dissenting. Mr. Justice Gormar, in writing for the Court its opinion in this case, states clearly and forcibly what is called the American doctrine in reference to the nature and tenure of public office, and makes copious extracts from the decisions of the courts of many of the States of the Union, and from two of the Supreme Courts of the United States, in affirmation of the view of the majority of *168the Court; and it may be taken as true that the Supreme Court of North Carolina is the only Court, State or Federal, which has held that a legislative office is property; that it is held by contract between the State and the officer, and that the officer can be deprived of his office by judicial determination only. I was aware of this particular’ isolation of the North Carolina Court when I wrote for the Court, at its February Term, 1897, the opinion in the case of Wood v. Bellamy. Why, then, did I not at that time take the opposite view and use my voice to ally the decisions of this Court on the subject under discussion with the universal judicial sentiment of the country ?
There were two reasons why I could not do so. The first was, that for almost three score and ten years the law as it was written in Wood v. Bellamy, supra, had been the law under decisions of this Court, and those decisions made by judges holding personally different political views, and many • of them known to be of marked judicial temperament and ranking in the very highest order of legal learning and general scholarship; and, second, those decisions, and especially the one of Hoke v. Henderson, 15 N. C., 1, delivered in 1833 and written by Chief Juslice Ruffin, seemed to me to be conclusive on the subject. The Judges at that time were Ruffin (Chief Justice), Daniel and Gaston, a Court of which any nation in any age might be proud. The opinion is a model of judicial style, notable for its strong and pure English and for the vigor and force of its reasoning. No synopsis of it can do the author justice. Among the conclusions was this: That an office was property, a vested right, existing under contract between the State and the officer, and that an act of the Legislature which sought to deprive the officer of his property in the office was unconstitutional and void. And that proposition was not doubted by this Court until sixty-six years had elapsed, when the dissenting opinion in Prison *169v. Day, 124 N. C., 362, was filed by Justice Ciarle, the present Chief Justice.
Within less than two years before the dissenting opinion in Day’s case was filed, the same Justice had written the unanimous opinion of this Court in the case of Ward v. Elizabeth City, upholding the doctrine of Ilolce v. Henderson in the following language: “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 cannot turn him out by an act 'purporting to abolish the office but which in effect continues the same office in existence. This is on the ground that an office is a contract between the officer and the State, as was held in Hoke v. Henderson, 15 N. C., 1, and has ever since been followed in North Carolina down to and including Wood v. Bellamy, supra, though this is the only one of the forty-five States of the Union which sustains that doctrine.”
In writing that celebrated opinion (Hoke v. Henderson) nearly forty years afterwards, Pearson, C. J., in Clark v. Stanley, 66 N. C., 67, 8 Am. Rep., 488, referred to it as “that mine from which so much rich ore has been dug.” I cannot think it out of place to quote from the address of the late Honorable William A. Graham on the life of Chief, Justice Puffin, his remarks in reference to that great case, Hoke v. Heiu-derson. The speaker said: “Judge Ruffin’s conversancy with political ethics, public law and English and American history seems to have assigned to him the task of delivering the opinions on constitutional questions which have attracted most general attention. That delivered by him in the case of Hoke v. Henderson, in which it was held that the Legislature could not, by a sentence of its own in,the form of an enactment, divest a citizen of property, even in a public office, be cause the proceeding was an exercise of judicial power, re*170ceived the encomium of Kent and other authorities on constitutional law, and I happened, personally, to witness that it was the main authority relied on by Mr. Reverdy Johnson in the argument for the second time in Ex farts Garland, which involved the power of Congress, by a test oath, to exclude lawyers from practice in the Supreme Court of the United States for having participated in civil war against the Government, and in which its reasoning on the negative side of the question was sustained by that august tribunal.’7
The same question was before this Court again in the case of Cotten v. Ellis, 52 N. C., 545. The Court there said, through Pearson, O. J.: “The leval effect of the appointment was to give the office to the applicant, and he became entitled to it as a Vested right’ for the term of three years, from which he could only be removed in the manner prescribed by law, and of which the Legislature had no power to deprive him. This is settled. Hoke v. Henderson, 15 N. C., 1.”
And again the question was presented for decision in the case of King v. Hunter, 65 N. C., 603, 6 Am. Rep., 754. The opinion^ in the case was delivered by Judge Beade, who said: “Nothing is better settled than that an office is property. The incumbent has the same right to it that he has to any other property. There is a contract between him and the State that he will discharge the duties of the office, and he is pledged by his bond and his oath; and that he shall have the emoluments, and the State is pledged by its honor. When the contract is struck it is as complete and binding as a contract with individuals, and it cannot be abrogated or impaired except by the consent of both parties.”
Again the question was presented in the case of Bailey v. Caldwell, 68 N. C., 472, and decided in the same way. Upon the reasoning and the authority of the foregoing cases, the numerous decisions involving the same question and heard *171in this Court, beginning with Wood v. Bellamy, down to this time have been made.
It may not be inappropriate to say that the thorough and elaborate arguments of counsel and the dissenting opinions in the cases that followed Wood v. Bellamy very much weakened my view of tire correctness of the decision in Hoke v. Henderson as applicable to the genius of our institutions and. the thought of the age, and I am free to say that if it had. been a new question I would have adopted what is called by the Court “the American doctrine.” But I cannot get my consent to join in overruling the decisions of this Court, beginning with Hoke v. Henderson and at intervals down almost to the present day; first, because the law as settled in those decisions has been too long the law of this State to be overthrown by the judicial decree of judges who may not see the law more clearly than did that great Court which made the decision in that celebrated case of Hoke v. Henderson, not to mention succeeding judges who followed the precedent.
And again, the General Assembly has met in session more' than thirty times since the decision of Hoke v. Henderson. Its members knew, at any and all of its sessions, that so far as legislative offices, that is, offices not ordained by the Constitution with fixed terms, were concerned, they could alter the effect of the rule laid down in that case by the enactment of a statute, not “retrospective” in its action, thereby interfering with vested rights, but prescribing a rule of property in said office and modifying the extent of interest and tenure therein "prospectively" Caldwell v. Wilson, 121 N. C., at p. 469. By that means such officers elected or appointed after the going into effect of the act would hold under the statute and subject- to its provisions. No such statute has been enacted.
The legislative department has acquiesced in Hoke v. Henderson with full knowledge that it had the power to change *172the effect of the doctrine announced in Hoke v. Henderson in the manner and to the extent above specified. A bill for that purpose was introduced at the session of 1901 and received the unanimous report of the committee which had it in charge, but for reasons satisfactory to them it was not enacted into law.
Under such an act the officer would take his office with the knowledge and understanding, when he accepted it that he held it subject to removal under the terms of the act, and no such question could arise as was decided in Hoke v. Henderson, where the right to the office was unqualified. In case of removal of any such officer no constitutional provision, either Federal or State, could be invoked to protect his rights of property in case of his removal from office, as he agreed that might be done when he accepted it. It was the Constitution of North Carolina of 1776, adopted at Halifax, which was referred to in the case of Ilolce v. Henderson as the instrument which was violated by the act of Assembly, and the provision was section 12 in the Declaration of Rights, which was in these words: “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 Lis life, liberty or property but by the law of the land.” That section is now section 17 of Article I of the Constitution of North Carolina.
There was some discussion in the opinion of the Court, and also in the concurring opinion, of the views and conduct of the judges elected under the State Constitution of 1868. There had never been a decision of the United States Sta-preme Court holding that an office was property resting in contract. Those judges must have known that fact. In Hoke v. Henderson such a holding had been made by our own Court, and no doubt the judges elected under the State Constitution of 1868 believed that a convention of the people had *173the full right to abolish offices or remove officers, and that in the exercise of that power they had changed the terms of the judges’ offices and also removed the incumbents. The doctrine of Hoke v. Henderson was that the Legislature could not deprive one of his office because it was property and rested in contract, but there is not a hint in the case that the people in convention did not have that power.
I am pleased with the spirit and language of Mr. Justice Oonnor manifested throughout the decision of the case1, and especially to that part of it in which reference to the decisions of this Court, which are said by some to be an extension of the doctrine of Hoke v. Henderson, is made. I quote it: “We do not think it will be profitable to enter into the discussion of the various phases in which the question has come before this Cburt. It is a part of the judicial history of the State. It is evident that the effort to carry it to its logical conclusion has rendered it necessary to ‘make many delicate distinctions as to the respect in which and to what extent the word property applies to an office, its duties, its emoluments, and when and how an office may be abolished, or the office retained and its duties either transferred to another or distributed among other governmental agencies. We have no disposition to review these cases, but prefer to adopt what may be appropriately called the American doctrine upon the subj ecf, so clearly set forth in a number of the many decisions which we have quoted.”
As to the correctness of the decisions referred to in the above quotation, with the premise admitted that the law of Hoke v. Henderson was the recognized law at that time in North Carolina, I am content, as indeed I must be, to abide the judgment of the profession with the hope and in the belief that the judgment of future and of calmer times, if an adverse one, may be expressed more charitably than was that of the opponents of the decisions at the time they were made.