7 N.C. 181 | N.C. | 1819
Lead Opinion
The plaintiff brought an action on the case, and the Defendant filed the following Plea, to-wit:
"And the said John A. Cameron in his own proper person comes and defends the wrong and injury, and says, that this action is coram non judice: that there is no Superior Court of Law now in session in the county of Bladen; that a Judge, legally and constitutionally appointed, is a constituent part of a Superior Court of Law for said county, and that the said Blake Baker, Esq., has not been legally and constitutionally appointed a Judge of the Superior Court of Law and Equity of the State of North Carolina aforesaid; and that the said Blake Baker, Esq., is not one of the Judges of the Superior Courts of Law and Equity of the State aforesaid, and that he has no authority to hold the Superior Court of Law of said county, and to preside in the same as Judge; and that he has no jurisdiction over said action, nor any authority to receive any plea or make any order, or give any judgment in, touching, or concerning the same; and this the said John A. Cameron is ready to verify, and, therefore, apprehends that the said Blake Baker, Esq., will not, nor ought to take any cognizance of the action aforesaid here depending against him, c. Therefore he prays judgment, if he ought to be compelled to answer to the said Plaintiff in his said plea here depending.
J. A. CAMERON."
This Plea was sworn to; and the Plaintiff replied as follows, to-wit:
"And the said John Beard saith, that the said Hon. Blake Baker ought to take cognizance of the action aforesaid here depending against the said J. A. Cameron; and that the said Defendant ought to be compelled to answer over to the said Plaintiff in his said action here depending; because the Hon. Samuel Lowrie, late one of the Judges of the Superior Courts of Law and Equity of the State of North Carolina, died during the recess of the General Assembly of the State aforesaid, and his Excellency John Branch, Governor of the State aforesaid, with the advice of the Council of State aforesaid, issued a temporary commission, bearing date the ____ day of (183) ____ 1818, (which commission will not expire until the end of the next session of the General Assembly of the State aforesaid, which next session, will not commence until the third Monday *141 of the ensuing month of November,) to the said Hon. Blake Baker, to fill the vacancy occasioned by the death of the said late Hon. Samuel Lowrie, thereby giving to the said Hon. Blake Baker, during the term aforesaid, all the powers and authorities of a Judge of the Superior Courts of Law and Equity of the State aforesaid, which gives him full power and authority to hold the Superior Court for the county of Bladen at this time, and gives him jurisdiction over the aforesaid action; and this the said John Beard prays may be enquired of by the county.
JAMES J. MACKAY, For the Plaintiff."
To this Replication the Defendant rejoined:
"And the said John A. Cameron, as to the replication of the said John Beard to the said plea of him, the said J. A. Cameron, saith, that the General Assembly of the State of North Carolina commenced its annual session for 1817 on the third Monday of November in said year, at the city of Raleigh, in the State aforesaid, being the time and place prescribed by law for said session; and that the said General Assembly continued in session until 24 December in the said year, when the said General Assembly adjourned sine die about 10 o'clock A. M. of said day; and the late Hon. Samuel Lowrie, one of the Judges of the Superior Courts of Law and Equity of the State aforesaid, died on 22 December, 1817, about the hour of 8 o'clock A. M. at his residence in the county of Mecklenburg, about 150 miles from the city of Raleigh aforesaid, and that the Hon. Samuel Lowrie died, and the office of Judge which he held as aforesaid became vacant during the aforesaid session of the General Assembly, and that sufficient time elapsed between the death of the said Samuel Lowrie and the adjournment sine die as aforesaid of the said session of the said General Assembly of the State of North Carolina as aforesaid, for the said General Assembly to have known and been informed of the said death of the Hon. Samuel Lowrie, and consequent vacancy of the said office of Judge, and to have appointed a successor of the said Hon. Samuel Lowrie to fill said vacant office before the time of their adjournment sine die as aforesaid; and that the said Hon. Samuel Lowrie did not die, nor the said office of Judge which he held as aforesaid become vacant, during the recess of the said General Assembly; but the said General Assembly was in session at the time of said death, and that his Excellency John Branch, Governor of the State aforesaid, with the advice of the Council of State, had no authority to issue to Blake Baker, Esq., a temporary commission to fill the said vacancy occasioned by the said death of the said Hon. Samuel Lowrie, until the end of the next session (184) of the said General Assembly; and if such commission had been issued by the Governor, with the advice of the Council of State, it is an usurpation of power, not delegated to them, or either of them, by the people of North Carolina, is in violation of the express words and in contravention of the spirit of the Constitution of the State aforesaid, and at warfare with the genius of her republican institutions; and that the said Blake Baker, Esq., has not the authority of a Judge of the Superior Courts of Law and Equity of the State aforesaid; and that he has no authority to hold the Superior Court of Law for the county of Bladen aforesaid, or to preside in the *142 same as Judge; and that he has no jurisdiction over the said action, nor any authority to receive any plea or make any order, or give any judgment in, to, or concerning the same; and of this he the said John A. Cameron puts himself upon the country, c.
J. A. CAMERON."
To this Rejoinder the Plaintiff demurred, and the Defendant having joined in demurrer, the case was sent to this court. It is, to my mind, a very strange and incongruous proposition, that an answer is required to be given by A. B. whether he be a Judge, which answer he cannot give unless he be a Judge. I plead that you are not a Judge; a Judge alone can decide the plea; and I call on you to decide. This certainly cannot be the way of testing Judge Baker's appointment. The way is very simple, but it is not for this Court to point it out. It is said that the extent of the jurisdiction of all Courts is settled by the Courts themselves. This is true: but then it must be remembered that in all such cases there is a Court competent to decide; and it is called upon not to decide whether it is a Court, but the extent of its jurisdiction. The plea must therefore be overruled.
Addendum
This is a plea filed by the Defendant in person, objecting to the right in the late Judge Baker to hold the Superior Court of Bladen as the Judge thereof, on the ground that the Judge whose place he was appointed to supply died during the session of the General Assembly; that the Governor and Council can supply only such vacancies, in the judicial department, as occur during the recess of the (185) General Assembly; and that, consequently, the appointing and commissioning of Judge Baker were unauthorized by the Constitution. The pleadings are drawn out to considerable length, but it is deemed unnecessary to recite them, or to examine their sufficiency in point of form; because the objection intended to be made is presented in an improper shape; the effect of assuming a principle wrong in itself, and building on a foundation radically defective.
The Defendant prays judgment if he ought to be compelled to answer to the Plaintiff in his said plea here depending. Whom does he ask to pronounce this judgment? The person who is asserted by the plea to be constitutionally incompetent to render any judgment. If the person holding the Court were not a Judge duly authorized and rightfully commissioned, he could render a judgment in no case: none of his acts or proceedings could possess a judicial character, or be capable of *143 effecting, in any shape, the rights or property of the citizens. It must be nugatory then, to propound to the person assuming this authority, a question involving his competency to decide; for that were to ascribe to his decision an authority which the very statement of the question denies it to possess. If he were to decide that he is a Judge, and proceed to try the cause and give final judgment, no efficacy could be imparted to such judgment by his decision: it would be ipso facto a nullity, in one case as well as in the other, and no act of his could give it the force of resadjudicata. The highest evidence of the opinion of a person acting in the character of a Judge, that he has a right to do so, is exercising the functions of the office. This has already been given; and the strength of such evidence is not increased by his particular opinion to the same effect expressed, or a plea to the jurisdiction.
The plea, however, contradicts a fundamental maxim of all laws, that no man shall be a judge in his own cause. This is, in an especial manner, the cause of the person called upon to decide it; for, if the power he exercises be an usurpation, (186) he is indictable for a misdemeanor, and subject to fine and imprisonment. It is not necessary to say to what extent he would be liable to individuals injured by his acts, or to the public for executing the laws involving capital punishment. It is enough for the principle of this case to show, that Mr. Baker could not answer the question submitted to him by the plea, without deciding on his own amenability to a prosecution. The law wisely presumes that no one in such a situation can give a righteous judgment; and if, as the plea assumes, he was incompetent to hold a Court, still less was he competent to decide whether he could adjudge in the particular case. The plea must be overruled, and the Defendant answer over.
Cited: S. v. Hall,
