dissenting erosi a majority of the court, delivered 'THE FOLLOWING OPINION:
Wingate was elected mayor of the city of Lexington on the first Saturday in January, 1865, for the term of two years, and had duly qualified and was acting as such,'when Standeford, claiming to fee the mayor by virtue of an .election on the •first Saturday in March, 1866, qualified and took possession of the office.
Gibbons had been appointed and qualified as attorney for the city, by the mayor and council, in December, 1864, for the ■term of two years.
Young claims that he was elected city attorney at the March .election, 1866, and by reason thereof claims the right to enter upon the discharge of the dutiés of the office and to have its -emoluments. • He presented himself to the city court .and demanded to be inducted into the office, which Gibbons •resisted; but the court permitted Young to qualify and act as such attorney, from which judgment of the city court Gibbons appeals.
He afterwards brought suit in the Fayette circuit court against Young as an usurper of the office, which is allowed by section 532, Civil Code, and the circuit court .adjudged him to be an usurper, from which he has appealed.
Wingate brought suit against Standeford as an usurper, and the court having determined him to be such, he has appealed.
The election held in Marcia, 18.66, is claimed to be legal under “An act to amend the charter of the city of Lexington,” .approved February 10th, 1866, “chapter 496,” and presents several embarrassing questions as to when the law went into effect — whether before or after such election; and when the officers elected, even if it b.e a legal .election, should enter on the dischai’ge of their duties by yirtue of its provisions; as well as the constitutionality of so much of said act as repeals a, portion of the terms of office and authorizes an election *456before the expiration of the terms for which said mayor and city attorney had been previously elected.
The many inconsistent and confused provisions of this last amendment, and the repealed sections which it revives, bear the strongest intrinsic evidence that the intent, object, and .effect of the act were not to operate on the offices for the public good, but to oust the then incumbents that others might be elected. And this, so far from being disguised by appellants, is expresly avowed by their attorneys, who, in their brief, say, “ that the clear and perfectly understood object of the act was to get a new election and a change of city officers at the earliest practicable moment. This is apparent .from the very early dag fixed far-the election, as well as from the notorious facts and tenor of the petitions out of which the act grew. It will be the aim of the court to accomplish this intent of the Legislature, not to obstruct it.”
This being the controlling, if, indeed, not the sole object, the day for the election was fixed for Saturday, March 3d, 1866, twenty-one days after the date of approval. The time when it should go into effect was not expressly provided for, so as te take it clearly without the provisions of the general statute fixing two months after the date for an act of Assembly to go» into operation, unless the act should fix a different day.
Tlie charter and amended charter then in existence fixed the first Saturday in January as the day of election, and required a list of the voters to be made out. and delivered to the proper offices ten days before the first Saturday in January,, in so many words, and also provided that those elected shall qualify and enter upon the discharge of their duties on Thursday succeeding the first Saturday in January, all of which were lost sight of, and leaves the charter as amended confused and incongruous, which would scarcely have been the case had the object been to. regulate the office instead of ousting the incumbents.
By the original act incorporating the city, a mayor and city council were to be elected the first Saturday in January in each year, to hold their offices for one year, and until their successors shall be duly elected and qualified.
By an amendment of February 16th, 1864, to go into effect December 1st following, the mayor was to be elected for two *457years, and until his successor should qualify. The city council should consist of three councilman, to be elected from each of the four wards; and under the first election, one from each ward, to hold one, two, and three years, and whose vacancies should be supplied at each annual election by a councilman to hold for three years.
By this amendment the city attorney, treasurer, assessor, &e.,'were to be appointed by the out-going mayor and council for two years.
The amendment of February 10th, 1866, does not repeal the various offices; does not profess to destroy the offices, but changes the duration of the term from two and three to one year; and, having thus curtailed the term of office, directs an election to fill the vacancies thus made on the first Saturday in March, 1866.
Was this within the constitutional power of the Legislature?
As was said by the supreme court of the United States in Mar bury vs. Madison (1 Cranch, 163), this “ is a government of laws and not of menf and the Constitution being the organic, fundamental, supreme law, whatever conflicts with its spirit and provisions is a nullity, however exalted the source of such action.
It majr be safely asserted as universally recognized by the English courts as part of their common law for more than two centuries, and recognized by the judiciary of the United States and the several States— ^
1., That every one legally elected or appointed to an office of trust and profit has a legal vested interest in the office for the term, whether this be a term of years or during good behavior.
2. That the removing power is essentially judicial, and cannot be exercised by the Legislature save only when expressly allowed by the Constitution.
3. That when the Constitution designates the removing power as other than the Legislature, it cannot exercise such power. •
4. That when neither the Constitution nor laws designate the removing power, it inherently belongs to the appointing or electing power, and no other can exercise it.
*4585. That when the Constitution designates the term, that neither one of the departments of government separately, nor all three together, can change the term.
President Adams appointed and commissioned Marbury as a justice of the peace for the county of Washington, District of Columbia, under an act of Congress of 1801, for-a term of five years. This commission, however, did not reach Mar-bury, and Mr. Jefferson being installed as Mr. Adams’ successor, his Secretary of State, Mr. Madison, refused to deliver the commission or a copy of it from the records, which is made evidence of the same grade as the original.
The supreme court having determined that the issual of the .commission by the signature of the President and attestation of the Secretary of State, with the seal of the United States, constituted an appointment, though in fact the commission .was not delivered to. Marbury, they go on to determine his right to proceed against the Secretary of State of the United States, and say the appointment “ gave the officer a right to hold for five years, independent of the Executive; the appointment was not revocable, but vested in the ’officer legal rights, which are protected by the laws of his country.” * * * * * * “It has conferred legal rights which cannot be reserved.” * * * . * * * “ To withhold his commission is an act deemed by the court not warranted by law, but violative of a vested legal right."
In Wammack vs. Halloway (2 Ala. Rep., new series, 33), the supreme court of Alabama-say: “An office is as much a species of property as anything which is capable of being held or owned; and to deprive one of, or unjustly withhold it, is an injury which the law can redress in a manner as ample as it can any.other wrong. (2 Black Com., 263; Ibid, 36; 4 Bac. Abr., office G, 297.) An office being a species of property, it is evident that conflicting claims to the right to hold it must be decided in the same constitutional manner as all other claims respecting property A
And in the case of Hoke vs. Plenderson, the supreme court of North Carolina, in its able, learned, and unanswerable opinion, by Chief Justice Ruffin (1 Devereux, 17), say: “The sole inquiry that remains is, whether the office of which the *459act 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 stating it. For what is property; that is, what do we understand by the term? It means, in reference to the 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.”
These offices now in controversy being of profit and trust, the incumbents had a clear legal vested interest therein for the duration of their respective terms, unless forfeited by their own conduct, to be ascertained in a legal manner, or a total annihilation of the office.
But it is insisted, that as these offices were created by statute, that they could be repealed by statute, and that, as the Legislature could destroy the entire office, it could make .a partial destruction by regulating the term and shortening it, and by subsequent legislation produce a vacancy and order this vacancy to be filled. Let us examine this.
Offices not established by the Constitution may be created by the Legislature, as it is invested with the power of enactment for the public good. In the exercise, therefore, of constitutional discretion, if it determines an office is demanded by the public good, it may create it, and from its judgment there is no appeal. When it shall determine that the public good can no longer be subserved by its continuance, it may repeal the office, and from this there is no appeal. But when it permits the office still to exist, and attempts to operate upon the term, so as to deprive the incumbents thereof, it has left the field of legislation for public good, and assumes judicial functions to oust incumbents. And especially when it so operates upon a special case, person, or locality, it then deprives an individual of a legal vested right.
The distinction between a repeal of the office, and a partial repeal of a term of the office, is broad and intelligible.
This is perhaps the first attempt of the kind in all our history, certainly the first that has ever come under our judicial scrutiny.
*460As it involves interest of vast magnitude, both, as concerns the public and individuals, though it was ably argued by the counsel on each side; yet, as I felt they had neither exhausted the argument nor authorities, I have examined the case with great care, and have examined every authority within my reach. After much research I came across the case of Hoke vs. Henderson, involving the great constitutional question now under consideration, in which Chief Justice Ruffin has, with signal ability, developed the great principles of constitutional liberty, public good, and private security, and has shed a flood of judicial light upon this uncommon, and, therefore, obscure, question.
The Legislature of North Carolina, by the several acts of 1777 and 1806, authorized the appointment of clerks for the courts of the State, to “ hold their offices during their good behavior.” In 1832 the Legislature enacted, that, at a future designated time, popular-elections should be held in each county for clerk, and that those who might be elected should qualify and act as such, &c. Plenderson had been appointed clerk of the superior court of law for Lincoln county by virtue of the act of 1806, and Hoke claimed said office by virtue of an election under the act of 1832. Hence, the very question was involved we are now considering — the right of the Legislature to shorten the term and vacate the office.
The court said 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 Constitution of the country. It depends upon the comparison of the intentions and will of the people, as expressed in their Constitution, with the intentions and will of the agents chosen under that instrument.
The great object of society is to enable men to appropriate among themselves the things which, in their natural state, were common. The purpose of the ordinary laws instituted by society is to protect this right from the acts and wrongs of others. The right is yet exposed to the action of the mass *461composing society; and against this there can be no effectual resistance, because sustained by physical force. There is, however, an intermediate power — a power which resides in the body of persons on whom is conferred the authority to act in the name and with the sanction of the supposed will of the whole community. This power is the government. The great and essential differences between governments, as distinguished from one another, consist in the greater or less personal liberty of the citizen, and the greater or less security of private right against the violence of seizure of those who are the government for the time being. It is true, the whole community may modify the rights which persons can have in things, or at their pleasure abolish them altogether. But when the community allows the right and declares it to exist, that Constitution is the freest and. best which restrains the government from depriving a particular citizen of it. Public liberty requires that private property should be protected even from the government itself.
The faculty to adjudicate is expressly denied to the Legislature as much as legislation is denied to the judiciary. “ Wherever an act of Assembly, therefore, is a decision of title between individuals or classes of individuals, it is essentially a judgment against the old claim of right, which is not a legislative but a judicial function. Wherever a right of property is acknowledged to have been in one person at one time, and held to cease in him and exist in another, the destruction of the old one in the former is by sentence. If the act of 1832 had been confined in its terms to the clerkship of Lincoln, its judicial character would be obvious.”
If this act now under review had said that appellees had forfeited their offices, and that appellants were appointed, or might be elected, or had been elected, and that appellees should go out and appellants go in, it would certainly be an adjudication against their right, although the investment of the right in appellants would be legislative.
Is the act less so because it recites no cause of forfeiture? Is not the forfeiture assumed? Can it be possible, in the nature of things, that appellants can be rightfully put in *462unless appellees are rightfully put out? Appellees cannot be rightfully deprived unless that which they claim was never property, or has ceased to be so, or they have parted with it by forfeiture or otherwise by their own act.
If this act be valid, appellees are deprived without further inquiry before any court or jury or other tribunal into the fact or legal sufficiency of any cause of forfeiture or removal.
This is not a law prescribing or modifying the extent of interest or tenure prospectively, of which these offices shall be susceptible, or declaring that all interest in them shall cease by a total repeal and destruction of the offices; but these are still, preserved, and merely taken from one and given to another; and, as said bjr Chief Justice Ruffin, “ the only sense in which that transaction cannot be called judicial is that no court of justice could have pronounced the judgment under the existing laws upon the state of facts in the case. It is true that the act is not purely judicial, and as true that it is not purely legislative; for it leaves the nature of the office as it was in duties, powers, privileges, and emoluments, and confers it on one person as a lucrative place, after talcing it from the former possessor, who was before the acknowledged owner.
“As far as the act is legislative, it is within the legitimate powers of the General Assembly, and the elections allowed or commanded by it are constitutional and valid, and confer a good title on the persons elected, where a vacancy existed.
“ The question is upon the right claimed under the election to immediate induction, notwithstanding the office is already full by a previous legal appointment of another person. To sustain this claim the previous appointment must be vacated or the officer adjudged out. When the act proceeds to do this, it becomes in that respect an adjudication. Although it is not purely so in all its provisions, because it does not decide inter partes by name, yet it partakes of that nature, and the prohibition of the Constitution is as imperative against the assumption of the judicial power by the Legislature, in combination with their legislative authority, as if the act were a single and simple one of direct adjudication. Creating a right or conferring it on one, when not already vested in *463another j is legislation. So prescribing the duties of officers, their qualifications, their fees, their salaries, their powers, and the consequences of a breach of duty, including punishment and removal, are all political regulations, and fall-within the legislative province. ■ But to inflict those punishments after finding the default, is to adjudge; and to do it without default is equally so, and still more indefensible. The Legislature cannot act in that character; and therefore, although their act has the forms of law, it is not one of those laws of the land by which alone a freeman can be deprived of his property.”
In sections 1 and 2, article 1, new Constitution of this State, it is declared, that “the powers of the government shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to-wit: those which are legislative to one; those which are executive to another, and those which are judiciary to another.
“ No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in instances hereinafter expressly directed' or permitted.”
The only other adjudication at all involving the power to shorten a term and oust the incumbent, -which I have found, is Avery vs. Inhabitants of Tyringham (3 Mass. Rep., 177), decided by the supreme court of Massachusetts in 1807, which involved the right of the inhabitants to deprive their minister, Avery, of his life-tenure to an ecclesiastic office, and is, perhaps, more interesting for its curious ecclesiastical history than real pertinence to this case,
By our old Constitution the people had parted with the power to elect their officers, save the Governor, Lieutenant Governor, members of the State Legislature, Representatives in Congress, and Electors for President and Vice President of the United States; and had vested the power of appointment in the executive, legislative, and judicial departments. Nearly all of the State, district, and county officers were appointed during good behavior,.which placed the incumbent beyond the control of the people or their representatives, save *464by expulsion for official misconduct, either of nonfeasance, misfeasance, or malfeasance.
In the formation of the present Constitution, the people resumed the right to elect nearly all the officers, whether belónging to the executive, legislative, or judicial departments, as well as those of a ministerial character for the counties, cities, and towns, for stated periods and short terms of from two to eight years.
But in this resumption of the power of election it was not intended to exercise an absolute and despotic control over these' various officers by the people, but to secure a faithful and impartial administration of their various official duties. They are, therefore, left as free and independent of the appointing power, or other power, for the duration of their term, as under the old Constitution; and for official misconduct are held responsible by impeachment, by'the House of Representatives, to be tried by the Senate, including the Governor and all civil officers. (Art. 5, secs. 1, 2, and 3, new Constitution; 1 Stant. Rev. Stat.,p. 140.) And by section 36, article 4, judges of the county court, justices of the peace, sheriffs, coroners, surveyors, jailers, county assessors, attorneys for the county, and constables, are made subject to indictment and removal from office for official misconduct.
By other provisions of the Constitution the judges of this court, and others, may be removed from office on the address of the Legislature to the Governor, two thirds of each house concurring.
Thus the Constitution has manifested, in the clearest terms, the intention of maintaining the independence of these officers, during their term, in the faithful discharge of their duties, by putting them beyond the control of the people, the Governor, the Legislature, or the courts, save for their own misconduct, to be investigated either by impeachment, address, or indictment.
And recognizing the long and universally established doctrine of the common law, handed .down to us by our English ancestry through more than two centuries, that the incumbent of an office has a legal vested interest in it for his term, and *465with a tender regard to this, as to all other private vested rights, the Constitution has most amply protected them by designating three constitutional and legal ways by which only he can be deprived of this legal vested interest, to-witi by imp’eachment, address, or indictment, either of which shall be upon charges, proof, trial, and judgment, and for cause, and not at the arbitrary will of any department or power; and these embrace every civil officer; it being an object of the Constitution to secure an honest, faithful, impartial administration of the duties of every officer; and to secure this he is to be held responsible for his misconduct in the ways pointed out. At the same time, to secure this impartial administration, it is designed to place him independent of popular prejudice or political animosity, either general or local, for the duration of his term, as well as to secure him in his legal vested rights by requiring charges, proof, and the judgment of his peers that he has been guilty of official misconduct, or other enormities rendering him unfit and disqualified by his own acts.
The public good requires that the officer should be capable, honest, and assiduous in the discharge of his official duties; but his political sentiments, or private views as to any public or private measure, can never be allowed to enter as an element into the faithful performance of such duties; therefore, the public good can never be subserved by making the tenure of office depend on these.
The Legislature has the undoubted right to create legal tribunals inferior to this court, and has heretofore created equity and criminal courts, with vast jurisdiction over the lives, liberty, and property of the citizen. These statutes have provided for the election of the judges of such courts, and prescribed the term of office. That these courts can be repealed and the office destroyed, when the Legislature shall deem it for the public good, there is no doubt. But does it necessarily follow, that whilst they shall determine that it is for the public good that the office shall still exist, that they can exercise the startling and absolute power of shortening *466the term, and thus ousting the incumbent and virtually changing the duration from a term of years to a holding at the irresponsible will of the Legislature?
Would not this be at war with the spirit that pervades the Constitution, as well as of the various specific provisions alluded to; a disregard of the legal vested interest of the incumbent, and a usurpation of power inconsistent with the allowances of the Constitution?
The Legislature may create an office for the public good; it may repeal the office for the general welfare. But so long as it lets the office exist, its own incontestible judgment stands that it is for the public good, and the incumbent has a vested legal interest in the term which the Legislature cannot touch by any mere experimental legislation, however ingenious may be the pretext, nor however much it may urge the popular demand.
To permit this class of legislation would subject every statutory office to the control, alteration, and irresponsible will of the Legislature, and make the incumbents holders at its will and pleasure and favor, and thus reduce the independence of the officers, so essential to probity and honesty, to a subserviency to the will of their legislative masters; one of the very things intended to be prevented — an evil intended te* be remedied.
Popular or political prejudice against the officers, and not the public good, seems to be the moving motive, and to oust them the main object of this enactment; and is in striking-contrast with all the previous amendments, which, because these looked to tbe public good, were made to operate upon tbe offices and not upon the incumbents. Hence they were left in the undisturbed possession of the office until tbe expiration of their several terms.
We are now called on to effectuate this purpose in contravention of tbe pervading spirit and many provisions of tbe Constitution.
To restore to the people the election of their officers; to put an end to indefinite tenures of office, whether for good behavior or at tbe will of some power in the State, and to create *467stated, terms of short duration by som & fixed and definite period,, at the expiration of which approbation of the incumbents could be expressed by a re-election, or else others selected; the independence of the incumbent during his term, and the protection of his legal vested rights as a reward for faithful, honest services, are among the prominent purposes of the Constitution, nearly all of which will be defeated if officers are to hold at the will of the Legislature, and be subject to legislative spoliation without charge or cause shown and adjudged.
There still remain numerous ministerial, municipal, and corporate offices for the counties, cities, and towns, which the public interest might require should be created, and, indeed, which the Constitution contemplated.
By section 41, article 4, the judges, clerks, and marshals of city and police courts, which might by law be established, shall “ have the same qualifications, and shall be elected by the qualified voters of such cities or towns, at the same time and in the same manner, and hold their offices for the same terms, as county judges, clerks, and sheriffs, respectively, and be liable to removal in the same manner: ” now, whilst the offices, being created by law, can be wholly destroyed by law, yet the officers must be elected by the people, and for the term, &c., the Legislature may create and may repeal the office, but can neither appoint nor confer the appointment on any other power than the people. Nor can they either make a shorter or longer term, nor in any manner remove the officer. This would still leave a very large class of city and town officers, which the public welfare might require, unprovided for, which would have been within the entire control of the Legislature, to create without restriction as to the mode of appointment or duration of the term of office, but for section 6, article 6, Constitution, which declares, that ‘‘ officers for towns and cities shall be elected for such terms, and in such manner, and with such qualifications, as may be prescribed by law.” ,
It is most apparent that, whilst the Legislature is invested with the right to create town and city offices, the Constitution requires the officers to be elected and for a term.
*468As said by this court in Trustees of Owensboro vs. Webb (2 Met., 576), and Speed & Worthington vs. Crawford (3 Met., 212), the term “ election is used in the Constitution in contradistinction to “ appointment,” and means a popular election by the district, county, or local community for which the office is created, or by an organized body, such as the Legislature, &c.
And in the latter case, where an act had. given to the chancellor of Louisville the right to appoint two citizens as members of the police board for said city, with power of removal at pleasure, and to fill the vacancies, prescribing as one of the qualifications of the appointees, that when the mayor is of the Democratic party they shall be of the opposite political party, and vice versa, this court held the act unconstitutional on two grounds: 1. Because it authorized an appointment instead of an election; and, as the court says, “2. We are next to inquire whether the act sufficiently, or 'at all, prescribes the terms for which the officers in question are to hold their offices?”
“We have already seen, that by the provisions of the act these officers may be removed at the pleasure of the chancellor, and they must be removed whenever, by a change of political opinion on their part, or on the part of the mayor, they cease to disagree. Such is the peculiar tenure by which these offices are to be held. Can it be said that the incumbents hold their offices for a term, within the well understood and plain import of all the provisions of the Constitution, which prescribe the term of the various offices therein mentioned, and which authorize the Legislature to prescribe by law the terms of other offices? We think not.
“ It is deemed unnecessary to refer specially to the numerous provisions alluded to for the purpose of demonstrating that the word term is uniformly used to designate a fixed hnd definite period of time. (Trustees of Owensboro vs. Webb, supra, and Barbee vs. Speed, MS. opinion, June term, 1855.) Nor shall we stop to enlarge upon the motives of the convention in adopting the policy which those provisions were intended to embody and carry out. They could not be made more manifest by comment. It is sufficient to say, upon this point, we con*469cur with th® circuit judge in the conclusion that the act fails to comply with the requirements of the Constitution in providing a tenure of office unknown to that instrument, and opposed, not only to its letter, hut to its spirit and policy.”
Had this act provided that these officers should hold by the tenure of the legislative will, would its unconstitutionality not have been fully as palpable, because then no fixed and definite period of time would have been prescribed?
Had the act provided they should hold at the will and pleasure of the Legislature for not exceeding two years, would not this have as palpably been a tenure without a fixed and definite period, and unknown to the Constitution? And yet in what consists the substantial, appreciable difference, if the power of removal be ■ recognized in the Legislature, to be exercised at its own mere will, without cause shown, though it be by the indirect mode of partially repealing the term and providing for a new election, instead of declaring a vacancy in so many words, and ordering the vacancy to be filled?
By section 10, article 6, Constitution, It is provided, that •“ the General Assembly may provide for the election' or appointment, for a term not exceeding four years, of such other county or district ministerial and executive officers as .shall, from time to time, be proper.”
Now, there was some reason for requiring a fixed and determinate period of time of sufficient importance to incorporate it in the Constitution, as found in these several sections. What else could it be but to secure to the people the right of election, for short and definite periods, and to secure the incumbents for such term if they behaved well, and completely to put an end to the appointing power in contradistinction to the elective, and indefinite tenures in contradistinction to definite fixed periods?
It would be the merest mockery to say that the Legislature could not create an office, the tenure of which should be held at its own will, or the will of another, and yet say it could at its own will repeal any portion of the term, and thereby produce a vacancy.
*470The Constitution is too straightforward and dignified thus, by indirection, to trifle with the rights of the citizen, and mock him by delusive hopes.
If the officer has a vested legal right to the office during the term, to take it away from him without cause assigned and established and adjudged, would conflict with the “ great and essential principles of liberty,” prescribed in our “ Bill of Rights,” “that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic— not even in the largest majority.”
“Nor can (the citizen) be deprived of life, liberty, or property, unless by the judgment of his peers or the laws of the land.”
“Nor shall any man’s property be taken or applied to public use, without the 'consent of his representatives,- and without just compensation being previously made to him.” (Secs, 2, 12, and 14, art. 13, new Constitution, “Bill of Rights”)
But it is said, had section 6, article 6, Constitution, provided the officers should be elected to hold as may be prescribed by law, there could be no question that the tenure would depend on legislative discretion. “ The language of the section as it is may be admitted to be the same in effect.”
To this it is sufficient to respond, that the seetion is not in language or effect the same, and no admission can change either from their direct, plain, and unembarrassed import; and beside, it is in direct conflict with the solemn adjudication of this court in Speed and Worthington vs. Crawford,, on this direct point; and to overrule this adjudication by a mere change of words and admissions, without referring to it or meeting its reason, will neither conduce to the stability of our Constitution and laws, nor give stability to the settled authority of this court.
f It is again urged that it is absurd to construe, the Constitution as making the term more inviolable than the office; yet this very absurdity is found in section 41, article 4, which does provide that the Legislature may establish police courts for cities and towns, and that the judges, clerks, and marshals of such courts shall have the same qualifications, and shall be *471elected by the qualified voters of such cities and towns at the same time, in the same manner, and hold their offices for the same term, as county judges, clerks, and sheriffs. Now these being statutory offices, may at any time be repealed; but the duration of their term is beyond the control of the Legislature. And the provisions of this section are illustrative of the meaning of section 6, article 6, which leaves the duration of the term within legislative discretion at its creation, but makes it equally inviolable after its creation and during the term which the incumbent holds.
These several sections manifest the clearest intent of the whole people of the State, as incorporated into their fundamental law.
But the power to reduce the term is again derived from the power to reduce the salary. With all due respect, I may be allowed to say, this argument, to some extent, is a felo de se, as proving a sufficiency for its own destruction.
The power to regulate the salary, like the power to regulate the duties of the office, is clearly legislative and not judicial, and so recognized by the Constitution. Hence the Legislature. can reduce or raise the salaries of all officers, whether constitutional or statutory, except in a few specified instances wherein the Constitution forbids the reduction of those holding at the date of the enactment. Therefore, if the power to reduce salary carries with it the power to reduce the term, the Legislature may reduce the term of nearly all the officers of the State, though the duration of the term may be fixed by the Constitution. Thus the total unsoundness of the argument is at once perceived.
The power to regulate the salary being clearly legislative, every incumbent takes the office subject to such control, save in the particular cases within constitutional inhibitions.
However confident may be the reference to the cases of Butler et al. vs. Pennsylvania (10 How., 414, 8. C. U. S.), Commonwealth vs. Mann (5 Watts Sf Serg., 418), Commonwealth vs. Bacon (6 Serg’t & Rawle, 322), a short analysis will exhibit that neither bears even remotely upon the direct question under consideration.
*472In Butler et al. vs. Pennsylvania, the direct and immediate question before the supreme court of the United States, and the only one of which it could have had jurisdiction, was, whether the offices and salaries of State officers was a contract within the purview of section 10, article 1, United States Constitution, prohibiting the States from enacting laws impairing the obligation of contracts; and the court very prop•ei’ly decided, that offices created by the States for the public good did not come within the import of the term contract, as found in the United States Constitution, and no court has ever held that it did, so far as I know.
The case of the Commonwealth vs. Mann involved the right of the Legislature to reduce the salary of the president judge of the court of common pleas during his term, by a special tax laid on salaries, and within the prohibition of the following provision of the Constitution of Pennsylvania, “that the president judges of the several courts of common pleas shall, at stated times, receive for their services an adequate compensation, to be fixed by law, which shall not he diminished during their continuance in office; ” and the court very properly decided that the compensation could not be diminished by the indirect means of specific taxation.
The case of Commonwealth vs. Bacon involved the sole question of the right of the city council to réduce the salary of the mayor during his term, and involved two inquiries: 1. Was salary and office a contract; 2. Was the reduction within any inhibition of the Constitution of Pennsylvania; and both were correctly decided in the negative.
It is fully conceded that there is much about every office, whether it be one of constitutional or statutory creation, that is legislative; and within this legislative power is that of the regulation of salaries, and equally applicable to both classes, .and universally allowable, unless within some prohibition of the Constitution.
It is most apparent that neither of these cases involved the question of shortening the term and removing the incumbents, as changing the tenure of the office from a fixed definite period of time to a holding at the will of the Legislature, and of exer*473cising judicial functions in the ousting of officers, declaring a vacancy, and providing for its being filled.
The case of Taft vs. Adams (3 Gray, 129) was a case involving a change of a statute of Massachusetts authorizing a change in the manner of electing, and altering the tenure of county commissioners.
The Massachusetts court said: “ Where the office is created by law, and one not contemplated, nor its tenure declared,, by the Constitution, but created solely for the public benefit, it may be regulated, limited, enlarged, or terminated by law.”
Again it says: “ But although it has not been distinctly insisted in the argument that this act is unconstitutional, yet as it has been urged that it is unjust and imperious in its operations, it requires to be rigidly scrutinized.”
And nowhere through the whole decision is it said the office was one of profit; indeed, its unconstitutionality was not insisted on nor discussed, and no allusion made to the arguments or points now urged and considered by this court, and so ably discussed by Chief Justice Ruffin in Henderson vs. Hoke. And beside, it was not an office recognized by the Constitution of Massachusetts, whilst all town offices are recognized and provided for by our Constitution.
I do not regard this Massachusetts case as even slight authority upon the question under consideration, especially as it was made under the laws and Constitution of Massachusetts, differing in many essentials from our Constitution and laws.
But it may be said, that as every enactment presupposes deliberation and consideration, that this must be regarded as a legislative construction in favor of the constitutionality of the act, and due respect for a co-ordinate branch of the government should cause the judiciary to indulge every reasonable presumption in its favor, and uphold it unless clearly unconstitutional.
When the statute is general in its character, and has been enacted after full discussion and due deliberation, the force of this is fully recognized; but when it is local in its objects and operation, and when, as in this instance, its incongruous and *474inconsistent provisions irrefragibly evidence an almost total want of consideration, this presumption is greatly weakened if not totally destroyed. And surely an essential policy of the Constitution should not be revolutionized, and vast, startling, and despotic power recognized in the Legislature merely to save a local act, illy considered and hastily adopted, especially when such legislation is condemned as unconstitutional by a harmonious judiciary, which seems to be the case relative to this subject.
The supreme court of North Carolina consisted of three judges, and there was a full concurrence in the case of Henderson vs. Hoke. This court consisted of four judges, and no dissent in the cases of Trustees of Owensboro vs. Webb, and Speed & Worthington vs. Crawford. No contra case has been referred to, nor found after diligent search, and it is believed none exists save those mentioned.
The question may, then, be thus tersely stated: Shall the will of the whole people, as found in their well-considered and deliberately adopted fundamental law, or the will of the legislative assembly, as found in an illy considered and hastily adopted local act, prevail?
As I hold said .local act in letter, spirit, and intent, at war with the Constitution, I need not discuss the other embarrassing questions growing out of its own inconsistent and incongruous provisions, even were it constitutional, such as when it went into operation, when should the first election have been held, when should those first elected have been inducted into office, &c. I concur, however, with the circuit judge, that even if the enactment is law, the election and induction into office of appellants were not authorized, and regard much of his reasoning as sound and logical.
It results from these views that the judgment of the city court should be reversed, and the judgments of the circuit court affirmed.