WOOD v. BELLAMY.

Before proceeding to an examination of the Statute it will be in order to announce that, after full and able argument and after a careful examination of authorities cited by counsel from the courts of this and other States, we adhere to the opinion that an office is property and is the subject of protection like any other property under the provisions of Section 17 of Article 1 of the Constitution. Hoke v. Ienderson, supra; King v. Hunter, 65 N. C., 693; Cotten v. Ellis, 52 N. C., 545; Bailey v. Caldwell, 68 N. C., 472; Bunting v. Gales, 77 N. C., 283. And yet it is true that public offices being for the public good and convenience, are not so completely the subject of property as are many other species of possessions. Property in an office is qualified to some extent by the duties which the holder owes to the public in their performance. As, for instance, a pub

lic office cannot be sold or assigned. The holder cannot, as a rule, depute to another the performance of the duties of the office. And for misfeasance or malfeasance, the courts or other competent authority under such laws as may be in force on the subject, may deprive the holder of the same. But if, such limitations and restrictions be excepted, a public office is as much the subject of property as a man can have in anything. The emoluments of the office are private property "as much," as was said in Ioke v. Henderson, supra, "as the land which one tills, or the horse he rides, or the debt which is owing to him."

The emoluments of a public office being then private property, it would seem to follow logically that, the terms for which the defendants were elected and appointed, respectively, not having expired, they could not be ousted except for cause, for the committal of some malfeasance in office, or unless they had failed and refused to perform the duties of their office, or unless the offices themselves had been

WOOD v. BELLAMY.

abolished. As long as the office is continued, the term of office, it does seem in reason and justice, ought to be the private property of the holder; and to take it from him and give it to another by legislation is in effect and reality a judicial act, and the sentence is pronounced without trial and without a hearing. And the law is to that effect. It is clearly decided in Hoke v. Henderson, supra, and approved in Bunting v. Gales, 77 N. C., 283, that, as long as the office is in existence, the term likened to a grant for which the holder has been elected or appointed canont be, lessened to the prejudice of the grantee. In Cotten v. Ellis, supra, it appeared that the office of Adjutant General had not been abolished, but that the duties of the office had been transferred to another before the plaintiff's term had expired, and Chief Justice Pearson, delivering the opinion of the court, said: "The legal effect of the (first) appointment was to give the office to the applicant (in mandamus) and he became entitled to it as a 'vested right' for the term of three years, from which he could only be removed in the manner prescribed by law and of which the legislature had no power to deprive him. This is settled. Hoke v. Henderson, 15 N. C., 1."

In Kiny v. Hunter, supra, Judge Reade, who delivered the opinion of the court, said: "Nothing is better settled. than that an office is property. The incumbent has the same right to it that he has to any other property. There is a contract between him and the State that he will discharge the duties of the office-and he is pledged by his bond and his oath; and that he shall have the emoluments--and the State is pledged by its honor. When the contract is struck it is as complete and binding as a contract between individuals, and it cannot be abrogated or impaired except by the consent of both parties." And in Bailey v. Calkwell, the opinion was in these words: "The

WOOD v. BELLAMY.

case of Cotten v. Ellis, 52 N. C., 545, is directly in point. Cotten had been appointed adjutant general for three years, with a salary of $200. The legislature passed an Act repealing the law under which Cotten had been appointed, both as to his appointment and salary. Cotten served out his term and demanded pay, which the Governor (Ellis) refused. And this court decided that he was entitled to it. The principles of that case are the same as in this, and it is unnecessary to repeat them."

So that, whatever the law may be in other States, it is settled beyond question in North Carolina that a public office is property, is a vested right, exists by contract between the State and the holder, and that as long as the office is continued the holder cannot be deprived of his term against his consent, unless he has committed some act which works a forfeiture. We have no desire to disturb the decisions of our court on this subject. They are founded on the principles of justice and of safe public policy.

But the plaintiffs further contend that the offices which the defendants hold were abolished by the Act of 1897, and that they themselves are now the persons entitled to the same. It is undoubtedly the law in North Carolina that an office can be abolished, and that as a result the officer loses his office and his property in it. This is no breach of the contract on the part of the State. The holder accepted the office subject to this contingency. No one could contend that, because an office was in the estimation of the legislature useful and necessary at the time of its creation, such an office would continue to be forever a public necessity. If an office once useful should become useless and an unnecessary charge upon the people, it is not only a right of the legislature to abolish it, but it is its duty to do so. And, as we have said, every man elected or appointed to an office created by the legislature takes it with the implied

WOOD v. BELLAMY.

understanding that the continuance of the office is a matter of legislative discretion, the office depending upon the public necessity for it. In Hoke v. Henderson, supra, it is said that "It may be quite competent to abolish an office; and true that the property of the office is thereby of necessity lost. Yet it is uite a different proposition that, although the office be continued, the officer may be discharged at pleasure and his office given to another. The office may be abolished because the legislature esteems it unnecessary."

Of course, an office created by the Constitution cannot be abolished by the legislature.

We are now brought to the consideration of the contention of the plaintiffs that the offices which the defendants have been, and are now in possession of, have been abolished by the Act of 1897. The first section of the Act provides "That section 2240 of The Code be amended by striking out the folowing words: 'Eastern North Carolina

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Hospital, located near Goldsboro,

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and the State

The Insane

Insane Asylum, near Raleigh.' * * Asylums near Goldsboro and Raleigh are not known by the names of "Eastern North Carolina Hospital" and "State Insane Asylum," in Section 2240 of The Code. The draftsman of the bill seemed to be ignorant of the corporate names of the different Insane Asylums in this State. Ordinarily, the failure of an Act to give the complete and full name of a corporation where there could be no reasonable doubt as to which institution was meant, would be of no signinicance; but, where it is undertaken by legislative enactment to change the names of such institutions and to confer new names upon them, it does seem that pains would be taken to at least find out the true corporation names of those discarded. And, when such is not done, the presumption of fact arises that the change was of no material

WOOD v. BELLAMY.

consequence or importance in the mind of the legislature. Such carelessness would not have happened if the legislators themselves had thought the matter of any importance. Throughout this Act, and also the one passed at the same session providing for the support of these institutions, the old and new names of incorporation are frequently used, interchangeably. But suppose the true corporate names had been called in section 1 of the Act and the new names properly conferred, could any reasonable man imagine that the change in the names of these asylums could possibly have altered the foundations of them or affected the duties and rights of any person officially connected with them? Surely, no one would answer in the affirmative.

But the plaintiffs further contend, because the Act declares that the office of Superintendents of the old corporations are abolished, and the office of principal and resident physician substituted therefor, the latter, elected for four years instead of six, as was the Superintendent, and that because the government of the new corporation shall be under the management of nine trustees, called the Board of Trustees, elected for a term of four years instead of in classes of three for six years, the terms expiring at different times, as under The Code, and are called the Board of Directors, the offices under the old corporation are abolished and the new ones take their places. This contention cannot be sustained.

The legislature of 1870-'71, upon the return to power of one of the political parties, undertook to remove the officers of the North Carolina Institution for the Deaf and Dumb and the Blind, who were of another political faith, and in the Act for that purpose (Chapter 55) resorted to this same device of changing the names of the offices to carry out their purpose.

The Act (1870-'71), called the new board,