116 N.C. 315 | N.C. | 1895
Lead Opinion
This case was submitted to the court below under section 567 of The Gocle, and is here by appeal. This section of The Code answers a most excellent and useful purpose, in that it enables parties to have their questions in difference settled upon an agreed state of facts, without delay and without the cost of witnesses and a trial below. It disregards forms, as such, and the perplexities of pleadings. It requires only that, by affidavit, it shall be made to appear that a real case exists and that the controversy is submitted in good faith to determine the rights of the parties. One of the long standing rules of practice of this Court, number 10, provides that, “ When by consent of counsel it is desired to submit a case without oral argument, the Court will receive printed arguments without regard to the number of the case on the docket, or date of docketing the appeal * * ” Eule 13 amongst other things provides that the Court at the instance of a party to a cause directly involving a matter of great public interest, may assign an earlier place in the calendar or fix a day for the argument thereof which shall take precedence of other business. Under these rules we have felt it to be our duty to give an early hearing to the matters involved in the case before us, because of its public and general interest.
Upon examination of the proceeding before us, we are not satisfied that the facts are stated with sufficient full
Executive Department, March 29, 1894.
To the Justices of the Su/preme Goxort,
Sibs : There exists a difference of opinion in the minds of the citizens of the State in regard to the term of office of a Judge elected by virtue of the provisions of section 25, Article IY, of the Constitution. The Attorney General, in an opinion filed at my request in this office, has advised me that every Judge elected under that section is elected for a full term of eight years. A considerable number of able members of the legal profession differ from him in his construction, and contend that a Judge so elected is only elected for the unexpired term of his predecessor in office. It is all important that the question should be determined by the highest Court in the State before the election of Judges shall take place in 1894. The importance of having this matter determined will be apparent from section 2689 of The Code, which is as follows: “When the election shall be finished the registrars and judges of election, in the presence of such of the electors as may choose to attend, shall open the boxes and count the ballots, reading aloud the names of the persons who shall appear on each ticket; and if there shall be two or more tickets rolled up
I have the honor to be,
Very respectfully yours,
(Signed) Elias Cabe, Governor.
To the Governor :
Your communication of the 29th ult., requesting an opinion respecting the term of office of the Judges elected under the provisions of Section 25, Art. IY, of the Constitution, has been received and duly considered by us. We beg to assure your Excellency that we appreciate the importance of the question you have submitted for our consideration, and that we would at once give to it the thorough investigation which its solution would require if we could feel that, in expressing an opinion upon the subject, we were not overstepping the bounds which a proper sense of propriety prescribes for our action. As you are aware, Justices Clark and MaoRae of this Court, and-Judges Armfield, Bynum, Sliuford, Whitaker and Boykin, of the Superior Court, have rights of property in offices which would be affected by a judicial determination of the question which you ask us to answer, and we find our perplexity increased by the fact that these gentlemen do not join your Excellency in requesting us to examine into the matter and express an opinion thereon. If we could be assured that such is their desire, we should feel less embarrassed in coming to a conclusion as to what action we should take in this emergency. We desire to state that Justices Clark and MaoRae have deemed it proper that they should abstain from taking any part whatever in this correspondence.
We are yours very respectfully,
(Signed by)
Shepherd, C. J., and Avery and Burwbll, JJ.
The Associate Justices of the Supreme Court and the Judges of the Superior Court, whose tenure of office was affected by the question involved, joined in a request that
Raleigh, May 11, 1894.
To THE GOVERNOR,
"Bear Sir: — The communication from our associates and the Judges of the Superior Court which has been forwarded by your Excellency to us relieves us of embarrassment in complying with your request, since it is in the nature of a submission of the controversy in reference to their terms of office without a formal action,” &c., &a. (Signed by)
Shepherd, C. J., and Avery and Burwell, JJ.
The controversy arises upon a state of facts which brings before us the construction of the Act of the General Assembly of March 13, 1895, entitled, “An Act to regulate Assignments and other conveyances of like nature in North Carolina.” Section 1 is as follows : “That all conditional sales, assignments, mortgages or deeds in trust, which are executed to secure any debt, obligation, note or bond which gives preference to any creditor of the maker, shall be absolutely void as to existing creditors.” The plaintiff contends that the mortgage in this case is void under the provisions of the act. We are of the opinion that the mortgage is valid, and that the Act is limited to conditional sales, assignments, mortgages and deeds in trust made to secure pre-existing debts and obligations, and that mortgages of the nature of the one before the Court, growing out of the transaction itself and executed for a present consideration, do not come within the operations of the statute referred to, and that it (the statnte)-evidently refers to pre-existing debts, and was not intended to embrace transactions of this kind where the debt grows out of the
Concurrence Opinion
(concurring in the result): As the Court holds ' that the question of the construction of the Act is properly raised, by the record, I express my concurrence in the opinion that the'Act only applies to “assignments and other conveyances of like nature” as is stated in the title,
Dissenting Opinion
(dissenting): The.statute (Code, Sec. 567) was enacted in order (said Pearson, C. J., in McKethan v. Ray, 71 N. C., 165) “to dispense with the formality of summons, complaint and answer.” It would manifestly lead to absurdity to hold that the “controversy without action” was intended to include any other than a legal controversy, if the statute did not relieve us of discussing the general principle by declaring in plain terms that it must
The mortgage, with the probate and certificate of registration is set forth in full, and then follows the portion of the affidavit upon which the status of the case in Court depends, which is as follows :
“That at the time of and before the execution of said mortgage, said Hiram Jones was indebted, by note, to G-. C. Earthing, above named, in the sum of One Hundred Dollars, and said Farthing contends that said mortgage is void, for the reason that at the date of its execution he was a creditor of said Jones, as above stated. "Whereas, said W. T. Carrington and Hiram Jones contend that neither the letter nor the spirit of the new anti-preference law embraces a case of this kind, in which one person, however much*328 indebted at the time, creates a new debt and seeks to secure the same by mortgage, trust-deed or other security. And so desiring to save costs and trouble they ask the decision of the Court upon the state of facts.
W. T. CarringtoN,
ITiram Jones,
G. C. Earthing.
“W. T. Carrington and G. C. Earthing, being duly sworn, state that tiiis controversy is real, and the proceedings in good faith, to determine the rights of the parties.
W. T. Carrington.
“Sworn to and subscribed before me this April 1,1895.
“"Witness my hand and notarial seal.
Chas. K. Eaucette,
Notary Public.”
The Act of March 13th, 1895, provides that “All conditional sales, mortgages or deeds in trust, which are executed to secure any debt, obligation, note or bond which gives preference to any creditor of the maker, shall be absolutely void as to existing or editors.'1'1 The Statute of 13th Elizabeth {Code, Sec. 1545) declared all conveyances executed “to delay, hinder and defraud creditors and others of their just and lawful actions, etc., (only as to that person, his heirs, etc.) to be utterly void and of no effect.” Before the enactment of that statute it was necessary to invoke the aid of a court of equity to have a deed declared void for fraud, and, where by that or any other statute deeds are pronounced void as against creditors, in order to secure a formal declaration of their invalidity the moving party must ask relief that would have been administered formerly solely in a court of equity.
There must be some limit to the exercise of jurisdiction under section 567. It is well settled that a respectful letter from the learned members of the bar, who represent the parties to this proceeding, asking the Court to advise them as to some controversy that had not, but might in the near future arise, would give the subject matter of the communication'no standing in the Superior Court or by appeal here.
I am at a loss to know how the line can be drawn so as to guide the legal profession and protect the Courts against being forced to spend their time in deciding speculative questions between the rule that the statement of facts sufficient to constitute a cause of action shall be regarded as an essential prerequisite to the consideration of a controversy submitted without action, and the loose practice of allowing affidavits suggesting that a question of vital interest to the public is about to arise, and requesting the Court to relieve the parties of the trouble and expense of proceeding in the prescribed way, and to give it a proper status-in Court. I cannot concur with my brethren in the view that the letter of advice to the head of a co-ordinate brauch of the Government (114 N. C., 925) is a precedent for entertaining and deciding this case. There, the Court followed a former precedent in advising a co-ordinate department (the Legislature) about a matter that confronted it at the moment, and involved a grave Consitu-tional question upon which that department was called upon to act immediately. There, the Court gave advice in order to point out the line of duty which was prescribed by the Constitution, and it was not necessary to render a jugdment. Here, we must either render a judgment or dismiss the case for want of jurisdiction; there is no
The letter to the Governor which is referred to was not an adjudication as to the rights of the Judicial officers whose terms were in question. But, feeling that they would voluntarily accept the advice as decisive, the Court simply endeavored to exhibit a proper appreciation of the rights of the Judges and at the same time to show courtesy to the Chief Executive of the State that had been considered due both departments when similar requests had been theretofore made. It has never been once suggested that the frequent designation of actions for possession, since feigned actions and forms of action were abolished in 1868, as in the nature of actions of ejectment, warrants this Court in entertaining a suit begun by declaration instead of by summons, and thus disregarding the requirement of the statute (Code, Sec. 161); I see no more reason for attaching greater significance to the expression u in the nature of a controversy without action.” I cannot concur in the view that statutes, enacted in derogation of general law and heretofore construed strictly by this Court, shall be deemed modified as a mere inference from the use of such illustrations. But the
"Whatever may be the magnitude of the question involved, I deem it my duty to refrain from the expression of an opinion upon it, just as it would be proper to decline to respond to a written request accompanied by a solemn affidavit and ■sent in an informal way by some other highly respectable ■citizens of the State. I therefore dissent from the opinion ■of a majority of the Court that there is a properly constituted case before us.
If the majority of the Court had ordered that the appeal be dismissed for want of jurisdiction, thus vacating the judgment below which will now remain conclusive on the parties, the question whether I should give expression to my opinion on the merits might have been considered, .according to the precedents, one of propriety. But where the Court, as the conclusion deduced from an argument to ■sustain the jurisdiction, simply ordered that the appellant pay the costs, then with great deference to the views of ■others, it seems to me that my course should be dictated by a sense of duty rather than of propriety. When the letter of advice, referred to in the opinion of the Court, was sent to the Governor, it must be remembered that there was no judgment appealed from, the validity of which depended upon the opinion of the Court, and the letter concluded no one as to his lights. It subserved the purpose of pointing out to the Executive Department the method of conducting the approaching election, a matter upon which that department was required by law to talce action forthwith.
Concurrence Opinion
(concurring in the opinion of the Court delivered by Justice Montgomery) : I regret that there is
The main question, and the one intended to be presented for our consideration, is the construction of the Act of March 13th, 1895, and four members of the Court have given their opinion, construing this act to apply to preexisting debts, at the time of making the mortgage or other security and not to debts made contemporaneous with and agreed at the time of their making, to be thus secured. The-other member of the Court, for reasons which he assigns, declines to express any opinion as to the construction of the Act. Then 1 take it that the construction of the Act is settled, so far as the opinion of four of the Justices of this Court can settle a question.
But while this is'so, two of the Justices are of the opinion that the question is not presented in such a way as to justify the Court in giving any opinion as to its construction, and this is the reason for my writing this opinion.
The majority of the Court were not inadvertent to the objections made by the minority, and for these reasons did not undertake to render a formal judgment, affirming or overruling the judgment of the court below but simply expressed their opinion as to the construction of the Act. And in doing this we thought we were fully warranted by the precedents of this Court and the matter of the tenure of the Judges, 114 N. C., 923, is cited in the opinion of the Court as authority for the action of the majority. The learned members of the Court, Chief Justice Shepherd and
It is true that the Governor’s letter to the Court suggested an important question for its decision, and we think one proper for them to act upon ; but he, as Governor, had no interest in it. His election or term of office was in no way involved. He did not order the election or Hold the election. These were provided for by the Legislature. He could not add to or take one day from the terms of the Judges, with or without the opinion of this Coni’t. Audit is conceded that the opinion of this Court in that proceeding could not do so. But the opinion was given ■'because it iuvolved a grave constitutional question in which the public was interested, and because the Court had reasons for thinking that the parties really interested wished the opinion of the Court- and would be governed by it.
This was, as I have said, an important question and one, as I think, proper to be decided by this Court. But it was not necessary -to the administration of the courts. It is most probable there wmuld have been elections held for these offices without this opinion, and if there had not been and in this way a vacancy had occurred the Governor was authorized by the Constitution to fill it; so the administration of justice would have gone on.
But admitting as I do that there should be sufficient aver-ments to enable the Court to proceed to judgment, this does not prevent the Court from giving its opinion in a case of such importance as this. And I think the Court is sustained in so doing, not only by the case in 114 N. C., 923, supra, but also by such cases as the following:
In McBryde v. Patterson, 78 N. C., 412, which was a contest betv'een children of the same mother, some legitimate and some illegitimate, as to property, this Court, Smith, C. J., delivering the opinion, discusses and decides the case upon its merits, and then held that the appeal was prematurely taken and dismisses the appeal.
In State v. Davine, 98 N. C., 778, in a case, coming up by successive appeals from a justice’s court to this Court, upon the construction of a statute changing the ’presumption of evidence, this Court fully discusses the case upon the merits and declared the act unconstitutional and void. Shith, C. J., delivering the opinion of the Court says: “We have gone into the question in order to settle the question of the validity of the statute in its application to the case before
In Guilford Co. v. Ca. Co., 109 N. C., which was before this Court simply upon a motion for a certiorari as a substitute for an appeal, the Court discussed and decided the case upon its merits — Clark, J., delivering the opinion of the Court, and then refused the motion of defendant for the certiorari to bring the case to this Court.
In State v. Tyler, 85 N. C., 569, a case involving the question as to whether a solicitor was entitled to a $4.00 or $10.00 tax fee, this Court went into a full dicussion of the case upon its merits — Ashe, J., delivering the opinion of the Court, and closing the opinion as follows : “But as the State has no right to appeal in this case and has no interest in the question, the case is dismissed.”
In Milling Co. v. Finley, 110 N. C., 411, the Court, Clark, J., delivering the opinion, discusses the case on its merits and sustains the judgment below, and then says the appeal is premature and cannot be sustained.
In State v. Wylde, 110 N. C., 500, being an indictment for bigamy, the Court discusses and decides the case upon its merits, Clark, J., delivering the opinion, and then dismisses the appeal upon the ground that the affidavit upon which, defendant appealed was insufficient to bring the case to this Court.
In State v. Lockyear, 95 N. C., 633, which was an indictment for selling liquor by the Capital Club of the City of Raleigh, the Court thought it of sufficient public importance, Smith, C. J., delivering the opinion, to discuss and decide the case upon its merits, in which he gives the following reason for deciding a case not properly before the Court: “The wish of the parties that it should be settled and the
- There was no difficulty in understanding the point intended to be presented to the Court by this case. No one has complained oí it on that account. Then I repeat, treating this case as in no better condition than it would have been in a regular -action, with a complaint alleging all the facts contained in this submission, with a demurrer to the complaint, will not the cases cited above justify the Court in giving its opinion upon the merits of the controversy ? If it was of sufficient importance to decide whether a solicitor was entitled to a four dollar fee or a ten dollar fee to induce the Court to decide the case upon its merits, though it' was before the Court on the appeal of the State, which the Court say had no interest in the question and no right to appeal, is not the question presented by this case of sufficient importance to justify the Court in giving its opinion upon the construction of this Act ? If the construction of an act of the Legislature changing the rule of evidence as in Davis’ case, supra, was of sufficient importance to justify the Court to pass upon it and declare an act of the Legislature unconstitutional “because it will practically put an end to the litigation,” is not the matter now before the Court, which must seriously affect the whole business interest of the State, sufficient to justify the Court in giving its opinion as to the construction of the Act of the 13th of March, 1895 ?
But it is contended these cases do not apply for the reason that, although the Court gave its opinion when it had no case properly constituted before it, the Court after giving the opinions in the cases referred to then dismissed the appeals; and as to whether this was more consistent
I have not undertaken to argue the construction of the Act as given by the Court. So far as I know, there is no difference of opinion as to this. I say, so far as I know, as I am not authorized to speak for Justice Avery on this point. But I have only endeavored to show that the Court is justified by precedent in the action it has taken in this cáse.