concurring. In view of the number of important cases involving the title of office which we have been called upon to decide under the principles laid down in the celebrated case of Hoke v. Henderson, (15 N. C., 1), I deem it proper to define my position in a concurrent opinion where I have greater latitude of expression than I would feel justified in using as the mouth piece of the Court. I believe it is the unquestioned right of a Judge to express, in a fair and respectful manner, his dissent or concurrence upon every question that may come before the Court of which he is a member, and this right I shall not hesitate to' exercise within the limitations of my judgment and my conscience. This is equally the right of others, to whom I shall always cheerfully concede the same absolute integrity of motive and conduct that I claim for myself. In fact, I always prefer to give expression to my individual views in a separate opinion rather than inject them into an opinion of the Court where they are unnecessary for its determination, and thus force my brethren, who freely concur in the result, into an apparent concurrence in dicta that may not fully meet their approval. There is also danger that such dicta appearing in the opinion of the Court may subsequently be mistaken for the decision of the Court. Two years ago when I came upon this Bench, its only new member, and in every way its junior, I was at once confronted with the class of cases represented by Wood v. Bellamy. After the most careful consideration, and certainly with no possible personal bias, I concurred with a unanimous Court in the decision of those cases, thus giv*708ing to tbe great principles enunciated in Hoke v. Henderson the deliberate assent of my judgment and my conscience. This assent I see no reason now to withdraw. If it was the law then, it .is the law now; and those who now invoke those identical principles are entitled to their equal protection.
Fearing, however, that under the circumstances I might have been too much influenced by the unanimous opinion of my brethren of the Court, I have again carefully read Hoke v. Henderson and considered the principles therein involved. I can truly say that I can recall no abler opinion of any Court, nor could there be a nobler monument to the memory of the great Chief Justice who still retains the admiration of our profession and the grateful veneration of our people. That opinion was delivered at the December Term, 1833, of this Court by Chief Justice Kuffin, and concurred in by his associates, Judges Daniel and Gaston. This great Court sat together unchanged for more than ten years, and has had no superior here or elsewhere, either in the ability and integrity of judicial conduct or the purity of private life. Their honored portraits hang above our Bench, and the impression of their features upon that canvas is no clearer than the indel-lible impress of their characters upon the jurisprudence of our State. I deeply regret the suggestion that in this celebrated case their judgment was influenced by a desire to protect themselves from being legislated out of office by a hostile Legislature; in other words, that their most noted opinion was not the honest result of sincere conviction, but the illegitimate offspring of moral cowardice.
Even if they had not been protected by Constitution safeguards, such a suggestion, appearing neither in the record nor in the argument of counsel, would be equally unjust to them and to any Legislature that could ever receive the suf-frages of our people.
*709I clo not wisb to seem invidious by selecting one with whose memory I have so many personal associations, but the rounded character of Gaston was admittedly the beau ideal of a North Carolinian. It may well be said of him that among the great men of his generation, few have left a more splendid and none a more stainless name. It is the deliberate judgment of his countrymen that throughout a long and’ distinguished life, he ever bore the trenchment blade of heroic manhood with the spotless shield of Christian chivalry. As far as I am aware, that opinion has never before been questioned, but on the contrary has been repeatedly cited and approved, affirmed and reaffirmed, until its very name has become the embodiment of a vital principle. I find it cited with approval upon one point or another in the following cases:
Houston v. Bogle, 32 N. C., 496; State v. Moss, 47 N. C., 66; Thompson v. Floyd, 47 N. C., 313; State v. Glenn, 52 N. C., 321, 327; Cotton v. Ellis, 52 N. C., 545; Barnes v. Barnes, 53 N. C., 366; Galloway v. Railroad, 63 N. C., 147; State v. Smith, 65 N. C., 369; King v. Hunter, 65 N. C., 603; Clark v. Stanley, 66 N. C., 59; Brown v. Turner, 70 N. C., 93; Bunting v. Gales, 77 N. C., 382; Vann v. Pipkin, 77 N. C., 408; Prairie v. Worth, 78 N. C., 169; Lyon v. Aikin, 78 N. C., 258; McNamee v. Alexander, 109 N. C., 246; State v. Cutshall, 110 N. C., 545; Board of Education v. Kenan, 112 N. C., 568; State v. Womble, 112 N. C., 867; Trotter v. Mitchell, 115 N. C., 193; McDonald v. Morrow, 119 N. C., 676; Wood v. Bellamy, 120 N. C., 216; Ward v. Elizabeth City, 121 N. C., 3; Caldwell v. Wilson, 121 N. C., 468; Miller v. Alexander, 122 N. C., 721.
In the above list I have included .those cases directly citing it by name, emitting those merely tending to sustain it.
In Ward v. Elizabeth City, supra, on page 3, Mr. Justice *710Clare, iii delivering tbe opinion of tbe Court, says: “Tbe only restriction upon tbe legislative power is that after tbe officer bas accepted office upon tbe terms specified in tbe Act creating tbe office, tbis being a contract between bim and tbe State, the Legislature can not turn bim out by an act purporting to abolish tbe office but which in effect continues tbe same office in existence. Tbis is on tbe ground that an office is a contract between the officer and tbe State, as was held in Hoke v. Henderson, 15 N. C., 1, and bas ever since been followed in North Carolina down to and including Wood v. Bellamy, supra, though this State is tbe only one of tbe 45 States of tbe Union which sustains that doctrine.” In reviewing the list of the Judges who wrote tbe above opinions, or concurred therein, we find the names of every Chief Justice who bas since presided over tbis Court, and of all tbe Associate Justices, with one or two exceptions before whom tbe question does not appear to have been distinctly raised. None appear ever to have questioned it.
Had I felt it my duty to have dissented two years ago from an otherwise unanimous Court, I would have done so; but I would have felt awfully lonesome.
An examination of tbe constitutional history of tbe State I think will clearly show that the principles so clearly enunciated in Hoke v. Henderson have not only received tbe practically unanimous approval of succeeding Judges, but have by direct implication been repeatedly ratified by tbe people themselves.
The following are usually regarded as tbe fundamental constitutions of North Carolina taken in their chronological order: Charter of Queen Elizabeth to Sir Walter Raleigh, (or Ralegh, as she persists in spelling his name) dated March 25, 1584; “Charter of Carolina,” dated March 24, 1663, given by Charles II to the Duke of Albemarle, Lord *711Craven, Lord Berkley, Lord Ashley, Sir George Carteret, Sir William Berkley and Sir John Oalleton; the “Charter of Carolina,” dated June 30, 1665, and given by Charles II to the same parties with the addition of the Earl of Clarendon; and “The Fundamental Constitutions of Carolina,” dated. March 1, 1669, and framed for the Lords Proprietors by John Locke and amended by the Earl of Shaftesburg; to which may be added the grant of 1630 to Sir Robert Neath, of the nature of which I know nothing. The Mecklenburg Resolutions of May 20, 1775, may also be considered as somewhat constitutional, as they clearly enunciate fundamental principios, although I am not prepared to say to what extent, if any, they were ever binding or operative.
This brings us down to the first “Constitution of North Carolina,” which was framed by a “Congress” elected and chosen for that particular purpose, which assembled at Halifax on the 12th day of November, 1776. This Constitution was not submitted to the people for ratification, but appears to have met with general acceptance and to have remained unchanged until the amendments of 1835. It was this Constitution whose provisions were construed in Hohe v. Henderson. I have endeavored to make a synopsis of the opinion, but I find that no synopsis of which' I am capable wordd do it justice; and so I will give only one or two extracts taken verbatim. The original headnote is as follows: “A Clerk appointed under the Act of 1806, has an estate in his office, and although the Legislature may destroy the office and by consequence the estate in it, yet the Act of 1832, which continues the office, but transfers the estate in it to another, is ■unconstitutional and void.” Fuller notes appear in Tour-gee’s and Womack’s digests. The following extracts appear to give the keynote of the opinion: “In the act under consideration, as far as it concerns the controversy between these *712parties, tliere is no ambiguity; tbe words are plain, the intention unequivocal, and the true exposition infallibly certain. We can not, under the pretense of interpretation, repeal it, and thus usurp a power never confided to us, which we can not usefully exercise, and which we do not desire. Since the meaning’ of the Act can not be doubted, and according to that meaning Mr. Henderson had not, but Mr. Hoke had the right to the office of Clerk at the time the Judge refused to admit the latter, the ground of decision of the Superior Court, as stated in the record, recurs before this Court, and must now unavoidably be examined.
The Act transfers the office of Clerk from one of these parties to the other, without any default of the former, or any judicial sentence of removal. The question is, whether this legislative intention, as ascertained, is valid and efficacious, as being within the powers of the Legislature in the Constitutions of the country; or is null, as being contrary to and inconsistent with the provisions of those instruments. To the determination of this question, the judicial function is competent. It involves no collateral considerations of abstract justice or political expediency. It depends upon the comparison of the intentions and will of the people as expressed in the Constitution, as the fundamental law, unalterable except by the people themselves, with the intentions and will of the agents chosen under that instrument, to whom is confided the exercise of the powers therein delegated or not prohibited. Such agents are all public servants in this State, and the agency is necessarily subordinate to the superior authority of the Constitution, which emanated directly from the whole, people. Legislative representatives may order and enact what to them may seem meet and useful, upon all subjects and in all methods, except those on which their action is restrained by the Constitution; and such order and enactment is obligatory alike on all citizens, *713including those who are by a public duty to execute the laws, as well as those on whom they are to be executed. Courts therefore must enforce such 'enactments; for they are laws to them by the mere force of the legislative will. But when the representatives pass an act upon a subject upon which the people have said in the Constitution, they shall not legislate at all; or when upon a subject on which they are allowed to legislate, they enact that to be law which the same instrument says shall not be law, then it becomes the province of those who are to expound and enforce the laws, to determine which will, thus declared, is the law. Neither the reasons which determined the will of the people on the one hand, nor the will of the representatives on the other, can be permitted to influence the mind of the Judge upon the question, when reduced to that simple point. His task is the humbler and easier one of instituting a naked comparison between what the representatives of the people have done, with what the people themselves have said they might do, or should not do; and if upon that comparison it be found that the act is without warrant in the Constitution, and is inconsistent with the will of the people as there declared, the Court can not execute the act, but must obey the superior law, given by the people alike to their judicial and to their 'legislative agent. * * * * * * * * *
But even these sanctions are not sufficient to overturn the Constitution, if the repugnance do really exist and is plain. Eor although the imputation is altogether inadmissable, that the legislature intend wilfully to violate the Constitution, and still less that the people themselves contemplate violence to the instrument consecrated by their own voices and the consent of our ancestors; yet all men are fallible, and in the despatch of business, the heat of controversy, and the wish to effect a particular end, may inadvertently omit to scrutinize their powers, and adopt means, adequate indeed to the *714end, but beyond those powers. It ought not to surprise that such an event should some times happen. * * * * When unfortunately such instances do occur, the preservation of the integrity of the Constitution is confided by the people, as a sacred deposit, to the Judiciary. In the discharge of that duty, the approbation of the Legislature itself is to be anticipated; for the principle of virtue which restrains them from a known and wilful violation of it, will induce them to rejoice at the rescue of the Constitution from their own incautious and involuntary infraction of it. * * In other words, public liberty requires that private property should be protected even from the Government itself. They people of all countries who have enjoyed the semblance of freedom, have regarded this and insisted on it as a fundamental principle. Long before the formation of our present Constitution it was asserted by our ancestors on various occasions ; and, in one sense, its vindication produced the revolution. At the beginning of that struggle, while the jealousy of power was strong, and the love of liberty and of right was ardent, and the weakness of the individual citizen against the claims of unrestricted power in the Government was consciously felt, the people formed the’ Constitution of this State; and therein declared “that no freeman ought to be taken, imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner’ destroyed, or deprived of his life, liberty or property, but by the law of the land? (Bill of Rights, s. 10.) By the fourth Section it is declared, “that the legislative, executive and supreme judicial powers of Government ought to be forever separate, and distinct from each other.”
“In absolute governments, whether hereditary or representative, the division of the powers of government is unimportant; because that body in which resides the superior *715authority, can, at will, malee it supreme, and absorb all the other departments. It does not follow, therefore, that because the British Parliament, whose supremacy is acknowledged, decides questions of private right and puts that decision, as it does its other determinations, into the form of a statute, that whatever it does is legislative in its nature. It can adjudicate and often does substantially adjudicate when it professes to enact new laws. That faculty is expressly denied to our Legislature, as much as -legislation is denied to our Judiciary. Whenever an Act of Assembly, therefore, is a decision of titles between individuals, or classes of individuals, although it may in terms purport to be the introduction of a new rule of title, it is essentially a judgment against the old claim of right; which is not a legislative, but a judicial function."
This question was more fully elaborated in the remainder of the opinion, citing: Anon, in 1 Hay. Rep., 29; (2 N. C.) Den. on Dem. Bayard v. Singleton, Martin’s case, (1 N. C.,) 48; University v. Foy, 1 Mur. (5 N. C.,) 58 and Hay. (3 N. C.,) 310; Hamilton v. Adams, 6 N. C., 161; Allen v. Peden, 4 N. C., 638; Robinson v. Barfield, 6 N. C., 391.
The Court thus plainly and directly asserts its jurisdiction to pass upon the constitutionality of any act of the Legislature, and to declare such act null and void when constitutionally objectionable. It then proe'eeds to hold that an officer has a qualified right of property in his office which the Courts will protect even against legislative interference. It says further, on page 17: “The sole enquiry that remains is, whether t-he office of which the act deprives Mr. Henderson, is property. It is scarcely possible to make the proposition clearer to a plain mind, accustomed to regard things according to practical results and realities, than by barely *716stating it. Eor what is property; tbat is, wbat do we understand by the term? It means, in reference to tbe thing, whatever a person can possess and enjoy by right; and in reference to the person, he who has that right to the exclusion of others, is said to have the property. That an office is the subject of property thus explained, is well understood by everyone, as well as distinctly stated in the law books from the earliest times. An office is enumerated by-commentators on law among incorporeal hereditiments; and is defined to be the right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging. (2 Bl. Com., 36). * * * Eor if one usurp an office which belongs to another, the owner may have an action for damages for the expulsion, for the fees of office received, and a remedy by quo warranto to enquire into the right of the usurper, and by mandamus to be himself restored. When we find these remedies established to enforce the right of admission into office, to secure the possession of it and its emoluments, we can no longer doubt that in law, an office is deemed the subject of property to the officer, as well as an institution for the convenience of the people. If it be so, it falls within those provisions of the Constitution which secure private interests; and can not be divested without some default of the officer, or the cesser of the office itself. These are the general principles that lead the Court to the conclusion that the act of Assembly is invalid."
Some of the italics are mine. This decision was rendered a1 the December Term, 1833, reported in 15 N. C., 1. Since that time there have been five separate and distinct Constitutional Conventions, all of which might, but none of which have, abrogated or modified the principles of that opinion.
In 1835 a Constitutional Convention met on June 4th, and framed amendments to the Constitution of 1776, which were *717ratified by the people. In 1861 a Convention inet and on May 20th passed the Ordinance of Secession, with some other amendments, none of which were submitted to the people. In 1865 a Convention met on October 9th, repealed the Ordinance of Secession and passed an ordinance prohibiting slavery. This Convention reassembled in May 1866 and further amended the Constitution; but with the exception of the above ordinances relating to secession and slavery, the amendments were rejected upon submission to the people.
A Convention, called by General Canby, under the reconstruction acts of Congress, assembled on January 14, 1868, and framed the “Constitution of 1868,” which was ratified by the people. In 1875 a Convention assembled on September 6th, and amended the Constitution in several particulars, t-heir action being ratified by the people at the election of 1876. In addition to these Conventions, several amendments have been made by legislative action and popular ratification, such as the celebrated “Free Suffrage” amendment of 1854, and those prohibiting the payment of the special tax bonds, relating to the election of trustees of the University, increasing the number of Justices of the Supreme Court, and some relating to other particulars set out principally in Chapters 81, 82, 83, 84, 85, 86, 87, and 88, of the Laws of 1872-73. The various amendments made many changes of far reaching results, including the successive repudiation of the governments of the. United States and of the Confederate States, but the underlying principles of Hoke v. Henderson remained unchanged. In fact, the Convention of 1835, by necessary implication, appears to have endorsed the opinion. Assembling within less than eighteen months after its rendition, Judge Daniel and Judge Gaston, though still Justices of the Supreme Court, appeared as delegates to the Convention from their respective Counties of Halifax and Craven, and actively *718participated in. its deliberations. In fact, Judge Gaston, as Chairman and spokesman of the Committee appointed “to consider and report the manner in which it will be expedient to take up the business of this Convention,” became its leading spirit.
In Hoke v. Henderson, on page 23, this Court positively asserted the independent life tenure of the judicial office, as being “constitutional and unalterable,” and free from any legislative control; but declined to express an opinion as to whether the Legislature could reduce their salaries under Article XXI, of the Constitution of 1776, which provided “that the Governor, Judges of the Supreme Court of Law and Equity, Judges of Admiralty and Attorney General, shall have adequate salaries during their continuance in office.” With Daniel and Gaston upon the floor, and the opinion fresh in their memory, the Convention expressly provided in Art. Ill, Section 2, that: “The salaries of the Judges of the Supreme Court, or of the Superior Courts, shall not be diminished during their continuance in office.” This practically completed the independence of the Judiciary. I have thus carefully reviewed the case of Hoke v. Henderson in connection with its surroundings because the present dissent is in effect a direct attack upon the fundamental principles involved in that case. We are told that “the supreme power in every Government of every kind is the law-making power, wherever it may be vested.” That is true, because it is vested in the people; but it is not true that the people exercise this power supremely through their representatives in the Legislature. This supreme law making power they exercise only through a Constitutional Convention or by ratification upon a direct referendum to themselves. The law making power granted to the Legislature is carefully restricted. In the Constitution the word “Supreme” is nowhere applied to *719the Legislature ; but only to the Governor and the Supreme Court. Art. II, Section 1, says that: “The Legislative authority shall be vested in two distinct branches, both dependent upon the people.” Art. Ill, Section 1, says: “The Executive Department shall consist of a Governor, in whom shall be vested the supreme executive power of the State, etc.”- Art. 4, Section 8, says: “The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the Courts below, upon any matter of law or legal inference.”
Art. I, Section 8, says: “The legislative, executive and supreme judicial powers of the Government ought to be forever separate and distinct from each other.” Article I, the “Declaration of Rights,” comprises thirty-seven sections, nearly all of which necessarily apply to the legislative authority alone; while its last Section closes with the significant declaration that: “This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers not herein delegated, remain with the people The first Section of the Declaration says: “That we hold it to be self evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” This is an express declaration that -there remain in the citizen certain inherent rights that are independent even of constitutional recognition. Again we are now told that “The Legislature is the great and chief department of Government.” The people have not said so 'in their Constitution, but have said directly to the contrary, as it provides for three coordinate departments, which shall be forever separate and distinct. In my opinion there could be no political heresy more dangerous than to assert the superiority of any one department; because, as is well said by Chief Justice RuKbtN, *720“that body in which resides the superior authority, can at will make it supreme, and absorb all the other departments. Again, wo are now told that this Court has no powers except those given by the Constitution; but we are expressly given jurisdiction over all matters of law or legal inference, and what greater powers could be given to us of a judicial nature ?
Again, we are now told, but not by counsel, that we are liable to impeachment. Of course we are. No man in this country is above the law; and as, holding the supreme judicial power, we can not try ourselves nor try each other for our judicial acts, there must be some tribunal to which we are amenable. I am sure there is no member of this Court would have it otherwise; and while we would scorn to let the fear of possible consequences influence our action in the slightest degree, we shall be ever ready to answer before any legitimate tribunal, and meet the fullest consequences of our deliberate act. This is no mark of legislative superiority, but simply a wise provision for that just responsibility which should attach to every public servant.
Again, we are now asked why is the opinion of Holee v. Henderson so sacred. I have endeavored to answer in the preceding pages; but in any event, why is it less sacred now than it was two years ago when it received the unanimous endorsement of this Court? If it was sacred enough two years ago to keep in Bellamy, why is it not sacred enough now to keep in Wilson? Again, it is now said that in Holce v. Henderson there was no attempt to abolish the office, and that we have extended the principle to eases wherein the office is professedly abolished. But this extension was made two years ago by a unanimous Court in Wood v. Bellamy. While this case may be somewhat different in the application of the principle, the principle itself is the same; as I see no practical difference between abolishing and recreating the office in *721successive sections of the same act, and accomplishing the same result by means of two successive acts.
It is needless to review the facts of the case at bar, as in that respect I can add nothing to the opinion of the Court. My object now is to state the basis of my judgment not only in this, but in all other eases of a similar nature. I can not but feel that a great principle is at stake, one vitally affecting the integrity and independence of this Court. In .this connection I take the liberty of inserting an extract from the admirable address of lion. Junius Davis, recently delivered before us in presenting the portraits of Judges Iredell and Moore, as follows:
“In 1786, following the passage of the Confiscation Acts,, the question of the power of the Court to declare void an Act of the Legislature because in conflict with the Constitution,, was raised in this State by some of the bar, and was vigorously supported by Iredell in an exceedingly strong and able pamphlet published by him.”
In the celebrated case of Doe on Dem., of Bayard v. Singleton, 1 Martin, 41, in which Iredell, Johnston and Davie were counsel for plaintiffs, and Moore and Nash for defendant, that question was first discussed and decided in the Courts of this State. In reading the report of this case, one is struck with the great and proper reluctance of the Judges-to approach the decision of the point, so novel and strange. They suggested to the litigants first one and then another method of compromise and settlement, but driven to it, at last faced the issue manfully as true men. Mr. Haywood in his argument in Moore v. Bradley, 2nd Haywood, 140, attributes, the merit of that opinion to Judge Ashe, and says that he-illustrated his opinion by this forcible language: “As God’, said to the waters, ‘so far shall ye go and no further,’ so said, the people to the Legislature.”
124 — 46
*722“Afterwards, when upon the Supreme Bench, of the United States, in Calder v. Bull, 3 Dallas, 386, and again in Chisholm v. Georgia, Ibedell took occasion to declare in emphatic language his opinion to be ‘If any act of Congress or of the Legislature of a State, violates those constitutional provisions, it is unquestionably void; though I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority but in a clear and urgent case. This doctrine so clearly and admirably stated in these few and concise words is now the law in every State in this Union, and is universally taken to have been so settled by the opinion of Marshall in Marbury v. Madison, 1 Cranch, 137. I can not but think it singular that in his opinion in this case Mabshall makes no reference whatever to either of the three cases above mentioned or to the earlier cases in Rhode Island and Virginia. The language of Iredell in Caldwell v. Bull is so clear cut and logical that it could not have escaped the notice of the Chief Justice. In our busy life we seldom pause to reflect upon the far reaching results, the inestimable blessings of these decisions. How often in our history has Congress and Legislature in the mad lust of power and the wild riot of party hate striving to accomplish unholy and unwholsome legislation, been halted by the stern mandate, 'so far shall ye go and no further.’
“England’s greatest statesman once said, 'the honest man may in his cottage bid defiance to all the forces of the Crown —it may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England may not enter; all his forces dare not cross ■the threshold of the ruined tenement.’ But this vaunted lib■erty of the British subject can bear no comparison with that •of the American citizen, who, dwelling under the shadow of *723■tbe mighty Constitution is secured by it in tbe fullest enjoyment of bis life, bis property and bis liberty.” These words seem tbe more fprceable because they deal with a great principle, and bad no intentional reference to tbe case at bar.
■ In conclusion, I can only repeat what was said when speaking for tbe Court in Caldwell v. Wilson, 121 N. C., 425, 411; “We realize tbe responsibilities of this Court in settling the line of demarcation between tbe legislative, executive and supreme judicial powers, which, by constitutional obligation, must be kept forever separate and distinct. This vital line must be drawn by us alone, and we will endeavor to draw it with a firm and even band, free alike from tbe palsied touch of interest or subserviency and the itching grasp of- power.”
I concur in tbe opinion of tbe Court.