary itself.
If because the Penitentiary must continue to be managed, the office of one who formerly discharged some of the functions of management can not be abolished, then if he had been charged with the full and entire management he could not be touched during his term, however long, since those functions would necessarily be performed by those placed in charge, and the unbroken line of decisions that all offices created by the Legislature can be abolished by the Legislature is misleading, except as to those minor places which are held in institutions which can themselves be abolished. This is to make an office which is purely an incident in carrying out. the legislative will in managing State institutions, the chief thing to be protected at all hazards, and makes the legislative judgment as to the best interests of the institution a secondary ■consideration. As to the State’s Prison, the asylums, the Uni*387versity, schools and tbe like, which the Constitution or the public necessities require to be continued in existence, an officer once in, no matter how unsatisfactory the system or the officer himself, would be protected as fully as if appointed under and his term fixed by the Constitution. The rat can only be gotten out by burning down the barn.
We know not from the record what mismanagement, if any, caused the Legislature to abolish the system of governing the Penitentiary through a Superintendent, nor is it necessary there should have been any. The Legislature, representing the sovereignty, could change the method of governing any State institution at will. It does appear upon the face of the complaint that the defendant has in possession $200,000 of State’s property; that he will (if still in office) handle $100,000 of State’s funds annually; that he is insolvent and has given only a $5,000 bond. None of these allegations are denied in the answer, and some of them are expressly admitted. While there is no charge of mal-administration against the defendant (who came in less than a month before the Act abolishing the office), the Legislature may well have thought that a system which admitted of that method was not business-like or safe, and, if they did, it was in their power to abolish it, and it is not for the Courts to forbid it and take the responsibility of restoring that_ state of things.
If the defendant is protected in a four-years’ term, unless the Penitentiary itself is abolished, then, as has already been pointed out, a Legislature which is elected to sit sixty days may fill all the institutions of the State, which from their nature can not be abolished, with officers, holding not four years, but ten years or twenty-five years or fifty years, or for life, and thus tie the hands of future generations and prevent any betterment, as is attempted by this Act, in the mode of administering our great State institutions. Nay, more, it *388may elect boards for life and provide that they may themselves, from time to time, fill vacancies in their own body, a right which would be a part of their offices, and thus take the government of the State institutions entirely out of the hands of the people, who will be powerless to free themselves “from the body of this death,” through future Legislatures. It is true, it may be said that if the Legislature acts thus unadvisedly and extremely the Courts can not correct its faults. That is true. If the Legislature acts unadvisedly their errors must be corrected, not by the Courts, but by the people in the election of • subsequent Legislatures, and it is -not for the Courts to limit the corrective process in the hands of subsequent Legislatures. If the Act of 1897 seemed evil to the people, it was for them to send a Legislature here in 1899 to correct it, and if this Act of 1899 is not approved by popular opinion, a Legislature will be sent here in 1901 to change it. The Courts have no supervisory power, nor veto, upon legislation.
The theory of all free government is that the people are to administer their own affairs in their own way. No Legislature elected for two years can pass any Act whatever which is not revocable by a future Legislature, and this is as true when it creates an office as in any other case. When the Supreme Court of the United States, in an unfortunate hour, held in the Dartmouth College case that a charter of a corporation was not a privilege, but a contract, and therefore irrevocable, the immense, the overshadowing danger that one weak or corrupt Legislature could bankrupt a Commonwealth for all time and tie the hands of unborn generations, caused every State, including our own, to revert to first principles by placing in its Constitution the provision that all charters should be revocable at the will of any future Legislature. When the decision by the same tribunal of the case of Chis*389holm v. Georgia showed, the danger of a State being sued by reason of contracts made by its Legislature through unwisdom or corruption, .Judge Iredell of North Carolina, then on the Supreme Court of the United States, gave the alarm through his dissenting opinion, and there was forced through with great promptness the Eleventh Amendment to the United States Constitution, whereby any future Legislature could say whether it would be bound by the Acts of its predecessor by forbidding any suit against a State to enforce rights accruing under any legislation by the State — an amendment which alone saved North Carolina from the terrible oppression of an indebtedness of $36,000,000, incurred without consideration in 1868. When the Legislature of 1833, without deep foresight into the future, attempted to give immunity from taxation for all time to the Wilmington & Weldon Railroad Company, and the Company claimed that thereunder it could build lines into every county in the State, and be everywhere, and forever exempt from contributing by taxation to the support of the State, it was this Court in Railroad v. Allsbrook, 110 N. C., 131 (at pages 145-148) which protected the public from a great and lasting injustice by declaring the incompetence of one Legislature thus to bind future generations, and thus placed the vast property of that corporation on the tax list — a decision which was affirmed by the Supreme Court at Washington.
In all our sister States it is held that legislative offices are not contracts, but mere agencies of the State, and revocable by the Legislature without any restrictions. Meechem Pub. Offices, section 463; 19 Am. & Eng. Enc. 562c; Black Const. Law, 530; Black Cons. Prohibitions, section 95; Cooley Const. Lira. (6th Ed.), page 331, and numerous cases cited by each. Our State alone of the forty-five modifies this (Hoke v. Henderson, supra), but only to the extent that *390while the Legislature can at will abolish such offices or reduce the salary or increase the duties, it can not remove the incumbent while the office is continued — a modification which has entailed upon this State a large class of litigation which is unknown everywhere else. That case, however, also distinctly holds (bottom of page 21) that “property” in the office is the right to its compensation, and that in offices without pay the incumbent can be removed and a new officer installed, though the office be not abolished. It logically follows that if the incumbent of a paying office is removed while the office is unrepealed his remedy is not reinstatement in the office, but damages for the loss of his property rights — “the transfer of the emoluments” of the office, as it is there styled. As to offices not placed under the protection of the Constitution, as to their terms and' compensation, the organic law has purposely left them to be made, modified or unmade, as the people through their Legislature may deem best for the public interest. Neither Hoke v. Henderson nor any subsequent case has come within sight or hailing distance of the defendant’s contention that an office created by one Legislature can, in no exigency, whatever the urgency or the manifest wisdom of the step, be abolished by another, unless the institution to which it is attached is abolished, for this is his naked contention, stripped of its superfluities, if it is true, that inasmuch as essentially the same duties in carrying on the institution must be performed, therefore the office is still in existence.
If this be sound doctrine, it is an absolutely new doctrine, and there is a paradise ahead for legislative office-holders, who, like Milton’s fallen angels,
. “ Can only by annihilation die.”
The decision in this case is the opposite of the Civil Service which obtains in the Federal Government and in many of the States. That permits the removal of the heads of depart*391ments, through which means the policy of government is changed at will, but protects the subordinates, who are appointed and retained for merit. This forbids the change of the heads and leaves the subordinates removable at will. Besides, Civil Service laws are sustained so long only as the people endorse that system by re-electing Legislatures and Congresses in its favor. It is not beyond legislative action, as the defendant contends that he is. If the office is abolished, of course the defendant is entitled to no salary, but even if the Court could hold that the defendant is still in office after the Legislature has decreed its abolition, “no money can be drawn out of the State Treasury except by authority of law.” There is no law allowing the defendant any salary. It is expressly repealed. In “Hoke v. Henderson" it is said that unless it could be seen that the object was to starve the officer out, the Act could not be held unconstitutional, and no such intent is here shown, for if it is true, as defendant contends, that his office has been divided among twenty-one Directors, who are discharging, as he says, the functions he formerly discharged,, and he must reassume it from them, then he is only entitled to the salary allowed them as his substitutes, and it would take an expert accountant to state how much of the salary allowed them is for the duties devolved upon them before the abolition of the middle-man, and how much is added by reason of dispensing with his services, for it is unquestionable law that the Legislature can at will reduce the salary of any officer, the reduction of whose compensation is not forbidden by the Constitution. In Hoke v. Henderson it is further said (15 N. C., at bottom of page 27) that if the Legislature should refuse salaries to officers elected by it, the office remaining still in force, “while such Act would be unconstitutional, the Courts could give no remedy, but it must be left to the action of the citizens to change unfaithful for *392more faithful Representatives.” Even if the Court could hold that the removal of the defendant was unconstitutional, it is expressly held in the late case of Garner v. Worth, 122 N. C., 250, that no Court could enforce the payment of any salary to him, most especially when, as here, the sovereign acting through the Legislature has forbidden it. This is true as to an admittedly valid State bond under the Great Seal, which is certainly of as high dignity as a salary which the Legislature has expressly forbidden to be paid, which therefore the Treasurer can have no power to pay and the Courts can give him none. ITe holds the people’s money to be paid out only when the Legislature directs. The Courts can only issue a mandamus to the Treasurer when the statute directs payment, never when the statute is silent, and certainly not when it forbids payment.
In Cotten v. Ellis, 52 N. C., 545, the Court puts its decision expressly on the ground that the office was created by the United States Government, and therefore, unlike a legislative office, the State could not abolish it, and added that if they were to give a mandamus to pay the salary, they were not sure they could enforce it. In Garner v. Worth, supra, it is held the Court can not except where the salary is prescribed by the Constitution. In Bailey v. Caldwell, 68 N. C., 412, also, the decision rested upon the ground that the office, having been created by the Constitutional Convention, the Legislature could not abolish it.
If the defendant is entitled to any salary it is an equitable part of that allowed those he asserts are the incumbents placed in his office. It is the new salary, not the old one, to which he is entitled.
Besides, if the defendant had been Superintendent of a private corporation under a four-years’ contract and he was without cause discharged therefrom, no Court would reinstate him in office; his remedy would be to recover as damages the *393salary for tbe unexpired time, reduced by whatever he made or ought to have made at his regular vocation during that time. There is no decision holding that this is not the remedy of a legislative office-holder who is evicted illegally. It must be so, for the ground of his right is placed by Hohe v. Henderson expressly on contract, and the contract in his favor is only as to the emoluments, and for breach of contract the measure of damages is the same as to an individual and the State — the difference being solely in the procedure, which in the latter case must be by petition in the Supreme Court. The State can not be at greater disadvantage than a private corporation or an individual. It is different as to an office created by the Constitution, for that does not rest on contract (Cooley Const. Lim. and Black Const. Law, supra), but the Legislature is simply prohibited from meddling with it. Except where restrained by the Constitution, the Legislature is all powerful as the representative of the people. As was well said by Faircloth, C. J., in Ewart v. Jones, 116 N. C., 570 (since cited with approval by Douglas, L, in Caldwell v. Wilson, 121 N. C., 470) : “Under our form of government the sovereign power resides with the people and is exercised by their representatives in the General Assembly. The only limitation upon this power is found in the organic law as declared by the delegates of the people in convention assembled.” There is no constitutional inhibition upon one Legislature abolising an office created by the Legislature, except the restraint read into the Constitution by Hohe v. Henderson, that while the Legislature can abolishj it can not give the emoluments of the office to another if it is continued in existence. This rests solely upon the ground that to do so would be a breach of contract. As such, there can logically be no remedy by reinstatement, but simply by a proceeding for damages, the measure thereof to be ascertained as in case of any private individual or corporation.
*394The line of decisions, like McKee v. Nichols, 68 N. C., 429, tbat all appointments to office must be by the Governor was rendered null and is now obsolete, as to offices created by statute, by virtue of the amendment to the Constitution in 1875. Ewart v. Jones, 116 N. C., 570.
In making laws, the Legislature is acting within their exclusive province and discharging a duty for which they have been elected. It is a cardinal principle that the Courts can not enter the legislative department and set aside a law they have madej unless it is clearly in conflict with the Constitution. “If there is any reasonable doubt it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.” Sutton v. Phillips, 116 N. C., 502. To do more than this would be usurpation by the Courts.
On a careful review it would seem that the ruling of his Honor below was in every particular a just and true declaration of the law under all our previous decisions, to-wit: “That the office of the Superintendent of the Penitentiary created by the Act of 1897 has been abolished by the Act of January 26, 1899; that said office has not been substantially reestablished in another form, nor has its emoluments, powers and duties been conferred on others for the purpose of ousting the defendant; that by the Act of January 26, 1899, the General Assembly has made a radical change in the method of managing and conducting the penal institutions of the State, which it was clearly within the scope and power of the legislative department to do, and that said Act creates a corporation with all necessary and sufficient powers to carry into effect the purpose of the Act,” and should be affirmed.