concurring. In considering this case in conference, the discussion took a much wider range than that taken by counsel who argued the case. I shall be compelled to notice some of the matters thus called to our attention, which seem to have influenced a part of the Court, in order that I *678may answer them, if I can. And I do not mean by this, that I propose, in this concurring opinion to notice all the arguments advanced by my dissenting brethren; many of them to my mind, were too discursive and too speculative in their character, to be answered, or to require an answer. Many of them are statements as to facts that do not appear from the record, and it seems to me were not proper to be considered in determining a purely legal question. For instance, it was stated that the State’s interest in the Atlantic and North Carolina Railroad Company is worth $2,000,000. This does not appear in the record, and I don’t know what it is worth. But I see from a published statement made by Treasurer Worth on the 27th of April, 1899, that it is worth $253,320. I do not see what difference it makes in deciding the question of law involved in this ease, whether it is worth $2,000,000 or $253,320.
It was stated that the Board of Internal Improvements had only drawn $3 each for the years 1897 and 1898. This does not appear in the record, and upon what authority it was stated I do not know; but whether it was true or not, it seems to me, to be a matter that we cannot consider, as it does not appear in the record. And if it did appear in the record, it could not influence my opinion upon the question of law involved in the case.
The law as it stood before February, 1899, created a “Board of Internal Improvements,” who held their offices from the 8th of March, 1897, for a term of two years. This Board appointed eight directors for the State in the Atlantic and North Carolina Railroad Company, as it was their duty to do, and the defendants were elected by these directors and other directors, elected by the private stockholders of the road.
The Legislature on the 10th of February, 1899, repealed section 1688 of The Code and re-enacted the same, by giv*679ing themselves the power to elect the Board of Internal Improvements, which they proceeded to do. The Board elected by the Legislature met and organized on the 24th day of February, 1899, and proceeded to remove the State’s proxy and the old Board of Directors from office and to elect a new Board of Directors. This new Board demanded possession of the road, which was refused, and this action was brought.
If the new Board had the right to remove the old Board and appoint directors on the 24th of February, 1899, the plaintiffs are entitled to recover, and if they did not, they are not entitled to recover.
It seems to me that the doctrine upon which the case depends has been settled by Hoke v. Henderson, 15 N. C., 1; Wood v. Bellamy, 120 N. C., 212; Penitentiary v. Day, at this term, Wilson v. Jordan, at this term, and many other cases. I know that Hoke v. Henderson is fiercely attacked by one member of the Court, and it is even intimated that this opinion, delivered by Chief Justice Ruffin, Judges Gas-ton and Daniel, was given under fear that they might lose their offices, if they should hold that the Legislature could remove an officer before his term expired. I suppose if there ever were three judges on the Supreme Court Bench of North Carolina who live and still live in the hearts of the people and of the legal profession, they were Ruffin, Gaston and Daniel: and I must be pardoned for saying that I regret that any such reason as this should have been assigned for the decision in that case by any successor of theirs.
But it is further said that these offices were not lucrative, and the small amount of pay received for their services is ridiculed, and it is contended that Hoke v. Henderson only applies to lucative offices. The same question was pre*680sented by tbe facts in Wood v. Bellamy, bnt it was not even insisted'on in the argument, nor was it discussed by the Court rendering the opinion, which was concurred in by the whole Court, constituted then as it is now. Nor was this fact (the smallness of the pay the Board received for their services) insisted upon by the learned counsel for the plaintiff on the argument of this case. I do not mention this with the view of insisting that this Court should not consider a question of law plainly presented by the record, though it may have been overlooked by the ablest counsel; but it seems to me that the Court ought not to go outside of the record to find facts to enable it to present a question not insisted on by the learned' counsel who argued the case. The Court can not afford to make itself their attorney in the matter. But suppose it were true (which is not admitted) that the members of the Board of Internal Improvements have only drawn $6 each for1 1897 and 1898, is this to be used against them and they to be turned out of office on that account? If so, it would have probably been better for them if they had put their hands deeper into the public treasury. I can not agree to such a proposition; and while I do not. agree to the proposition that there is nothing in a public office but the number of pennies it may put in the pocket of the officer, still, if it is treated on this low plain, T propose to show that this digression from the record does not help plaintiff's case. I expect to show this from general principles and also from the case of Hoke v. Henderson.
It seems to me that it should be conceded by this time that a public office is property in North Carolina and is held by the officer as by contract. To dispute this would be to dispule not only Hoke v. Henderson, but every case ever decided by this Court involving the question, including Wood v. Bellamy. If it is treated simply as a contract — as a *681horse trade — depending on a pecuniary consideration, three dollars would be as effective, in the absence of fraud, as three hundred dollars would be. This proposition, it seems to me, will not be disputed by any good lawyer. Then putting the rights of defendants upon no higher ground than that of contract, it seems to me that plaintiffs must fail in this action.
But I said that I did not agree to the proposition, that there was nothing in a public office except the number of pennies it might produce; and that I expected to show that it was not so considered by the Court in Hoke v. Henderson. It may be that sentences may be found in the opinion which considered disconnectedly, seem to sustain such proposition ,- but when it is all read and considered together, in my opinion it does not. Quoting from pages 22 and 23 of that opinion, it does not. Quoting from pages 22 and 23 of that opinion, it says: “For the term for which the law assures the office to him, he claims and can claim to continue to be the agent of the public, to discharge the duties of the place, while there are duties remaining to be discharged, and he is ready and willing to perform them. Certainly that is not introduced solely for the benefit of the person holding those offices, but upon the great public consideration that he who is to decide controversies between the powerful and the poor, and especially between the government and an individual, should be independent, in the tenure of his office, of all control and influence which might impair his impartiality, whether such control be essayed through the frowns of a bad man or through the adulation of an artful one, or such influence be produced by the threats of the government- to visit nonconformity to their will, by depriving him of office, or rendering it no longer a means of livelihood.” Again, on page 24, when speaking of the term of office, it is said: “When they did so-(fixed the term), it was quite within their competency to alter it subsequently. But such alterations must operate pros-*682pectivcly, and as regulations for future appointments and future enjoyment. As to those to whom the grant was made for life, an estate, a property vested, which can not be divested without default or crime.”
Again, speaking of offices where the term is not fixed by the Constitution, it is said that it was strongly urged in the argument that as tbe Legislature had the right to fix the term of office, the officer took it with knowledge of that power and subject to the same. The opinion admits the fact that the Legislature could fix the term of such officers, but denies the conclusion of law, and says: “The question is, what is the effect of a grant for a particular period ? Can the duration be afterwards lessened to the prejudice of a grantee? We think not; because he acquires a property.”
But I will not quote further from this great opinion, as I think what I have quoted establishes the proposition that a public office is property, and that the officer holding the same has a property therein.
I am therefore of the opinion that the Board of Internal Improvements could not be removed by Legislation until their terms of office expired; that the new Board had no power to remove them, and no power to appoint the new directors (the plaintiffs) until after the 8th of March, 1899.