This is a eonfrovery without action under secs. 567 and 568, of The Code. The facts agreed, upon which the judgment of the Court is asked, are as follows:
*573The General Assembly of North Carolina, in 1897, passed an act to provide for and promote the oyster industry of North Carolina, ratified February 23, 1897, being chap. 13, of the Laws of 1897. This act is made a part of the case.
That on the 23d day of February, 1897, the plaintiff was duly appointed by the Governor of North Carolina, under the provisions of said act, Chief Inspector for the constitutional term of four year’s, and was duly commissioned as such, and was inducted into said office and proceeded to discharge tire duties thereof. The compensation to be received by him was as provided in sec. 13 of the act.
The General Assembly of North Carolina, in 1899, passed an act to provide for the general supervision of the shell-fish industry of the State, ratified March 2, 1899, being chap. 19, of the Laws of 1899. Under this act, the persons named in sec. two (2), namely: George IT. Hill, of Washington, Beaufort County; B. D. Scarboro, of Avon, Dare County; Daniel L. Eoberts, of New Bern, Craven County; Eobert W. Wallace, of Beaufort, Carteret County; C. 0. Allen, of Elizabeth City, Pasquotank County; J. M. Clayton, of Engle-hard, Hyde County, and Daniel B. Hooker, of Bayboro, Pam-lico County, undertook to discharge the duties of Shell-fish Commissioners, under the claim that the Act of 1897 was repealed by the Act of 1899.
That the persons named in the preceding paragraph, having undertaken, under tire title of Shell-fish Commissioners, to discharge the duties devolving upon the plaintiff as Chief Inspector, and having taken possession of the Steamer Lilly, the plaintiff brought suit in the county of Pamlico against said persons to try the title to the office. The record in said case, togeth r with the opinion of the Supreme Court of North Carolina, adjudging that the title of the plaintiff wa.s a valid one, is made a part of this case.
*574That since tbe 15th day of March, 1899, up to November 20, 1899, the defendant TI. W. Ayer, Auditor of the State, has refused to issue to the plaintiff a warrant for the sum of $75 per month and his actual travelling expenses, and has also refused to issue warrants to the deputy inspectors appointed by the plaintiff in accordance with the Act of 1897; and tlie defendant W. II. Worth, State Treasurer, for the same period of time, has refused to pay the salary and trav-elling expenses of the plaintiff a,s Chief Inspector, and also the $50 per month claimed by the deputy inspectors.
That since the opinion of the Supreme Court has been filed the plaintiff has again demanded of the Auditor the issuance of a 'warrant in his favor for.the amount of his salary and expenses, and the same has been refused by the defendants. The defendants base their refusal upon the Acts of 1899, chap. 21, which is made a part of this controversy.
The plaintiff insists that by the decision of the Supreme Court, hereinbefore mentioned in the facts agreed, he is entitled to a salary of $75 a month and actual travelling expenses from the time of the last payment made to him up to the present time, and that this is not prohibited by chap. 21, Acts of 1899, above mentioned.- He asks that a mandamus issue to the defendant, the State Auditor, requiring him to issue a warrant for the amount due him under the law, and also that a mandamus issue, directed to the State Treasurer, requiring and compelling him to pay the same, and for all further relief which, under the facts above mentioned and the law of North Carolina, he is entitled to.
It is further agreed that no part of the compensation as provided in chap. 19, Public Laws 1899, has been paid to the persons therein named as Shell-fish Commissioners, and that the State Treasurer has on hand of the' oyster fund collected under the provisions of chap. 13, Laws 1897, and chap. *57519, Laws 1899, an amount sufficient and available for the payment of suck salary and travelling expenses as tke plaintiff may be entitled to.
Upon tkese facts tke plaintiff contends that ke is entitled to a writ of mandamus against tke defendants. T'kis contention is disputed by the defendants, and tke plaintiff’s right to a mandamus is denied.
It has been decided by this Court that tke plaintiff is entitled to hold his office of Chief Inspector, to which he was appointed in 1897, for the remainder of his term of four years. White v. Hill, 125 N. C., 194. This is settled, and the question is now presented as to whether or not he shall have pay for his services.
The plaintiff was duly appointed and inducted into his said office in March, 1897, for a term of four years, under an Act of the Legislature ratified on the 23d day of February, 1897 — being chap. 13, of the Public Laws of that year. Under this act he was entitled to a salary of $75 per month, or $900 per annum, payable monthly. This is not denied by the defendants, but they say that chaps. 18, 19 and 21, of the Public Laws of 1899, had the effect to destroy the plaintiff’s right to pay. They say that chap. 18 repeals sec. 13, of the Act of 1897, and this is true; and they say that chap. 21 prohibits them from paying a salary to anyone not acting under chap. 19, of said act; and it is true that this act so provides. And the defendants say that the plaintiff is not acting under the act, chap'. 19, and is not entitled to any pay for his services. But, as it is seem that the plaintiff’s office to which he was appointed in 1897, stil exists, and that he is entitled to hold the same and perform its duties, it would seem that he is entitled to receive the salary attached thereto. Dalby v. Hancock, 125 N. C., 325; Gattis v. Griffin, Ib., 332.
*576The Legislature may abolish a legislative office, and this is the end oí it. White v. Hill, supra; Hoke v. Henderson, 15 N. C., 1. When the office is abolished, this ends the term of the officer holding it, as there can be no officer without an office, and of course no salary without an officer.
The Legislature may reduce the salary of an existing legislative office, if this is done for the benefit of the public, and not for the purpose of injuring the incumbent and. to starve him out. But if it clearly appears that it was done for that purpose, it would be void. Bunting v. Gales, 77 N. C., 283; Hoke v. Henderson, supra. In cases where only a part of the salary is taken from the officer, it would have to appear from the legislation itself that the object was unlawful, or the courts would not interfere. Hoke v. Henderson, supra.
But if tire Legislature should undertake to deprive the officer of tire whole of his salary, while his office still continued, tire intent would so plainly appear that the act would be declared void. Hoke v. Henderson, supra; Cotten v. Ellis, 52 N. C., 545.
The plaintiff holds his office under an appointment made in 1897, but he'holds and discharges the duties of his office under such laws as may be passed, and in force, during his term of office.
The Legislature on the 28th day of February, 1899, passed an act expressly amendatory of chap. 13, Laws 1897 — this being the act under which the plaintiff was appointed. And on the 2nd day of March, two days thereafter’, it passed another act upon the subject of oysters and shell-fish. This act does not state that it is an amendment of the former acts, nor does it purport to repeal the previous legislation on the subject of oysters and shell-fish, except so far as they are in conflict with the act of the 2nd of March, 1899. And on the 8th of March, 1899, it passed chap. 21, which is stated to be *577“supplemental to cbap. 19, passed on the 2nd of March.” This last act prohibits the Treasurer from paying any compensation claimed for services, unless the person so claiming them, shall be authorized to render such services under chap. 19, of which act this act is a supplement.
The Legislature having general powers of legislation, all these acts must be observed and enforced, unless they conflict with the vested constitutional rights of the plaintiff. (We say the constitutional rights of the plaintiff, for the reason that his rights alone are before us for our consideration.)
It is then the duty of the plaintiff to administer his office under the law as it now exists; that is, under the Act of 1897, as modified and changed by the Legislature of 1899, chap. 18, and chap. 19, of the Public Laws of 1899.
For the purposes of this action it is not necessary for us to decide whether chaps. 18 and 19, Laws 1899, were intended as amendments of the Act of 1897 or not. They are both' a part of the Public Laws of the State, and must be observed when not in conflict with the plaintiff’s vested rights. Chap. 18 is expressly stated to be an amendment to the Act of 1897 ; and chap. 19 does not state whether it is an amendment or not. But both, acts are on the same subject, and must be considered together and treated as amendments. And where they expressly repeal the former act or are in conflict with its provisions, the provisions of the latter act must prevail, unless they are in conflict with vested rights. It is so held in White v. Hill, supra, which is expressly put on Abbott v. Beddingfield, 125 N. C., 256, and McCall v. Webb, Ibid, 243. And as the plaintiff is not only authorized to perform the duties required by chap. 19, but it is in fact his duty to do. so>, there can be no reason for applying the provisions of chap.. *57821; and it is not necessary for us to decide whether it would be valid or not, if it were necessary for us to decide that question.
The fact that the Legislature of 1899 changed the name of “an act to promote the oyster industry of North Carolina” to that of “Shell-fish Commissioners,” did not abolish the plaintiff’s office. White v. Hill, and Abbott v. Beddingfield, supra,; Wood v. Bellamy, 120 N. C., 212. Nor does the fact that the Act of 1899 changed the name of the plaintiff’s •office from that of “Chief Inspector” to that of “Chairman of the Shell-fish Commission,” oust the plaintiff from his •office or deprive him of his salary. Wood v. Bellamy, and Abbott v. Beddingfield, supra.
The plaintiff being entitled to his office and to the salary attached thereto* what is his salary under the legislation as it now exists, and how is he to get it ?
Under chap. 19, of the Act of ,1899, it seems to us that it has been reduced to $400 per annum and five cents per mile travel, when engaged in his work, and extra expenses not to exceed $50 per annum. We can not say that this reduction was not made for the public benefit, and we: have no power to change it, and no disposition to' do- so if we had. The reduction may be made. Gales v. Bunting, and Hoke v. Henderson, supra; White v. Murray, at this term.
Then what is necessary to be done to enable the plaintiff to draw his salary? The Act of 1897 did not give specific directions as to this. The Act of 1899, chap. 19, sec. 9, provides that this shall be done upon the warrant of the Auditor, ■“which warrant shall be issued by the Auditor upon the certificate of the Secretary of said Board, and countersigned by the Chairman of the Shell-fish Commission.”' This was only & matter of detail, which seems to have been proper to supply :a defect in the Act of 1897, and was passed when it was *579thought that Hill and his force would be in, office. And we can not, and do> not construe this paragraph to mean that the incumbent should not receive any salary for his services. This, in our opinion, would be to construe the act to- mean what we think tire Legislature could not do; Cotten v. Ellis, supra,; and it would also be to construe it to mean what it does not say, and what we do not think the Legislature intended it to mean.
So, if this direction as to the manner of issuing the warrant can not be literally complied with — in Me verbis — it should be complied with “as near as may be.” That is, the certificate should be issued by the clerk of the present board and countersigned by the plaintiff who is acting as chairman, in place of Hill, and the Auditor’s warrant should issue upon this certificate.
This opinion might close here, and would do so, but for the arguments, urged in opposition to the views we have expressed, some of which it seems to us should be noticed.
It is said that chap. 19 names certain persons as commissioners, and that the plaintiff is not one of those named in the act. This is true. But the act does not provide that the salary shall be paid to these parties, eo- nomine, but to the commissioners performing the duties prescribed by the act. Suppose any or all of the commissioners named in chap. 19 had died or resigned, is it contended that still they should receive the salary, or that the work should stop and the commission fall through and fail on that account? They are out, and so far as we know, are not claiming any pay.
It was said'this Court had no jurisdiction of this matter, that it only has appellate jurisdiction, that the assumption of such jurisdiction is unheard of; that the judgment of the Couiff will be ultra vires, unlawful, unconstitutional and void, and that the Legislature may declare it unconstitutional; and *580if it should do so, and the Treasurer should obey the judgment of this Court, he might be in danger. This argument seems to proceed upon the idea that this proceeding was commenced in this Court, whereas the record shows that it is here on appeal from the Superior Court of Pasquotank County. And it would seem that the slightest examination would have shown that it is not a proceeding unheard of before.
In Marbury v. Madison, 1 Cranch, 49, which was mandamus against James Madison,Secretary of the United States, it was held that the action would lie.
In Cotten v. Ellis, 52 N. C., 545, which was a proceeding in mandamus by Gotten, claiming a salary as Adjjutant General of North Carolina, against John W. Ellis, Governor of North Carolina, it was held that the action would lie, and the writ was issued.
But a more recent case is that of Granville County Board of Education v. State Board of Education, 106 N. C., 81, in which it was held that the action would lie, and the writ was granted. The opinion of the Court in that case was written by Justice Claek, and seems to be a direct- authority for issuing the writ in this case.
The opinion in Cotten v. Ellis, supra, is not only authority for granting the writ, but it would be well to note what the Court says, near the close of the opinion, with regard to tire execution of the writ, which is in the'se words: “We do not enter upon tire inquiry as to how the writ will be enforced, because we are not allowed to suppose that the question will arise, feeling assured that the sole purpose of the Governor is to obtain a judicial construction of the statute in question.” The opinion (Cotten v. Ellis) also contains Ihis language: “A statute which reduces a salary during the term of office, and one which takes away the salary altogether, *581stand on different footings, for in the latter case, the object would evidently be to .starve the incumbent out of his office, and thereby do indirectly what could not be dome directly, so as to make applicable the remarks made in the case of Hohe v. Henderson-, in which there seems to be much force, that-such indirect legislation is as obnoxious to the charge of being unconstitutional as an act directly depriving one of his office. A proper construction of the statute does not lead to the inference that it was the intention to abolish the salary, in the event that the applicant still continued entitled to the offiefe and liable for the discharge of its duties. On the contrary, the clause which repeals so much of the 9th section as relates to the salary is a mere corrollary or incident to the clause which repeals so much of that section as relates to the appointment of the Adjutant General, and consequently the one can not, by any rule of construction, be made to extend in its operation, further than the other.” To hold otherwise, the Court says, “would be to place the Legislature in this attitude —we mean to abolish the office; if we have not the power to do so, then we mean to deprive the present incumbent of his office; if we have not the power to do that, then we mean to take away his salary.”
The facts in Gotten v. Hllis are so nearly the same as the facts in this case, is our excuse for quoting so much.of the opinion.
Before the suggestion that the Legislature may declare the opinion of this Court unconstitutional may be adopted by anyone, we ask them to read the opinion of Chief Justice Marshall in the case of Marbury v. Madison, supra. It is a full and complete answer to this suggestion. We would like to incorporate the whole of that opinion in the opinion of the Court in this case; but as this is impossible, we will again have to ask to be pardoned for making some quotations from *582this very able opinion, emanating from the mind, of probably the greatest jurist this country has produced. It fully sustains the doctrine of Hoke v. Henderson, 15 N. C., 1, that an office is property — a vested right- — of which he can not be deprived.' It discusses the relation of the government to the citizen, the supremacy of the Constitution over ordinary legislative acts, the relation of the executive, legislative and judicial departments of the Government, and shows that all three of these departments are equally bound by the Constitution, but within- their own departments; that while it is the exclusive right of the legislative department to enact laws and the duty of the executive to' enforce them, it is the exclusive right of the judiciary to construe them, and to say 'whether they are repugnant to the Constitution or not. The idea that the executive or the legislative department has any right to put a different construction on a statute or a different construction on the Constitution than the court has, is utterly repudiated. On page 59 (1 Crunch)> it is said: “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of vested legal rights.” And on page 61, it is said: “But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the law of his country for a remedy.”
On page 62: “The question whether a right has vested or not is in its nature judicial and must be tried by the judicial authority.”
On page 64: ■ “What is there in the exalted station of the officer, which shall bar a citizen from asserting in a court of justice his legal rights,,or shall forbid a court to listen to the *583claim, or to issue a mandamus directing the performance of a duty, not depending on. executive discretion, but upon particular acts of Congress and the general principles of law?”
On page 66: “The doctrine therefore now advanced is by no■ means a novel one.”
On page 67 : “If Congress remains at liberty to' give this Court appellate jurisdiction, when the Constitution has declared their jurisdiction shall be original, and original jurisdiction when the Constitution has declared it shall be appellate, the distribution of jurisdiction made in thei Constitution. is form without substance.”
On page 69: “The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is no law; if the latter part be true, then written constitutions are' absurd attempts on the part of the people to limit a power in its own nature illimitable. * * * If an act of the Legislature, repugnant to the Constitution, is void, does" it, notwithstanding its invalidity, bind the Court, and oblige them to give it effect ? Or in other words, though it be no law, does it constitute a rule as operative as if it was a law ?”
On page 70: “It is emphatically the province and duty of the judicwy to say what the law is (the italics are ours), -x- * * g0,? a be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide the case conformably to the law, disregarding the' Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”
*584We can not quote all of this very able and exhaustive opinion, but we trust that we have quoted sufficiently from it to 'establish the separate independent jurisdiction and power of courts to decide the law, and to show that neither the executive nor the legislative department ha's any such power.
Our opinion then' is, that the plaintiff is entitled to the salary and compensation provided for in the Act of 1899, chap. 19 (and the same that Hill would have been entitled to if he had remained in office), to be paid by the Treasurer of the State, out of the oyster fund appropriated by the Act of 1897 and the Act of 1899, admitted to be now in his hands: Provided, that the expenses of this commission do not exceed the sum of $6,000 per annum, and that the certificate and warrant shall be issued in the manner we have indicated.
This action is to recover the salary of a public officer. The facts are agreed, and from these facts it appears that there is now money in the hands of the Treasurer, more than sufficient to pay the plaintiff, which arose from the oyster fund, under the Acts of 1897 and 1899. That this fund is specially appropriated to the payment of the salaries of officers serving under the Act of 1899; that the Auditor and Treasurer are honest men, and faithful public officers, and want to do their duty. They wanted the opinion of the Court as to what that was, fnd neither of diem nor their counsel made any objection to both being defendants; but it is made, and it would seem that the party making it can see no difference between the salary of a public officer and a claim against the State; nor can he see the distinction between Garner v. Worth and Cotten v. Ellis.
The judgment of the Court below will be modified in conformity with this opinion, and being so reformed, judgment will be entered in this Court.
Modified and affirmed.