dissenting. When the opinion of the Court was filed in this ease I was so seriously ill as to be helpless, .and hence I take advantage of the kindly consent of my associates to noAV file my dissenting opinion. I would gladly drop the matter but for the feeling that such action on my part might be misunderstood. In the light of an unforgotten past, it seems proper that I should briefly state the facts that constitute my justification in consistently following in my judicial career the principle laid down in Hoke v. Henderson. Excuse or apology I have none to offer. I understand that the opinion of the Court goes to the extent of deciding that no one can have any property in the tenure of an office, and “that in respect to legislative offices it is entirely within the power of the Legislature to deal with them as public policy may suggest and public interest may demand.” This ■cuts up by the roots the dominating principle of Hoke v. Henderson and of all subsequent cases based thereon. No distinction whatever is made between the different cases involving the application of tire principle. It is the principle itself that is denounced as intrinsically vicious, and therefore ■calling for judicial extirpation. It necessarily follows that in the light of this decision we were just as wrong in 1897 in rendering our unanimous decision in Wood v. Bellamy, Lusk v. Sawyer and Person v. Southerland (120 N. C., 212, et seq.), as we were in any of those subsequent decisions which became the subject of so much controversy.
There has been no change in the law; and if the Court is ■right now, it was wrong then in refusing to the dominant power in the Legislature the disposition of the offices to which ‘they were legally entitled. It irresistibly follows that if the Court in 1897 had been constituted as it is now, in the light of its present decision, it would have offered no bar to the will of the Legislature, and would have turned over the asy-*175bums and other State institutions to those whom we excluded. This seems the very irony of fate.
I will not undertake to defend the principle underlying the decision in Hoke v. Henderson, as I can add nothing to what has already been said. My personal views have been fully expressed when speaking for the Court in Green v. Owen, 125 N. C., 212, and Taylor v. Vann, 127 N. C., 243, and in my concurring opinion in Wilson v. Jordan, 124 N. C., 707. I will now confine myself to the reasons actuating me in accepting the principle as settled law when I came upon the bench, and consistently following it thereafter. The Court quotes with approval from my opinion speaking for the Court in Caldwell v. Wilson, 121 N. C., 467, as follows: “With the exception of this State, it is the well-settled doctrine in the United States that an office is not regarded as held under a grant or contract, within the general constitutional provision protecting contracts; but unless the Constitution otherwise expi’essly provides, the Legislature has power to increase or vary the duties or diminish the salary or other compensation appurtenant to the office, or abolish any of its rights or privileges before the end of the term, or to alter or abridge the term, or to abolish the office itself. * * * Eixcept in North Carolina, it is well settled that there is no contract, either express or implied, between a public officer and the government whose agent he is; nor can a public office be regarded as the property of the incumbent.” That is true, but the same opinion went on to say: “But our decision in the case at bar does not conflict with that in Hoke v. Henderson. The statute now under consideration is not retrospective and does not interfere with any vested right. Being a part of the act originally creating the office of Railroad Commissioner,’it ‘prescribed’ a rule of property in said office, and modifies the extent of interest and tenure therein ‘prospectively.’ The defendant, taking under the act, holds *176subject to tbe act, and, relying upon bis contract, is bound by all its provisions. One of its express provisions was tire reserved right of tbe Legislature to remove and tbe power and duty of tbe Governor to suspend under a given state of facts. Tbis power of suspension, together with tire necessary method of its enforcement, was assented to by tbe defendant in bis acceptance of tbe office; * * * that tbe only property be could have in tbe office was that given to him by the statute, which must be construed in all its parts. His commission, which is bis title deed, appears to us with the fateful words of tbe created act written across its face by tbe band of tbe law.”
In that case I also said for a unanimous Court: “We realize tbe responsibilities of tbis Court in settling tbe line of de-markation between tbe legislative, executive and supreme judicial powers, which by constitutional obligation must be kept forever separate and distinct. Tbis 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 tbe itching grasp of power. Should tbe legislative or executive departments of tbe State cross that line, we will put them back where they belong; but upon us rests tbe equal obligation of keeping upon our own side. Tbis is a question not of discretion but of law, a matter not of expediency but of right.”
From tbe course of judicial conduct thus explicitly declared I have never knowingly departed. At the same term it was said by a unanimous Court in Ward v. Elizabeth City., 121 N. C., 1, that “Tbis is on the ground that an office is a contract between tbe officer’ and tbe 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 tbis State is tbe only one of the forty-five States of tbe Union which sustains that doctrine.” (The italics *177are mine). This language is quoted to sbow that, whatever differences of opinion may subsequently have arisen as to its application, the existence of-the principle itself as the settled law of North Carolina was universally admitted. It was so recognized by the Supreme Court of the United States in In re Hennen, 13 Pet., 230, where the Court says, on page 261: “The case of Hoke v. Henderson, 15 N. C., 1, decided in the Supreme Court of North Carolina, is not at all in conflict with the doctrine contained in the cases referred to. That case, like the others, turned upon the Constitution and laws of North Carolina.”
The only argument in the opinion of the Cburt that had not been previously advanced and considered is the change in the personnel of the Supreme and Superior Courts following the adoption of the Constitution of 1868 and the relation of the seceding States to the Federal Union.
I will not reopen the questions involved in the civil war and the tangled web of reconstruction. The issues of the war were settled by embattled freemen who, on both sides, believing that their cause was sacred, freely gave to it the last tribute of a loyal heart. All that we need do is to cherish the memory of their heroic deeds and guard their last resting place, feeling that every flower growing on a soldier’s grave nestles its roots in a hero’s breast and expands its fairest flowers in the glad sunshine of liberty and peace in a reunited land.
When I first 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 in that direction, I concurred with a unanimous Court in the decision of those cases, thus giving to the greatest principle enunciated in Hohe v. Henderson the deliberate assent of my judgment and my conscience. Even if I had *178not approved of the decision in principle, I would have hesitated to place myself upon the lonely pedestal of solitary infallibility, assuming that-1 was wiser than the aggregated wisdom of the Court for more than sixty years.
I do not look upon the system of jurisprudence as a mere heterogeneous conglomeration of disjointed opinions, but as a harmonious whole, in which every case fits accurately upon those that have preceded it, and in turn becomes the foundation for others. Thus is reared the noble structure with all the beauty, simplicity and grandeur of a Grecian temple. So feeling, I did not seek to signalize my advent upon the bench by prizing out the foundation stones of the law, but rather by building up, satisfied if I could add to- tire structure but one stone, small and rough-hewn though it be.
The opinion in Hoke v. Henderson was delivered at the December Term, 1833, of this Court by Ghief Justice Ruffin and concurred in by his associates, Judges Daniel and Gas-ton. This great Court sat together unchanged for more than ten years and has no superior here or elsewhere, either in the ability and integrity of judicial conduct or the purity of private life. No finer combination of judicial and individual 'character has ever existed upon any bench. Ghief Justice Ruffin stands at the head of the profession in this State, with no possible rival, unless it be Chief Justice Pearson, who paid him the high compliment of saying that while Chief Justice Taylor was the most learned man that had ever been upon this bench, and Ghief Justice Henderson its most reflective mind, Euffin combined both qualities in a higher* degree than any one else. Judge Daniel’s opinions are models of brevity, strength and clearness. Judge Gaston was the beau ideal of North Carolinians, whose character contained the flower and fragrance of every virtue. I have often thought that the splendor of his intellectual qualities was overshadowed by the sublimity of his moral character. It may well be said of *179bim 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 trenchant blade of heroic manhood with the spotless shield of Christian chivalry.
But it has been intimated that that opinion was not carefully .considered, and that those eminent judges, like Homer, might sometimes nod. The opinion itself shows no evidence of haste or want of deliberation. On the contrary, it is regarded as a model by the best of judges, and has repeatedly received the warmest commendation from the highest sources.
I know it is said that even Homer sometimes nods; but I never heard of his going to sleep and continuing in a profound slumber for seventy years. It remained for the Courts of North Carolina to take this more than Bip Yan Winkle nap, and as we wake up we may well ask where are Buffin and Daniel and Gaston and Pearson ? Gone! And we who sit in the ever-widening shadow of their fame are asked to say that they knew not whereof they spoke! Let this be said by those who may — it shall not come from me.
Having given to the principles of that opinion the deliberate assent of my judgment and my conscience in Wood v. Bellamy and the kindred cases decided at thát term, I deemed it my duty to carry them to their legitimate conclusion. If it was tlie law when Wood v. Bellamy was decided, in 1897, it remained the law in the absence of constitutional or statutory provisions; and those who subsequently invoked those identical principles were entitled to their equal protection. If they were sacred enough in 1897 to keep Bellamy in office, they retained equal sanctity in 1899, when invoked in favor of Day. It may be that the application of those principles was carried too far in some subsequent cases, but I did the best I knew. I admit that sometimes my opinions when once •formed may be too firmly fixed. Be'that as it may, they are *180tbe result of reflection a,nd conviction, and take their 'texture more from the granite of my native hills than the shifting’ sand dunes of a storm-swept- coast. In these cases I but followed the injunction of this Court in Sutton v. Phillips, 116 N. C., 502, wherein it says, on page 50'8, that “It is best to stand super antiques vias.” I am painfully aware of the frequent appearance of the -personal pronoun in this opinion, and deeply regret its apparent necessity.
An examination of the constitutional history of the State, I think, will clearly show that the principles so clearly enunciated in Hoke v. Henderson have not only received the practically unanimous approval of succeeding judges, but have by direct implication been repeatedly ratified by the people themselves. This decision was rendered at 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 4 and framed amendments to the Constitution of 1776, which were ratified by the people. In 1861 a convention met and on May 20 passed the Ordinance of Secession, with some other amendments, none of which were submitted to the people. In 1865 a convention met on October 9, 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 Oanby under the Reconstruction Act 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 6 and amended the Constitution in severa,! particulars, their *181action being ratified by the people at the election in 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-U3. To these may be added the recent amendment restricting the suffrage. The various amendments made'many changes of far-reaching importance, including the successive repudiation of the governments of the United States and of the Confederate States and the enfranchisement and practical disfranchisement of the negro, but the underlying principle of Hoke v. Henderson remained unchanged.
Moreover, in the seventy years that have elapsed, thirty-five different Legislatures have met in the aggregate more than forty times, and yet no bill to do away with the effect of these decisions has ever got beyond the calendar. Under the decisions of this Court, have I not a right to assume that this long and unbroken legislative acquiescence in this decision is an endorsement of its essential principles ? The Supreme Court of the United States, in Railroad v. Baugh, 149 U. S., 368, says on p. 372: “Notwithstanding the interpretation placed by this decision on the thirty-fourth section of the Judiciary Act of 1789, Congress has never amended that section; so it must be taken as clear that the construction thus placed is the true construction, and acceptable to the legislative as well as to the judicial branch of the government.”
In State v. Cole, 132 N. C., 1069, in an able and learned opinion, this Court says, on page 1079: “To the suggestion that the construction put upon the statute in State v. Fuller, 114 N. C., 885, decided in 1894, is “unfortunate,” we note *182that tbe personnel of this Court bas since that time undergone many changes, and the case has at almost every term been cited with approval and conceded to be the controlling authority for this Court. It is also worthy of note that the Legislature has met at five different sessions and the law in this respect has not been changed. We have no other means of ascertaining what the law is.”
In Harvey v. Johnson, 133 N. C., 352, another well-considered opinion, this Court says, on page 360': “We have seen that no change has been made by legislation in the law as repeatedly stated by. this Court, and it may safely be inferred that the Legislature has accepted our construction of the statute as the proper one, and has acquiesced in it. as being in accordance with what the law should be.”
In addition to this long and uniform legislative acquiescence, we have its express approval by legislative as well as constitutional action. The convention of 1815, in amending the Constitution, provided in what is now section 33 of Article IV of the Constitution that “the amendments made to the Constitution of North Carolina by this convention shall not have the effect to vacate any office or term of office now existing under the Constitution of the State and filled or held by virtue of any election or appointment under the said Constitution and the laws of the State made in pursuance thereof.”
Section 38Y2 of The Code also provides that “All persons who shall hold any office under any of the acts hereby repealed shall continue to hold the same according to the tenure thereof.” Moreover, a bill entitled: “A bill to be entitled an act to restore to the General Assembly the power to prescribe and regulate the tenure of public offices and the duties and emoluments thereof” was introduced into the Legislature of 1901. This bill provided that every office, place or position created by the General Assembly should be held and *183deemed a mere agency or trust, and not a contract, and that no person thereafter appointed should be deemed to have any property right or vested interest in any such office, but that any such office, place or position might be abolished, changed, vacated or transferred at the pleasure of the General Assembly. This bill was carefully and elaborately drawn by a most skillful draftsman, and was well calculated to effect its purpose. It was valid under the decision of this Court, in Caldwell v. Wilson, and if then passed would by this time have practically controlled nearly every legislative office in the State. Its sole purpose, openly avowed and fully understood, was to abolish the office-holding rule enunciated in Hoke v. Henderson. What was its fate ? It was introduced into the House on February 18, 1901, and was at once referred to the Judiciary Committee. On the following day it was reported back favorably by that committee, and later, on the same day, was recommitted to the same committee. On March 15, it was indefinitely postponed, without division and apparently by a unanimous vote. Conceding to the Legislature that devotion to duty and integrity of purpose which they are entitled to claim, we must assume that if they had thought the purposes of the bill were in furtherance of the public interests they would have passed it unanimously. As it is, we are equally forced to assume that their unanimous defeat of the bill was a unanimous approval of the principles of judicial decision which the bill was intended to abrogate.
In view of this long and unbroken acquiescence of the people in constitutional conventions, as well as in the Genera] Assembly, I see neither reason nor authority for overruling the uniform decisions of seventy years. Whether this decision, now rendered by a mere majority of the Court, will be permanently accepted as the law of the land, remains to be seen. It may be that in the dawn of another day this Court may return to “the teachings of the elders.”
*184In the meantime, I must rest in my ignorance, if sucli it be, in union with the deathless dead, content to be no wiser than Ruffin, nor purer than Gaston.