State Ex Rel. Caldwell v. Wilson

Douglas, J.:

This is an action in the nature of quo warranto, brought-to try the title to the office of Railroad Commissioner. The defendant was suspended by the Governor under the provisions of Section 1 of Chapter 320 of the Laws of 1891, known as The Railroad Commission Act, and the plaintiff appointed to fill the vacancy so created. The part of tlie Act now under consideration is as follows:

“Said Commissioners shall not he jointly or severally, or' in any way be the holder of any stock or bonds, or be the agent or attorney or employee of any such company, of have any interest in any way in any such company, and shall so continue during the term of his office; and in case any Commissioner shall, as distributee or legatee or in any other way, have or become entitled to any stock or bonds or interest therein of any such company, he shall at once dispose of the same; and in case any Commissioner shall fail in this, or in case any one of them shall become disqualified to act, then it shall be the duty of the Governor to suspend him from office and to report the fact of his suspension, together with the reason therefor, to the next General Assembly; and the question of his removal from office shall be determined by a majority of the General Assembly in joint session. In any case of suspension the Governor shall fill the vacancy, and if the General Assembly shall determine that the Commissioner suspended shall , be removed, then the appointee of the Governor shall hold until his. successor is elected and qualified as hereinbefore provided,, but if the General Assembly shall determine that the suspended Commissioner shall not be removed from his office,, then the effect shall be to reinstate him in said office. The person discharging the duties of said office shall be entitled1' to the salary for the time he is so engaged, but the Commissioner who is suspended shall be allowed the salary during his suspension in case he should be reinstated by the next General Assembly.”

The following facts appear from the record: On the 24th day of August, 1897, the Governor wrote to the defendant calling his attention to the said Act, reciting certain allegations as to the defendant’s connection with the Southern Railway Company, and requiring the defendant to show cause in writing on or before the first day of September, 1897, wliy he should not be suspended from office, and a report thereof made to the next General Assembly.

On the 30th day of August, 1897, the defendant filed with the Governor his written answer, among other defences, denying the power of the Governor to suspend him, and alleging the unconstitutionality of that portion of the Railroad Commission Act authorizing such suspension.

On the 23rd day of September, 1897, the Governor notified the defendant in writing that after due investigation and consideration he was convinced that the defendant had violated the Railroad Commission Law in some of the particulars mentioned in his letter of August 24th and that the defendant had not only violated said Act in the specifications set out in said Act, but that the defendant had otherwise within the meaning and intent and words of said Act become disqualified to act; and that therefore he, the Governor, did suspend the defendant from the office of Railroad Commissioner and Chairman of said Commission, and did appoint thereto the relator, Caldwell.

The defendant on September 24th, replied to the Governor as follows: “Sir: — Yours of the 23rd inst. is hereby acknowledged. In repty I will say that I shall disregard your order to suspend, but will continue to do business at the old stand until removed by a tribunal other than a self constituted ‘Star Chamber.’ ” The relator qualified at once, and demanded of the defendant the possession of the said office, together with all its records, which was refused by the defendant.

Thereupon the relator brought this action to recover said office, and filed his complaint, fully setting out his cause of action. The defendant answered alleging that the Governor had no power to suspend him; that if such power existed, the Governor had attempted to exercise it in an arbitrary and unlawful manner, without giving him the fair hearing to which he was entitled by law; that the part of the Railroad Commission Act authorizing such suspension was unconstitutional inasmuch as it imposed additional and unusual qualifications for said office, and interfered with the independent tenure of a judicial officer, and deprived him of his property in said office “without due process of law;” and that his suspension in manner and substance was in violation of the Fourteenth Amendment to the Constitution of the United States. At the conclusion of the reading of the pleadings the defendant tendered the. following issues and demanded a trial by jury:

1. Is the plaintiff' entitled to the office of Railroad Commissioner?

2. Does the defendant unlawfully intrude into, hold and exercise the office of Railroad Commissioner and Chairman of said Commission?

3. Has the defendant acquired any interest in any way in the Southern Railway Company in violation of law?

4. Has the defendant become disqualified to act as a fair Judge or Commissioner, or has he become in any way disqualified to act?

5. Did the defendant, prior to September 1, 1897, sell and convey for a valuable consideration the Round Knob Hotel to R. M. Brown?

6. Did the defendant demand of the Governor that the evidence against him be produced and that he have an opportunity to confront his accusers and cross-examine the witnesses against him?

7. Was said demand refused?

8. Was any evidence produced?

Thereupon the plaintiff moved for judgment upon the complaint and answer. The defendant here claimed that such motion was irregular, and that the plaintiff should either demur or go to trial before the jury. Iiis Honor, then, by consent, heard argument both upon the right to a jury trial and upon said motion for judgment. The defendant’s exceptions were as follows: “During the argument the defendant contended, among other things, that the Statute, Laws of North Carolina, Session of 1881, Chapter 320, Section 1, and the action of the Governor set out in the pleadings, deprived him of the equal protection of the laws, and deprived him of his office without due process of law, as set out in the answer, and therefore the Statute and said action of the Governor were in violation of the Fourteenth Amendment to the Constitution of the United States, and he expressly claimed the protection of said Amendment. These contentions were' disallowed and the defendant excepted. Exception 1.

Exception 2. The Court- refused to submit the issues tendered, or any issues, and the defendant excepted.

Exception 3. The Court further ruled that the plaintiff was entitled to judgment upon the pleadings. The defendant excepted.

Exception 4. The defendant moved for a new trial for the foregoing alleged errors. Motion overruled and the defendant excepted.”

Thereupon judgment was rendered in favor of the plaintiff relator as follows: “First. That the defendant James W. Wilson has been duly suspended from his office of Railroad Commissioner and Chairman of said Commission, and is unlawfully holding and exercising said office. Second. That the relator, L. C. Caldwell, has been duly appointed to fill the vacancy caused by the suspension of said James W. Wilson from said office. Third. That the defendant James W. Wilson be ousted from said office of Railroad Commissioner and that the relator L. C. Caldwell be inducted into said office and that the relator L. C. Caldwell recover of said defendant and the sureties on his bond the costs of this action to be taxed by the Clerk of this Court.” The defendant excepted to this judgment and appealed to this Court.

The first exception cannot bo sustained, as we are utterly unable to see any Federal question whatever involved in this action. The office of Railroad Commissioner, from which the defendant has been suspended, is an office existing solely under the Constitution and Laws of this State, and created to administer the Railroad Commission Act. It has no recognition in the Laws of the United States, does not interfere with inter-state commerce, and is concerned solely in domestic affairs and internal trade. The defendant was not deprived of his office without due process of law. He was cited to appear and answer certain charges, and he did appear and filed an answer. The written notice of the Governor, which was admittedly received and acted upon by the defendant, was, in effect, a citation and under the circumstances had all the force of a summons. The onhr object of a summons is to bring the defendant into Court by giving him legal notice, and if he voluntarily appears, without limiting his appearance, he is held to waive a summons, and is as completely in Court as if it had been served. The Court, or any other tribunal having jurisdiction of the subject matter, has thereafter complete jurisdiction of the person. Jones v. Penland, 19 N. C., 358; Hyatt v. Tomlin, 24 N. C., 149; Duffy v. Averitt, 27 N. C., 455; Middleton v. Duffy, 73 N. C., 72; Wheeler v. Cobb, 75 N. C., 21; Etheridge v. Woodley, 83 N. C., 11; Penniman v. Daniel, 95 N. C., 341; Roberts v. Allman, 106 N. C., 391. In State v. Jones, 88 N. C., 683, 685, this Court has said: “The object of process is to give notice and an opportunity to make defence to an action. The scire facias furnished this notice, and the sureties submitted to the jurisdiction and resisted the demand for judgment. A defendant may appear without process, and liis appearance dispenses with process, since its purpose is to bring him into C!ourt, and he is in Court when he answers and defends the action. That this rule is by no means peculiar to this State will be seen by a reference to the Encyclopedia of Pleading and Practice, Vol. 2, page 639.

What is “due process of law” is generally difficult to define; but we think in the case at bar the defendant has no cause to complain on that score. As the protection of the Constitution of the United States is invoked, we deem it best to omit the numberless authorities in the different State Reports, and confine ourselves on this point to the decisions of that Court, essentially supreme wherever its jurisdiction attaches and where alone the decisions of this Court can ever be called in question.

The case of Murray’s Lessee v. The Hoboken Lad & Improvement Co., 18 How. 272, was an action of ejectment in which the defendant claimed title to certain lands under a sale made by the United States Marshal by virtue of a distress warrant issued by the Solicitor of the Treasury. It was held that such a warrant of distress was not in conflict with the Constitution of the United States, and was “due process of law;” and that the action of the executive power in issuing the. warrant was conclusive evidence of the facts recited in it, and of the authority to make a levy — citing Prigg v. Pennsylvania, 16 Pet. 621; U. S. v. Nourse, 9 Peters, 8; Randolph’s Case, 2 Brock., 447; U. S. v. Nourse, 4 Cranch C. C., 151; U. S. v. Bullock, (cited 6 Pet. 485.) The Court further says: “Thus, it has been repeatedly decided in this class of cases, that upon their trial, the acts of executive officers, done under the authority of Congress, were conclusive, either upon particular facts involved in the inquiry or upon the whole title” — citing Foley v. Harrison, 15 Howard, 438; Burgess v. Gray, 16 How., 48. “It is also true that even in a suit between private persons to try a question of private right, the action of the executive power, upon a matter committed to its determination by the Constitution and laws, is conclusive” — citing Luther v. Borden, 7 Howard, 1; Doe v. Braden, 16 Howard, 635, and cited in Walker v. Sauvinet, 2 Otto, 93; Davidson v. Neto Orleans, 6 Otto, 102; Springer v. U. S., 12 Otto, 586, 594; Ex parte Wall, 107 U. S., 290; Hilton v. Merritt, 110 U. S., 107; Hurtado v. Cal., 110 U. S., 528, 542.

In the case at bar there can be no question of the right of the Governor to appoint the plaintiff if a vacancy legally existed. Foster v. Kansas, 112 U. S., 201, 204. The only question really at issue is the legality of the removal of the defendant, and in this view the State of North Carolina is the real party in interest, as it is her act, through her Chief Executive, of which the defendant complains. The State has surely as much interest in having her laws properly administered by officers of her choice, in every respect qualified for their duties, as the general government can have in the collection of its taxes. And we can see no reason why the action of the Governor in suspending the defendant from office in strict accordance with the provisions of a Statute, which we hold, to be Constitutional, is not fully as much “due process of law” as was the sale of real estate under the warrant of distress, so held in Murray v. Hoboken, supra. Under the same authority wro feel fully justified in holding that the action of the Chief Executive of this State, certainly an officer of higher relative rank and greater dignity than a mere Solicitor of the Treasury, is equally conclusive upon a matter committed to his determination by the Coirstitution and Laws of this State. It is, at least, of equal dignity with a tax-sale certificate, whose recitals are held to be evidence prima facie as to all and conclusive as to many of the facts therein alleged. De Trevilla v. Smalls, 98 U. S., 517, 524.

The defendant has not been denied access to the Courts. In fact ho did not attempt to appeal from the action of the Governor nor seek the aid of the Courts, but forcibly retained possession of an office from which he had been rightfully suspended, and forced the plaintiff to seek redress in this action. The Governor, in his notification of suspension to the defendant, distinctly recognized the right of the defendant to have it legally tested in the Courts, and made no attempt to dispossess him. The plaintiff has sought possession only “by the law of the land” as shown by the bringing of this action.

In The Bank of Columbia v. Okley, 4 Wheat, 235, it was held that a party may waive his right to trial by jury, by giving a note payable at a bank, the charter of which authorizes collection by summary process. The defendant may well be deemed to have waived his right to a trial by jury, if any such right he ever had, by accepting office under a Statute which expressly provided that he might be suspended by the Governor without reference to a jury.

In Murray v. Hoboken, supra, the Court also held, “That the auditing of the accounts of a receiver of public monies may be, in an enlarged sense, a Judicial act, must be admitted. So are all those administrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law. Tn this sense, the act of the President in calling out the militia under the Act of 1795 (12 Wheat, 19), or of a Commissioner who makes a certificate for the extradition of a criminal, under a treaty, is Judicial. But it is not sufficient, to bring such matters under the Judicial power, that they involved the exercise of judgment upon law and fact — citing U. S. v. Ferreira, 13 How. 40.

It may be urged that a distress warrant for the collection of taxes was held to be “due process o'f law” because such proceeding was in accordance with the common and Statute law of England; hut so, also, was the suspension of a public officer.

We see no error in the trial of the action in the Court below, and we affirm its judgment after a full hearing of the defendant’s appeal. This much, at least, is “due process of law.” Morley v. Lake Shore R. Co., 146 U. S., 162.

Due process of law does not necessarily imply in all cases the right of trial by jury. If it did, the equitable jurisdiction of the Federal Courts would practically be annulled. The records of this Court show, what is common knowledge, that, in the recent reorganization of a great railway system, mortgages involving millions of dollars were foreclosed in the Circuit Court of the United States, and the stockholders deprived of every vestige of their property, without any suggestion of a jury.

In Walker v. Sauvinet, 92 U. S., 90, the Court (Waite, C. J.) says.- “All questions arising v,nder the Constitution of the State alone are finally settled by the judgment below. We can consider only such as grow out of the Constitution of the United States. A trial by jury in suits at common law pending in the State Courts is not, therefore, a privilege or immunity of national citizenship which the States are forbidden by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process of law; hut this does not necessarily imply that all trials in the State Courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land. This process in the States is regulated by the law of the State.” In Leeper v. Texas, 139 U. S., 462, 467, it was held, “That whether Statutes of a Legislature of a State have been duly enacted in accordance with the re-quiroments of the Constitution of such State is not a Federal question, and the decision of State Courts as to what are the laws of the State is binding upon the Courts of the United States,” — citing South Ottawa v. Perkins, 94 U. S., 260, 268; Post v. Supervisors, 105 U. S., 667; Norton v. Shelby County, 118 U. S., 425, 440; Railroad Co. v. Georgia, 98 U. S., 359, 366; Baldwins. Kansas, 129 U. S., 52, 57; and “that law in its regular course of administration through Court of Justice is due process, and when secured by the law of the State the Constitutional requirement is satisfied; and that'due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice;” citing Hurtado v. Cal., 110 U. S, 516, 535; In Re Kemmler, 136 U. S., 436, 449; Caldwelly. Texas, 137 U. S., 692. See also Giozza v. Tierman, 148 U. S., 657; Duncan v. Mo., 152 U. S.. 377; Missouri, &c., R. Co. v. Mackey, 127 U. S., 205; Railroad Co. v. Herrick, 127 U. S., 210; State v. Muse, 20 N. C., 319; State v. Chambers, 93 N. C., 600; State v. Moore, 104 N. C., 714.

In Hurtado v. Cal., supra, in which the meaning of the phrase “due process of law” is elaborately discussed, it was held that the words “due process of law” in the 14th Amendment to the Constitution do not necessarily require an indictment by the grand jury in a prosecution by a State for murder; and that a conviction upon an information i'or murder in the first degree, and a sentence of death thereon, was not without due process of law and was, therefore, not in violation of the Constitutional provision. McNulty v. Cal., 149 U. S., 645; Vincent v. Cal., Ibid, 648.

In Munn v. Illinois, 94 U. S., 113, 134, the Chief Justice delivering the opinion of the Court, says: “A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property, which have been created by the common law can not be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the Legislature, unless prevented by Constitutional limitations. Indeed, the great office of Statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.”

In Davidson v. New Orleans, 96 U. S. 97, 105, Justice Miller, for the Court, says that “it is difficult if not impossible to frame a definition of the Constitutional phrase ‘without due process of law,’ at once perspicuous, comprehensive and satisfactory,” but that “it is not possible to hold that a party has, without due process of law', been deprived of his property, when, as regards the issues affecting it, he has by the laws of the State a fair trial in a Court of Justice, according to the modes of proceeding applicable to such case.” And, citing, Murray v. Hoboken, supra, he further says: “An exhaustive Judicial inquiry into the meaning of the words ‘due process of law,’ as found in the Fifth Amendment, resulted in the unanimous decision of this Court that they do not necessarily imply a regular proceeding in a Court of Justice, or after the manner of such Courts.”

The origin, intent and scope of the Thirteenth and Fourteenth'Amendments to the Constitution of the United States are fully and ably discussed in the Slaughter House Cases, 16 Wallace, 36, but, as no reasonable extract would do justice to the opinion, it can properly be cited only as a whole.

In Missouri v. Lewis, 101 U. S., 22, 31, it is said that “The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of Judicial proceeding.”

In Ez Parte Wall, 107 U. S., 265, a rule was served upon the petitioner, by the United States District Judge, without any previous affidavit and upon mere hearsay information, to show cause why he should not be disbarred from practicing as an attorney for taking part in a lynching. The respondent filed a written answer denying the charge, and •excepting to the jurisdiction of the Court. After the examination of one witness and hearing the argument of counsel, the Court overruled the exceptions and made an order prohibiting the respondent from practicing at the bar of said Court, until a further order. On petition for mandamus it was held that the proceeding was regular and was due process of law, and that it was not a criminal proceeding, and not intended for punishment, but to protect the Court from the official ministration of persons unfit to practice as attorneys therein. The proceeding in that case was certainly much more summary and less regular than in the case at bar, while the avowed object was the same. The defendant herein was not suspended by the Governor as a punishment for any crime, as he was not charged with crime, but simply with a legal disqualification. The object of his suspension, pending a Legislative determination, was to prevent the danger and scandal of having important official duties jser-formed by one legally disqualified. The Railroad Commission was constituted by the Legislature in obedience to a strong popular demand, and the people have a right to require that the men, charged with the grave duty of deciding between them and the great transportation companies which practically control the commerce of the country, should be absolutely free from the slightest suspicion of interest or bias. Such a requirement is based upon the highest principle of public policy, and is no more unreasonable than to say that a Clerk or Sheriff must give bond for the faithful performance of his duties, that an executor or trustee cannot-buy at his own sale, and that a Judge shall not sit in his-own case.

Such provisions are not uncommon. A remarkable instance may be found in the Act of August 13, 1888, (25 Statutes at Large, U. S., 433), which reads as follows: “Section 7. That no person related to any Justice or Judge of any Court of the United States by affinity or consanguinity within the degree of first cousin shall hereafter be appointed by such Court or Judge to or employed by such Court or Judge in any office or duty in any Court of which such Justice or Judge may be a member.”

It is no crime to be related to a Judge of the United States; nor can it be any reflection upon the personal character of such relative and, yet, it is made by law an absolute disqualification for office.

The object of the law is clearly not to punish one who-has committed no offence but to relieve the Judges from any temptation to appoint incompetent officials, and to-secure to the people in the selection of their agents the best-judgment of the Courts.

As to the equal protection of the laws guaranteed by the-Constitution of the United States, it is well settled that special legislation is not objectionable where it is made to apply equally and without unjust discrimination to all who may be affected by it. The Fourteenth Amendment does not prohibit legislation limited as to objects or territory, but merely that all persons subjected to it shall be treated alike under like circumstances and conditions. Hayes v. Missouri, 120 U. S., 68; Railroad Co. v. Mackey, 127 U. S., 205; Lowe v. Kansas, 163 U. S., 81, 88.

In Walston v. Nevin, 128 U. S., 578, 582, the Court says: “And wherever the law operates alike on all persons and property, similarly situated, equal protection cannot be said to be denied;” citing Wurts v. Hoagland, 114 U. S., 606; Railroad Co. v. Richmond, 96 U. S., 521, 529. “The remedy for abuse is in the State Courts, for, in the language of Air. Justice Field in Mobile v. Kimball, “this Court is not the harbor in which the people of a city or county can find a refuge from ill-advised, unequal and oppressive State legislation.”

In Giazza v. Tiernan, 148 U. S., 657, 651, the Court sajrs: “Irrespective of the operation of the Federal Constitution and restrictions asserted to be inherent in the nature of American institutions, the general rule is that there are no limitations upon the legislative power of the Legislature of a State except those imposed by its written Constitution.”

In Duncan v. Missouri, 152 U. S., 377, it was held that the privileges and immunities of citizens of the United States protected by the Fourteenth Amendment, are such privileges and immunities as arise out of the nature and essential character of the Federal Government, and are granted or secured by the Constitution of the United States. Miller on the Constitution, 662; Presser v. Illinois, 116 U. S., 252.

In the case of Kennard v. Louisiana, 92 U. S., 480, the plaintiff in error was summarily removed from the office of Associate Justice of the Supreme Court of Louisiana, its Court of last resort, b)r a mere rule of Court. The plaintiff took out a writ of error, asserting that he was deprived of his office without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States. The opinion of the Court, delivered by Chief Justice Waite, without dissent, and remarkable equally for its clear exposition of the law and admirable condensation, affirmed the judgment, for the following reasons: “The question before us is, not whether the Courts below, having jurisdiction of the case and the parties, have followed the law, but whether the law, if followed, would have furnished Kennard the protection guaranteed by the Constitution. Irregularities and mere errors in the proceedings can only be corrected in the State Courts. Our authority does not extend beyond an examination of the power of the Courts below to proceed at all. It 'Will thus be seen that the Act relates specially to the Judges of the Courts of the State, and to the internal regulations of a State in respect to its own officers. Pie had an opportunity to be heard before he could be condemned. This was “process,” and, when served, it was sufficient to bring the incumbent into Court, and to place him within its jurisdiction. In this case, it is evident from the record that the rule was made, and that it was in some form brought to the attention of Kennard, for on the return day he appeared. At first, instead of showing cause why he refused to vacate his office, he objected that he had not been properly cited to appear; but the.Court adjudged otherwise. He then made known his title to the office; in other words he showed cause why he refused to vacatp. This was, in effect that he had been commissioned to hold the office till the end of the next session of the Senate, and that time had not arrived. Upon this he asked a trial by jury. This the Court refused, and properly, because the law under which the proceedings were had provided in terms that there should be no such trial. A mere statement of the facts carries ■with it a complete answer to all the Constitutional objections urged against the validity of the Act. The remedy provided was certainly speedy; but it could only be enforced by means of orderly proceedings in a Court of competent jurisdiction in accordance with rules and forms established for the protection of the rights of the parties. In this particular case, the party complaining not only had the right to be heard, but he ivas in fad heard, both in the Court in which the proceedings were originally instituted, and, upon his appeal, in the highest Court of the State.”

I. have italicised the words peculiarly operating upon the case at bar. If an Inferior Court of the State of Louisiana can, by virtue of a Statute of that State, upon a mere rule issued upon a prima facie case created by said Statute, remove from office a Justice of its highest Constitutional Court, we cannot see why the Chief Executive of this State, acting under express authoritj’' of a Statute, and in strict accordance with its terms cannot suspend a member of an inferior administrative Court. At least such action affects only the internal policy of North Carolina when dealing with its own officers, and should be judged by its Constitution and laws alone.

AVe have fully considered the first exception, not only from its Federal relation, but also from its important bearing upon the validity of the Act under our own Constitution, which provides that: “No person ought to be taken, imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner deprived of his. life, libertj'' or property, hut by the law of the land.” Therefore, if we were of opinion that the defendant had been deprived of his property in the office “without due process of law,” that is, such process as is due to the peculiar circumstances of his case by the law of the land, it would be our duty to at once reverse the judgment of the Court below. In going over the ground covered by this exception, we have necessarily been compelled to say much that is applicable to the other exceptions, and which will not be repeated.

The second exception to the refusal of the Court to submit the issues tendered, or any issues, is practically directed to the denial of a trial by jury. This we think, was properly refused, as there were no disputed facts before the Court. It is not denied that the Governor notified the defendant to appear and answer; that the defendant did so appear and answer; that the Governor subsequently suspended the defendant, giving him written notice of said action, and appointed the relator; that the relator duly qualified, demanded possession of the office, was refused by the defendant, and brought suit.

There was absolutely nothing to go to the jury unless the Court went behind, the action of the Governor, which we think could not be reviewed by the Court. The suspension by the Governor is not a final determination of the defendant’s rights, which must- ultimately be passed on bjr the Legislature, sitting somewhat in the nature of a Court of Impeachment. If it should determine that the defendant had been suspended without just cause, he would be at once reinstated, and be entitled to his full pay from the time of his suspension. The duty of suspension was imposed upon the Governor from the -highest motives of public policy, to prevent the danger to the public interests which might arise from leaving such great powers and responsibilities in the hands of men legally disqualified. To leave them in full charge of their office until the next biennial session of the Legislature, or pending litigation which might be continued for years, would destroy the very object of the law. As the Governor was therefore by the very letter and spirit of the law required to act and act promptty, necessarily upon his own findings of fact, we are compelled to hold that such official action was, under the circumstances, due process of law. Even if it were proper, the Governor would have no power to direct an issue, like a Chancellor.

Section 19 of Article I of our Constitution provides that: “In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of tlie rights of the people and ought to remain sacred and inviolable.” And yet from the remotest times it has been held that this right did not apply to equitable proceedings, and that in the determination of many matters of fact the intervention of a jury was neither necessary nor possible. Take for'instance, applications for receivers, injunctions and proceedings in contempt. Even in actions at law, there are many matters of fact that must be found by the Court below, and which are not even reviewable in this Court. Every time a Judge below takes the case from the jury and directs a verdict he practically deprives the party of a trial by jury; and yet that he can so direct a verdict against the party on whom rests the onus, when there is nothing -more than a scintilla of evidence, has been held in a long line of decisions in this Court from Wittkowsky v. Wasson, 71 N. C., 451, down to Spruill v. Insurance Co., 320 N. C., 341, and several cases at this term.

In Interstate Commerce Commission v. Brimson, 154 U. S., 447, 488, the Court says: “Another suggestion . . is that the defendants are not accorded a right of trial by jury. . . . The issue presented is not one of fact but. of law exclusively. In such a case the defendant is no more entitled to a jury than is a defendant in a proceeding by mandamus to compel him as an officer to perform a ministerial duty.” Any right of trial by jury which the defendant might ‘have had under other circumstances, if any, would bo .taken as having been waived by his acceptance of an office under a Statute providing for summary suspension. That a. jury trial may be waived by either written or oral consent, or even b)^ a failure to appear, is expressly provided by Section 416 of The Code. It is also held to be waived by a consent reference. Clark’s Code, p. 400 and cases cited. In England it is regarded as a prerogative of tlie Crown by letters patent to suspend a public officer, although the office was granted for life. Throop on Public Officers, Section 401; Slingsby’s Case, 3 Swanst, 178. The only recognition of this rule in America seems to be that involved in the maxim that the power of appointment includes by implication that of removal, the application of which is necessarily limited Ijy Constitutional or Statutory provision. The maxim cannot apply in this case, because the Governor did not originally appoint and has suspended the defendant under express Statutory authority. It comes rather under the generally recognized rule that, in the absence of any constitutional restriction expressed or necessarily implied on the power of the Legislature, it may provide by Statute for the suspension of a public officer, by some other officer or board. Throop, supra, Section 402; Mochem on Public Officers, Section 463; Butler v. Penn., 10 Howard, 402. AVith 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 expressljr 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 its rights or privileges before the end of the term, or to alter or abridge the term, or to abolish the office itself. Tliroop, supra, Section 19, citing 92 decisions from the United States Supreme Court and 32 different States; also Black Const. Law, p. 530, and cased cited. Mechem, sujmi, Section 463 and 464, citing numerous cases, says that, 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 public office be regarded as the property of the incumbent. In Connor v. N. Y., 2 Sandford, 355, Ruggles, C. J., says: “Public offices are not incorporeal hereditaments, nor have they the character or qualities of grants. They are agencies. With few exceptions, they are voluntarily taken and may at any time be resigned. They are created for the benefit of the public and are not granted for the incumbent. Their terms are fixed with a view to public utility and convenience, and not for the purpose of granting the emoluments during that period'to the office holder.”

The celebrated case of Hoke v. Henderson, 15 N. C., 1, recognizes to a great extent the same principle. While deciding in favor of the defendant on the ground that an office is the property of the incumbent by mutual contract, and that the unconstitutional provision was not that of a law prescribing a rule of property, or modifying the extent of interest or the tenure prospectively, but interfered with vested rights, Chief Justice Ruffin (page 17) says: “That the purpose of creating public offices is the common good, is not doubted. Hence, most of the rules regulating them have a reference to the discharge of their duties and the promotion of the public convenience; they are pro eommodo populi. Hence they are not the subjects of property in the sense of that full and absolute dominion which is recognized in many other things. They are only the subjects of property, as far as they can be so in safety to the, general interest, involved in the discharge of their duties.” This Court has recently had occasion to reaffirm the doctrine laid down in that oft quoted decision, which has become too firmly established in the policy, of our laws now to be questioned; but the varied and extraordinary claims made thereunder, and the fact that we are the only State in the Union recognizing the doctrine, may well cause us to pause and consider if we have not carried it to its fullest ligitimate extent. It may be doubted if the great Chief Justice himself ever contemplated the extent to which it would be carried, and least of all that its most extreme construction would be invoked to bring the tenure of high official positions within the operation of an amendment to the Federal constitution primarily adopted for the protection of the colored race. See the opinion of Justice Miller in the Slaughter House Cases, 16 Wall. 36.

But our decision in the case at bar does not conflict with that in Hoke v. Henderson. The Statute now under consideration is not retrospective, and does not interfere with any vested right. Being a part of the Act originally creating the office of Railroad Commissioner, it “prescribes” a rule of property in said office, and modifies the extent of interest and tenure therein “prospectively.” The defendant, taking-under the Act, holds subject to the Act; and relying upon his contract is bound by all its provisions. One of its express provisions was the reserved right of the Legislature to remove, and the power and duty of the Governor to suspend under a given state of facts. This power of suspension, together with the necessary method of its enforcement, was assented to by the defendant in his acceptance of the office. Bunting v. Gales, 77 N. C. 283; McCless v. Meekins, 117 N. C., 34; McDonald v. Morrow, 119 N. C., 666; Ward v. Elizabeth City, 121 N. C.; 27 S. E. Reporter, 993; Koonce v. Russell, 103 N. C., 179; Hutchins v. Town of Durham, 118 N. C., 457; Cooley’s (bust. Limitations, 285. It was held in Head v. University of Missouri, 19 Wallace, 526, that where one was elected a professor in a State University for six years “subject to law,” “this expression meant subject to whatever law the State Legislature might see fit to pass. It was a part of the contract that the Legislature could, at its discretion and in its pleasure, bring it to an earlier end.’'' In Ewart v. Jones, 116 N. C., 570, which was an action in the nature of a quo luarranto heard upon a case agreed without a jury, this Court in seating the relator, held that under our present Constitution the Legislature had the power, in establishing the office of Judge of the Criminal Court, to' prescribe its powers, jurisdiction and methods of appointment •and removal, and to elect the incumbent. Chief Justice Faircloth, in delivering the opinion of the Court says; “Under our form of government the sovereign power resides with the people, and is exercised by their Representatives in the General Assembly. The only limitation upon this power is found in the organic law, as declared by the delegates of the people in convention assembled from time to time.” If the. Legislature can thus elect a Judge of the Criminal Court and provide for the manner of his removal, why can it not also elect a Railroad Commissioner, and in the creative act reserve to itself the right to remove and to the Governor the power of suspension. Two higher agencies could not be found, one peculiarly representing the will of the people, and the other the Chief Executive of the Btate to whom is committed by the Constitution itself “the supreme executive power of the Btate” and who is expressly enjoined “to take care that the laws be faithfully executed.” But it is urged that the Legislature has exceeded its constitutional power in reserving the right of removal. We think not, •where the office is purely of legislative origin and administrative duties.

It is alleged that the Statute is unconstitutional because it requires of the Railroad Commissioners qualifications in addition to those prescribed in the Constitution. We see no merit in this contention, as such provisions were not intended to restrict the rights of the individual, but to secure the faithful and efficient performance of public duties. Hargrove v. Dunn, 73 N. C., 395; Commissioners v. Plaisted, 148 Mass. 375; Rogers v. Buffalo, 123 N. Y.,. 173, 181; Throop on Public Officers, Section 73, 74.

Moreover, every presumption is in favor of the constitutionality of an Act of the Legislature, and all reasonable doubts should be solved in its favor. Cooley on Const. Lim., page 220, and cases therein cited; Black’s Const. Law, Section 30 and cited cases.

"While our attention has not been called to any decision from other jurisdictions relating to the removal or suspension of Railroad Commissioners, we do find in the creative Statutes of the United States and of several of the States, provisions similar to those now under consideration. The same presumption of constitutionality'would attach to them, and thus far they may be considered as precedents. Another constitutional objection to the Act has been argued with great force, and has received our most careful and serious consideration. That objection is that the Act interferes with the independent tenure of the Judiciary so essential to the proper enforcement of the law and the protection of the citizen. This Commission was compared to the-Criminal Courts of the State; and the danger of placing the lives and liberties of the people in the keeping of Judges whose official tenure might depend upon the uncertain complexion of the Legislature or the arbitrary will of the Governor, was ably and eloquently portrayed.

We realize the responsibilities of this Court in settling the line of demarkation between the legislative, executive and supreme judicial powers, which, by constitutional obligation, must be kept forever separate and distinct. This vital line must be drawn by us alone, and we will endeavor to draw it with a firm and even hand, free alike from the palsied touch of interest or subserviency and the itching grasp of power. Should the legislative or executive departments of the State cross that lino, we will put them back where they belong; but upon us rests the equal obligation of keeping upon our own side. This is a question not of discretion but of law, a matter not of expediency but of right.

Our conclusion is that the Railroad Commission does not stand upon the same footing as the Criminal Courts, inasmuch as it is an administrative and not a Judicial Court. While it was made by a subsequent Statute a court of record, it was clearly the object of the Act simply to give authenticity to its records and 'proceedings, as it added nothing to its duties or powers.

It has been held to be a court of record in Express Co. v. Railroad, 111 N. C., 463, 474, but in the opinion of the Court delivered by Chief Justice Shepherd appears the significient qualification, “Whether a Court, having no power to enforce its judgment, fulfills the definition of a court of record and of general jurisdiction is unnecessary to be considered.” The Supreme Court of the United States in Reagan v. Farmer’s Loan & Trust Co., 154 U. S., 362, 397, citing the Railroad Commissioner cases, 116 U. S., 307, says: “There can be no doubt of the general power of a State to regulate the fares and freights which may be charged and received by Railroads or other carriers, and that this regulation can be carried on by means of a commission. Such a Commission is merely an administrative board created by the State for carrying into effect the will of the State as expressed by its Legislature.”

Upon the foregoing authorities we are of opinion that the disputed provisions of the Act are constitutional, and thai the power of suspension rests in the hands of the Governor, which, when exercised in an orderly manner, is not reviewable by the Courts. Whether the action of the Governor was justified by the facts, which he alone could find, is not for us to say. That the defendant has not been deprived of his property without due process of law; that the only property he could have in the office was that given to him by the Statute, which must be construed in all its parts. His Commission, which is his title deed, appears to us with the fateful words of the creative Act written across its face by tlie band of the law. Whatever right to a trial by jury he might otherwise have had, was waived by his acceptance of the office under the conditions of the Statute, at least so far as the action of the Governor was concerned. In the Court below, as all the material facts that could there be inquired into were practically admitted, there was nothing left but the bare questions of law, and upon those questions we see no error in the ruling of the Coui't. The judgment must therefore be affirmed, but in view of the public interests involved, we deem it proper, not to remand the-case, but to enter final judgment in this Court. This action is taken on motion of counsel made without objection in open Court upon the hearing of the case, and under authority of Section 957 of The Code, as recognized in Bernhardt v. Brown, 118 N. C., 700, 710. Judgment will therefore be entered that the relator is entitled to the office of Railroad Commissioner and Chairman of said Commission; that the defendant is not entitled thereto and shall be ousted therefrom, and that the relator bo placed into possession of said office, together with all its records and other appurtenances thereunto belonging.

Affirmed.

The judgment in the foregoing case was as follows:

“This cause coming on to be heard in the Supreme Court and having been decided in favor of the plaintiff, it is adjudged and decreed:

1. That the defendant has been lawfully suspended from the office of Railroad Commissioner.

2. That the relator has been duly appointed to fill the vacancy caused by the suspension of the defendant.

3. That the defendant be ousted from, and the relator inducted into said office of Railroad Commissioner.

Therefore, let a writ issue out of this Court directed to the Sheriff or other lawful officer of Wake County, commanding him to oust the defendant and put the relator in possession of the rooms occupied as offices by the Railroad Commissioners, in the Agricultural Building on Edenton Street in Raleigh, and known as the Railroad Commission offices, together with all property, papers and effects appertaining or belonging to said offices.

4. That the plaintiff relator recover the costs of this action to he taxed by the Clerk of this Court.

(Signed) Walticr Clark,

Justice-Supreme Court.”