Walser v. Jordan

124 N.C. 683

• Court: Supreme Court of North Carolina
• Decided: May 9, 1899
• Status: Published

Opinions

Furches, J.

The Legislature of 1895, chapter 75, established Criminal Courts in Buncombe, Haywood, Henderson and Madison counties. These courts only had criminal jurisdiction. It was provided in that Act that these counties should compose a criminal circuit, and that there should be a judge elected, styled a Criminal Circuit Judge, who should preside over and hold these courts.

The Legislature of 1897 (Chapter 6) amended the Act of 1895 by giving these courts civil as well as criminal jurisdiction, and by changing the name to “Circuit” instead of “Criminal Circuit Courts.” And the same Legislature (Chapter 7), created a similar court in McDowell county, with the same jurisdiction of those of Buncombe, Henderson, Haywood and Madison, and placed it in the “Circuit” with those counties, and to be held by the same judge. Hnder this legislation, these courts were organized, a judge and clerks elected by the people. The plaintiff, being elected for the county of Buncombe, gaye his bond and was inducted into office as Clerk for a term of four years, which has not expired ; and the plaintiff is still entitled to this office, unless he has been removed therefrom by the legislation of 1899.

The Legislature of 1899, by an act passed on the 27th of February, enacts as follows: “Section 1. That the Criminal Circuit Court, composed of the counties of Buncombe, Madison, Haywood, Henderson and McDowell be, and the same are hereby abolished;” and it provides that all the business pending in those courts be transferred to the Superior Courts of their respective counties. That on the 3rd day of March, four days thereafter, the Legislature passed another act, entitled “An Act to establish the Western District Criminal Court.” This act is elaborately drawn, being almost a perfect copy of the Act of 1895, except as will be pointed out hereafter; and on the 6th day of March, three days after the passage of the Act to “establish the Western District Criminal Court,” the Legislature passed another act, entitled, “An Act to abolish the Criminal Circuit composed of the counties of Buncombe, Madison, Haywood, Henderson and McDowell.”

If the Act of the 27th of February, 1899, stood alone, we would hold that it “abolished” the Criminal Court of Buncombe County, though it does not say that it abolishes this court. It says “that the Criminal Circuit Court,” composed of the counties of Buncombe, Madison, Haywood, Henderson and McDowell, is abolished. If no other act had been passsed, re-establishing this Court, the intention of the Legislature would be manifest, and it would be our duty to hold that this Court was “abolished.” If the Criminal Court of Buncombe County has been abolished and not restored by this legislation, the clerkship being but an incident depending on the existence of the Court, it is also abolished and the plaintiff has no office, and no right to maintain this action. If it is claimed that the Act of March 6th is the Act that abolished this Court, then the Act of March 3d was passed when plaintiff was in office, and the Act of March 3d legislated him out of it.

The Act of March 3d, as we have said, is almost an exact copy of the Act of the 23d of February, 1895, and, so far as the powers and jurisdiction and territorial extent of the courts, established by the two acts are concerned, they are the same.

The Act of 1899 differs from the Act of 1895 in these respects : It is extended to the Counties of Burke, Surry, Yancey, Forsyth and Caldwell. It provides that the Commissioners of the Counties, included in this Act, shall not draw less than twelve nor more than twenty-four jurors for the first week of the Superior Courts embraced in this Criminal Circuit. It provides a Solicitor to be appointed by the judge, for the most of the Counties embraced in the circuit. It provides that these solicitors, so appointed by the Judge of this Criminal Circuit, shall go into the Superior Courts and prosecute for the State. It increases the Judge’s salary from $1,800 to $2,750; and, while it provides for the appointment of clerks, it fails to provide that he shall enter into bond for the discharge of his duties, and it fails to provide any fees for the clerk, except as may be provided in Section 13 of the Act, which is as follows: “That it shall be the duty of the Board of County Commissioners of each of said Counties to provide for the payment of fees of the Solicitor and the fees and compensation of the Clerks and the Sheriffs of said Counties respectively, and the pay of jurors and witnesses as is now provided by law, and all other expenses incident to said Court, by order on the County Treasurer of said respective Counties.” And it only vests the Court with criminal jurisdiction, as did the Act of 1895, before the amendment of 1897. If there be other changes made to the Act of 1895 by the Act of 1899, they are of minor importance, or have escaped our attention.

All Acts of the same session of the Legislature upon the same subject matter are considered as one Act, and must'be construed together, under the doctrine of "In pari materia State v. Bell, 25 N. C., 506; Black on Interpretation of Laws, Section 86; Endlich on Interpretation of Laws, Section 45; 20 Tex., 355. They should be considered in pari materia, whether passed at the same session or not. Simonton v. Lanier, 71 N. C., 478; Rhodes v. Lewis, 80 N. C., 136.

Where a former Act has been repealed or has expired by its limitation, when it is in pari materia, it must be considered in connection with the last Act, and, if necessary, a part of it. Potter’s Dwarris, 190. “It certainly appears strange,” said Williams, J., in a late case, “that when an Act of Parliament is per se ‘abolished,’ it shall virtually have effect through another Act. But in that case the former Act was substantially reenacted. Beg. v. Merionethshire, 6 Adol. and Ellis, 343. It does indeed seem to be the prevailing doctrine (and it is more rational in itself than consistent with coeval maxims), that where one statute refers to another, which is repealed, the words of the former Act must still be considered as if introduced into the latter statute.” Potter’s Dwarris, p. 192.

In Rex v. Laxdale, 1 Burr., 445, it is held (Lord Mansfield delivering the judgment of the Court), “That where there are different statutes in -pari materia though made at different times, or even where they have expired, and not referring to each other, they shall be taken and considered together as one system, and as explanatory of each other.” The same doctrine is held in New York. Smith v. People, 47 N. Y., 330, which is very much in point.

It is now seen that the Acts of the 27th of February, the 3rd of March, and the 6th of March, 1899, were passed in rapid succession by the same session of the Legislature; that the Act of March 3rd is in substance a reenactment of the Act of 1895; that they are in pari materia, and must be construed as one Act. Thus considered, it becomes a matter of judicial construction as to the effect of this legislation upon the office of Clerk of the Criminal Court of “Buncombe County.” To enable us to do this, it becomes necessary to consider the whole Act of March 3, 1899, in connection with the other Acts, although some parts of them do not directly bear upon the clerkship of Buncombe County, for the purpose of properly understanding and 'construing them.

The third Section of the Act of March 3, 1899, provided: “That the said Courts shall have exclusive original jurisdiction to inquire of, hear and try all crimes, misdemeanors and offences, committed in the Counties of Buncombe, etc.” This takes away from the Superior Courts all original jurisdiction in criminal cases, and it takes from Justices of the Peace all criminal jurisdiction, as they have no appellate jurisdiction — their jurisdiction being only original. This would seem to be in conflict with Article IV, Section 21, of the Constitution, which expressly provides that, “Justices of the Peace shall have jurisdiction of all criminal matters arising within their Counties, where the punishment can not exceed a -fine of fifty dollars or imprisonment for thirty days.” This Section further provides “that in all criminal matters, the party against whom judgment is given may appeal to the Superior Court, where the matter shall be heard anew.” It (the Act of 1899) further on, in the same Section, provides that these Criminal Courts shall have jurisdiction of all these crimes and offences “fully and to the same extent as the Superior Courts of the State.” But this does not seem to limit their exclusive jurisdiction, but to declaim t-he extent of their power, their jurisdiction, to try and dispose of these matters. Whether this Act taking from the Superior Court its criminal jurisdiction as provided by Section 12, Article IV, of the Constitution, is in conflict with the Constitution, it is not necessary for us to decide in this case, and we simply refer to Rhyne v. Lipscombe, 122 N. C., 650, and Cooley Const. Law (6 Ed.), 156. The question of apparent conflict with the Constitution is more directly presented in the 18th Section of the Act which provides that the County Commissioners shall draw not less than twelve nor more than 24 jurors for each week of the Superior Court. We had a jury system here before, and at the time of the adoption of all our Constitutions — -a grand jury of 18, and petit jury of 12. Our Constitution and judicial system must have recognized this policy — this law of the organization of our Superior Courts. Rhyne v. Lipscombs and Cooley, supra. Superior Courts are established by the Constitution and can not be abolished by the Legislature. Nor can the Legislature deprive them of their rightful jurisdiction. The Legislature may give other Courts a part of the jurisdiction of the Superior Courts, but it can not deprive them of their constitutional jurisdiction. Here are nine Counties where the Commissioners may refuse to draw more than 12 jurors. It would be impossible for the Court to draw a grand jury of 18 out of a panel of 12 jurors. But it is said we have provided a Criminal Court for these Counties, to try criminal offences. That is so. But we are discussing the constitutional question — the right of the Legislature to dismantle and disable the Superior Courts. If the Legislature has the right to do this in these nine Counties, it has the right to do so in any other nine Counties, or in all the other Counties in the State. And the fact that they have established a Criminal Court in these Counties does not affect the question of their constitutional power to destroy the criminal jurisdiction and usefulness of the ■Superior Courts. If tbe Legislature bas tbe power to do tbis iu Counties where it bas established Criminal Courts, it has tbe power to do so in Counties where there are no Criminal Courts. It would seein that it might divide tbe jurisdiction between tbe Superior Courts and Inferior Courts, but it can not destroy tbe constitutional jurisdiction of tbe Superior Courts.

But Section 5, of tbe Act of 1899, provides that tbe Solicitors of these Criminal Courts, appointed by tbe Judge of these Criminal Courts, shall prosecute for tbe State in tbe Superior Courts, and receive the fees, in case of conviction, that tbe Solicitors of tbe Superior Courts are.entitled to. Tbis would seem to be in direct conflict with Section 23, Article IY. of tbe Constitution, which provides that “A Solicitor shall be' elected for each Judicial District by tbe qualified voters thereof, as is provided for members of tbe G-eneral Assembly, who shall bold office for tbe term of four yeárs, and prosecute on behalf of the State in all criminal actions in'the Superior Courts

These provisions of tbe Act — some of them so plainly in conflict with tbe Constitution — and tbe imperfections of the Act in failing to provide for any fees for tbe Clerk, and in failing to provide that be should give bond, are referred to for the purpose of showing that, as an independent Act, it would be incomplete and imperfect legislation. But to treat tbe three Acts together, in pari materia, as it seems to us they must be treated under tbe authorities we have cited, they then become but amendments to tbe Act of 1895. There are no clauses in these Acts but what could be, and would be, by all tbe rules of interpretation, treated as amendments to the Act of 1895, except that which declares that tbe Court is abolished. This does not make it so, if it is not so. Treating them as amendments does not cure, any violations of tbe Constitution.

It was declared in tbe Act of 1895, with regard to tbe Insane Asylum, that tbe Board of Directors was abolished, and this Court held that it was not. Wood v. Bellamy, 120 N. C., 212. The Act of 1899, with regard to the Penitentiary, declared the office of Superintendent abolished, and this Court held that it was not. State Prison v. Day, at this term. It is shown by the authorities cited, and quoted above, that these opinions are in line with the text writers, and with English and American adjudications. Taking out of these Acts the sentence that the “Court is hereby abolished,” and everything else would be properly construed as amendatory. Although these Courts were put into a “Criminal Circuit” by the Act of 1895, and into a “Circuit Criminal” by the Act of 1899, that makes no difference. The Court of each County embraced in the “Circuit” is a separate and independent Court — the Court in one County in no way depending upon the Court in another County. The fact that the Circuit was enlarged and more Counties included in it, makes no difference. The Court in Buncombe County is just the same as it was before other Counties were included. The Act of 1897 put McDowell County in that Circuit, but this did not abolish or change the Criminal Court of Buncombe County. The Superior Courts of one County have frequently been taken out of one Judicial District and put in another, and Judicial Districts have been changed so as to include more Counties; and this did not abolish the Court or change the powers or jurisdiction of the Court. The fact that the Act of 1899 did not undertake to establish civil jurisdiction, attempted to be given by the amendatory Act of 1897, nor the fact that it provides for appeals to the Superior Courts instead of the Supreme Court, makes no difference, as these amendments had been declared to be unconstitutional and void. Rhyne v. Lipscombe, If it was desirous to make these changes they were the proper subjects of amendment.

It is claimed that the Court should look for the object to be attained by the enactment — what was the wrong and vlrnc was the intended benefit to be effected by tlm legislation. But when we apply this rule, and look for the evil under the Act of 1895, and the benefit to be accomplished under lire Act of 1899, we find none, as the Court under the Act of 1895 and under the Act of 1899 is precisely (lie same, except as to the personnel of the Clerk. The plaintiff is out and the defendant is in. We can- find no reason for this change, unless we were to enter a field of inquiry that we, as a coordinate department of the Government, have no right to enter, and which we have no more disposition to enter than we have the right to do so. That field of inquiry to us is a “sealed book.”

So, finding that according to the precedents, judicial interpretation, the fact that the Act says that it is “abolished'' does not make it so, if the Act itself shows that it is not, we proceed with our investigation. And in doing so, we find the Act of the 3rd of March, referring to and. recognizing the Criminal Courts established by the Act of 1895, the Act that defendant claims to have been “abolished” by’the Act of the 27th of February, which provides in Section 22 as follows: “That all criminal causes, indictments and proceedings by scire facias or otherwise against defendants or witnesses and their sureties, now pending in the Circuit Courts of the Counties of Buncombe, Madison, Haywood, Henderson, McDowell or the Superior Courts of any of the Counties composing said Western Criminal Court, shall be and are hereby transferred and removed to the Western Criminal District Court created by this Act.”

Thus it is seen that this Act recognizes the existence of tbe Criminal Courts established by tbe Act of 1895, by providing that all tbe cases now pending in said Courts shall be, and are “hereby” transferred, that is by tbe Act of tbe 3rd of March, 1899, to tbe Courts created by that Act.

This Court being purely a creature of legislation has no functions or powers except those given it by tbe Legislature. It has no Clerk except as given it by legislation. It has no Judge or other officer except as given it by legislation. Its officers have no fees except as prescribed and fixed by legislation. None of its officers, witnesss or jurors, except tbe Judge and Solicitor, have their fees and compensation fixed by the Act of 1899, without referring to the Act of 1895. The Act of 1895 prescribed and fixed all these fees and compensation. The Act of March 3rd provides that they shall be the same as now fixed by law. The Act of 1895 is the only law fixing the fees of the officers of this Court, and must be the law referred to in the Act of 1899.

We are thus led to the conclusion that the Acts of 1899 must be considered together, and are in pari materia with the Act of 1895 and Act of 1897, creating a Criminal Court in McDowell County, and putting it in the Criminal Circuit with Buncombe and other Counties. Thus considered, they are but amendments to the Act of 1895 and the Act of 1897, and do not abolish the Criminal Court of Buncombe County. And this being so, the relator, Wilson, is entitled to his office under the doctrine of Hoke v. Henderson, 15 N. C., 1; Wood v. Bellamy and State Prison v. Day, supra, and every other case decided by this Court since Holce v. Henderson, where the question has been involved. This case has been the pride of the bench and of the bar of this State for more than 60 years; and whatever others may say, we find it to be the settled law of this State, based as we believe upon just principles and sound reasoning.

We bave recently beard tbe argument advanced that a public officer bas no interest in tbe office, but only in tbe salary and fees of tbe office. Tbis is new doctrine to us. Tbe salary and fees are but incidents of tbe office, and if one bas no office be bas no interest in tbe fees. Take tbe office from its owner, and you take from bim tbe fees. Hohe v. Henderson recognizes tbis right, tbis property in an officer, and protects it as tbe property of tbe owner. But we do not feel called upon at tbis late day to defend Hoke v. Henderson. It bas been defended by every decision of tbis Court from 1833 to tbe present time.

From tbe intimations made by a member of tbis Court we are induced to say: that we bave discussed tbe legal questions arising in this case as they appeared to us; we do invite criticism, we bave no right to object to fair criticism, and we do not do so. If such criticism shall be indulged in, as is not just or legitimate, we believe that an intelligent and learned profession will discriminate between that which is legitimate and that which is not.

It bas been suggested by a member of tbis Court, that tbe Legislature bas tbe power to impeach a Judge — that it bas recently done so, and that there is no appeal from its judgment. Such a suggestion as tbis, has never occurred in tbe history of tbis Court until now. Tbis suggestion added nothing to the strength of tbe argument advanced for tbe defendant. Why it should bave been made, we do not know. But remembering our position as members of tbis Court, we will not express our sentiments as to such suggestions, and will only say that, in our opinion, any member of any Court, who would allow himself to be influenced by such suggestions is unfit to be a judge.

There is error and tbe demurrer should have been overruled. The plaintiff is entitled to the relief he demands.

Error.