dissenting. Because of the great public importance of the matters involved in the discussion and decision of this case, I have given'to it a more thorough consideration than a Judge of this Court usually gives, or has time to give to the investigation of cases generally, and, after all, I find myself unable to ágree to the conclusion reached by a majority of the Court that the plaintiff is entitled to writs of mandamus against the Auditor and Treasurer to *588enforce the collection of bis claim. It bas been decided in White v. Hill, 125 N. C., 194, that the plaintiff is entitled to bis office. I therefore agree in the present case with the Court that be is entitled to bis salary, whatever that may be. I think he is entitled to the whole amount named in. the Act of 1891, ($15 per month), and his necessary travelling expenses. While the salary is no part of the office-, but only an incident thereto, it is yet the consideration for which the services and duties of the office are performed, and the salary therefore must follow tire office. I. am of this opinion because I regard the decision in White v. Hill, supra, as determining that that part of the Act of 1899, which undertook to create a Board of Commissioners and to- distribute amongst them the duties of the plaintiff as Chief Inspector, was unconstitutional, and therefore no such board being .in existence, the plaintiff can not be their Chairman and entitled to a salary of $400, allowed by the Act of 1899, to such Chairman. He is still, however, the chief officer, by whatever name to be called, of the Oyster or- Shell-fis-h Industry, and is to discharge the duties of that position as best he may under the provisions of the Act of 1899.
I further agree with the Court that the legislative department of our State Government is not the supreme — sovereign power in the State. I also agree with- the Court that any public officer who is required by law to perform a specific duty, which concern® individual rights dependent upon the performance of that duty, may be compelled to- perform that duty at the suit of a person who alleges that he is injured; and I agree with the Court that, when any Act of the General Assembly is plainly contrary to the provisions of the Constitution, such act is void, and it is the right and the duty of the Supreme Court to so declare it.
The only point of difference then between my views and the *589opinion of the Court is tbis: The Court construes the Act of 1899 in reference to the shell-fish industry to mean that the funds now in tire hands of the Treasurer, derived from that industry, are not only appropriated specifically by law to the payment of the expenses of carrying out that law, but that as the plaintiff has been declared by this Court to be entitled to his office acquired under the Act of 1897, he is therefore performing services under the Act of 1899, and is therefore entitled in law to have his writs of mandamus against the Auditor and Treasurer to have enforced the payment of his salary; that the plaintiff is entitled to this remedy, notwithstanding the Act of 1899 specifies a method by which the money is to be drawn from the treasury, and it is apparent that that method can not be followed. The contention last mentioned’ I can not agree to, however much force there may be in the former, under the decision in Day's Case, 124 N. C., 362.
The method by which the oyster funds are to be drawn out of the Treasurer’s hands is set out in sec. 9, of chap. 19, of the Acts of 1899. The Auditor’s warrants are required to be issued upon the certificate of the Secretary of the Board of Commissioners of the Shell-fish Industry, and countersigned by the Chairman of' the Board. That method can not bé complied with, for under the decision in White v. Hill, supra, there is no Chairman or Secretary of such a Board. Any oilier method of drawing this money out of the Treasurer’s hands, in my opinion., would be one arbitrarily prescribed by the Treasurer, or one authorized by judicial construction purely; and while T think, as I have said, that the plaintiff is entitled to liis salary, yet I can not get my consent as a number of this Court to join in an order to the Treasurer, for the reason that the method by which the same may be paid can not be carried out.
*590It is true that the Legislature', in appointing the method by which this money might be paid out by the Treasurer, has been disappointed in that those officers, whose duty it was to certify to the Auditor the persons and the amounts to be paid, have been declared by the Supreme Court to have had and to have no existence; yet, I do not think that by judicial construction another method may be substituted.
If the General Assembly, when it enacted sec. 9, of chap. 19, of the Laws of 1899, in place of sec. 13, of chap. 13, of the Acts of 1891, had provided that warrants issued by the Auditor for the payment of claims against the oyster fund should be certified by a committee, the persons composing that committee being dead, and the Legislature not being aware of that fact,, or by a committee who might die while charged with the duty of certifying the claims, the method would fail by reason of the non-existence of the certifying committee, but neither the courts nor the Treasurer could adopt another method for the payment of the claims than the one prescribed by the General Assembly. Another method would have to be adopted by the Legislature and the claimant would have to wait until that was done.
This is not a case where the officer is left to discharge his duties and at the same time be deprived of his entire salary, in so many words, by the legislative enactment. In such a case, the attempt to deprive the officer of his entire salary— to starve him out — and still require him to discharge the duties of the office, would be void under the decision in Hoke v. Henderson. But this is a case where the General Assembly considered that they had abolished the office, and it is only by judicial construction that the abolition of the office •was not effected; and while under the judicial.decision the old officer retains his position, and while the oyster fund in the hands of the Treasurer is appropriated to the payment of *591claims against that fund, yet the essential prerequisites to the drawing out of that fund can not be complied with, for the reasons that I have given above.
It has been said, not by counsel in the case, however*, that if this Court is powerless to compel the payment of a salary ■due to a public officer, tiren the decisions of this Court that an office is property are ■ of no avail, since the Legislature hereafter in removing legislative officeholders could, simply declare that such' displaced officers should not receive compensation for their services. That, in my opinion, is not a true proposition of law, and that any General Assembly of North Carolina should pursue such a course is unthinkable to me. If an officer should have his office taken from him by legislative enactment before his term expires, and the duties of his office are continued, the courts can declare such an Act of the Legislature void. If an appropriation has been made by the General Assembly for the payment of a salary of such an officer, and no particular method has been prescribed by which it is to be paid, the Auditor can issue his warrant to the claimant, and the Treasurer must pay it. If a particular method has been prescribed, that method must be followed. If an office is continued and the officer is -required to perform the duties thereof, and the General Assembly should fail or refuse to make an appropriation for the payment of his salary, that would present.a case indeed where the courts could not compel the legislative branch of the Government to perform a plain duty. If such an abuse of power were possible, the courts could give no relief; the people themselves would have to correct it.
Tn Hoke v. Henderson, the Court said: “The Constitution of this gtate provides that the Governor, Judges, Attorney-General, Treasurer, and other officers shall be elected, and that certain of them shall have adequate salaries during *592their continuance in office. Suppose the Legislature (at that time the elective body) should refuse to elect those officers, or to give them salaries, or after assigning them salaries in a statute, should refuse to lay taxes or to collect a revenue to pay them; all these would be plain breaches of constitutional duty. And yet a court could give no remedy, but it must be left to' the action of the citizens at large to change unfaithful for more faithful representatives. Yet no> one will say that the Legislature cam, by law, remove the Governor, or a -Judge, or any other head of a department, because they can unconstitutionally refuse to provide salaries for them, and the courts can not compel the raising of such salaries. Nor can it be said because there can not be such compulsion, that therefore the law is constitutional.” That quotation is certainly an answer to such a suggestion, and it must be that unless our system of government is an absolute failure, no body of men could ever get or hold power -who would resort to such a device to defraud men of their property rights in the offices they hold. The Legislature of North Carolina has undertaken to abolish offices, and, as a result, salaries have been thought top be destroyed; but that body has never, undertaken to continue the office and at the same time to deprive the officer of his compensation, and I believe never will.
This, it is to be hoped, is the last of the cases which involve the title top public office. The first one was Wood v. Bellamy, 120 N. C., 212. There, it was held by a unanimous Court that in North Carolina a public office is property belonging to the officeholder by contract between the State and himself, as had been held in Hoke v. Henderson, 15 N. C., 1. That unanimity of opinion continued up to and during the September Term, 189T, of this Court, when the case of Ward v. Elizabeth City, 121 N. C., 1, was decided. The opinion in that case ivas written by Justice Ot-akk, who, after stating *593tbe proposition tliat the Legislature could not turn an officer out- by an act purporting to abolish the office, but which -in effect continues the same office, said: “This is on the ground that an office is a contract between the officer and the State, as Avas 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, though this State is the only one of the forty-five States of the Union which sustains that doctrine.”
Since the decision last mentioned, Justice Claeic has entered numerous dissenting opinions, (which are part of the history of this Court), notably in the case of State Prison v. Day, 124 N. C., 862; Wilson v. Jordan, Ibid, 683; Gattis v. Griffin, 125 N. C., 336, and Abbott v. Beddingfield, Ibid, 256, in which he has with marked ability attacked the doctrine so long and so firmly established in the decisions of this Court that an office is property, and that it exists by contract between the State and the officeholder.
It has been suggested that the legislative department of the Government may resent the opinion of the Court in this case and pronounce it extra-constitutional itself. I feel satisfied, however', that the General Assembly will follow the course which has characterized that body since the foundation of the Government, that is, respect the authority and decisions of the highest court in the State as the final determination upon any matter of law or legal inference that may be before it under its appellate jurisdiction. In 1787, the highest court in the State in Bayard v. Singleton, 1 N. C., 42, where an act of the General Assembly alleged to' be unconstitutional was before it for the decision of that question, said: “But that it was clear that no act they (the Legislature) could pass could by any means repeal or alter the Constitution, because, if they could do this, they would at the same *594instant oí time destroy their own existence as a Legislature, and dissolve the Government thereby established. Consequently the Constitution (which the judicial power was bound to take notice oí as much as any law whatever) standing in full force as the fundamental law of the land, notwithstanding the act on which the present motion was grounded, the same act must of course, in that instance, stand as abrogated and without any effect.” And since that time this Court has continued in proper cases to decide acts of the General Assembly to be unconstitutional.
In Marbury v. Madison, 5 U. S., 49 (1803), where an Act of Congress, alleged to be unconstitutional, was before the Supreme Court of the United States, the Court took jurisdiction, and decided against the constitutionality of the act, and that decision has been followed in proper cases -by that Court to this day. The opinion of the Court in that case is so opposed to the view of the sovereignty of the legislative branch of the Government, that it may be well to quote from it at some length. It is there said, Judge Marshall delivering the opinion of the Court: “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 the legislative act contrary to the Constitution' is not 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. Certainly all those, who have, framed written constitutions contemplated them as forming the fundamental .■and paramount law of the nation, and consequently the theory of every such government must be that an Act of the Legislature repugnant to the Constitution is void. If an Act of the Legislature repugnant to the Constitution is void, does *595it, notwithstanding its invalidity, bind the courts and oblige them to give it effect ? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law ? This would be to overthrow in fact what was established in theory, and would seem at first view an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So-, if a law 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 that 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.”
The Court has not undertaken to decide that the Treasurer of North Carolina can be made to pay out money in a case where no appropriation by the General Assembly has been made. There is not a member of the Court who would think of doing such a tiring. The decision of the Court rests upon the foundation and proposition that the General Assembly has appropriated a particular fund for the payment of the plaintiff’s claim. There can therefore be no clash between the two departments of government. Nobody would dispute the proposition that if this fund had been appropriated by the General Assembly to the payment of the plaintiff’s claim, the Treasurer could be made by mandamus to' pay it. The duty required of the Treasurer would involve no judicial discretion, and would be simply a ministerial duty. County Board of Education v. State Board of Education, 106 N. C., 81. *596In the last-mentioned case, Marbury v. Madison, supra, is cited as authority. Upon examination of that case upon that point, the facts are that Marbury was appointed by the President of the United States (John Adams), a Justice of the Peace for the county of Washington in the District of Columbia. The commission had been signed by the President and the seal of the United States affixed thereto', but it had not been delivered when Mr. Jefferson entered upon his duties as President. Mr. Madison, the new Secretary of State, refused to deliver the commission to' Marbury, whereupon Marbury moved in the Supreme Court of the United States for a rule to James Madison, Secretary of State, to show cause why a mandamus should not issue commanding him to be caused to deliver to him his commission. The Court held that it was a plain case of a mandamus either to deliver the commission or a copy from the record. But the rule was discharged, not because mandamus was not the proper remedy, but because tire Supreme Court was a Court of appellate jurisdiction, and did not have the jurisdiction to hear the motion as an original proceeding in that Court.
Clark, J.,dissenting. The General Assembly of 1899, by chap. 21, ratified March 8, 1899, enacted: “Section 1. The Treasurer of the State of North Carolina shall not pay any compensation to any person or persons claiming the same for services rendered concerning the shell-fish industry, unless such person or persons are authorized to render such services under the provisions of the said act, entitled To provide for the general supervision of the shell-fish industry of the State of North Carolina,’ and ratified March second, eighteen hundred and ninety-nine.” Who are authorized to render such services “under the provisions of the said act ?” Plainly we must turn to the provisions of said act, which is chap. 19. We find it there provided: “Section 1. There shall be seven *597•commissioners, hereinafter named in this act, to carry out the provisions of this act,” and sec. 2 names the seven commissioners, and it is provided “that if anyone of those named shall die or resign, those remaining shall fill the vacancy.” There can be no possibility of doubt who are authorized “under the provisions of the said act.” They are named in the act, and the Treasurer is forbidden to' pay anyone else. The plaintiff is not one of them.
Can the Court order’ the Treasurer to pay him when the legislature has ordered the Treasurer not to pay him ?
The identical point has been expressly decided against the plaintiff by this Court in cases on “all fours” with the one before us. In Boner v. Adams, 65 N. C., 639, the Court says that a mandamus can not "be brought against the Auditor and Treasurer at the same time (as is here attempted) because in no case could a mandamus lie against the Treasurer until a warrant had been issued by the Auditor. Eeake, J., then says as to the Auditor, that he is “not a mere ministerial officer,” because he is to judge whether there is “sufficient provision of law for its payment.” Tie adds: "The most this Court could do would be to order the Auditor to examine the claim and to allow it, if he thought it correct, and in that •event to issue his warrant for it, if in his opinion there is sufficient provision of law for its payment.” The Court then says: “Nor' can we pass upon the merits of the claim.”
In Bayne v. Jenkins, 66 N. C., 356, we have a duplicate of the present case (if an office is a contract). There L. P. Bayne & Co. had a contract -with the State, and, as in the present case, the Legislature directed that no payment should be made under it. The Court hold that a mandamus could not issue for payment of plaintiff, and said: “The Auditor in his warrant upon tire Treasurer', in any case, must recite the law under which it was issued, and as the Legislature has *598expressly forbid a warrant or the payment of money in this case, the Auditor could not issue a warrant. * * * If the plaintiff have a claim as alleged, it seeans that his remedy is an application to the Legislature or a suit originated in this Court,” (which could only recommend payment to the Legislature. Constitution, Art. IV, sec. 9.) If the plaintiff’s claim that his office is a contract be conceded, then- these cases are precisely alike, differing only in the name of the plaintiff. It is passing strange if the Constitution permitted any Superior Court Judge to issue a mandamus to the public Treasurer to pay a claim against the State when it expressly forbids the Supreme Court in a ease begun there, to do more than recommend payment to the Legislature. The original jurisdiction of claims against-the State is given by the. Constitution to the Supreme Court alone.
As is well said in the brief of Mr. K. P. Battle in the latter case, “If each Superior Court in the State could order the Treasurer to pay out moneys or command the Auditor to issue warrants, the fiscal concerns of the State could not be regulated or intelligently conducted. All claimants could in effect sue a sovereign State by resorting to mandamus against the officers in charge of her funds.”
These cases have ever since been held as authority and have never been questioned in any way. In Koonce v. Commissioners, 106 N. C., at page 200, the Court quotes with approval from Boner v. Adams, "The most this Court could do would be to order the Auditor to examine the claim and report the fact, with his opinion, to the G-eneral Assembly.” In Burton v. Furman, 115 N. C., at page 169, the Court again cites Boner v. Adams, saying: “It was held that mum damns would not lie against the Treasurer, because no warrant had been issued, and not against the Auditor, because it was something more than a ministerial duty sought to be *599required of bim. * * * The principles governing the issue of mandamus were the same then as now, and the decision is a controlling one, in which we fully concur.” This was in 1894. In Garner v. Worth, 122 N. C., 250, (1898), it was still the law, for the same Judges that are now on the bench, restate the same proposition and cite the above cases. In Chemical Co. v. Board of Agriculture and the Public Treasurer, 111 N. C., 135, it was held that an action to recover back $1,000, wrongfully collected, though paid under protest, could not be maintained because both the defendants were State agents, and the action was in effect against the State. The remedy was by application to the Legislature. If the law so clearly stated and so uniformly repeated be not the law, where shall we look for it, and where shall we find stability in the decisions of the courts ?
The repeal of an appropriation has always been sufficient to shut the doors of the treasury against any claimant, but there have been occasions when the Legislature has, as in the present instance, expressly directed that a claim be not paid, notably, for instance, the Resolution of 18Y0-N1, page 411, forbidding payment of warrants “already made or which may be made” on account of expenses incurred by order of the Governor in the “Holden-Nirk war.” No Treasurer and no Court has to this day deemed there was anywhere power to disobey that order of the Legislature, but the power does exist, and has existed all along, if the State can be ordered by the Court in the present case to pay a claim against it. And there is this difference against the plaintiff, he entered upon the discharge of his duties knowing the Legislature had directed he should not be paid, while in the matter of the Holden-Kirk claims the services had already been rendered, the salaries accrued, and the supplies furnished when the Legislature intervened and forbade payment. This power of *600tlie Legislature ever tlie public purse is the most essential one in the system of a government of tlie people, by the people, and its abandonment under any pretest whatever can never, with safety, be allowed.
In the recent case of Garner v. Worth, Public Treasurer, 122 N. C., 250, (February Term, 1898), it was held by a unanimous Court, composed of the same Justices as now: “The Courts can not direct the State Treasurer to pay a claim against the State, hmvever just and unquestioned, when there is no legislation to pay the same; and when there is such an appropriation, tlie coercive power is applied not to compel tlie payment of the State’s liability, but to compel a public servant to discharge his duty by obedience to> a legislative mandateHere, there is not only no legislative mandate, but a. positive prohibition. In that opinion, attention is called to' the fact that the Eleventh Amendment to the H. S. Constitution was passed to prohibit the Federal Courts from coercing tlie States, whose sovereignty protects them from subjection to the jurisdiction of any court whatever.
What is the plaintiff’s ground for this action? It is that by virtue of chap. 13, sec. 12, of the Acts of 189Y, he was appointed “Chief Inspector of the oyster industry” for four years, and that this Court lias held in White v. Hill, 125 N. C., 194, that chap. 19, of the Act of 1899, creating Hill and six others “Commissioners of Shell-fish Industry,” continued in their hands (among other duties) the duties he had been discharging, and therefore the act was rinconstitutional in so far as it took away his property in his office. The Court did so- hold, and put Hill and the other commissioners out and put tlie plaintiff back. The Court construing the other parts of the Act of 1899, in connection with the Act of -189Y, gave the plaintiff the additional duties, bestowed by the Act of 1899, upon the commissioners created in that Act, and which *601were not conferred upon tbe plaintiff by tbe Act of 1897. But bis title to bold office rests upon tbe Act of 1897, and notwithstanding the Act of 1899 — not under tbe Act of 1899. The opinion of tbe majority of the Court in tbe present case says: “The plaintiff’s office to which be was appointed in 1897 still exists, and be is entitled to bold the same and perform its duties. It would seem that be is entitled to' receive tbe salary attached thereto'.” Tbe Legislature has not, as has been asserted, prohibited tbe Treasurer “from paying a salary to anyone not acting under chap. 19,of tbe Acts of 1899. There would be no point or purpose in such a statute. On tbe contrary, chap. 21, Acts 1899, prohibits him from paying “for services rendered concerning tbe shell-fish industry, unless such person or persons are authorized to render such services under the ‘provisions of the said act” (chap. 19, Acts 1899), and the provisions of tbe act name tbe seven commissioner’s it authorizes to act, and authorizes them alone to fill vacancies in their own body and to employ all subordinates.
Tbe Court held in White v. Sill, supra, that tbe Act of 1899, in putting seven commissioners in office violated tbe contract made by the plaintiff with tbe State under the Act of 1897. If so, with whom did tbe plaintiff make tbe contract ? With tire State. If tbe office is a contract, who has attempted to break it? Tbe State. The Court having in White v. Sill, supra,, put White back into office, is now asked to order the State Treasurer to open bis vaults and pay the plaintiff, as it would order any private individual under similar circumstances. Has the Court that jurisdiction? Tbe Constitution, Art. IV, sec. 9, says not. It says: “The Supreme Court shall have original jurisdiction to hear claims against tbe State, but its decisions shall be merely recom-mendatory ; no process in the nature of execution shall issue thereon; they shall be reported to the next session of tbe General Assembly for its action.”
*602The Constitution, Art. XIY, sec. 3, says: “No money shall be drawn from the treasury but in consequence of appropriations made by law.” This is an exact repetition of the United States Constitution, Art. I, sec. 9, clause 7. Where is the appropriation to pay the plaintiff? There was an appropriation in the Act of 1897 of $900 per annum to paj him for supervising the oyster industry. But the Act of 1899, chap. 19, placed the exclusive supervision in the hands of seven commissioners named therein, and appropriated $400 per annum to pay each of them, and repealed all laws in conflict therewith, and chap. 21 forbids the State Treasurer to pay anyone else. It is true the Court has held that the act was unconstitutional in putting the seven commissioners in discharge of duties which the plaintiff had “contracted” with the State to perform. But that does not repeal the legislative prohibition upon the Treasurer against paying the plaintiff.
The Court has audited this claim, and holds it fixed not at the $900 allowed the Chief Inspector by the Act of 1897, but at $400, which is the sum allowed each of the seven commissioners for discharging that and other duties under the Act of 1899. It directs its mandamus to issue to the Treasurer to pay that sum to the plaintiff, which is “process in the. nature of an execution,” to enforce, collection out of the State, notwithstanding the statute prohibiting payment to anyone unless “authorized under the provisions” of chap. 19, Acts 1899, which provisions name those who alone are authorized. This is placed by the opinion of the Court on the ground that “the Legislature having general powers of legislation,” its statutes “must be observed and enforced, unless they conflict with the vested constitutional rights of the plaintiff,” i. e., unless the State breaks its contract with the plaintiff by the Legislature refusing to pay him the salary to which *603be is entitled by virtue of the “contract” be made with the State in 1897, to bold the office of Chief Inspector of the oyster industry. Instead of sending its recommendation to the Legislature, “for its action” as the Constitution provides, the Court is asked by the plaintiff to send its mandamus, which is “in the nature of an execution” (Fry v. Commissioners, 82 N. C., 304; Bear v. Commissioners, 124 N. C., 204), to the public Treasurer to pay that salary because non-payment “conflicts with the vested constitutional rights of the plaintiff,” under his “contract” to hold that office and receive the salary. Though the Court has reduced this from $900 (the contract price), to $400, it'is not tire saving of a petty $500 which concerns the State, but the assertion by the Court of the power to order payment out of the State treasury of any sum, however small, when the' proper department, which is alone vested with such authority, the Legislature, has not ordered such payment, but has forbidden payment. The courts have often held that if the Legislature- attempted to do a judicial act, it is null and unconstitutional because beyond their powers. It follows that when the courts attempt to do a purely legislative act, such as ordering payment of a State liability, it is null and unconstitutional because beyond our powers.
An assertion of such power in the Court is so .novel, so opposed to all previous adjudications, that it will challenge attention not only in this State, but elsewhere. It is doubtless the first time, in this or in any country, that a Court has issued'its order to a public Treasurer to pay a claim which the legislative department has forbidden him to pay. If this can be done, this Court can direct the public Treasurer to pay the “Special Tax” bonds issued under the broad seal of the State, and signed by the Governor and Treasurer, and which the law-making power, for reasons as satisfactory to *604itself as the act here- in question, has forbidden the Treasurer to pay, for if a contract can, be enforced against a State, a constitutional amendment can no more impair the obligation of such contract than mere legislative enactment. Louisiana v. Taylor, 105 U. S., 445 ; Clay Co. v. Society, 104 U. S., 519. If the contract of the plaintiff in 1891 to hold office and receive a salary for four years is a “vested constitutional right” which the courts can enforce by directing the public Treasurer to pay, notwithstanding a legislative prohibition, certainly, the contract evidenced by bonds issued by authority of the General Assembly, and signed by the Governor and Treasurer with the public seal attached, which is unquestionably a contract, can be enforced by mandamus on the same ground that an Act of the Legislature “must be observed and enforced unless it conflicts with the vested constitutional rights of -the plaintiff” to receive his money, which the Court may think the State justly owes him. And the same would be true as to any other claim which the Court might deem a valid indebtedness of the State, but which the Legislature failed to appropriate money i» pay. An officeholder has no greater “vested constitutional rights” in his salary than any other' creditor of this State.
Judged by the provisions of both State and Federal Constitutions, and the unbroken decisions of all the courts, for not one has been cited that sustains the exercise of this authority, this Court has no power to direct the public Treasurer to pay the plaintiff, when expressly forbidden by the Legislature. Among the numerous decisions of the U. S. Supreme Court that the courts have no such power, are Hagood v. Southern, 111 U. S., 52, which holds that the officer is merely the nominal party when the object is to coerce money out of the State treasury, and the action being really against the State,no court has jurisdiction. In Cunningham v. Railroad, 109 U. S., *605446, it is said that “No judgment can be entered against a State through its officers or Treasurer,” and in Louisiana v. Jumel, 107 U. S., 711, the same doctrine is repeated, the Court pointedly adding: “It needs no argument to show that the political power can' not be ousted of its jurisdiction and the judiciary set in its place.” To same effect, Pennoyer v. McConnaughy, 140 U. S., 1, and many others. In Osborn v. Bank, 9 Wheaton, 738, the same high Court says: “Judicial power is never exercised for the purpose of giving-effect to the will of the Judge, but always for the purpose of giving effect to the will of the Legislature.” The will of the Legislature has been plainly expressed that the plaintiff shall not be paid out of the State’s treasury.
Under our Constitution, Art. I, see. 9, the three departments of government are “forever separate and distinct from each other.” To the Legislature belongs exclusively the function of raising money for the public treasury and directing its disbursement. As said in the late case of Garner v. Worth, sv/pra, the Court is powerless to issue a mandamus to the Treasurer to pay out a single cent, however just and unquestioned the claim, unless there .is a legislative enactment directing him to pay it.
The legislative department may, if it sees fit, acquiesce in this novel assertion of power on the part of the Court. If so, we are witnessing a new development in our history, a profound modification of our organic law which places “the power of the purse,” for the first time in the history of tire world, in the possession of the judiciary. But the Legislature may not accept this view, for that department, as well as the executive, is equally a custodian of the Constitution with the judiciary, whose duty is to adjudicate private rights and construe the laws made by tire Legislature, as it is the duty of the executive to execute them. Though the Court has *606often exercised the power to declare void an act which is in conflict with a constitutional provision, it has never gone so far as to order payment of money by the State, where the Legislature lias made no appropriation to pay, or has forbidden payment. Neither the executive nor the legislative department is bound by the delimitation of power’s which the judiciary may give to itself, for that would be to> make this department sole judge of its own powers, however much it might see fit to narrow tiróse of the other two'. Like Aaron’s rod, it would swallow them up.
The members of the executive and legislative departments take an oath to support the Constitution. Should the Legislature, as they have the highest warrant for doing, hold that the mandamus issued by this Court to the public Treasurer, contrary to legislative enactment, is beyond the constitutional power of the judiciary, the condition of the public Treasurer would not be an enviable one, for an order of this Court outside its constitutional jurisdiction is no greater protection to one who obeys it than a writ of ejectment, or to execute a •capital sentence, issued by a magistrate would be to an officer who chooses to' obey that.
No one who reads chap. 21, Acts 1899, can doubt that the Legislature meant to prohibit, and does prohibit, the Treasurer from paying the plaintiff, or anyone else claiming his office, as tlie Court says the plaintiff does, under the Act of 1891. The Court has held that public office is property, and that, by virtue of that property in his office, the plaintiff is entitled to continue to discharge the duties of his office notwithstanding the Act of 1899 gave those duties to others, and that as a consequence the plaintiff is entitled to his salary. If that be granted, the Court can certainly go no further. It •can not take charge of the public treasury and adjudge that, *607because the State has violated its contract and the Court has restored the plaintiff, the State shall pay him.
It is true Hoke v. Henderson, 15 N. C., 1, held that a public office was private property — a decision unsupported by any decision of any other court, anywhere — but it limited the decision to saying that the officeholder’s property was in his •'‘emoluments,” and expressly says (p. 27), that if the Legislature should refuse to give officers salaries or to pay them, ‘This would be a plain breach of constitutional duty, and yet the Court could give no remedy,” and Hoke v. Henderson also expressly admitted that the Legislature could abolish any office created by the Legislature. The recent decision in Day's case (124 N. C., 362), which holds that'an officeholder has property not merely in the emoluments but in the duties of his office, which he may claim as long as those duties are continued, makes it practically impossible to abolish any office having duties necessary to be continued (as is the case with most offices), and the later cases of Wilson v. Jordan, 124 N. C., 683, and Abbott v. Beddingfield, 125 N. C., 256, hold that as long as there, is legislation-on the same subject-matter — in pari materia as it is termed — the former office is not abolished, though the new act may expressly so' declare (as in Wilson v. Jordami), and though the new office may have a different title and different duties, and added duties, as in Abbott r. Bedding field, and White v. Hill. If to this indestructibility of a legislative office, for the term of the incumbent, however long, the Court has the power, now asserted for the first time in the history of jurisprudence, to coerce by its writ payment by the State of the old officer, legislative power over government, which is most largely exercised by the shaping of public agencies, is at an end. Whenever one Legislature shall create an office, for no matter ho>w long a term, so long as similar duties are discharged subse-*608qnent Legislatures are powerless to get rid of the incumbent, and tire Court will see that the public pays him. The assertion of such vast power by the Court over the operations of the legislative department, challenges its denial by that department. ■ Should the Treasurer, under legal advice, deem the action of the Court in excess of its just constitutional powers, will tire Court put him in jail for disobedience? Should the Legislature, whose action in forbidding payment the Court treats as unconstitutional because impairing “the vested constitutional rights” of an officer to receive a salary, return the compliment by holding unconstitutional the action of the Court in assuming jurisdiction, over the public treasury, what then will be our condition ?
The people of North Carolina control their treasury through their representatives in the Genera] Assembly. If the General Assembly levies taxes in excess of what should be levied, or less than is necessary, the Court can not correct this. If the Genera] Assembly be too extravagant in its appropriations on the one hand, or on the other shall withhold appropriations to pay debts which the Court deems just and meritorious, the Court can not compel a different conduct on the part of the coordinate branch in the discharge of the functions entrusted to it. The people alone can supervise such action of their representatives when acting within the sphere of their duties, by the election of another General Assembly, or, as was said in Hoke v. Henderson-: “It must be left to the action of the citizens at large to change unfaithful for more faithful representatives.”
It is true that, if the Court can not coerce payment of an officer’s salary, the decisions, peculiar to this State, that an office is property based upon a contract, are futile, since the Legislature hereafter, in removing the incumbents of a legislative office, need only to add a clause that the removed offi*609cer shall not be paid. But may it not be that such result demonstrates the possibility that the decisions of this State are incorrect, and the uniform rulings of other courts are correct, based as they are upon the principle that the Legislature alone has the power to create officers, and to pay or to refuse to pay them, when not created by the Constitution. But at any rate, a claim for salary is of no higher dignity than any other indebtedness of the State, and the officeholder has the same remedy as all other creditors of the State —an appeal to the sense of right among the people, which always will be surely expressed by them, sooner or later, through the Legislature — and he has no mora
No stronger proof of the inadmissibility of the plaintiff’s application can be had than the three cases which, after the most diligent and thorough research, his counsel have pre-^ sented to the Court in support of the claim that the Court has power to order the Treasurer, by mandamus, 'to pay a salary which the Legislature has forbidden him to pay.
Firstly: Marbury v. Madison, 1 Cranch, 137. In that case the mandamus was refused. That case was where the commission of a Justice of the Peace for the District of Columbia had been signed by the outgoing President, Mr. Adams, and the new Secretary of State, Mr. Madison, refused to deliver it. Marbury applied for a mandamus. Marshall, O. J., wrote an elaborate opinion, expressing his views of government and of the functions of the judiciary, antagonistic to those known to be entertained by President Jefferson, the new Executive, saying, in substance, that Marbury was entitled to have his commission, and that the opinions, of the judiciary ought to control in such matters, but concludes by deciding “the authority * * * to issue writs-of mandamus to public officers appears not to be warrantecL *610by tbe Constitution,,” and denied tb© writ, and Marbury never .got bis commission. Tbe entire discussion in tbe opinion, however able and interesting, is therefore a discussion of .abstract questions of law, and tbe case, for now near a century, bas been cited to law students by their instructors as an able opinion wbicb was entirely and altogether obiter dicta, the decision of the Court, being that it was without jurisdiction of the subject-matter. Yet tbe relief there denied, a mandamus to tbe Secretary of State- to deliver a commission .signed and sealed, wbicb tbe departing President bad inadvertently failed to deliver*, was by no means , equal to tbe Assertion of power here asked of tbe Court to .issue a mandamus to tbe public Treasurer to pay tbe public money wbicb tbe legislative power bas levied and placed in bis bands, and from wbicb it bas directed him not to pay to this plaintiff.
But neither in tbe wide range of tbe discussion in Marbury v. Madison, nor in any other case wbicb tbe most minute research bas found, bas there ever been- a'decision by any court that there was private property in public office, or that tbe office was a contract between tbe State and tbe officer, save only the cases in this State based upon Hoke v. Henderson, and tbe expansion of that doctrine by recent decisions of this Court, tbe logical result of wbicb later cases (but not of Hoke v. Henderson, wbicb denies the power), may be tbe power claimed for the courts by tbe present application to .enforce such “contracts” by issuing our mandamus to open tbe public treasury. In several decisions tbe United States .Supreme Court bas explicitly and expressly denied that ■there was, or could be, from tbe nature of things, any prop-orty or contract as to a public office—notably in Butler v. Pennsylvania, 10 Howard, 51 U. S., 402; Newton v. Commissioners, 100 U. S., 548; Crenshaw v. U. S., 134 U. S., 99; see quotations, 125 N. C., pp. 274—279. In tbe *611famous Dartmouth College case, 4 Wheat., 629, Chief Justice Marshall, while holding that the Legislature could' not revoke a charter because that was a contract (before the provision since inserted in State Constitutions to the contrary), expressly says that Legislatures unquestionably have the right to change or abolish offices created by legislative enactment, because they are governmental agencies, and, unlike charters, a.re not held by virtue of any contract.
In a very recent case, Keim v. U. S., decided April 9, 1900, 20 Supreme Court Reporter, 574, the United States Supreme Court held that except where protected by express constitutional or statutory provisions “the power of removal is incident to the power of appointment,” and that where an officer is thus removed “the courts can not issue mandamus either to reinstate him or to compel payment of his salary.” Thus, that Court disavows the power in the judiciary, in both particulars, which this Court is asked to assert. The plaintiff, not being a constitutional officer, is not protected by any constitutional provision, and can not be protected by legislative provision when it is by legislative enactment that he has been removed.
In a still more recent case in the United States Supreme Court, in which the opinion was filed yesterday (May 21), in the contest over the governorship of Kentucky, Taylor v. Beckham, the question was presented whether an office was “property,” and therefore protected by the Fourteenth Amendment. The case was of unusual importance, and was argued by able and eminent counsel. The Court, speaking through Chief Justice Fuller, after quoting numerous cases all holding that public offices are mere agencies or trusts, and not property as such, and that the salary and emoluments are not property, secured by contract, but compensation for services only when actually *612rendered, says: “In short the nature of the relation of a public officer to the public is, generally speaking, inconsistent with either a 'property or a contract right.” If there was anything in the obiter dicta in Marbury v. Madison which might be justly construed as favoring, by implication, a different doctrine, there is no obiter, and no possible doubt as to the meaning of this latest enunciation of the highest Court in the land — an enunciation which the opinion itself shows is in conformity with the uniform decisions of that Court, and required by the very conception of the nature of an office which belongs to the public, not to- the individual who is assigned to discharge its duties at the will of the appointing power and subject to removal at the will of the Legislature,, except when the Constitution fixes the term.
Secondly, Cotten v. Ellis, 52 N. C., 545, was a case in which the Court expressed the opinion that because Ootten’s office had been created by Act of Congress, the Legislature had no power to abolish the office (as it could do with offices created by legislative enactment), and that consequently the salary was like the salaries of those officers who were protected by express constitutional provision from legislative abolition, and could not be taken away. The Court issued an alternative mandamus, i. e., a notice to show cause why a mandamus should not issue, but intimated very clearly that a peremptory mandamus (as here asked) could not issue, saying, “we do not enter upon the inquiry how it could be enforced.” In a still more recent case (Blount v. Simmons, 119 N. C., 50), the Court, speaking through Faibcloth, O'. L, while adjudging the State liable for certain obligations, was careful to add: “How the judgment will be satisfied is a question not now before us.” But it was soon before the Court upon an application for a mandamus upon that very claim in Garner v. Worth Treasurer, 122 N. C., 250, in which it was held, *613as above stated, by a unanimous Court, composed of tibe same Justices as now, that “the courts can not direct the public Treasurer to pay any claim against the State, however just and unquestioned, when there is no appropriation to pay the same.” Here, there is not only no appropriation, but an Act of the Legislature forbidding the Treasurer to pay the plaintiff. In Burton v. Furman, 115 N. C., 166, the Court refused a mandamus to the Auditor and Treasurer, such as is ashed here', though there was an appropriation, because “there was no sufficient provision to pay the plaintiff,” the amount, as in the present case, being disputed.
Thirdly, County Board of Education v. State Board of Education, 106 N. C., 81. The Court held that the State Board of Education, being an agency of the State, could only be sued because the Legislature had authorized and directed that it might “sue and be sued.” It also held that a mandamus might issue “to compel public officers to discharge a mere ministerial duty, not involving an official duty” — thar is, where the statute directs them to perform a certain duty. That would be the case here if the Legislature had directed the Treasurer to pay the plaintiff a certain salary, but it is not a ministerial duty, nor a duty at all, when the Legislature has told him, as in this instance, not to pay the plaintiff. If the case of Ward v. Elizabeth City, 121 N. C., 1, cited by Ur. Justice MONTGOMERY, and which was decided by a unanimous Court, had been fallowed, all the line of cases from Day's to "White v. Ayer ” would have been decided in accordance with the dissenting opinion in these cases, as a glance at Ward v. Elizabeth City will sufficiently show.
The three cases cited for plaintiff certainly do not sustain his contention, and the utmost research has not brought forward any other, from any court whatever, that will justify this Court in directing payment of this, or any liability by *614the State treasury when there is no appropriation by the Legislature, unrevoked, to pay it.
The plaintiff’s contention rests upon two fallacies: Eirstj that the agencies, created for mere governmental purposes, are “contracts,” and if that is conceded, that the State can be forced by the courts to execute the contract and to pay the salary. "Whether a sovereign State will perform its contract and pay out money under it, must ever be left solely to the sense of light and justice in the sovereign. This is inherent in .sovereignty, and everyone, who makes any contract of any kind with a State, does so with the knowledge that this right is safeguarded and reserved to each State by the Eleventh Amendment to the United States Constitution,, and by express provision in the State Constitution.