CLARK and MONTGOMERY, JJ., dissenting.

Upon the facts agreed, which are copied into the opinion, his Honor rendered the following judgment:

This cause coming on to be heard before Starbuck, J., upon the facts agreed, it appears that the Supreme Court, in the cause entitled "State ex rel. Theophilus White v. George H. Hill et al.," has held that chapter 19, Public Laws 1899, is void in so far as it undertakes to appoint the persons therein named to the offices of Shellfish Commissioners therein undertaken to be established, and that chapter 18, Public Laws 1899, is void in so far as it undertakes to repeal that part of (571) chapter 13, Public Laws 1897, which created the office of Chief Inspector of Shellfish, to which office plaintiff was duly appointed.

The Court is of opinion that the plaintiff is entitled to receive salary and expenses as provided under chapter 13, Laws 1897, unless payment of the same has been prohibited by chapter 21, Public Laws 1899, which directs that the State Treasurer shall not pay any compensation for services rendered concerning the shellfish industry unless such persons are authorized to render such services under the provisions of chapter 19, Laws 1899.

It is manifest that the General Assembly, by enacting said chapter 21, did not intend that the Chief Inspector should perform the duties of his office without compensation therefor.

It is equally manifest that said chapter was enacted upon — and would not have been enacted but for — the assumption that by chapter 18 the office of Chief Inspector had been abolished, and that by chapter 19 the persons named therein had been appointed to the offices of Shellfish Commissioners.

The Court is therefore of opinion that said chapter 21 is dependent upon and falls with those parts of chapters 18 and 19 which have been held to be void.

It further appears that said chapter 19, Laws 1899, which provided for the appointment of seven persons as Shellfish Commissioners, further provides that "each of the said commissioners shall receive as compensation the sum of $400 per annum."

It is manifest that by said provision the General Assembly did not intend to increase the salary of the Chief Inspector to $2,800 or to diminish it to $400, but to provide compensation for the seven (572) commissioners undertaken to be appointed.

The Court is of opinion that said provision as to compensation can not be construed as amendatory to chapter 13, Laws 1897, but is dependent upon and falls with the void provision as to the appointment of Shellfish Commissioners.

It is hereupon adjudged that plaintiff is entitled to receive a salary of $75 per month and actual traveling expenses, as provided under chapter 13, Public Laws 1897, from 15 March, 1899, up to the present time; and it is further ordered and adjudged that a mandamus issue directed to H. W. Ayer, the State Auditor, commanding him to issue a warrant for the amount due the plaintiff under chapter 13, Public Laws 1897; and that a mandamus issue directed to W. H. Worth, State Treasurer, commanding him to pay to plaintiff said amount.

H. R. STARBUCK, Judge Presiding First Judicial District.

To the foregoing judgment the defendant excepted. Exception overruled. Appeal prayed by defendants. Notice waived. Appeal bond adjudged unnecessary. The controversy without action and the judgment to constitute the case on appeal. J. C. L. HARRIS, Attorney for Plaintiff. F. H. BUSBEE, 4 December, 1899. Attorney for Defendants.

FURCHES, J.

This is a controversy without action under sections (573) 567 and 568, of The Code. The facts agreed, upon which the judgment of the Court is asked, are as follows:

The General Assembly of North Carolina, in 1897, passed an act to provide for and promote the oyster industry of North Carolina, ratified 23 February, 1897, being chapter 13 of the Laws of 1897. This act is made a part of the case.

That on 23 February, 1897, the plaintiff was duly appointed by the Governor of North Carolina, under the provisions of said act, Chief Inspector for the constitutional term of four years, and was duly commissioned as such, and was inducted into said office and proceeded to discharge the duties thereof. The compensation to be received by him was as provided in section 13 of the act.

The General Assembly of North Carolina, in 1899, passed an act to provide for the general supervision of the shellfish industry of the State, ratified 2 March, 1899, being chapter 19, Laws 1899. Under this act, the persons named in section two (2), namely: George H. Hill, of Washington, Beaufort County; B. D. Scarboro, of Avon, Dare Country; Daniel L. Roberts, of New Bern, Craven County; Robert W. Wallace, of Beaufort, Carteret County; C. C. Allen, of Elizabeth City, Pasquotank County; J. M. Clayton, of Englehard, Hyde County, and Daniel B. Hooker, of Bayboro, Pamlico County, undertook to discharge the duties of Shellfish Commissioners, under the claim that the act of 1897 was repealed by the act of 1899.

That the persons named in the preceding paragraph, having undertaken, under the title of Shellfish Commissioners, to discharge the duties devolving upon the plaintiff as Chief Inspector, and having taken possession of the steamer Lilly, the plaintiff brought suit in the county of Pamlico against said persons to try the title to the office. The record in said case, together with the opinion of the Supreme Court of North Carolina, adjudging that the title of the plaintiff was a valid one, is made a part of this case.

That since 15 March, 1899, up to 20 November, 1899, the defendant H. W. Ayer, Auditor of the State, has refused to issue to the plaintiff a warrant for the sum of $75 per month and his actual (574) traveling expenses, and has also refused to issue warrants to the deputy inspectors appointed by the plaintiff in accordance with the act of 1897; and the defendant W. H. Worth, State Treasurer, for the same period of time, has refused to pay the salary and traveling expenses of the plaintiff as Chief Inspector, and also the $50 per month claimed by the deputy inspectors.

That since the opinion of the Supreme Court has been filed, the plaintiff has again demanded of the Auditor the issuance of a warrant in his favor for the amount of his salary and expenses, and the same has been refused by the defendants. The defendants base their refusal upon the Laws 1899, chapter 21, which is made a part of this controversy.

The plaintiff insists that by the decision of the Supreme Court, hereinbefore mentioned in the facts agreed, he is entitled to a salary of $75 a month and actual traveling expenses from the time of the last payment made to him up to the present time, and that this is not prohibited by chapter 21, Laws 1899, above mentioned. He asks that a mandamus issue to the defendant, the State Auditor, requiring him to issue a warrant for the amount due him under the law, and also that a mandamus issue, directed to the State Treasurer, requiring and compelling him to pay the same, and for all further relief which, under the facts above mentioned and the law of North Carolina, he is entitled to.

It is further agreed that no part of the compensation as provided in chapter 19, Public Laws 1899, has been paid to the persons therein named as Shellfish Commissioners, and that the State Treasurer has on hand of the oyster fund collected under the provisions of chapter 13, Laws 1897, and chapter 19, Laws 1899, an amount sufficient and available (575) for the payment of such salary and traveling expenses as the plaintiff may be entitled to.

Upon these facts the plaintiff contends that he is entitled to a writ of mandamus against the defendants. This contention is disputed by the defendants, and the plaintiff's right to a mandamus is denied.

It has been decided by this Court that the plaintiff is entitled to hold his office of Chief Inspector, to which he was appointed in 1897, for the remainder of his term of four years. White v. Hill, 125 N.C. 194. This is settled, and the question is now presented as to whether or not he shall have pay for his services.

The plaintiff was duly appointed and inducted into his said office in March, 1897, for a term of four years, under an act of the Legislature ratified 23 February, 1897 — being chapter 13, of the Public Laws of that year. Under this act he was entitled to a salary of $75 per month, or $900 per annum, payable monthly. This is not denied by the defendants, but they say that chapters 18, 19, and 21, of the Public Laws of 1899, had the effect to destroy the plaintiff's right to pay. They say that chapter 18 repeals section 13 of the act of 1897, and this is true; and they say that chapter 21 prohibits them from paying a salary to any one not acting under chapter 19 of said act; and it is true that this act so provides. And the defendants say that the plaintiff is not acting under the act, chapter 19, and is not entitled to any pay for his services. But, as it is seen that the plaintiff's office to which he was appointed in 1897, still exists, and that he is entitled to hold the same and perform its duties, it would seem that he is entitled to receive the salary attached thereto. Dalby v. Hancock, 125 N.C. 325; Gattis v. Griffin, ibid., 332.

The Legislature may abolish a legislative office, and this is the end of it. White v. Hill, supra; Hoke v. Henderson, 15 N.C. 1. When the office is abolished this ends the term of the officer holding it, as there can be no officer without an office, and of course no salary (576) without an officer.

The Legislature may reduce the salary of an existing legislative office, if this is done for the benefit of the public, and not for the purpose of injuring the incumbent and to starve him out. But if it clearly appears that it was done for that purpose, it would be void. Bunting v. Gales, 77 N.C. 283; Hoke v. Henderson, supra. In cases where only a part of the salary is taken from the officer, it would have to appear from the legislation itself that the object was unlawful, or the courts would not interfere. Hoke v. Henderson, supra.

But if the Legislature should undertake to deprive the officer of the whole of his salary, while his office still continued, the intent would so plainly appear that the act would be declared void. Hoke v. Henderson, supra; Cotten v. Ellis, 52 N.C. 545.

The plaintiff holds his office under an appointment made in 1897, but he holds and discharges the duties of his office under such laws as may be passed, and in force, during his term of office.

The Legislature on 28 February, 1899, passed an act expressly amendatory of chapter 13, Laws 1897 — this being the act under which the plaintiff was appointed. And on 2 March, two days thereafter, it passed another act upon the subject of oysters and shellfish. This act does not state that it is an amendment of the former acts, nor does it purport to repeal the previous legislation on the subject of oysters and shellfish, except so far as they are in conflict with the act of 2 March, 1899. And on 8 March, 1899, it passed chapter 21, which is stated to be "supplemental to chapter 19, passed on 2 March." (577) This last act prohibits the Treasurer from paying any compensation claimed for services, unless the person so claiming them, shall be authorized to render such services under chapter 19, of which act this act is a supplement.

The Legislature having general powers of legislation, all these acts must be observed and enforced, unless they conflict with the vested constitutional rights of the plaintiff. (We say the constitutional rights of the plaintiff, for the reason that his rights alone are before us for our consideration.)

It is then the duty of the plaintiff to administer his office under the law as it now exists; that is, under the act of 1897, as modified and changed by the Legislature of 1899, chapters 18 and 19, Public Laws 1899.

For the purposes of this action it is not necessary for us to decide whether chapters 18 and 19, Laws 1899, were intended as amendments of the act of 1897, or not. They are both a part of the Public Laws of the State, and must be observed when not in conflict with the plaintiff's vested rights. Chapter 18 is expressly stated to be an amendment to the act of 1897; and chapter 19 does not state whether it is an amendment or not. But both acts are on the same subject, and must be considered together and treated as amendments. And where they expressly repeal the former act or are in conflict with its provisions, the provisions of the latter act must prevail, unless they are in conflict with vested rights. It is so held in White v. Hill, supra, which is expressly put on Abbott v. Beddingfield, 125 N.C. 256, and McCall v. Webb, ibid., 243. And as the plaintiff is not only authorized to perform the duties required by chapter 19, but it is in fact his duty to do so, there can be no reason for applying the provisions of chapter 21; and it is not necessary for us to decide whether it would be valid or not, if it were necessary for (578) us to decide that question.

The fact that the Legislature of 1899 changed the name of "an act to promote the oyster industry of North Carolina" to that of "Shellfish Commissioners," did not abolish the plaintiff's office. White v. Hill, and Abbott v. Beddingfield, supra; Wood v. Bellamy, 120 N.C. 212. Nor does the fact that the act of 1899 changed the name of the plaintiff's office from that of "Chief Inspector" to that of "Chairman of the Shellfish Commission," oust the plaintiff from his office or deprive him of his salary. Wood v. Bellamy, and Abbott v. Beddingfield, supra.

The plaintiff being entitled to his office and to the salary attached thereto, what is his salary under the legislation as it now exists, and how is he to get it?

Under chapter 19, Laws 1899, it seems to us that it has been reduced to $400 per annum and five cents per mile travel, when engaged in his work, and extra expenses not to exceed $50 per annum. We can not say that this reduction was not made for the public benefit, and we have no power to change it, and no disposition to do so if we had. The reduction may be made. Gales v. Bunting and Hoke v. Henderson, supra; White v. Murray, ante, 153.

Then what is necessary to be done to enable the plaintiff to draw his salary? The act of 1897 did not give specific directions as to this. Laws 1899, ch. 19, sec. 9, provides that this shall be done upon the warrant of the Auditor, "which warrant shall be issued by the Auditor upon the certificate of the secretary of said board, and countersigned by the chairman of the Shellfish Commission." This was only a matter of detail, which seems to have been proper to supply a defect in the act of 1897, and was passed when it was thought that Hill and his force would be in office. And we can not, and do not construe this paragraph to mean that the incumbent should not receive any salary for his (579) services. This, in our opinion, would be to construe the act to mean what we think the Legislature could not do ( Cotten v. Ellis, supra), and it would also be to construe it to mean what it does not say, and what we do not think the Legislature intended it to mean.

So, if this direction as to the manner of issuing the warrant can not be literally complied with — in hic verbis — it should be complied with "as near as may be." That is, the certificate should be issued by the clerk of the present board and countersigned by the plaintiff who is acting as chairman, in place of Hill, and the Auditor's warrant should issue upon this certificate.

This opinion might close here, and would do so, but for the arguments urged in opposition to the views we have expressed, some of which it seems to us should be noticed.

It is said that chapter 19 names certain persons as commissioners, and that the plaintiff is not one of those named in the act. This is true. But the act does not provide that the salary shall be paid to these parties, eo nomine, but to the commissioners performing the duties prescribed by the act. Suppose any or all of the commissioners named in chapter 19 had died or resigned, is it contended that still they should receive the salary, or that the work should stop and the commission fall through and fail on that account? They are out, and so far as we know, are not claiming any pay.

It was said this Court had no jurisdiction of this matter, that it only has appellate jurisdiction, that the assumption of such jurisdiction is unheard of; that the judgment of the Court will be ultra vires, unlawful, unconstitutional and void, and that the Legislature may declare it unconstitutional; and if it should do so, and the Treasurer should obey the judgment of this Court, he might be in danger. This (580) argument seems to proceed upon the idea that this proceeding was commenced in this Court, whereas the record shows that it is here on appeal from the Superior Court of Pasquotank County. And it would seem that the slightest examination would have shown that it is not a proceeding unheard of before.

In Marbury v. Madison, 1 Cranch., 49, which was mandamus against James Madison, Secretary of the United States, it was held that the action would lie.

In Cotten v. Ellis, 52 N.C. 545, which was a proceeding in mandamus by Cotten, claiming a salary as Adjutant-General of North Carolina against John W. Ellis, Governor of North Carolina, it was held that the action would lie, and the writ was issued.

But a more recent case is that of County Board of Education v. State Board of Education, 106 N.C. 81, in which it was held that the action would lie, and the writ was granted. The opinion of the Court in that case was written by Justice Clark, and seems to be a direct authority for issuing the writ in this case.

The opinion in Cotten v. Ellis, supra, is not only authority for granting the writ, but it would be well to note what the Court says, near the close of the opinion, with regard to the execution of the writ, which is in these words: "We do not enter upon the inquiry as to how the writ will be enforced, because we are not allowed to suppose that the question will arise, feeling assured that the sole purpose of the Governor is to obtain a judicial construction of the statute in question." The opinion ( Cotten v. Ellis) also contains this language: "A statute which reduces a salary during the term of office, and one which takes away the salary altogether, stand on different footings, for in the latter (581) case, the object would evidently be to starve the incumbent out of his office, and thereby do indirectly what could not be done directly, so as to make applicable the remarks made in the case of Hoke v. Henderson, in which there seems to be much force, that such indirect legislation is as obnoxious to the charge of being unconstitutional as an act directly depriving one of his office. A proper construction of the statute does not lead to the inference that it was the intention to abolish the salary, in the event that the applicant still continued entitled to the office and liable for the discharge of its duties. On the contrary, the clause which repeals so much of the ninth section as relates to the salary is a mere corollary or incident to the clause which repeals so much of that section as relates to the appointment of the Adjutant-General, and consequently the one can not, by any rule of construction, be made to extend in its operation further than the other." To hold otherwise, the Court says, "would be to place the Legislature in this attitude — we mean to abolish the office, if we have not the power to do so, then we mean to deprive the present incumbent of his office; if we have not the power to do that, then we mean to take away his salary."

The facts in Cotten v. Ellis are so clearly the same as the facts in this case, is our excuse for quoting so much of the opinion.

Before the suggestion that the Legislature may declare the opinion of this Court unconstitutional may be adopted by any one, we ask them to read the opinion of Chief Justice Marshall in the case of Marbury v. Madison, supra. It is a full and complete answer to this suggestion. We would like to incorporate the whole of that opinion in the opinion of the Court in this case; but as this is impossible, we will again have to ask to be pardoned for making some quotations from this very able opinion, emanating from the mind of probably the greatest (582) jurist this country has produced. It fully sustains the doctrine of Hoke v. Henderson, 15 N.C. 1, that an office is property — a vested right — of which he can not be deprived. It discusses the relation of the government to the citizen, the supremacy of the Constitution over ordinary legislative acts, the relation of the executive, legislative and judicial departments of the government, and shows that all three of these departments are equally bound by the Constitution, but within their own departments; that while it is the exclusive right of the legislative department to enact laws and the duty of the executive to enforce them, it is the exclusive right of the judiciary to construe them, and to say whether they are repugnant to the Constitution or not. The idea that the executive or the legislative department has any right to put a different construction on a statute or a different construction on the Constitution than the Court has, is utterly repudiated. On page 59 (1 Cranch.), it is said: "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of vested legal rights." And on page 61, it is said: "But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the law of his country for a remedy."

On page 62: "The question whether a right has vested or not is in its nature judicial and must be tried by the judicial authority."

On page 64: "What is there in the exalted station of the officer, which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the claim, or to issue a mandamus directing the performance of a duty, not depending on executive discretion, but upon particular acts of Congress and the general principles of law?"

On page 66: "The doctrine therefore now advanced is by no (583) means a novel one."

On page 67: "If Congress remains at liberty to give this Court appellate jurisdiction, when the Constitution has declared their jurisdiction shall be original, and original jurisdiction when the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution is form without substance."

On page 69: "The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is no law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. . . If an act of the Legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the Court and oblige them to give it effect? Or in other words, though it be no law, does it constitute a rule as operative as if it were a law?

On page 70: "It is emphatically the province and duty of the judiciary to say what the law is (the italics are ours). . . . 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 the case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."

We can not quote all of this very able and exhaustive opinion, but we trust that we have quoted sufficiently from it to establish the (584) separate independent jurisdiction and power of courts to decide the law, and to show that neither the executive nor the legislative department has any such power.

Our opinion then is, that the plaintiff is entitled to the salary and compensation provided for in the act of 1899, chapter 19 (and the same that Hill would have been entitled to if he had remained in office), to be paid by the Treasurer of the State, out of the oyster fund appropriated by the act of 1897 and the act of 1899, admitted to be now in his hands: Provided, that the expenses of this commission do not exceed the sum of $6,000 per annum, and that the certificate and warrant shall be issued in the manner we have indicated.

This action is to recover the salary of a public officer. The facts are agreed, and from these facts it appears that there is now money in the hands of the Treasurer, more than sufficient to pay the plaintiff, which arose from the oyster fund, under Laws 1897 and 1899, that this fund is specially appropriated to the payment of the salaries of officers serving under the act of 1899; that the Auditor and Treasurer are honest men, and faithful public officers, and want to do their duty. They wanted the opinion of the Court as to what that was, and neither of them nor their counsel made any objection to both being defendants; but it is made, and it would seem that the party making it can see no difference between the salary of a public officer and a claim against the State; nor can he see the distinction between Garner v. Worth and Cotten v. Ellis.

The judgment of the court below will be modified in conformity with this opinion, and being so reformed, judgment will be entered in this Court.

Modified and affirmed.

FURCHES, J.

Cited: Taylor v. Vann, 127 N.C. 251; Corporation Commission v. R. R., 137 N.C. 21; Battle v. Rocky Mount, 156 N.C. 339. Overruled: This case has been overruled, with the whole class of cases to which it belongs, from Hoke v. Henderson, 15 N.C. down, by Mial v. Ellington, 134 N.C. 131, which put an end to the doctrine of property in office in this State.

(615)