State Ex Rel. Ewart v. Jones

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 (571) people in convention assembled from time to time. In the Constitution of 1868 these limitations are found, bearing upon judicial questions, mainly in Article IV; and in section 4 the judicial power is vested in a Court for the trial of impeachments, a Supreme Court, Superior Courts, Courts of Justices of the Peace and Special Courts, and the power of such Special Courts, as defined in section 19 of the same article, was declared in S. v. Pender, 66 N.C. 313.

In the same article, sec. 31, it was provided that the Governor should fill all vacancies occurring in the offices provided for by this article of the Constitution "unless otherwise provided for," and it was held by this Court that the words "unless otherwise provided for" meant unless otherwise provided for in this Constitution. In the Constitution of 1868 no Criminal Court, nor any other Court, than those provided in Art. IV, sec. 4, could be established by the Legislature, and it is expressly provided in Art. III, sec. 10, that "the Governor shall appoint all officers whose offices are established by this Constitution, or which shall be created by law, and whose appointments are not otherwise provided for, and no such officer shall be appointed or elected by the General Assembly." Thus it was according to the decisions of this Court cited under the appropriate sections in the present Constitution.

The Convention of 1875 revised and amended the Constitution of 1868 in several respects, and in the following, bearing on the present question:

1. In Art. III, sec. 10 — "The Governor shall . . . . appoint all officers, whose offices are established by this Constitution, and whose appointments are not otherwise provided for" — omitting the words "and no such officer shall be appointed or elected by the General Assembly," found in the corresponding article and section of the (572) Constitution of 1868.

2. In Art. IV, section 2 — "The judicial power of the State shall be vested in a Court for the trial of impeachments, etc., and such other Courts inferior to the Supreme Court as may be established by law."

3. In Art. IV, section 25 — "All vacancies occurring in the offices provided for by this article of the Constitution shall be filled by the appointments of the Governor, unless otherwise provided for" . . . "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 cases of vacancies occurring therein."

4. In Art. IV, sec. 30 — "In case the General Assembly shall establish other Courts inferior to the Supreme Court, the presiding officers and clerks thereof shall be elected in such manner as the General Assembly may from time to time prescribe, and they shall hold their offices for a term not exceeding eight years."

Upon this last section 30, the plaintiff's right to the office sued for depends.

From this review we find that under the Constitution of 1868 the Governor filled all vacancies provided for therein not otherwise provided for, and that no such officer could be appointed or elected by the General Assembly, and that the Legislature had no power to establish other courts. And we find in the Constitution of 1875, section 30,supra, that the Legislature is invested with power to establish other courts inferior to the Supreme Court and to prescribe the manner of electing the presiding officers and clerks thereof, and this power excludes any authority in the executive to fill such an office under the provisions of the Constitution to fill vacancies. This seems to be the plain and natural meaning of the language of sections 30, 31, and other sections. In further support of such construction and of the intention, we were (573) furnished with the Convention Journal of 1875, pages 175, 176, showing by a direct vote that the Convention refused to incorporate the words "and no such officer shall be appointed or elected by the General Assembly," as it was in section 4 of the Constitution of 1868. The intent of the Convention in making those changes is too plain to require further comment.

The General Assembly, Act 1895, ch. 75, in pursuance of Art. IV, sec. 30, supra, established a Criminal Circuit, composed of Buncombe, Madison, Haywood and Henderson counties, providing for one judge and prescribing the powers, jurisdiction, etc., of said Court. Section 7 — "That such Judge may be removed from office for the same causes and in the same manner as a judge of the Superior Court, and all vacancies in said office shall be filled by appointment of the Governor, and the person so appointed by the Governor shall hold his office until the next general election, provided that the General Assembly now in session shall elect a person to fill the vacancy in said office, which will be caused by the ratification of this act. Ratified 23 February, 1895."

On 27 February, 1895, the Legislature elected the plaintiff, by the requisite majority, a judge of said Criminal Circuit to fill the office as provided in said Act. On 12 March following the plaintiff applied to the Governor for his commission, which was refused, and on the next day the Governor nominated, appointed and commissioned the defendant as Judge of said Criminal Circuit, who is now in possession thereof.

This exercise of power by the Governor was without authority in the Constitution or the Act of Assembly. There was no vacancy in the office, such as is contemplated by the Constitution to be filled by the Governor. There was in fact no vacancy. It was simply the short interim between the establishment of the office and the (574) election of the person to fill it. Was it necessary for the Legislature to elect the officer in the same breath that created the office, in order to prevent a constitutional vacancy to be filled by the executive, when the act itself declared the purpose of that body to elect the officer? The question seems to furnish the answer. The fact that the word "vacancy" is used in the proviso does not affect the question. Suppose the Legislature had declared that the interim of four days should or should not be a vacancy, that would not help the matter; for it is not the province of that body to determine the legal effect and consequences of its own action. It is manifest that the purpose was to prevent a constitutional vacancy.Cloud v. Wilson, 72 N.C. 155, has been invoked on this question. There, D. H. Starbuck had been duly elected Judge of the 8th Judicial District, and after long delay he declined to accept and so notified the Governor. This Court held that to be a vacancy to which the Governor should appoint,ex necessitate, as the Legislature was forbidden to fill the place by Article III, sec. 10, and on the further ground that the public would suffer without a judge for the district. Here, the Legislature had the constitutional power to create the office and fill it, and the plaintiff was ready, and tried to enter promptly. There is no analogy.

Our opinion then is that the plaintiff is entitled to the office sued for, and that the judgment below is

Reversed.