dissenting, as to Nifong. In addition to the reasons given in dissenting opinion in Abbott v. Beddingfield, at this term, it would seem that Hoke v. Henderson is expressly against the plaintiff Nifong’s claim.
*223The allowance to tbe plaintiff is travelling expenses and $2.00 per day for timé in session, the regular sessions being 4 times a year, with same allowance for any special session if ordered. This per diem of $8 per year is evidently to cover only actual expenses, and it is going far to hold that this is a lucrative office; yet only lucrative offices were taken by Hoke v. Henderson out of legislative control. The proposition which I advance, however, can not possibly be better stated than by Brother MoNtgomuey in Railroad v. Dortch, 124 N. C., 663, 667. This position is not so much an office itself as an electoral body to select officers. It is like the power given to Judges to appoint Clerks of the Courts, which Hoke v. Henderson, 15 N. C., at page 22, holds can be taken from them because such power of appointment, the selection of other public agents, was intended to be an honorable, and not a lucrative, appointment. In like manner, all the Justices of the Peace in 1868, who up to that time had the election of sundry county officers, were deprived of their life offices, and no one questioned the power to do so, but the Convention had no more power to do this than the Legislature, if (as now contended) they held office by contract with the State.
Besides, by the Constitution, Art. IX, the entire matter of the control of public schools is vested in the Legislature, and everyone who took office in the school system took with notice that the control and management thereof was in the Legislature (Caldwell v. Wilson, 124 N. C., 425), and that it could (if it had such control) remodel and change the system according to its views of the public interest without regard to the incidental benefits to office holders which were in subordination to that of the great end to be served — the interests of the public. The object was not the creation of offices but the public welfare, and to that end the Legislature was placed by the Constitution in full control of the system, to make from time to time such changes as they deemed for the public good.
*224The most ultra advocates of the power of the courts to declare legislation unconstitutional have always held that it should only be done when there was no reasonable doubt and for grave and weighty reasons. It would seem that $8 per year, $2 per day, if it more than covers the actual board of the incumbent while in session, is too small a consideration to justify the courts in setting aside an act of the Legislature providing for a new system for the benefit of the school children of the State, and annulling the election of officers made by the General Assembly itself to carry that system into effect.
Again the office once held by the plaintiffs is entirely different in title and in substance from that from which they are seeking to oust the defendants.
Laws of 1899, chap. 374, page 741, abolishes the Board of Education, and chap. 732, sec. 13, page 906, provides School Directors, and by chap. 3, on page 27, the General Assembly itself elected School Directors. The duties of School Directors are different from the duties required of the former Board of Education. Boards of Education, under the Laws of 1897, divided counties into districts and appointed five men as School Committee for each township. This Committee had full charge of the schools of the township, white and colored. Under Laws 1899, School Directors appoint no committees, but appoint School Trustees for each township, who divide the townships into districts, and who appoint committees of three for each district in the township, appointing white committeemen for each white district, and colored committeemen for colored districts, giving to their district committee the right to employ teachers and control schools. Secs. 16, 23 and 24. Under the Laws 1897, the right to elect County Supervisors was given to an electorate composed of the Clerk of the Superior Court, the Register of Deeds, and the Board *225of Education. The Laws of 1899 give this power to the School Directors exclusively, sec. 15. The School Directors have power not possessed by the County Board of Education, and the main power (that to appoint committeemen) which the old Board had, has been abolished and conferred upon Township Trustees. About the only powers and duty common to both boards were to meet four times a year and to draw the same pay. The school money was to be appropriated to the townships per capita under both laws, which is only a matter of calculation and purely clerical. In Day’s case, 124 N. C., 362, the Court puts its decision upon the ground that the committee appointed by the Legislature performed just the same duties required of the Superintendent, and that the office was the same, only to be performed by several instead of one. In no case heretofore has the Court held, when the duties of the office are different, the old officer can perform them.
Whatever views may be entertained as to Hoke v. Henderson, it certainly ought not to be extended. There has long been a feeling that it has been construed far beyond the intention of the Court which delivered it. This feeling is tersely expressed by Justice Douglas, speaking for the Court, in delivering the opinion in Caldwell v. Wilson, in December, 1897. He said, 121 N. C., page 468: “The varied and extraordinary claims made thereunder (Solee v. Senderson) and the fact that we are the only State in the Union recognizing that doctrine may well cause us to pause and consider if we have not carried it to its fullest legitimate extent. It may be doubted if the great Chief Justice himself ever contemplated the extent to which it would be carried.” This solemn and timely warning was uttered nearly two years ago. In Hoke v. Henderson, 15 N. C., 1, the Legislature did not attempt to abolish an office. In Cotton v. Ellis, 52 N. C., *226545, tbe office tbe Legislature attempted to abolish was a Federal office over which it had no power of abolition. In Wood v. Bellamy, 120 N. C., 212, the act on its face purported to be only an amendment, and this Court held that the act was an amendment, and that there was no change except in name. Not until the last term of this Court was there any decision in North Carolina that an office, not provided for in the Constitution, but one created by the Legislature, could not at any time be abolished, and the duties transferred to another officer. It had not theretofore been supposed that the doctrine in Hoke v. Henderson was so comprehensive.
In the present case, the new office has different duties and functions from the old one, and under all the decisions, prior to the present term, the plaintiff Nifong can not recover.
I concur in the result as to the other parties.