McAdoo v. . Benbow , 63 N.C. 461 ( 1869 )

RODMAN, J., dissenting. The plaintiff, on the 14th day of June 1869, had issued a writ of Summons, asking "for a judgment according to the prayer of the complaint," returnable at the office of the Clerk, c. Upon the 18th of June 1869, a motion to that effect having been made by the defendant, the Clerk dismissed the Summons, on the ground that it should have been made returnable to the regulor [regular] term, c.

Upon an appeal to the Judge of the Superior Court for the 7th Judicial District, His Honor reversed the Clerk's judgment, upon the ground "That the Act of Assembly requiring the Summons in all cases to be made returnable only to the regular term of the Superior Court is in direct conflict with Art. IV, Sec. 28, of the Constitution of this State. The making up of issues is certainly part of the "business" for the transaction of which the Courts are "at all times open." The provision making the Summons returnable only at term would close the Courts for this "business" for eleven months in each year."

Thereupon the defendant appealed to this Court. His Honor decides that the statute entitled, "An act suspending the Code of Civil Procedure in certain cases," is unconstitutional in respect to the enactment: "Writs of summons shall be returnable to the regular terms of the Superior Courts," because, as he claims, it violates Art. IV, Sec. 28, of the Constitution.

No Court should declare a statute to be void, except in a clear case, for it is supported by the presumption of intelligence in the legislative branch of the government.

The Court is of opinion that, in the particular now under consideration, this statute does not violate the Constitution, and that his Honor erred in holding that the General Assembly has not power to repeal, suspend, modify or change, the Code of Civil Procedure, in respect to the judicial functions conferred by it upon the Clerks of the Superior Courts, other than those conferred by the Constitution itself.

The question is, does the Constitution divide the Superior Court so as to confer certain of its functions upon the Judge proper, and certain other of its functions upon the Clerk, as Judge subordinate: among others, "jurisdiction to hear and decide on all questions of practice and procedure, arising in actions brought to this Court;" and "on all other matters, whereof jurisdiction is hereby given to the Superior Court, unless the Judge of said Court, or the Court at the regular term thereof, be expressly referred to." C. C. P. Sec. 108.

Is this so ordained by the Constitution? There is no express provision to that effect. So we come to the point: Is this power conferred on the Clerk by the Constitution, or only by the Code?

It is claimed that Art. IV, Sec. 28, of the Constitution, confers these judicial functions on the Clerk. The section is in these words: "The Superior Courts shall be, at all times, open for the transaction of all business within their jurisdiction, except the trial of issues of fact requiring a jury." By itself, the section confers no jurisdiction on any one to act as a Judge, either expressly or by implication. It may as well point to the Sheriff or any one else, as to the Clerk, and only by taking it in connection with Sec. 12, can there be any ground whatever, for any implication. Sec. 12 divides the State into twelve Judicial Districts, for each of which a Judge shall be chosen, who shall hold a Superior Court in each County of said District, at least twice a year, to continue for two weeks, unless," c. These Districts, severally, comprise some seven or eight Counties. The argument is in this wise: Sec. 12 requires the Judges to hold a Superior Court, to continue for two weeks, in each County twice every year: By Sec. 28, "the Superior Court shall be, at all times, open for the transaction of all business," c: This is impossible if the Judge is to hold the Courts, for he is required to be absent holding Courts in other Counties nearly half of the year: Ergo, the Constitution confers on the Clerk of the Superior Court judicial functions, to be exercised in place of the Judge!

Non sequitur! It only follows that Sec. 28 cannot be construed literally. It seems to be a provision taken from the Constitution of a State which appoints a Judge of the Superior Court for every County. There it may work well enough. But it must be trimmed down in some way, in order to make it fit in a Constitution which appoints only one Judge of a Superior Court, for Districts of seven or eight Counties. One way is to construe it to mean that the Superior Courts shall be at all times open for the transaction of such business as can be done in the absence of the Judges, for instance, issuing writs of summons, taking undertaking for appeals, special proceedings for arrests, injunctions, c., and taking probate of deeds, granting letters testamentary, letters of administration, appointing guardians, c., where the Clerk acts as Surrogate. Allow that this does not fully satisfy the words of Sec. 28, the question again comes up, what is there in theConstitution to confer the judicial functions under consideration upon the Clerks? And that, too, in face of the express enumeration of the judicial functions conferred on them, and set out in Sec. 17. (Expressiounius exclusio alterius!)

Sec. 17 is in these words: "The Clerks of the Superior Courts shall have jurisdiction of the probate of deeds, the granting of letters testamentary, and of administration," c., "and of such other matters as shall beprescribed by law."

This enumeration of the subjects of jurisdiction divides the Superior Court only to the extent of conferring on the Clerk subordinate jurisdiction in respect to certain matters, which had been before exercised by the County Court, and most of which, in other States, is exercised by the Surrogate Court, and in England by the Court of the Ordinary. If it was intended to make a further division of the functions of the Superior Courts in the Constitution, by conferring on the Clerks jurisdiction to hear and decide on all questions of practice and procedure arising in actions brought to said Courts, why was not that set out in the Constitution, like the jurisdiction to grant letters testamentary and of administration, and the other matters enumerated?

Here it may be remarked, in putting a construction upon an instrument the question for the Court is not what the draftsman meant, but what the words of the instrument means. It sometimes happens for this reason, that the draftsman is less to be relied on than almost any other person to construe an instrument, whether it be a constitution, statute, deed or will.

All difficulty, however, is removed by this clause in Sec. 17: "The Clerks of the Superior Courts shall have jurisdiction "of such other matters as shall be prescribed by law." Under this clause the General Assembly had power to enact the Code of Civil Procedure, by which the functions of the Superior Court is, to some extent, divided between the Judge and the Clerk; and under this same clause the General Assembly has power to repeal, suspend, modify or change its enactments, so as to make writs of Summons returnable to the regular terms of the Superior Courts.

In this view, the next clause of Sec. 17, "All issues of fact joinedbefore them shall be transferred to the Superior Courts for trial," harmonizes; and everything is made to fit. "Issues of fact joined before them:" Whom? The Clerks of the Superior Courts, whether exercising the jurisdiction conferred on them by the Constitution as Probate Judges, or the jurisdiction which may be conferred on them by the General Assembly in its wisdom, under the words, "all such other matters as shall be prescribed by law." As in this particular, the Code of Civil Procedure is a creature of the General Assembly, the Court cannot allow it to be greater than its maker.