State Ex Rel. Cook v. Meares ( 1895 )

This is an action in the nature of quo warranto for the office of Judge of the Circuit Criminal Court composed of the county of New Hanover and others.

It appears that the General Assembly on 8 March, 1895, completed the passage of an act, through both of its Houses, establishing this "Circuit Criminal Court." But this act was not signed and ratified by the President of the Senate and Speaker of the House until 12 March, 1895. In this act the Legislature declared there should be one judge for this criminal district, to be elected by the (585) Legislature. In pursuance of this legislation it proceeded on 9 March to elect the plaintiff judge of said court, which vote was reported and confirmed on 11 March. And on 13 March, the Governor appointed the defendant judge of said criminal court, and he is now occupying the office, and holding the courts. Every question involved in this case is decided in the case of Ewart v. Jones, ante, 570, except one. And that is that plaintiff was elected three days before the act was

There is no doubt of the plaintiff's being elected, and it is contended signed by the President of the Senate and the Speaker of the House. that the legislative will, so clearly expressed, should not be defeated by a mere technicality. It is also said in support of plaintiff's claim that the act of 12 March was only a part of the expression of the legislative will. That it is in pari materia with the acts of legislation commenced on the 9th and completed on the 11th in reporting and declaring the vote for plaintiff, and that they should be read and construed together. And they say there are precedents in our own legislative history to support plaintiff's claim. That the Legislature of 1876 passed and ratified an act establishing a criminal court for the county of Wake, on 10 March, and on the same day elected George V. Strong to fill the office, that day created. That on 6 March, 1891, the Legislature passed and ratified an act establishing the Court of Railroad Commissioners, and on the same day proceeded to elect the officers to fill the same. And they contend that it is not known whether these acts were signed by the Speaker and the President of the Senate (586) before or after said elections.

And plaintiff further contends that in March, 1887, the Legislature passed an act proposing an amendment to the Constitution, increasing the number of associate justices of the Supreme Court from two to four, which amendment was to be submitted to the people, in November following, for their ratification or rejection; and provided that said vote should be reported to the State Board of Canvassers on the second Thursday thereafter. And if upon a canvass it should be found that a majority of the people voted for said amendment, the Governor should so declare by proclamation. And that he should attach his certificate to the act to that effect, which should be deposited in the office of the Secretary of State. That it was also provided in said act that at the same election, in November, there should be an election held for two Justices to fill the offices "to be created" by said amendment, if it should be adopted. That an election was so held for two justices, the constitutional amendment was adopted, and the justices so elected qualified and took charge of their offices.

And it is contended that these justices were elected when the vote was cast in November, like the plaintiff was on 9 March. And that the constitutional amendment did not take effect until the vote was counted and ascertained by the canvassing board, and the Governor's proclamation issued proclaiming its adoption. And that there was no office to fill at the election in November, 1888.

While, on the other hand, defendant says that the act of the Legislature on the 9th, electing the plaintiff, and the act passed on the 8th, but not ratified until the 12th, were separate and distinct acts of legislation, and cannot be considered and construed together. That the rule of pari materia does not apply. That when plaintiff was elected on the 9th, there was no such office; and its passing the Legislature on the 8th amounted to nothing until it was (587) signed by the President of the Senate and the Speaker of the House on 12 March.

Defendant further says that this Court in Scarborough v. Robinson,81 N.C. 409, has decided this. And the case of Rhodes v. Hampton,101 N.C. 629, decides that a man cannot be elected to an office when there is no office at the time of the election. And therefore admitting that plaintiff received votes enough to elect him, that he was not elected for the reason that the office was not created for three days thereafter. The only point before the Court in Scarborough v. Robinson was to whether the Court could compel Robinson, then Lieutenant-Governor and President of the Senate, and Moring, Speaker of the House of Representatives, to sign a school bill passed by the Legislature or not, after the Legislature had adjourned. And although this was the only question before the Court for its judgment, the Court proceeded to a engthy [lengthy] discussion of legislative powers, in the course of which it announced the opinion that an act passed by the Legislature was not a law until it was signed by the presiding officers. We find very respectable authority to the contrary. And without passing on thisdictum (because it is not necessary we should do so in giving our judgment in this case) we say that it announces a very grave proposition. If what is held in that opinion be true, the presiding officers of the Legislature are clothed with a veto power greater than that vested in the President of the United States, or in any governor in any state of the Union. Because, where there has been a veto power vested in the executive, there is also provision made to pass the act over his veto, which is not infrequently done. Here, there is no such power. The courts will not compel them to sign the act, and there is no means provided by which the Legislature can pass it over their refusal to sign. But as we have said, we do not pass upon this (588) question.

In Rhodes v. Hampton, supra, the point as to whether a party could be elected to an office which did not exist at the time of the election was presented, and the Court held that he could not. And we admit that it was the intention of the Legislature to elect the plaintiff to the office he is claiming in this action. We admit that the point made by defendant is a technical question. We admit that the journals show that George V. Strong was elected on the day the bill establishing the court was ratified. We admit that the journals show that the railroad commissioners, in 1891, were elected the day the bill was ratified. And we admit the two additional justices were elected at the November election in 1888, and that the amendment creating the offices to which they were elected did not go into effect until some time afterwards — when the Governor so proclaimed. But these all took place when there was harmonious action between the legislative and executive departments of the government. None of them have been tested in the courts. So they cannot be considered precedents to control our action. But in the case of Judge Strong and in the case of the Railroad Commission, as it was all done on the same day, we must presume that it was rightly done, that is, that the act was ratified before the election took place. And in the case of the justice of the Supreme Court, their election was provided for in the same act that provided for the amendment. And this may make the difference between their case and that under consideration. We have said we put out of our consideration in this case the case of Scarborough v. Robinson, because, this act creating a criminal court was signed and is now the law. So the question presented in Scarborough v. Robinson is not presented (589) here. And we put our judgment on this act, now the law, which provides that "it shall be in effect from and after its ratification," which is in effect saying that it shall not be in effect before that time, and this is 12 March, 1895, and upon the opinion inRhodes v. Hampton, supra, which holds that a party cannot be elected to an office that does not exist at the time of the election. It is better that the intention of the Legislature should be defeated, for a time, than that we should violate the law. We find no error in the judgment appealed from, and the same is affirmed.