*1 '76 IN THE SUENEME COURT. op McIyer.
Trustees North Carolina v. to the in its citizen. The more a law can application general made, the more it is to be likely understood, remembered .and certain within obeyed. Special regulations, applying only limited all localities, serve ex- perplex professional and continues to perts, oppress ignorant. The and Aldermen of must Mayor Wilmington gov-
n ernedin taxes, their the valuation of levy city the Town- Trustees. ship below reversed, and Judgment judgment
Per Curiam. for the case plaintiff according agreed. CAROLINA,
THE TRUSTEES OF THE OF NORTH UNIVERSITY ALEXANDER McIVER.* 18, The IX, adapted Sec. Art. General|Assembly, February, peo- and satified 187°,was¡adapted ple XIII, accordances provisions with' Sec. is a thereof. act of 1873-’4 the election of Trustees of Chap. providing for
the University, passed provisions in accordance with the Constitution, and the elected act were properly under that elected. of the Su- Term, 1874, brought Spring
Civil actioN perior Court OraNge heard county, plaintiffs’ defendant, demurrer his Honor, before answer June, at the 12th Chambers, on Judge Tourgee, day Uni plaintiffs, versify be Trustees claiming argued (January) Term, hut account of case was at last on *Note. —This present, disagreement th« the illness of Justice who could not be the Chief points, an the members of the one of the advisari was taken Court Term. A 7T TERM, 18. university or North McIvbr. Carolina of 1873-74, Act prescribed elected State, being for the An act election of entitled chapter *2 Carolina,” of North which act was of University the Trustees of the ix, Art. amended Consti- 5, of sec. in pursuance passed action defendant, tution, against Superinten- bring to recover the Instruction, books, seal records, of dent Public University, of of the- custody and property the Board of Education. order of defendant by answer, in his denies are plaintiffs The defendant that the of the amendments- University, Trustees alleging of 1871-’72, Act Constitution, proposed chap. 24th and 53, requisite majority, of passed day again 1873, 86, and 1872~’73, of submitted chap. February, (Act ratification Act of for rejection, by the people 1872-73* and never ratified 153, wore the re- passed according chap. 2, xiii, sec. Art. and are Constitution, quirements And for second defence, thereof. the de- no therefore part insists, if the amendments were and duly passed fendant the General of Trustees by still the election Assembly* ratified, 64, 1873-74, was not authorized chap. under the Act amendments, void. consequently those to the defendant’s answer, demurred The plaintiffs alleging- of his was bound the certificate the Court Excellency the Great the State and attested Seal de- Governor, State, that his the office Secretary posited had no look behind authority Honor, investigation, defence defendant,, and as to the second of the certificate; “ insist, that the power Legislature having pro- the plaintiffs the sole Trustees,” of the- judge vide for the should be in which that exercised. manner with the defendant both opinion His Honor being raised overruled the pleadings, questions demurrer* the plaintiffs appealed. from which judgment Battle cfi- and J. W. Son Graham, Moore c& Gatling, appellants.
Batchelor, contra. IN THE SUPREME COURT.. University McIyer. oe North Carolina J. before the Bynum,
amendment now to be construed, was as follows : The Board of Education shall elect Trustees of the University follows: One for each in the State, whose term of County officeshall years.” Sec. The amendment eight Constitution strikes out section substitutes the follow- “: The General shall have ing Assembly the election of Trustees of the etc. After this University,” amendment was declared of the Con- stitution, act these Assembly words: passed “ The General North Carolina do enact. In pur- suance of the the 5th Section 9th authority granted by Article amended that there shall be sixty- four of North Carolina elected *3 of ballot both Houses General on the joint Assembly, of 29th 1874, whose term of office shall be day January, eight act, In this etc. Trustees were pursuance elected, years,” who action of the Uni- corporate bring property versity.
Two 1st. are made: Was this amendment duly questions a % ratified, so as to become of the Constitution and 2d. part ratified, the amendment to have been was the duly Supposing of Trustees in therewith. conformity The Constitution two modes its provides amendment— one a Convention to be by called General Assembly, and the other as follows : No of the Consti- of this State a tution shall be altered unless bill to alter the three shall have been read times House of same each agreed three-fifths of Assembly General whole number of members of each House shall ; nor any respectively to, take until the shall have alteration bill so been place, agreed six months to a new election members previous published If after the altera- such Assembly. publication, Assembly shall proposed by preceding tion thereafter, the first session two thirds of the to, agreed in each House whole General Assembly, representation TERM, IS"» Carolina, oe North McIver. v, times, have read three on three sev- the same shall been after House, then the said General shall Assembly in each eral days or amendments which the amendment a mode by prescribe voters for members be submitted qualified and if the State; House of throughout Representatives, whole it shall State, the votes given appear comparing thereon, have of the voters that the voting approved majority otherwise, the a thereof, then, and not same become part Art. 13. Sec the Constitution.” our General bill was duly provision, passed Under amendments, contained seventeen which including Assembly, After a new to the University. the one relation therein next General nine election, the rejected adopted Assembly in- had all amendments, these been previously eight bill, one each adopted incorporated corporated bill, and in that form sub- nine amendments separate to the vote of the who each mitted them people, approved thousand votes. nearly forty by majority amendments were constitu- these It insisted is, invalid. and are therefore tionally adopted, argument that the same contemplated required amendments, same should have and the change, bill and that it no each General Assembly, the approval the second General because followed adopted means seventeen amendments ontof eight adopted separately have that would Assembly, first General seven- them, if had been voted they teen *4 in form the first And it is adopted by body, body. second in fact, second did Assembly, reject urged in that form, only them, and that them adopted eight them into after bills. And that separate shaping eight it not does follow because second General As- conversely, in amendments eight sembly adopted eight separate would bills, first General have so adopted thj them, that some one or more or any amendmjj the second General have Assembly might beej rejected m THE SUPREME' COURT. oe North Carolina MoIver. cause of the of the seventeen' as a whole, inducing adoption n first And that there thus, was not the Assembly. two the same amendments, Legislatures upon concurrence spirit to the words and of the Constitution. according down Constitutions do not deal lay propositions, general details, these be worked in out leaving Legislature. it these If can shown amendments or of them, in have not been made accordance with the rules prescribed fundamental law, law and every principle public the Court sound requires policy pronounce them. against But this cannot be shown. have They been in ac- adopted with the cordance because each language amendment has all the forms of en- passed through legislative actment that instrument. do violate prescribed They in of the Constitution the manner of their spirit adoption, they assumed finally although shape eight separate bills, are they identical amendments eight adopted by }’et first it cannot be shown the amend- why Legislature, in ments bills would not have been in adopted as valid eight bill, as one or why should have originally passed, been they less were valid-because they bills instead adopted eight one. The substance and even form the amend- precise ments were the same and unaltered from their incep- their tion to consummation the Constitution. The proposed mendments were of distinct of the Con- independent parts stitution, and were as so when much in one bill, incorporated when bills. There is incorporated our eight nothing law which inas some States, that requires, each matter subject in a legislation put bill. These amend- separate are ments therefore valid just one bill as the eight and it bills, awas matter appears change supererogation, more calculated to raise doubts than to solve them. But the do not derive their force from the Legislatures jflfeiendments devised but from them, Hkkik who ratified them, people iHwn this case have they with no uncertain spoken sound. Convention framed these amendments, unques- I^^^a *5 81 TERM, op University Carolina North McIver. had the them would have submit power tionably peo- as actor several. The of the one General ple power Assemb’y from cannot be distinguished Convention powers its amendments vote.. question submitting popular voice of the When the people constitutionally expressed favor, their the amendments become are fun- damental law.
At last all the of the term, members Court then present, concurred the amendments the Consti- opinion ratified, tvtion were and it was so duly announced publicly from the on the Bench, The was not then argument. opinion the Chief absent filed, because was reason of sick- Justice and it is ness, desirable to have full Court always on consti- tutional and because it was some of doubted questions, of the Court whether action trustees Legislature, electing of the University, as conformity Constitution amended. “ The as amended, is that The provision General shall have for the Assembly power election provide oí the of Trustees &c. University,” Accordingly, body “ did enact follows : North Assembly Caro- ,In lina do enact: of the pursuance the- authority granted the ninth fifth section of article of the Constitution, that there ,the shall be Trustees of sixty-four of North Caro- University lina of both Houses elected ballot of the by joint General As- &c. at this of the act sembly,” Looking itself, Legislature by reference to the can there one “ it, and that is that put construction it does for provide of the the election Trustees and is a literal University,” com- with amended. It pliance however, that it is, was not the objected Con- meaning ” stitution, the election body provide should have the to make the not ? election. Why Con- stitution does not it, forbid nor does any electoral designate to be made. In body by conferring upon the election of.
6 THE COURT. SUPREME IN' MoIyeb. North Caroeina *6 whole subject Trustees, with the clothed and the became exhausted, Legislature was limited unless it bemay parts power, supreme that it was indelicate to It no urge Constitution. argument trustees, for the which election provided for the same body . n afterwards ais to make the for it ; itself to proceed in its exercise. and not one eqtiqnett 'question n Buteven innumerable political here we have examples and both legisla- this where constitutional country, history fill then to offices and have first created proceeded tive bodies bodies which created out of the members of (cid:127)them, very even unusual in American history. This the offices. his should direct a agent merchant Raleigh Suppose ” a of cotton to shipment cargo York New order, with the it be less Would compliance to Liverpool. instead of furnished the himself shipping the agent because indi- or an ? When the Constitution others it from hiring manner and no more, to be done authorizes vidual thing There is not nothing it is left to agent. of doing the Legislature the Constitution forbidding article this makes such election is no reason which there trustees, elect What was of the instrument. with the spirit inconsistent intended the Constitution was -evil amendment, the Constitution provided Prior ? remedy n Education, the Board of should be elected trustees a limited Univer- had but control and Legislature the Univer- causes, or from other and under system, sity, and had finally suspended operations. had languished sity war, in force the old Constitution prior under But n trustees Institution and the elected by Legislature were and had flourished and control, capacity its under was n was regarded and ornament of the as the its friends pride bj amendment under discussion Now purpose State. amend- debates and was, resulting public (cid:127)avowedly to restore the its cavil, purpose beyond show ment, existed un- which the same form government University 83 TERM, L175. McIver. of North Carolina v. its ad was believed which, der the old former its restore that school vocates, learning would find that the we very Accordingly prosperity reputation. and was this amendment con which legislative body ratification, its immediately versant with its meaning, therein are now construing, the act provided we passed were the war. trustees elected before for the election of as they drafted the constitutional Thus very legislative body construction of amendment, meaning gave legislative entitled therefore, its terms. This peculiar interpretation, on case, Penn., 578; Elections, 29 Lewis' Brightly respect. note; 6 Dodd, ex 152 677, 678, ; cases parte Eng., 69; on Wheat, 291; Cooly Story Sanders, Ogden *7 Const., 407. 3, the is See. of the 16,
But made that Con- objection this the from election. stitution, prohibits Legislature making “ That section in these words shall nomi- : Governor the and nate, and with advice consent of by majority Senators all officers whose offices are so es- elect, the appoint or which shall be tablished this created not and whose are otherwise law, for, provided appointments no the such officer or elected Gen- appointed it eral that this section Now, clear the Con- Assembly.” the stitution was from not meant prohibit at Sections 20 any all, 11, and.22, officer for of Arti- electing express Section Article terms for cle.2, the the election certain officers Assembly. of the Constitution that it is,
true construction of section the General of “those Assembly only election by prohibits not whose are otherwise for;” officers provided appointments their is otherwise provided where but appointment be, it mode, that whatever whatever may valid is as other prescribed electoral body, any expressly is, after all, instrument. So what is single enquiry that amendment of construction Constitution proper Section in relation uncontrolled .10 or University, COURT. 84 THE SUPREME nr Univcrsity MoIver. oe North Carolina do to not For will Constitution. other provision any and not amendment, 10 controls that Section say of construc- 10. The principles amendment controls Section if there amendment, 10 subservient make tion Section the en- them. Even where between an conflict irreconcilable instant of time, at the same formed instrument was tire are Constitution if of the written two is, rule provisions of time is last point irreconcilably repugnant, 58, note. is to be Cooly position preferred.” and local be- a real and conflict therefore, there was irreconcilable If, 10, or the amendment Sec. tween if the had Constitution, as for amendment example, provided, Trustees of the shall elect Legislature expressly, construction, rule of University,” every officers, all as to that others, class would control particular leave the at the same time clause of it would prohibitory in all other If this is the rule,- 10 full force cases. Sec. follow that amendment the Consti- it would engrafted upon intended to make would tution, expressly change, although fail, with instrument it was if it conflicted any part very But there is no between Sec. 10 and to alter. conflict intended as effect to both amendment, provisions; given the other merely provisions qualifies these by giving only, Sec. Legislature, leaving prohibition operate therein for. To illustrate: Almost the cases provided in all *8 either or some of repeals suspends act incorporation every the law the less land, law of the is not yet the ope- general of also, So the amendment is not unlike in all other cases. rative in a an exception grant. the amendment conferred it is that upon
Bvt only objected the exercise, the and not to power delegate, the Legislature the that franchise, that election therefore, by body elective if In this it not as an affirmed, be void. reply a a safe that where the body proposition, axiom, yet an limitations or re- authority, delegating power 1875/ 85 TERM, or North Trustees Carolina McIver. v. it has the
strictions, there itself the dele power doing thing It do, act can authorize another to may perform any gated. the that the less is included in the upon principle greater. Mass. Packman, 326; Rice Cooly it is that in But the the again objected, electing an which is forbidden executive power, usurped Legislature if not the of the Constitution. Now the the words theory, an executive, of officers is not or election legislative judicial but the offices mode created law, power, filling or whether to one the other. The department they belong is of a nor the election of judge judicial power, all an if so, a Governor executive elections the power; the would be executive depart- infringement people true test whore does the Constitution is, ment. The lodge Government, the various public agents power electing mind, and it conclusive whether judicial in the one or the other branch, is found to be con- lodged all these which the into au- currently departments snpreme of the State divided. thority that of the Constitution was there should be
The purpose and that should elected of the University, they Board of Education. purpose is, shall no be elected Board Education, that they longer to that provide, in such the Legislature may way unlimited, end, vested as to the body, number and the Trustees, election, mode both leaving This view is and discretion of wisdom Legislature. amendment with when we compare more apparent, Sec. Art. 1, For 3, of the Constitution. example, pro- parts &c., shall be elected for term Governor, vides “ the State.” electors of Sec. 21, qualified four years, by a clerk Court 4, each provides Superior Art. voters thereof.” shall be elected Sec. qualified county, Justices Snpreme provides “ elected qualified Courts voters of Superior and so to all the other officers of State,” regard *9 COURT. THE SUPREME IN 86- MoIver. oe North Carolina intended, mode of election was Wherever particular State. inas these terms, pro- and in direct examples, it was plainly If, had therefore, this in the Constitution. vided so declared election, it would have one mode of intended any declare, who is to As it did not so terms. like express the whole which power decide, body upon but Legislative is conferred? for all two modes of election
The Constitution provides and the other by one officers, Legis- people public intended that the should was not people lature. It certainly A to elect University. elect the Trustees of proposition at It would be absurd. large people sixty-four railroads, directors of reasonable thus to elect would be more institutions State. charitable penal it or as may, mode of election Legislature, The amendment two courses as in this case, opened prescribes. some other body, either to devolve the election on body, It for the or to exercise the itself. selected purpose, latter A constitutional chose the body gen- course. wisely State, chosen by from tlemen, every county people deliberation assembled fitness, for their supposed together most welfare, laws for the is the and the enactment of public those who are Trustees, worthy fit to choose eminently duties of the office. the gratuitous disposed discharge has a of the United very The Constitution States we are now to the amendment considering. similar manner such Sec. each State appoint, provides electors,” The con- direct, as the thereof &c. Legislature been, this clause of the Federal struction of that it confers to elect Legislature Commenting refer the election people. pro- of the Federal uses this t vision Curtis language “In this that each State should place proposed appoint, manner as direct, such number of might Legislature* electors to the whole number of Senators equal Repre- be entitled Congress sentatives State might TtERM, *10 McIyer. Trustees ÜNivERSrfx.fiTNó.'RT’a Carolina the Constitution upon. under of already agreed the provisions that it referred the mode of were, of this plan advantages that themselves, States so they the electors appointing a the election, or election by 6onld a Legislature, adopt popular Hist, the 389. To Const., Yol. they prefer.” might the “It is observable the same effect Story: language Constitution, is that “each State in such appoint thereof the may direct,” manner as the number of Legislature State is entitled. Under this authority electors to which the has been variously the of electors the provided by appointment In States the State some have Legislatures Legislatures. in others themselves; their electors have by they chosen directly a ticket, the the by by general been chosen people through in and in others electoral State; whole districts people a certain number electors fixed Legislature, being has ever each district. No arisen as question appointed mode, of either of a direct constitutionality except choice Legislature. able often doubted this, But though ingenious ever established since minds, practice, has been firmly does now seem to admit adoption a tribunal existed even if suitable of controversy, adjudicate States, all the it. At electors present, are nearly upon ticket, by general chosen either State people Com. vol. Const., on sec. 1466. that al- So Legislature.” has some diversity there been the'construc- opinion, though of this been tion set- finally in favor tled legislative power. from reason and conclude, therefore, both authoirty,
We ex- electing University, only Legislature them conferred the Constitution. ercised power was not in attendance, C. J. I owing sickness, Pearson, last ustices at the term of the Court, the Associate J had when consideration. under case inform me there was no difference opinion They THE IN SUPREME COURT. of North C/.rolina Met ver. the ratification at the Au people question all of the amendments to the 1873, of Constitution which gust, to a vot<(, were submitted the Associate Justices concur conclusion the amendments were red duly adopted, form Constitution. I concur part opinion. Justices further Associate inform me there awas dif- on the ference as to opinion question constitutionality “ the the act which provides shall elect Trustees of the advisari University;” was taken for the me to take enabling decision purpose of that question. *11 amendment under
The consideration strikes out 5, sections 14 and 15 of Article 9, 13, “Education,” and “The enacts, shall have to Assembly the election of the of Trustees North Carolina.” is It is said general power restricted aby prohibition in section “Executive Department.” “And no such shall be or elected officer the appointed Assembly.” (his to reference in prohibition No made the amendment, is: The the argument original and the amend- are to be construed ment The together.” amendment is to be as if it had been inserted in the considered Constitu- original An cannot express prohibition be tion. made to to an yield from drawn the inference words used in general the conferring the General Therefore, power. power to pro- the election of in vide for Trustees, any mode, save that the an election members of its own body. follows, This conclusion the provided premises admitted: an true, the amendment Is proposition Constitution is if it as had in considered, been the to be original instrument? of this In reliance is support proposition, put a settled rule of construction in analogy to regard amend- in in both courts of ments law and of pleadings, but equity; in A cannot my opinion point. party amend his without the leave of the obtaining Court; ¿pleading order to from benefit his party omission having to in- prevent TERM, MoIyek. Uhivebsity North Tbustees oe Cakoeina sert the matter in leave of the Court the original pleadings, condition, the amendment shall be on the consid- given ered, in the first instance. it had been inserted as if Constitu- accordánce provisions people, voting leave of tion, have anybody asking power, —to time, at alter or the Constitution make, amend, any modify see There is no occasion for extent fit. any majority legal fiction, condition or for resort to any putting amendment, the Courtis take fact construction upon as it made is, the amendment was adoption after amendment, and is full effect to bound give will of true, as the the Con- last people; expression are to ;bnt stitution and be construed together far the Constitution mnst is to see how original yield, object As the effect to the amendment. in order to full give is without restric- the General Assembly conferred upon the amendment without- full effect tion, cannot given instrument contained in the making prohibition original to the extent of respect allowing exception yield Trustees of the University. or election of appointment construction of codi- The rules Courts for adopted by furnish a and are cils, doubly more point. apt analogy law, revoke, the formula can testator, observing required at amend, alter or his such extent will, modify anytime is minded the look the last ; he Courts codicil *12 will, it, of his and full effect to by making expression give far as will” as is yield purpose. “the necessary it had in- must considered as been codicil be fiction if to, and Courts full the will is resorted give serted the will, that the made and the fact codicil was to weight after to the intention of the testator had been the extent codicil, the words of effect giving judged changed far it with the so as only, will codicil construing to from the will be allowed detracting can operate of the codicil. effect in reference to the General body
So, Assembly, IE THE SUPREME COURT. of North MoIver. Trustees Carolina or amend An statute. repeal any prior amendatory statute is construed with reference to the fact that it was en- statnte, and the acted of the second original portion after if it had statute considered as been inserted in the first, being has been as never suggested.
So, in reference to a deed deeds; rescind party of a second or alter it execution deed. There is ne- no for the leave one to enable them do cessity so, give deed, the Courts full the last effect expressing intention the first deed referred to parties, being for the far must how he purpose order to yield seeing full effect to give the last.
Thus, codicils, it seen that in amendments to construing statutes, and the alteration amendments deeds, the Courts fact that one is made give weight other, that an amendment topleading after thefietion is to be had considered as been inserted the first in- if stance, stands isolated, and confined to the case of an amend- ment to on because which it pleading, special ground rests. mode “the Board of Educa- electing ”
tion had not been with a attended favorable under result; “ the old mode of the members of the electing institution had flourished until Assembly,” so, the former war; desolation when blighted discarded struck out the Constitution, it was that the old mode would naturally expected These are be taken into again parts history, adopted. consideration the construction of the amend- bearing upon and seems ment, to me conclusive. to be Had the amendment The Trustees shall be provided: elected the members of the General so Assembly,” as to the old it would mode, many words, so have had adopt and free from ail room for direct advantage construc- being tion, it would to one have been exposed objection urged the mode which the amend- against *13 TERM, 1875. MoIver. oe North Carolina in the mode be no strikes to-wit: there could out, change ment funda- all incident to changes delay expense an power unrestricted law; whereas, mental by conferring the old body adopt General could Assembly, first in- and if the mode mode, other, or some adopted another unsuccessful, set aside substitute stance proved for if the General Assembly instance, ordinary legislation; re- the old under the new conditions mode, that, war, from the did not a success—then another sulting prove mode—an Alumni of could be University, or other which wisdom tried, circumstances might, of the General be deemed expedient. Assembly, that under the to the elec- power provide objections, tion of conferred the General Trustees, Assembly, members, its for an election not own could body Uni- history met reference past besides being of the law. It is settled— is opposed versity, analogy confers ab- A do as he with, a will of to to pleases, property an If unrestricted power appoinment solute ownership. if the whom for, party confers ownership,
given it, is that he does not exercise the'presumption given, the law This inference of to himself. makes appointment nature, of human and the effect on knowledge based self-interest, corporate presumed among prevail in- civil, as well whether bodies, merely among political others, and with deference the opinion my dividuals ; human nature and is, principles conviction according un- law, them, based upon the analogies granting Assembly, it was mistakable power amendment, the intention of the it was expected, election, and mode of should old adopt answer, that not then substitute should body another. reversed,
Peb CuRiam. judgment Judgment the demurrer. plaintiffs upon