(DAVIS, J., concurred in the ruling of the Court that a judge acting under a commission from the Governor is a judge de facto, but dissented from construction placed upon Article IV, section 11, of the Constitution.)
The judge was acting by virtue of the following commission from the Governor:
RALEIGH, 8 July, 1890.
(969)To Hon. Spier Whitaker — GREETING:
We, reposing special trust and confidence in your integrity and knowledge, do by these presents appoint you to hold Fall Terms of the Superior Courts of Rockingham County, beginning 22 July, 1890, and Stokes County, beginning 4 August, 1890, in the Ninth Judicial District, in lieu of Hon. William Shipp, deceased, and do hereby confer upon you all the rights, privileges and powers useful and necessary to the just and proper discharge of the duties of your appointment.
In witness whereof, His Excellency, Daniel G. Fowle, our Governor and Commander-in-Chief, hath signed with his hand these presents, and caused our Great Seal to be affixed thereto.
Done at our city of Raleigh this 8 July, in the year of our Lord one thousand eight hundred and ninety, and in the one hundred and fifteenth year of our American Independence.
DAN'L. G. FOWLE, Governor.
By the Governor:
WM. L. SAUNDERS, Secretary of State.
There was a verdict of guilty. Prayer for judgment. Motion in arrest of judgment for that Judge Shipp having recently died, and the office of Superior Court judge for the Eleventh Judicial District being now vacant by reason of the Governor's failure to appoint his successor, as required by the Constitution and laws of North Carolina to do, there is no one authorized to hold the court, which in the order of rotation should have been held by Judge Shipp.
The appointment of Judge Spier Whitaker to hold his regular term of court is without authority under the Constitution, he being in the order of rotation of judges, required to hold the court of the Second District, Judge Shipp's successor, under sections 11 and 25 of Article IV of the Constitution, being the only person required to hold said term of said court. (970)
That this case is, therefore, coram non judice.
His Honor having found as a fact that Judge Shipp was dead before his special commission to hold this court was issued, arrested the judgment, and the solicitor appealed.
If Judge Whitaker was acting either de jure or de facto as judge of the Superior Court of Rockingham County in opening and organizing that court, and in presiding at the trial of the defendant until the jury returned a verdict of guilty, it was error to allow the motion of the defendant and enter the order arresting the judgment. Were we to concede not only that the Governor did not have the power, under the Constitution, to appoint him and clothe him with the rightful authority, but that his acts as a defacto officer also ceased to be valid and binding as to the public and third persons, when he declared in open court his purpose to abdicate because he was of opinion that the said term could not have been lawfully held except by a successor regularly appointed and commissioned by the Governor to fill the vacancy caused by the death of Judge Shipp, still his refusal to proceed further with the business of the court would not affect the validity of any previous act done under color of his appointment from the Governor, and when he was holding himself out to the public as the rightful incumbent by virtue of the special commission entered of record. Judge Whitaker was a de facto officer so long as he continued to preside and to assert his power under, and by virtue of, the commission issued by the Governor, even if we concede, for the sake of argument, that he was not the rightfully constituted (971) judge of the Superior Court of Rockingham County, and that his power as a de facto officer continued only so long as he exercised it.
Chief Justice Butler, in the case of S. v. Carroll, 38 Conn. 449, after a very exhaustive examination and review of the English and American authorities, defines and classifies officers de facto as follows: "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised (1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer failed to conform to some precedent, requirement or condition, as to take an oath, give a bond, or the like; (3) under color of a known election or appointment, void because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity
in its exercise, such ineligibility, want of power of defect being unknown to the public; (4) under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such."
If it be admitted that the Governor was not empowered by Article IV, section 11 of the Constitution, to require Judge Whitaker to hold the term of Rockingham court, which Judge Shipp, before his death, had been assigned to hold, still, when the commission was issued, even without authority, and the appointee undertook to discharge the duties required of him, he was, in so far as it affected the public and the rights of third persons, de facto
judge of the court so long as he assumed to act in that capacity belonging to the third class mentioned in the opinion of Chief Justice Butler.
The defendant, finding the judge holding the court by authority (972) of a commission from the Governor requiring him to discharge that duty, without objection, if he had ground for raising any, pleaded "not guilty" to the charge of assault and battery, and, after a trial, in which no exceptions were entered to the rulings of the court, the jury returned a verdict of "guilty." Up to this point his Honor was assuming his judicial functions, and it is not material if his real purpose was to make a case on appeal for this Court, in which the validity of his official acts as judge of that court would be brought in question, because, so long as he proceeded in the transaction of the business of the term, he was judge de facto of the Superior Court of Rockingham County, and his acts were valid and conclusive on the defendant Lewis as though he had claimed himself, and been admitted by all others, to be the judge de jure of that court. If the defendant should be again put upon trial for the same offense, there can be no question that the record of this trial, including a copy of Judge Whitaker's commission, would sustain a plea of former conviction.
After the judge had determined that he was not empowered to hold the court by virtue of the commission, he ordered, on motion, that the judgment be arrested. If, by his own volition, he ceased to be a de facto officer after the verdict was entered, then he had no authority to arrest the judgment. If he was still a de facto officer, there was no sufficient reason why the judgment of the court should not have been pronounced, as it must hereafter be entered, on motion of the solicitor.
The principles we have stated, as embodied in the opinion in S. v.Carroll, supra
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(DAVIS, J., concurred in the ruling of the Court that a judge acting under a commission from the Governor is a judge de facto, but dissented from construction placed upon Article IV, section 11, of the Constitution.)
The judge was acting by virtue of the following commission from the Governor:
RALEIGH, 8 July, 1890.
(969)To Hon. Spier Whitaker — GREETING:
We, reposing special trust and confidence in your integrity and knowledge, do by these presents appoint you to hold Fall Terms of the Superior Courts of Rockingham County, beginning 22 July, 1890, and Stokes County, beginning 4 August, 1890, in the Ninth Judicial District, in lieu of Hon. William Shipp, deceased, and do hereby confer upon you all the rights, privileges and powers useful and necessary to the just and proper discharge of the duties of your appointment.
In witness whereof, His Excellency, Daniel G. Fowle, our Governor and Commander-in-Chief, hath signed with his hand these presents, and caused our Great Seal to be affixed thereto.
Done at our city of Raleigh this 8 July, in the year of our Lord one thousand eight hundred and ninety, and in the one hundred and fifteenth year of our American Independence.
DAN'L. G. FOWLE, Governor.
By the Governor:
WM. L. SAUNDERS, Secretary of State.
There was a verdict of guilty. Prayer for judgment. Motion in arrest of judgment for that Judge Shipp having recently died, and the office of Superior Court judge for the Eleventh Judicial District being now vacant by reason of the Governor's failure to appoint his successor, as required by the Constitution and laws of North Carolina to do, there is no one authorized to hold the court, which in the order of rotation should have been held by Judge Shipp.
The appointment of Judge Spier Whitaker to hold his regular term of court is without authority under the Constitution, he being in the order of rotation of judges, required to hold the court of the Second District, Judge Shipp's successor, under sections 11 and 25 of Article IV of the Constitution, being the only person required to hold said term of said court. (970)
That this case is, therefore, coram non judice.
His Honor having found as a fact that Judge Shipp was dead before his special commission to hold this court was issued, arrested the judgment, and the solicitor appealed.
If Judge Whitaker was acting either de jure or de facto as judge of the Superior Court of Rockingham County in opening and organizing that court, and in presiding at the trial of the defendant until the jury returned a verdict of guilty, it was error to allow the motion of the defendant and enter the order arresting the judgment. Were we to concede not only that the Governor did not have the power, under the Constitution, to appoint him and clothe him with the rightful authority, but that his acts as a defacto officer also ceased to be valid and binding as to the public and third persons, when he declared in open court his purpose to abdicate because he was of opinion that the said term could not have been lawfully held except by a successor regularly appointed and commissioned by the Governor to fill the vacancy caused by the death of Judge Shipp, still his refusal to proceed further with the business of the court would not affect the validity of any previous act done under color of his appointment from the Governor, and when he was holding himself out to the public as the rightful incumbent by virtue of the special commission entered of record. Judge Whitaker was a de facto officer so long as he continued to preside and to assert his power under, and by virtue of, the commission issued by the Governor, even if we concede, for the sake of argument, that he was not the rightfully constituted (971) judge of the Superior Court of Rockingham County, and that his power as a de facto officer continued only so long as he exercised it.
Chief Justice Butler, in the case of S. v. Carroll, 38 Conn. 449, after a very exhaustive examination and review of the English and American authorities, defines and classifies officers de facto as follows: "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised (1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer failed to conform to some precedent, requirement or condition, as to take an oath, give a bond, or the like; (3) under color of a known election or appointment, void because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity
in its exercise, such ineligibility, want of power of defect being unknown to the public; (4) under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such."
If it be admitted that the Governor was not empowered by Article IV, section 11 of the Constitution, to require Judge Whitaker to hold the term of Rockingham court, which Judge Shipp, before his death, had been assigned to hold, still, when the commission was issued, even without authority, and the appointee undertook to discharge the duties required of him, he was, in so far as it affected the public and the rights of third persons, de facto
judge of the court so long as he assumed to act in that capacity belonging to the third class mentioned in the opinion of Chief Justice Butler.
The defendant, finding the judge holding the court by authority (972) of a commission from the Governor requiring him to discharge that duty, without objection, if he had ground for raising any, pleaded "not guilty" to the charge of assault and battery, and, after a trial, in which no exceptions were entered to the rulings of the court, the jury returned a verdict of "guilty." Up to this point his Honor was assuming his judicial functions, and it is not material if his real purpose was to make a case on appeal for this Court, in which the validity of his official acts as judge of that court would be brought in question, because, so long as he proceeded in the transaction of the business of the term, he was judge de facto of the Superior Court of Rockingham County, and his acts were valid and conclusive on the defendant Lewis as though he had claimed himself, and been admitted by all others, to be the judge de jure of that court. If the defendant should be again put upon trial for the same offense, there can be no question that the record of this trial, including a copy of Judge Whitaker's commission, would sustain a plea of former conviction.
After the judge had determined that he was not empowered to hold the court by virtue of the commission, he ordered, on motion, that the judgment be arrested. If, by his own volition, he ceased to be a de facto officer after the verdict was entered, then he had no authority to arrest the judgment. If he was still a de facto officer, there was no sufficient reason why the judgment of the court should not have been pronounced, as it must hereafter be entered, on motion of the solicitor.
The principles we have stated, as embodied in the opinion in S. v.Carroll, supra, are sustained by the decisions of this Court, as well as the courts of other States. Burke v. Elliott, 26 N.C. 355; Gilliam v.Reddick, ib., 368; Norfleet v. Staton, 73 N.C. 546; S. v. Edens,95 N.C. 693; S. v. Speaks, 95 N.C. 689; Attorney-General v. Crocker,138 Mass. 214; Petersbed v. Stone, 119 Mass. 465; S. v. Carroll,
(973) supra, and authorities cited; Diggs v. State, 49 Ala. 311; Venable v. Curd, 2 Heard., 582; Conover v. Devlin, 15 How. Pr., 470; S. v. Williams, 5 Wis. 308; Woodruff v. McHenry, 56 Ill. 218. The views which we have thus far presented have the approval of all the members of the Court.
A majority of the Court concur in resting our ruling upon two additional grounds:
1. That there is nothing in the record which, in legal contemplation, excludes the possibility that the Governor appointed the judge to hold two special terms — one in Rockingham and the other in Stokes County — and if he did not have the power to require the judge assigned to a different district to hold "specified regular terms," under the provisions of section 11, Article IV, it will, nevertheless, be presumed that he was exercising his rightful authority in ordering the holding of special terms.
2. That the Governor did not, in fact, transcend his authority if he issued the commission — not because it appeared to him that special terms were necessary in the counties named therein, but under the idea that he was empowered to require the judge appointed to hold "specified" regular terms on account of the death of the judge assigned to the Ninth Judicial District, and while he had under consideration the selection of his successor.
Section 11, Article IV of the Constitution, is as follows: "Every judge of the Superior Court shall reside in the district for which he is elected. The judge shall preside in the courts of the different districts successively, but no judge shall hold the courts in the same district oftener than once in four years; but, in case of protracted illness of thejudge assigned to preside, or any other unavoidable accident to him, by reason of which he shall be unable to preside, the Governor may require any judge to hold one or more specified terms in said district in (974) lieu of the judge assigned to hold the courts in said district."
Section 913 of The Code is as follows: "The Governor shall have power to appoint any judge to hold special terms of the Superior Court in any county, and, by consent of the Governor, the judges may exchange the courts of a particular county or counties; but no judge shall be assigned to hold the courts of any district oftener than once in four years, and whenever a judge shall die or resign, his successor shall hold the courts of the district allotted to his predecessor."
Section 11, Article IV of the Constitution, in its bearing upon the statute in reference to special terms, has been more than once construed by this Court, and it is now well settled that the Governor, under its express provisions, has the power to require a judge to hold one or more special terms in different districts from that to which he has been assigned in the regular course of rotation. S. v. Speaks, 95 N.C. 689.
In S. v. Watson, 75 N.C. 136, Justice Rodman, for the Court, says: "The reason assigned by the Governor in the commission, stated to be that two judges had agreed to a partial exchange of districts, does not, in our opinion, avoid the commission. The Governor is not bound to assign any reason in the commission, or to this Court. As to all the world, except theLegislature, he is the final judge of the fitness of his reasons. It may be that he desired to accommodate the judges, and no public inconvenience occurred to him as probable. If so, we cannot say that the reason was insufficient, and that, being insufficient, it avoided the commission. In doing so, we would clearly encroach on the executive duty and responsibility."
It is the duty of this Court to resolve all doubts in favor of the constitutionality of a statute passed by the Legislature, or of an official act of the chief executive officer of the State. As the Court say in S. v.Watson, supra, the Governor was not bound to assign a reason, nor must we, because a reason has been embodied in the commission, conclude that the Governor had no other sufficient grounds for (975) requiring Judge Whitaker to hold the court. It may be, for aught that appears to the contrary in the record proper, that the Governor acted on a certificate framed under the provisions of The Code, sec. 914, and sufficient to warrant his calling a special term at the time when the regular terms were ordinarily held. He had the power to do so, and might issue the order direct to the judge. Neither the certificate forwarded to the executive office nor the notice sent down to the county commissioners (The Code, sec. 915) constitute an essential part of the record of the term. This Court is not bound to conclude that courts were not special terms because they are called "fall terms" in the commission, nor because they were held at the time appointed by law for holding the regular fall sessions. Judge Shipp being dead, the Governor had the power to call special terms of the courts, both in Rockingham and Stokes counties. We should always assume that he did not, in fact, exceed the limit of his powers under the Constitution when, consistently with every fact disclosed, it may be that his acts were valid. If it be granted that the successor of Judge Shipp, had he been appointed and inducted into office, would have been the proper officer to hold the regular term of the court in Rockingham at the precise time when Judge Whitaker presided there, this Court is not at liberty to jump to the conclusion that some delay in filling a vacancy is not allowed, in order that the Governor, when he thinks the public interests will be best subserved by doing so, may take time to consider and inquire as to the fitness of persons whose names are suggested for a position so important and responsible. Where the appointment is
tendered and declined, or if, for any other reason, there is delay, while the chief executive is instituting inquiry for the purpose of selecting a suitable person to fill the office, he is not prohibited from (976) requiring a judge, who is not engaged in holding the courts of another district, to hold one or more terms in that to which there is no judge assigned. If the Governor should purposely and unreasonably postpone the exercise of the appointing power, for that, like any other misfeasance in office, the Legislature may call him to account.
Since section 11, Article IV of the Constitution, as amended in 1875, was construed in S. v. Monroe, 80 N.C. 373, to prohibit only the holding by any judge twice in four years of the whole series of courts comprehended in one district, and that case has since been approved in S. v. Speaks,95 N.C. 689, it is too late to contend that the constitutional convention intended to put an end to all exchanges, or the holding of the courts in the same county oftener than once in four years, with only the two exceptions — where the judge assigned is disabled by protracted illness or some accidental injury. Courts have been held in all portions of the State by judges acting under commissions from the Governor, and we are not disposed to entertain a proposition to overrule adjudications so often acted upon by the chief executive officer of the State.
In section 25, Article IV of the Constitution, we find the provision that "if any person elected or appointed to any of said offices shall neglect and fail to qualify, such office shall be appointed to, held and filled as provided in case of vacancies occurring therein," viz., by the Governor. Suppose the Governor should appoint one to fill such a vacancy, and the appointee should accept, but fail to qualify immediately, would the Governor have the right, and would it be his duty, without regard to circumstances, to make a second appointment without delay, because there was some official work awaiting the qualification of the new appointee? Would the courts be justified in declaring the acts of the old incumbent void because the Governor's first appointee, in lieu of the person elected and declining, neglected to qualify, and the (977) Governor had unreasonably postponed making a second appointment?
Where the Constitution has clothed the Governor with the power to require a judge to hold a court in a district different from that to which he is by general law assigned, upon certain conditions, as to the fulfillment of which he must, of necessity, be the judge, when he issues the commission this Court will assume, if he could, for any reason, lawfully require such service of a judge, that, in fact, the emergency had arisen that called for the exercise of the authority given him by law. S.v. Watson, supra. Constitutional as well as statutory provisions, made in pursuance of the organic law, are often so framed that the
Governor is left to determine in his discretion whether the contingency, on the happening of which he is to exercise a certain power, has arisen. Cooley Const. Lim., marg. pp. 41 and 187; Kendall v. Inhabitants ofKingston, 5 Mass. 533. And in such instances there is no power lodged elsewhere to correct a mistake of judgment on his part. The Legislature can notice a willful abuse of authority. It is provided in section 914 of The Code that the Governor may order a special term of the Superior Court to be held in a county, whenever it shall appear to him "by the certificate of any judge, a majority of the board of county commissioners, or otherwise," that a certain state of facts exists. He is the sole judge of the sufficiency of the evidence to satisfy him that the business of a court is such as to require the holding of a special term. The Legislature could not require the Governor to exercise his power of appointment within a given period, and, therefore, the statute must be understood (in a qualified sense growing out of this limit to their authority) as meaning that the successor, when appointed, "shall hold the courts of the district allotted to his predecessor" that shall not have been previously held.
But, looking exclusively to the phraseology of section 11, Article IV, we think that we are warranted in resting our ruling (978) upon the ground that the Constitution, by its express terms, empowered the Governor to appoint Judge Whitaker to hold the two "specified terms," in lieu of the judge assigned to the district, because he had not, for want of sufficient time to select among the eligible law-years, or for other good reason, designated the successor to Judge Shipp, who had died after being assigned by law to the Ninth Judicial District. The word "accident," in its legal sense, has been defined to be "(1) an event happening without the concurrence of the will of the person by whose agency it was caused; (2) an event that takes place without one's foresight or expectation." The death of Judge Shipp, of course, is due to divine agency, and, therefore, the first of the two definitions could not be adopted upon our theory in this case, but, on the other hand, the additional qualifying and intensifying word "unavoidable" would imply not simply the passive state of having no agency in bringing about the event, but the active exertion of one's powers to prevent it. Death is an event that takes place without the "foresight or expectation" of its victim, as well as in spite of the natural resistance of his vital powers and energies, and is an "unavoidable accident," happening not only without the concurrence of the will of the man, but because, by summoning all of his will power, he cannot prevent it. Webster says that the word "accident" is often used in the sense of "an undesigned and unfortunate occurrence of an afflictive nature; a casualty; a mishap, as to die by accident." The same author defines "unavoidable"
as meaning "incapable of being shunned or prevented; inevitable." Combining the synonyms of the two words, it seems that we might say with propriety and accuracy that Judge Shipp, though dead, had, on account of an "inevitable mishap, or an occurrence to him of an afflictive nature" that could not have been "prevented," been unable to preside. If, using the word "accident" in the sense of chance, we hold that the framers of our organic law meant to provide (979) only for the contingency of the judge being disabled by some unforeseen injury to him, can we give effect to the adjective "unavoidable" by looking into the facts attending his mishap, and declaring judicially that it could not have been shunned by any degree of care on his part, and that any occurrence to him, except death, was utterly inevitable, had he exerted all of his power to obviate it? Anderson, in his Law Dictionary, p. 12, says: "An accident is an event or occurrence which happens unexpectedly from the uncontrollable operations of nature alone, and without human agency," and that unavoidable accidents are such as are "inevitable or absolutely unavoidable because affected or influenced by the uncontrollable operations of nature." Ib., p. 13. The same author gives also another definition as follows: "An accident not occasioned in any degree remotely or directly by want of such care or skill as the law holds every man bound to exercise." But, from the nature of the case, the framers of the Constitution could not have intended to make their meaning dependent upon the decision of a question of negligence, and must have used the words in the other sense in which they are defined by the authors. This interpretation brings this section into harmony with section 25, Article IV, where it is provided that until a newly elected officer, or one appointed in place of a newly elected officer failing to qualify, shall comply with the conditions precedent to his lawful induction into office, the incumbent shall hold over. In that event, the duties are discharged by the person whose regular time has expired, even while the Governor is searching for a suitable person to appoint in lieu of another chosen to succeed him. In our case, we interpret the Constitution to mean that while the chief executive officer is taking a reasonable time for deliberation, and acquiring information that will aid him in choosing a competent and worthy officer, he may require an unoccupied (980) judge to hold a specified term or terms of the courts of the district which his appointee will be assigned by the general law immediately on his qualification. If we have fairly construed the language of the framers of the Constitution, the consequences of giving the section a proper interpretation are to be considered by those intrusted with making statute law and suggesting alterations in the organic law. But we see no ground for apprehending that a Governor
will ever abuse his power by such unreasonable delay as to impose upon eleven judges the duties and labor of twelve. Such an unreasonable dereliction in the discharge of a duty imposed by the Constitution as would appear palpably to be a willful abuse of his power would make him amenable before the General Assembly, the highest of all criminal tribunals in the State.
The order arresting judgment in this case is reversed, and the court below will proceed to enter such judgment as it may deem proper, if the solicitor shall pray the judgment of the court.
Per Curiam. Reversed.
Cited: Van Amringe v. Taylor, 108 N.C. 201; S. v. Davis,109 N.C. 782, 783; S. c., 111 N.C. 734; S. v. Turner,119 N.C. 845, 846; Hughes v. Long, ib., 55; S. v. Shuford,128 N.C. 592; S. v. Hall, 142 N.C. 715; S. v. Fulton,149 N.C. 487; Markham v. Simpson, 175 N.C. 139; S. v. Wood,ib., 814, 815, 816; S. v. Harden, 177 N.C. 584.