Mial v. Ellington.

46 S.E. 961, 134 N.C. 131, 1903 N.C. LEXIS 211

• Court: Supreme Court of North Carolina
• Decided: December 1, 1903
• Status: Published

Opinions

CLARK. C. J., concurring: MONTGOMERY and DOUGLAS, JJ., dissenting. This is a civil action in the nature of a quo warranto, tried upon the following facts agreed: At the session of 1889, Public Laws, ch. 363, was passed, entitled "An act providing an alternative method of constructing and keeping in repair the public roads of Raleigh Township, Wake County." It was provided by said act that the justices of the peace of Raleigh Township should meet and, if a majority so decided, adopt the method of keeping in repair the public roads of said township in accordance with the provisions of said act; that when they had so adopted the said method, it was by said act made the duty of the county commissioners, at their regular meeting, and biennially thereafter, to appoint a supervisor of roads for said township; that said supervisor should hold his office for two years; that in the event of a vacancy the same should be filled by said board of commissioners. Provision was made for removal for cause and upon notice. Said supervisor was required to qualify by taking the oath of office and giving bond in an amount to be fixed by the board. The duties prescribed for said supervisor were that he should formulate a plan for the permanent improvement of the public roads of said township, outside of the city (132) of Raleigh, by the use of the labor of county convicts and workhouse hands, etc. He was required to disburse all funds paid to him upon the warrant of the county commissioners for the purpose of carrying out the provisions of the said act, and to keep an account thereof, as well as a list of all tools, etc., in his possession, and to make a report thereof to the commissioners. The duties of the said supervisor in all other respects were specifically pointed out in the several sections of said act. His compensation was to be fixed by the board of commissioners, but the same was not to exceed $750 per annum. Pursuant to the provisions of said act, the method prescribed therein for the roads of Raleigh Township was duly adopted by the justices of the peace and a supervisor duly elected. At the session of 1891 (Public Laws, ch. 218) the maximum limit of the salary of the supervisor was fixed at $1,200. At the session of 1897 (Public Laws, ch. 434) the provisions of said act were extended three miles beyond the present limits of Raleigh Township in each direction.

That at the regular meeting of the Board of Commissioners of Wake County, held in December, 1902, one Bryant Harrison was appointed by the said board to be supervisor of roads of Raleigh Township for a term of two years, commencing 1 January, 1903. That the said board fixed his salary at $70 per month, and that the said Harrison duly qualified and entered upon the discharge of his duties as such officer.

That at the February meeting of said board of commissioners the said Harrison resigned the said office, to take effect on 1 March, 1903, and thereupon the board accepted the said resignation and called a special meeting, to be held on 21 February, 1903, to appoint a successor. That at said special meeting the relator. A. T. Mial, was duly appointed to fill out the said unexpired term, and his salary fixed at $70 per month. That he subsequently gave the required bond, took the oath of (133) office and was duly inducted therein, and entered upon the discharge of his duties as such officer.

That at the session of 1903 the General Assembly enacted chapter 551, an act entitled "An act to improve the public roads of Wake County." By said act it was provided that the Board of County Commissioners of Wake, in order to provide for the proper construction, improvement and maintenance of the public roads of the county, shall, on or before 1 January, 1904, elect a superintendent of roads for the county, who shall hold office until December, 1904, and until his successor has been elected and qualified; and at their regular meeting in December, 1904, and biennially thereafter, they shall elect a successor to said office. The superintendent of roads shall be paid such compensation as shall be fixed by said board, out of the county road fund, and hold office for two years and until his successor has been elected and qualified. . . . It shall be the duty of said superintendent of roads, subject to the approval of the board of commissioners, to supervise, direct and have charge of the maintenance and building of all public roads in the county, and he shall submit to the county board of commissioners a monthly report concerning the work in progress and the moneys expended, and he shall submit a quarterly report on the condition of the public roads and bridges and plans for their improvement. That the board of commissioners shall divide the county into three road districts, to be known as the Raleigh, the Northern and the Southern road districts, respectively. The boundary of the Raleigh Road District shall be the circumference of a circle, the radius of which shall extend eight miles from the Capitol building in the city of Raleigh, in every direction; and the boundaries of the other districts shall be fixed by the board of county commissioners, and said board shall have power to create new road districts whenever in their opinion there is necessity for the same, and to alter the boundaries of any district, except the (134) Raleigh Road District, when they may consider it advisable. For each of the road districts the county commissioners shall elect, at the time herein prescribed for the election of the road superintendent, a district supervisor, who shall hold office for the same term and in the same manner that he holds, and until their successors are elected and qualified. Each supervisor shall give bond in the sum of $1,000 for the faithful performance of the duties of his office, the truthful accounting for all moneys coming into his possession and the proper care of all teams, wagons, machinery, tools and implements entrusted to his charge; and they shall furnish inventories of such material, tools, implements, machinery and utensils of every nature that shall come into their hands upon their entrance upon and retirement from office; they shall be paid such compensation as shall be fixed by the board of county commissioners, and may be removed from office in the same manner provided for the road superintendent.

The county commissioners shall furnish each supervisor with a complete outfit of teams, carts, machinery, implements, tools and utensils for use by him upon the roads of his district, and the machinery, tools, implements and property now belonging to the Raleigh Road District shall not be used upon the roads of any other district, but shall be kept for the exclusive use of that district.

The work of the supervisors in each district shall be under the direction and control of the superintendent of roads, and they shall faithfully conform to his directions and the requirements of this act. There shall be kept continuously employed upon the roads of each district a squad of not less than fifteen hired hands, whose compensation shall be fixed by the board of commissioners.

That at the regular meeting of the said board of commissioners, held in April, 1903, the said board caused public notice to be given that at the regular May meeting of the (135) said board a superintendent of roads for Wake County and three supervisors for the respective road districts of said county would be elected by said board, under said chapter 551, Laws 1903, and, in pursuance of said notice, at said May meeting the board of commissioners elected the defendant J. C. Ellington superintendent of roads for Wake County, and the defendant Alfred Jones supervisor for the Raleigh Road District, and I. N. Bailey and A. R. Holloway supervisors for the Northern and Southern road districts of Wake County, respectively. That the relator, A. T. Mial, was not a candidate or applicant for either of these positions. That the defendants J. C. Ellington and Alfred Jones, prior to the commencing of this action, gave the bond and took the oath of office, and did all other acts required of them by the said act of 6 March, 1903. Thereafter, on 12 May, 1903, acting under the order of the defendants, the Board of Commissioners of Wake County, the said J. C. Ellington took possession of the teams and other property and effects belonging to Raleigh Township and then in the custody of the relator, A. T. Mial, by virtue of his office, aforesaid, in the absence of said Mial and without his consent; and on the said 12th day of May the defendants, the Board of Commissioners of Wake County, withdrew all the convicts, guards and officers in their custody and which worked upon the roads of Raleigh Township, and over whom the relator, A. T. Mial, had supervision, and placed them under the charge and supervision of the defendant J. C. Ellington. That thereafter, on said 12 May, 1903, the relator, A. T. Mial, demanded the return to him of all the said property and effects, also control of the convicts, guards and officers, and that the same was refused by the defendants. That at the said May meeting, 1903, the Board of Commissioners of Wake County, in pursuance of the said act of 6 March, 1903, fixed the boundaries of the Northern and (136) Southern road districts of Wake County, the boundaries of the Raleigh Road District having been fixed by the said act, and included the territory formerly within Raleigh Township, under the said act of 1899 and all the acts amendatory thereof, and also included certain territory in addition thereto.

The court, upon the foregoing agreed facts, rendered judgment for the defendants, and the relator appealed. We have no disposition, in the decision of this case, to place the conclusion to which we have arrived upon the ground that the position of supervisor of the roads, the title to which is in controversy, is not a public office. Adopting the settled definition of a public officer, we hold that the position comes clearly within such definition. Nor are we disposed to enter into a discussion of the many fine and delicate distinctions which have been made between the validity of an act which distributes the duties of an office and one which abolishes the office. We prefer rather to discuss and decide the question, which is fairly presented by this record, whether an officer appointed for a definite time to a legislative office has any vested property interest or contract right to such office of which the Legislature cannot deprive him. The contention of the relator is based upon the proposition which was decided by this Court in Hoke v. Henderson,15 N.C. 1, which is thus stated by Ruffin, C. J..: "The sole inquiry that remains is whether the office of which the act deprives Mr. Henderson is property. It is scarcely possible to make the proposition clearer to a plain mind, accustomed to regard things according to practical results and realities, than by barely stating it. For what is property — that is, what do we understand by the term? It means, in reference to the thing, whatever a person can possess and enjoy by right; (137) and, in reference to the person, he who has that right, to the exclusion of others, is said to have the property. That an office is the subject of property, thus explained, is well understood by every one, as well as distinctly stated in the law books from the earliest times. An office is enumerated by commentators on the law among incorporealhereditaments, and is defined to be the right to exercise a public or private enjoyment, and to take the fees and emoluments thereunto belonging. A public office has been well described to be this: When one man is specially set by law, and is compellable to do another's business, against his will and without his leave, and can demand therefor such compensation, by way of salary or fees, as by law is assigned; to the doing of which business no other person but the officer, or one deputed by him, is legally competent." This proposition was stated by the great Chief Justice and maintained in an elaborate opinion at the December Term, 1833, of this Court. That it has been frequently cited with approval and, with some exceptions, followed by this Court, cannot be denied; nor can it be successfully denied that there has always been a number of the ablest members of the bar in North Carolina who have questioned its soundness.

The contrary view is thus stated by Sanford, J., in Connor v. New York, 2 Sanf., 370: "We think it must be assumed that there is no contract, express or implied, between a public officer and the government whose agent he is. The latter enters into no agreement that he shall receive any particular compensation for the time he shall hold office, nor, in the case of a statutory office, that the office itself shall continue any definite period. Where the Constitution limits the compensation, it is beyond legislative control; but that makes no contract. The people have the control, in their sovereign capacity, as the Legislature has in statutory offices. It is not the question whether fees or salary (138) earned may be divested. The right to receive such fees may be conceded as perfect, without affecting the present inquiry."

In Taylor v. Beckham, 178 U.S. 577, Fuller, C. J., thus states the law as held and enforced by that Court: "The decisions are numerous to the effect that public offices are mere agencies and trusts, and not property, as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered. Nor does the fact that a constitution may forbid the Legislature from abolishing a public office, or diminishing the salary thereof during the term of the incumbent, change its character or make it property. True, the restrictions limit the power of the Legislature to deal with the office, but even such restrictions may be removed by constitutional amendment. In short, generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right."

We have thus presented the two views upon this most important question, and we are confronted with the necessity of either overruling or rejecting the theory upon which Hoke v. Henderson is based, or that which is stated in the cases cited, as what may be called the American doctrine in respect to the relation which the public officer bears to the State. It will save any possible confusion or misunderstanding to say that nothing said by us in regard to the power of the Legislature applies to offices provided for by the Constitution. These are beyond the power of the Legislature to affect, either in respect to the term or, except within the limitations fixed, the salary. This, not because there is any property right in the office, but because the people, in their Constitution, have made provision for and regulated their terms and salaries.

The proposition involved in this appeal on behalf of the plaintiff is that neither an office, or the duties thereof, created by an act of the Legislature, fixing the term and compensation, (139) can be transferred to some other person or affected during the term for which the incumbent has been elected; that such office is property, within the protection of the constitutional provision that no person shall be deprived of his property except by due process of law, and that no State shall pass any law impairing the obligation of a contract, which, of course, excludes the power of the Legislature to take property from one man and give it to another.

We recognize the gravity of the proposition that we shall reverse a decision of this Court, delivered by Chief Justice Ruffin, with the approval of Justices Daniel and Gaston, which we concede has received the unanimous approval of this Court in a number of cases, and a majority thereof in many others. If this were a question involving the title to property, upon the decision of which property rights have been acquired, settlements have been made, and the security and peace of families was dependent, we should feel it our duty to leave it to the legislative department of the government to bring the law into harmony with sound principle and the best thought and experience of the age in which we live. Being, however, a question of public constitutional law, involving the sovereignty of the State, if it is made to appear that the principle upon which Hoke v. Henderson is founded stands without support in reason and is opposed to the uniform, unbroken current of authority in both State and Federal courts, it becomes our duty to overrule it and place our jurisprudence in line with that of the other States and the Federal Government.

It is said by Douglas, J., in Caldwell v. Wilson, 121 N.C. 467, that, "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 expressly 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 (140) its rights or privileges before the end of the term, or to alter or abridge the term, or to abolish the office itself. . . . Except 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."

We deem it proper, in view of the conclusion to which we have arrived, to review at some length the elementary principles involved and the authorities in the United States.

It is stated by Mr. Freeman, in his note to Hoke v. Henderson, 25 Am. Dec., 704, that, "With all deference to the North Carolina courts, the conclusion may yet be drawn, with Mr. Pomeroy, that `It may therefore be considered as a settled point of constitutional law, settled by both the national and State courts, that a public office bears no resemblance to a contract, and that the legislatures have full power over the public offices of a Commonwealth, except so far as they may be restrained by the local constitutions. The clause of the United States Constitution which prohibits State laws impairing the obligation of contracts has no application whatever to this subject.'"

Chief Justice Marshall, in Woodard v. Dartmouth College, 4 Wheat., 627, said: "Public offices are not within the inhibition of the Constitution of the United States against laws impairing the obligation of contracts; that the inhibition does not extend to offices within a State for State purpose; that the Legislature must necessarily control such offices, and may change and modify the laws concerning them as circumstances may require; that grants of political power to be employed in the administration of the government are to be regulated by the Legislature of each State according to its own judgment, unrestrained by any limitations of its power imposed by the Constitution of the United States." In the same case Mr. Justice Story said: "The (141) State Legislature have power to enlarge, repeal or limit the authority of public officers, in their official capacity, in all cases when the Constitution of the States, respectively, do not prohibit them; and this, among others, for the very good reason that there is no express or implied contract that they shall always, during their continuance in office, exercise such authorities. They are to exercise them only during the good pleasure of the Legislature."

In Butler v. Pennsylvania, 10 How. (U.S.), 402, Mr. Justice Daniel says: "The contracts designed to be protected by the tenth section of the first article of that instrument are contracts by which perfect rights — certain, definite, fixed, private rights of property — are vested. These are clearly distinguishable from measures or engagements adopted or undertaken by the body politic or State Government for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued as the public good shall require. The selection of officers, who are nothing more than agents for the effectuating of such public purposes, is matter of public convenience or necessity, and so, too, are the periods for the appointment of such agents; but neither the one nor the other of these arrangements can constitute any obligation to continue such agents, or to reappoint them after the measures which brought them into being shall have been found useless, shall have fulfilled or shall have been abrogated as even detrimental to the well-being of the public. . . . We have already shown that the appointment to and tenure of an office created for the public use, and the regulation of the salary fixed to such an office, do not fall within the meaning of the section of the Constitution relied on by the plaintiffs in error — do not come within the import of the termcontracts, or, in other words, the vested private personal rights thereby intended to be protected."

Mr. Justice Lamar, in Crenshaw v. United States,134 U.S. 99, 104, says: "The question is whether an officer (142) appointed for a definite time, or during good behavior, had any vested interest or contract right in his office, of which Congress could deprive him. The question is not novel. There seems to be but little difficulty in deciding that there was no such interest or right."

In Newton v. Commissioners, 100 U.S. 559, Mr. Justice Swayne says: "The legislative power of a State, except so far as restrained by its own Constitution, is at all times absolute with respect to all officers within its reach. It may at pleasure create or abolish them or modify their duties. It may also shorten or lengthen the term of service. And it may increase or diminish the salary or change the mode of compensation. . . . In all these cases there can be no contract and no irrepealable law, because they are `governmental subjects,' and hence within the category before stated. . . . A different result would be fraught with evil."

We do not find a suggestion from the Federal judiciary which in the slightest degree questions the authority of the cases cited. The only case to which our attention has been directed, in whichHoke v. Henderson is referred to by the Supreme Court of the United States in connection with an office, is Ex parte Hennen, 13 Peters (38 U.S.), 230. That was a rule upon a district judge to show cause why he should not reinstate a clerk who had a been removed by him. There was no constitutional principle involved. It was simply a question whether the judge, under the statute, had the power of removal. The Court said: "The tenure of ancient common-law offices, and the rules and principles by which they are governed, have no application to this case. The tenure in those cases depends in a great measure upon ancient usage. But with us there is no ancient usage which can apply to and govern the tenure of offices created by our Constitution and laws. They are of recent origin and must depend entirely upon a just construction (143) of our Constitution and laws." The Court proceeds to say: "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; and by the express terms of the law the tenure was during good behavior, and was, of course, governed by very different considerations from those which apply to the case now before the Court." The rule was discharged. There was no suggestion of a property right in the office.

Returning to the State courts, we find in Conner v. New York,supra, after discussing the opinion in Hoke v. Henderson, the learned Justice says: "It appears to us, with much respect for the learned tribunal which pronounced this judgment, that it was unduly influenced by the common-law rule derived from prescriptive offices, and operating in a government whose genius and spirit are perhaps in no more respect unlike ours than in this very subject, the source and nature of the rights and interests acquired by public officers. In enumerating the qualities of an office, considered as property, the Court admitted that it was inalienable, and in many instances incapable of being managed by a substitute, and, in the only point giving it the semblance of value, subject entirely to legislative control. If to those be added the consideration that it is a political agency, and not like a private contract of hiring for a definite period, we think there will remain no incident of property in its correct signification." This cause being before the Court of Appeals, in 5 Selden, 301,Ruggles, C. J., concludes the opinion of the Court as follows: "Mr. Justice Sanford has referred to so fully, and reviewed so judiciously, the authorities on the proposition under consideration, that it appears unnecessary to re-examine them. My judgment accords with his conclusion, viz., that `These (144) authorities, with the nature of the duties and employment of a public officer, seem conclusively to show that such an officer has no property in the prospective compensation attached to his office, whether it be in the shape of a salary or fees.'"

In 1834, Nicholl, J., in S. v. Dews, R. M. Charlton (Ga.), 397 in discussing the same question, uses the following language: "That a public office is the property of him to whom the execution of its duties is entrusted, is repugnant to the institutions of our country, and is at issue with that universal understanding of the community which is the result of those institutions. Public officers are, in this country, but the agents of the body politic, constituted to discharge services for the benefit of the people, under laws which the people have prescribed. So far from holding a proprietary interest in their offices, they are but naked agents, without an interest. As public agents, they are entrusted with the exercise of a portion of the sovereignty of the people — the jus publicum — which is not the subject of a grant, and can be neither alienated or annihilated, and it would be a repugnant absurdity, as incomprehensible as it would be revolting, that they can have a private property in that sovereignty. Unlike those officers in England, whose offices are treated as property, they do not hold under grant, but their authority or function to discharge the duties of their offices is delegated to them by commission.. In those instances in which in England the right to offices has been regarded as property, the instrument of conveyance has been technically a grant, a conveyance by which an estate is passed or purchased, and employing the technical terms of a grant, dedi etconcessi. But, from the organization of the first republican government of this State, officers have been appointed by commission, a term which, whether regarded according to its ordinary meaning or its legal sense, imports a delegation of authority. And our earliest books draw a distinction between a (145) grant of an office and a commission, and inform us that the former, as its name implies, is not revocable, but that the latter, which is only the delegation of an authority, is. The title exhibited by the defendant himself in his return, and by which only he can vindicate his possession, is that he has been duly elected sheriff and has been duly commissioned and qualified. He claims, therefore, not by grant, but under commission, and that commission commits to him only an authority, without an interest. The title of the defendant is not by a grant, which passes an estate, but by a commission, which is a delegation or warrant of authority, and which, so far from passing an estate, is founded upon and is an affirmance of the fact that the estate is not in him, but in those from whom the power proceeds. It confers upon him the title to exercise the authority, but the subject of that authority is in the principal and under his control, and the very authority of the agent is evidence of it. Every authority implies a perfect right in the grantor to the extent of that authority, at least as between him and the agent, and it is perfectly insensible that because of such agency the agent becomes armed with a control over the exercise of that right."

It will be observed that Judge Ruffin says: "An office is enumerated by commentators on the law among incorporeal hereditaments." Judge Nicholl, dealing with that phase of the question, says: "As property, offices are classed under the head of incorporeal hereditaments, and must be held under a conveyance to a man and his heirs, or, at least, a freehold interest must be held in them. Nor can an action be maintained for an injury resulting from a disturbance or interference with an office, unless it be an incorporeal hereditament or a freehold."

It is well settled that in the United States a public office is not and cannot, in the very nature of our (146) government, be an incorporeal hereditament. 3 Kent (13 Ed.), 454.

This question came before the Supreme Court of South Carolina, inAlexander v. McKenzie, 2 S.C. 81, when Willard, J., delivered an exhaustive opinion. He says: "Hoke v. Henderson, 15 N.C. 1, holds the contrary doctrine, but is without support of reason or authority. Misapprehension of the English doctrine on this subject has frequently given rise to erroneous views of the powers of political bodies." The Court adopted the view of the New York Court in Conner v. New York, supra.

In Standeford v. Wingate, 63 Ky. 440, the Supreme Court of Kentucky thus states the conclusion reached upon the question: "An office established and held for the public good is not a contract, nor is its tenure secured by any binding contract." Roberson, J., in the opinion of the Court, at p. 448, says: "Within the range of our researches, the only adjudged case which would give any countenance to such an unreasonable doctrine is that of Hoke v. Henderson, 15 N.C. 1, in which the Supreme Court of North Carolina decided that the term of a legislative office could not be reduced below that which was prescribed when the incumbent was elected. That anomalous decision, on a constitution not in all respects identical with ours, as bearing on the same question, is not, in our opinion, sustained by consistent argument."

The Supreme Court of Maine, in Prince v. Skillin, 71 Me. 361 (36 Am.Rep., 325), says: "All offices, except when legislative authority is limited or restricted by constitutional provisions, are subject to the will of the Legislature. There is, with this exception, no vested right in an office or its salary."

In Kendall v. Canton, 53 Miss. 526, Chalmers, J., in the opinion of the Court, says: "Counsel for the plaintiff are correct in saying that while an election or appointment to office (147) is not a contract, in its broadest sense, it does so far partake of the attributes of a contract as to entitle the incumbent to recover all salary accruing during his incumbency; but there is no demand here for salary earned and in arrear. The action sounds wholly in damages, and proceeds upon the idea of a vested right to hold for the full term for which the plaintiff had been elected. Nothing is better settled than the legislative power to terminate at pleasure the incumbency of a statutory office, either by an abolition of the office itself or by a change in the tenure or the mode of appointment." Cole, J., in S. v. Douglas, 26 Wis. 428 (7 Am. Rep., 87), says: "It was not claimed that the plaintiff had any vested right in his office which the Legislature could not abrogate or destroy. Such a position would be clearly untenable upon the authorities, and as a principle utterly inadmissible under our form of government."

In S. v. Davis, 44 Mo., 129, the Court, speaking of the plaintiff's case, says: "It proceeds upon the theory that a person in the possession of a public office created by the Legislature has a vested interest, a private right of property, in it. This is not true of offices of this description in this country; they are held neither by grant nor by contract. A mere legislative office is always subject to be controlled, modified or repealed by the body creating it. In England offices are considered incorporealhereditaments, grantable by the crown, and a subject of vested or private interests. Not so in the American States; they are not held by grant or contract, nor has any person a private property, or vested interest in them, and they are therefore liable to such modifications and changes as the lawmaking power may deem it advisable to enact."

In Robinson v. White, 26 Ark. 139, the Supreme Court of that State has decided that "The office of an assessor is a statutory office, and the Legislature has absolute control over all statutory offices, and may abolish them at pleasure, (148) and in so doing no vested right is invaded."

In People v. Van Gaskin, 5 Mont. 352, the conclusion to which the Court arrived is stated to be that, "In the absence of constitutional restrictions, a legislature, having power to create a particular office and to regulate the manner in which it should be filled, and the term and duties of the incumbent, has the power to lengthen or abridge such term, orto declare the office vacant and appoint another to fill the vacancy. The exercise of such power by the Legislature would not be in violation of section 10, Article I of the United States Constitution, prohibiting a State from passing any law impairing the obligations of contracts, or of the Fifth Amendment thereof, providing that no one shall be deprived of property without due process of law."

The Supreme Court of Nevada, in Denver v. Hobart, 10 Nev. 28, says: "The Legislature having by act of 4 March, 1865, vested certain duties upon the lieutenant-governor, and allowed him a salary for his services, it waswithin the power of the Legislature to take those duties and the salaryaway from him before the expiration of his term of office and confer themupon another." Shaw, C. J., in Taft v. Adams, 3 Gray (Mass.), 126, says: "When an office is created by law, and one not contemplated nor its tenure declared by the Constitution, but created by the law solely for the public benefit, it may be regulated, limited, enlarged or terminated by law as public exigency or policy may require."

In Wyandotte v. Drennan, 46 Mich. 478, Cooley, J., says: "This is a position that has frequently been taken, and almost as often overruled. Nothing seems better settled than that an appointment or election to public office does not establish contract relations between the person appointed or elected and the State. Offices are created for the public good, at the will (149) of the legislative power, with such powers, privileges and emoluments attached as are believed to be necessary or important to make them accomplish the purposes designed. But, except as it may be restrained by the Constitution, the Legislature has the same inherent authority to modify or abolish that it has to create, and it will exercise it with the like considerations in view."

In Attorney-General v. Jochim, 99 Mich. 358 (23 L.R.A., 699; 41 Am. St., 606), the Court uses the following language: "The Legislature may remove officers, not only by abolishing the office, but by declaring it vacant. . . . And it may lodge the power to remove from statutory offices in boards or other officers subject to statutory regulations. And, while it cannot remove the incumbent of constitutional offices, it is not because of an inherent difference in the qualities of the office, but because the power to remove is limited to the power that creates. The constitutional officer is an agent of the government. There is the same lack of the ingredients of contract and the same power to abolish the office or remove the officer by amendment of the Constitution." In this case theFourteenth Amendment was invoked and expressly held not applicable. "A public office cannot be called `property,' within the meaning of these constitutional provisions. If it could be, it would follow that every public officer, no matter how insignificant, would have a vested right to hold his office until the expiration of the term. Public offices are created for the purpose of government." Ib.

Andrew, J., in Nichols v. McLean, 101 N.Y. 526 (54 Am. Rep., 730), says: "It is true that in this country offices are not hereditaments, nor are they held by grant. The right to hold an office and to receive the emoluments thereof belonging to it does not grow out of any contract with the State, nor is an office property, in the same sense that cattle or land are the property of the owner." Kreitz v. Behrensmeyer, 149 Ill. 496 (24 L.R.A., 59); Jones v. Shaw, 15 Tex. 577.

(150) "An appointment is neither a contract nor is the office or its prospective emoluments the property of the incumbent. Upon general principles of law, the office itself and its emoluments are within the control of the government; and the legislative branch of the government, whenever in its judgment public policy requires it, may declare the office vacant or transfer its duties to another officer before the expiration of the term for which he was appointed." Kenny v.Hudspeth, 59 N.J. Law, 320.

In Foster v. Jones, 29 Va. 642 (52 Am. Rep., 637), the Court uses the following language: "We think it may be fairly assumed in the outset to be an undeniable proposition that the two branches of the Legislature, as the direct representative of the people, have the right, where no restrictions have been imposed upon them, either in express terms or by necessary implication, by the Constitution, to create and abolish offices accordingly as they may regard them as necessary or superfluous. And they may also, under like circumstances, deprive the officers of their salaries, either directly by removing them from office, or indirectly by so changing the organization of the department to which they are attached as to leave them without a place." Mechem on Pub. Officers, sec. 463, et seq.; Throop on Pub. Officers, sec. 1719; 23 Am. Eng. Enc. of Law, 328.

In S. v. Hawkins, 44 Ohio St. 109, Minshall, J., says: "The incumbent of an office has not, under our system of government, any property in it. His right to exercise it is not based upon any contract or grant. It is conferred on him by the public trust, to be exercised for the benefit of the public. Such salary as may be attached to it is not given him because of any duty on the part of the public to do so, but to enable the incumbent the better to perform the duties of his office by the more exclusive devotion of time thereto."

In Donahue v. Will Co., 100 Ill. 94, it is said: "It is (151) impossible to conceive how, under our form of government, a person can own or have title to a governmental office. Offices are created for the administration of public affairs. When a person is inducted into an office he thereby becomes empowered to exercise its powers and perform its duties, not for his, but for the public benefit. It would be a misnomer and a perversion of terms to say that an incumbent owned an office or had any title to it."

"Some of the decisions have adopted the theory that an office is property, under a mistaken view that the common-law doctrine that an office is an hereditament applied to offices of this country, which is undoubtedly fallacious. . . . Public offices belong to the people, and are to be both conferred and taken away according to their will and appointment, and a person who accepts a public office does so subject to all the constitutional and legislative provisions in relation thereto." Moore v. Strickland, 46 W. Va. 515; 50 L.R.A., 279. The Court, in this case, refers to Hoke v.Henderson, and expressly rejects the doctrine enunciated therein. A careful research fully sustains the remarks of Mr. Justice Douglas, supra.

Mr. Irving Browne, in his note to Grant v. Secretary of Statefor India, 8 Eng. Rul. Cas., 266, states the doctrine as held in the cases cited by us with this conclusion: "Both the office itself and the compensation, upon general principles of law, are naturally within the control of the government to diminish, increase or abolish. This is the general doctrine as to statutory offices in this country. An appointment to an office is not a contract, the impairment of the obligation of which is forbidden by the Federal Constitution." He notes the single exception in the NorthCarolina Court, and says: "In all the other States the Legislature may do what it pleases with such offices, unless it is expressly restrained by the Constitution, an office not being (152) regarded as property nor the subject of contract in any sense."

It will be observed that Chief Justice Ruffin cites no authority for the proposition maintained by him. He contents himself with the statement that "An office is enumerated by commentators on the law among the incorporealhereditaments." And, while, therefore, they are property, he says that "Most of the rules regulating them have reference to the discharge of the duties and the promotion of the public convenience. They are pro commodopopuli, hence they are not the subject of property, in the sense of that full and absolute dominion which is recognized in many other things. They are only the subject of property, so far as they can be so in safety, to the general interest involved in the discharge of their duties."

He concedes that the office may be abolished. "With these limitations, and the like," says he, "a public office is the subject of property, as everything corporeal and incorporeal from which man can earn a livelihood and make a gain. And to the extent of his salary it is private property, as much as the land which he tills, or the horse which he rides, or the debt that is owing to him."

We must confess our inability to see how the right to the salary can have any higher or stronger ground upon which to rest than the right to the office. The salary is but an incident to the office. The Chief Justice does not express himself with his usual force and clearness when he says that offices "are not the subject of property, in the sense of that absolute dominion which is recognized in many other things," and yet, "to the extent of his salary, it is private property, as much as the land he tills, or the horse which he rides, or the debt which is owing to him." When he concedes that the office may be abolished, such concession very greatly weakens the force of his conclusion.

In Mills v. Williams, 33 N.C. 558, Pearson, J., in his usual clear and concise style, thus states the distinction (153) between legislation which is contractual and that which is not. In discussing the power of the Legislature to repeal an act establishing a county, he says: "The substantial distinction is this: some corporations are created by the mere will of the Legislature, there being no other party interested or concerned. To this body a portion of the power of the Legislature is delegated, to be exercised for the public good, and subject at all times to be modified, changed or annulled. Other corporations are the result of contract," referring to private corporations. The same distinction was made and the same principle clearly enunciated by Ruffin, C. J., in University v. Maultsby, 43 N.C. 257. He says: "But the Court is further of the opinion that the University is a public institution and body politic, and hence subject to legislative control. . . . And therefore the corporation was not originally the creature of the Legislature, but is dependent on its will for its continuing existence."

"A grant of land by a State is a contract, because in making it the State deals with the purchaser precisely as any other vendor might; and if its mode of conveyance is any different it is only because by virtue of its sovereignty it has power to convey by other modes than those which the general law opens to individuals. But many things done by the State may seem to hold out promises to individuals which, after all, cannot be treated as contracts without hampering the legislative power of the State in a manner that would soon leave it without the means of performing its essential functions. The State creates offices and appoints persons to fill them; it establishes municipal corporations with large and valuable privileges for its citizens; by its general laws it holds out inducements to immigration; it passes exemption laws, and laws for the encouragement of trade and agriculture; and under all these laws a greater or less number of citizens expect to derive profit and emoluments. But can these laws be regarded as contracts between the State and the officers and corporations who are, (154) or the citizens of the State who expect to be, benefited by their passage, so as to preclude their being repealed? On these points it would seem that there could be no difficulty. When the State employs officers or creates municipal corporations as the mere agencies of government, it must have the power to discontinue the agency whenever it comes to be regarded as no longer important. `The framers of the Constitution did not intend to restrain the State in the regulation of their civil institutions adopted for internal government.' They may therefore discontinue offices, or change the salary or other compensation, or abolish or change the organization of municipal corporations at any time, according to the existing legislative view of State policy, unless forbidden by their own Constitution from doing so." Cooley Const. Lim. (7 Ed.), 387.

We do not think it would be profitable to enter into a discussion of the various phases in which the question has come before this Court. It is a part of the judicial history of the State. It is evident that the effort to carry it to its logical conclusion has rendered it necessary to make many delicate distinctions as to the respect in which and to what extent the word "property" applies to an office, its duties, its emoluments, and when and how an office may be abolished, or the office retained and its duties either transferred to another or distributed among other governmental agencies. We have no disposition to review these cases, but prefer to adopt what may appropriately be called the American doctrine upon the subject, so clearly set forth in a number of the many decisions which we have quoted.

Certainly in one eventful period of the history of the State it did not occur to anyone to carry the doctrine of Hoke v. Henderson to its logical conclusion. Without entering into any (155) discussion of the subject, we may, for the purpose of this argument, assume that the State of North Carolina has never at any time from its earliest existence lost or forfeited its statehood, its political integrity, nor has the allegiance of its citizens or the officers of the State been changed to any other government, except in so far as the State occupied relations to other governments. The tenure of judicial offices in North Carolina prior to 1868 was for life or good behavior. At the end of the Civil War a convention was held and certain amendments made to the Constitution, retaining, however, this provision. The Constitution, thus amended, was ratified by the people, and a State government duly organized thereunder. Judges were elected and qualified, and were thereby entitled to hold such offices for life. In 1868 a second convention was held, the made of election changed the tenure from life to a term of eight years, and this Court, then composed of Pearson, C. J., andJustices Reade and Battle, and the Superior Court bench, upon which were several of the ablest lawyers in the State, without question recognized the right of the people by constitutional amendment to deprive them of their offices. It did not occur to either of these judges that they held their offices under any contract, or that they had any property interest therein. So far as the record of our judicial history shows, no question was made of the right of the people by amendment of their Constitution to change the tenure and mode of election of their judges without in any respect abolishing or changing the duties of the office. The Supreme Court and Superior Courts of North Carolina, with few exceptions, were given the same jurisdiction by the Constitution of 1868 which they had under the old Constitution. Whatever status the State may have occupied in its Federal relations from 1861 to 1868, its judges held their offices for life or good behavior, and never by any action on their part forfeited such office to the State; hence, when the State resumed its Federal relations with the United States Government, (156) it did so in respect to its original statehood, and not by virtue of any new source of political life; and if Hoke v. Henderson had been the controlling principle, they were entitled and it was their duty to continue to hold their office and discharge its duties in accordance with the tenure by which they were originally conferred. Of course, we refer to this portion of our history without reference to the actual conditions existing, and upon the theory that the State, in its sovereign capacity, having withdrawn its allegiance from, in the same capacity resumed it to the Federal Government. Texas v. White, 7 Wall., 700; s. c., 6 Rose Notes, 1066. It has never been seriously contended that the judges in North Carolina were not, from 1866 to 1868, rightfully in the discharge of their duties, or that the title to their offices were in any respects invalidated. It is a part of the history of this country that in a large majority of the original thirteen States forming the Union the judicial tenure was, as in North Carolina, for life or good behavior. A large number of these States have, since the adoption of the Federal Constitution, amended their constitutions, making the judicial tenure for a term of years, and in no instance, so far as our research informs us, was the contention made that the offices were the property of the judges, held by grant. The only reference to the question which we find (and that was a mere suggestion) is in Com. v. Mann, 5 W. S. (61 Pa.), 418, and it is disposed of by the Court in the following language: "The point that it is a contract, or partakes of the nature of a contract, will not bear the test of examination."

While we are not insensible to the responsibility which we assume in overruling a case which has been recognized as a controlling authority upon this subject for more than half a century, we feel that we are discharging a duty which the Court of last resort owes when it has become apparent that the case (157) brought into question is not supported by sound reason, and is in conflict with the uniform and unbroken current of authority in the Federal and State jurisdictions. In so far as Hoke v. Henderson is based upon a construction of the Federal Constitution, it is our duty to recognize and enforce the construction put upon that Constitution by the Supreme Court of the United States. We assume that if by any lawful procedure the question could come before the Supreme Court of the United States whether an office created by the Legislature of North Carolina was property, within section 10, Article I, and theFourteenth Amendment to that Constitution, that Court would not hesitate to follow its decisions rather than those of this State. But it is said that we should not disturb a decision so long acquiesced in and so often followed. "If a decision is based upon reasoning that can be shown to be erroneous — that is to say, contrary to the spirit and analogies of the law — it will be disregarded in other jurisdictions, and may even be overruled in the same jurisdiction." Wambaugh's Study of Cases, 53.

In Myers v. Craig, 44 N.C. 169, this Court, referring to a well-considered opinion theretofore rendered, speaking through Pearson, J., says: "It is clear Spruill v. Leary is not sustained by Flynn v. Williams, and, after much research, no authority has been found to support `the artificial and hard rule, the practical operation of which at this day would be to enable one man to sell another man's land without compensation.'" This was regarded as sufficient reason for overruling a well-settled authority in this State in respect to the title to land.

In speaking of the sanctity of judicial precedents, a great jurist uses the following language: "On the other hand, I hold it to be the duty of this Court, as well as every other, to revise its own decisions, and, when satisfied that it has fallen into a mistake, to correct the error by overruling its own (158) decisions." Another Justice says: "It is going quite too far to say that a single decision of any court is absolutely conclusive as a precedent. It is an elementary principle that an erroneous decision is not bad law; it is no law at all. It may be final upon the parties before the court, but it does not conclude other parties having rights depending upon the same question.

"It is no doubt true that even a single adjudication of this Court, upon a question properly before it, is not to be questioned or disregarded, except for the most cogent reasons, and then only in a case where it is plain that the judgment was the result of a mistaken view of the condition of the law applicable to the question. But the doctrine of stare decisis, like almost every other legal rule, is not without its exceptions. It does not apply to a case where it can be shown that the law has been misunderstood or misapplied, or where the former determination is contrary to reason. The authorities are abundant to show that in such cases it is the duty of the courts to re-examine the question. Chancellor Kent, commenting upon the rule of staredecisis, said that more than a thousand cases could then be pointed out in the English and American courts which had been overruled, doubted or limited in their application." Rumsey v. R. R., 133 N.Y. 79; 15 L.R.A., 618; 28 Am. St., 600.

If it is true that a public office is private property, the State, instead of being sovereign, finds herself in her effort, to perform her governmental functions, bereft of her sovereignty, her hands tied, her progress obstructed, for that those whom she has commissioned to be her servants have, by grants of parts and parcels of her sovereignty, become her masters, and, converting her commissions into grants, forbid her to proceed or go forward. That this is not fancy, or an imaginary result of enforcing the principle which we are asked to perpetuate, the reports of decided cases in this court apply show. When it was sought to change the modes of governing the asylums and other State institutions, as (159) the General Assembly deemed best for the public good, it was claimed and held that the State was powerless, because the directors had a grant, based upon contract, by which they were entitled to manage its institutions for a number of years. Wood v. Bellamy, 120 N.C. 212; Luskv. Sawyer, 120 N.C. 122. It was held in Prison v. Day, 124 N.C. 369 (46 L.R.A., 295), that, "Although a new method of distributing the powers and duties of the government and conduct of the State's Prison may be desirable, and the method undertaken to be adopted by the act of 1899 may be best, yet such changes cannot be made until the expiration of the contract with the incumbent." The system of criminal courts created by legislative enactment could not be changed, or the counties in the districts adjusted to suit the needs of the people, because the solicitors had contracts with the State, and held under grants public offices. Wilsonv. Jordan, 124 N.C. 683; McCall v. Webb., 125 N.C. 243. The right of the State to control, as in the judgment of the representatives of the people it thought best, its property interest in a railroad, was perverted, because the directors had by grant property in the office for a term of two years. Bryan v. Patrick, 124 N.C. 651. The power to repeal an act, abolish the office of railroad commissioner and establish a new commission — an agency of purely legislative creation — was denied for the same reason. Abbott v. Beddingfield, 125 N.C. 256. What the representatives of the people deemed an improvement in the public system was prevented, because, with the grant of a public office in his hand, a school committeeman asserted his property right to the office.Greene v. Owen, 125 N.C. 212; Dalby v. Hancock, 125 N.C. 325; Gattis v.Griffin, 125 N.C. 333.

We do not cite the cases for the purpose of criticising them. For the purpose of the discussion, we regard them as the logical deduction to be drawn from the principle that a person (160) may have a contractual right to or property in public office.

The facts in this case strikingly illustrate the wisdom of holding that public office is not private property, thus preventing the State and its agencies from performing its functions in respect to its internal government. It became evident to the Legislature that it would be wise to inaugurate a system of working the public roads of Raleigh Township by the use of the convicts. For the purpose of doing so, a scheme was devised and enacted into law. Officers were provided for, and their mode of election and term of office fixed. In the process of time it became necessary to enlarge the operations to other parts of the county. The plan which had been adopted was found to be wise, and it was desired to enlarge its sphere. It thus became necessary to have other officers, to distribute the duties and subdivide the work. For this purpose the law of 1903 was enacted. The whole scheme looked to and had for its object the public good, the improvement of the public roads, not the creation of offices, to be granted to the mere agents employed for this purpose. The relator finds no place in the new scheme for working the roads; he has no duties or powers, and no salary is provided for him. If his contention be correct, the working of the public roads must be stopped until his term of office expires. This is the logical result of his contention that he has a property right in the office; that he has risen above his source; that instead of being a mere servant or agent, commissioned to discharge certain public duties, he has become the owner of a part of the sovereignty of the State, and at his will a great work of public improvement must stop. This does violence to our conception of the relation which public servants bear to the people of their government.

The following language, used by Judge Nicholl in S. v. Dews, supra, so clearly sets forth the reason upon which the true (161) principle is founded that we quote at some length: "The appointment of him, as well as other officers, is not a grant in derogation of the rights of the public, but the constituting by the people, in the exercise of their sovereignty, of an agent to carry their sovereignty into effect. In creating an office the body politic does not restrict its sovereignty or the power of the Legislature through whom that sovereignty is expressed and exercised. The purpose is to extend the sphere of its action, or at least to give it operation. But if it be true that the officer has a property in his office, that that property embraces its duties as they were prescribed by law at the moment he was commissioned and qualified, and that those duties cannot be changed without a forbidden disturbance of private property, the consequence is that by his appointment the officer becomes placed above the sovereignty of the people during the term for which he is elected."

While it is our duty to search for, and, if happly we find the law, apply it to the case, we think it not improper, in view of the range which the discussion of the principle involved in this case has taken in our Reports, to say, in response to the argument that if the Legislature be permitted to change, modify, abolish or otherwise deal with public office and its incumbents, uncertainty in security and constant disturbance in the administration of the domestic affairs of the State will follow; that ours is a government "of the people, by the people and for the people" ; that, except in so far as they have in their organic law limited their power to speak and act through their representatives, sovereignty rests with them. We, who are commissioned to perform judicial function, may not claim to be wiser than they, or find any other guide for our conduct than the Constitution which they have ordained. If the people have not authorized the legislative department to parcel out their sovereignty by grants of public offices as private property, we dare not do so. The Legislature, having been entrusted with the power of either electing or providing for the election of officers of legislative creation, must, as (162) the representatives of the people, be entrusted to make such changes in the tenure, duties and emoluments of such offices as in its judgment the public interest demands. This power having been vested in that department of the government, it is our duty to obey and enforce the law as the "State's collected will."

To conclude the matter, the doctrine of Hoke v. Henderson is based upon the proposition that public office is private property, with all the results that logically flow therefrom. In so far as that case holds this proposition to be law, we expressly overrule it and declare that no officer can have a property in the sovereignty of the State; that in respect to offices created and provided for by the Constitution, the people in convention assembled alone can alter, change their tenure, duties or emoluments, or abolish them; 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.

The judgment of the court below is

Affirmed.