Harkins v. Cathey

119 N.C. 649 | N.C. | 1896

Dissenting Opinion

Avery, J.

(dissenting) : Without questioning the conclusion reached by the learned justice from whose judgment the appeal was taken upon the merits, I dissent from the opinion of the Court on the ground that he had no jurisdiction of the subject matter of the action, and the Legislature had no power to confer such jurisdiction upon him. In Section 8, Article 4 of the Constitution, the jurisdiction of the Supreme Court is defined to extend,

1. To reviewing on appeal any decision of the courts below upon any matter of law or legal inference.

2. To giving the same jurisdiction over “ issues of fact ” and “ questions of fact ” as were exercised by the same Court before the adoption of the Constitution of 1868.

3. To issuing remedial writs necessary to give it a general supervision and control over the proceedings of inferior courts.

In Section 12 of the same article of the Constitution it is provided that “ the General Assembly shall allot and distribute that portion of this power and jurisdiction which does not pertain to the Supreme Court among the other courts prescribed in this Constitution or which may be established by law?'

It is not contended, neither can it be plausibly insisted, that a single justice of the Supreme Courtis a court other than the Supreme Court, or can be constituted a separate court by legislative enactment. Whatever he does under color of authority purporting to be granted by an act of Assembly it must be conceded is done without changing the character of his office or assuming the role of a distinct officer created by such statute. In the opinion (by Chief Justice Pearson) in Clark v. Stanley, 66 N. C., 59, the Court hold that “ a public office is a jmblic agency,” and the person who is appointed to perform the agency is a public officer, and, hence, that to attempt to confer upon the President of the Senate and the Speaker of the House the power to appoint proxies and directors in all public corporations was an attempt to clothe them with a new and additional office. Hence, in such cases, the person appointed'is precluded from holding the new office under Section 7, Article li of the Constitution. If it be conceded, as it seems to me it will be, that the attempt to clothe a justice of the Supreme Court with this power creates no new office, then it is plainly in violation of the Constitution to vest in him jurisdiction which that instrument declares “shall be” allotted and distributed either to courts other than the Supreme Court prescribed by the Constitution or which may be established by law. This provision is clear and mandatory as to whom the Legislature shall clothe with jurisdiction, and clearly a single justice of the Supreme Court comes within neither of the classes mentioned in that section. If the people, through the organic law, have bound the Legislature by solemn mandate, expressed in unmistakable terms, to confer “ all jurisdiction” “which does not pertain to the Supreme Court” upon two other classes of courts specified, arid a single justice of the Supreme Court comes within neither classification, then the attempt to give the powers mentioned in the election law, in so far as the act imposes upon him jurisdiction to pass upon the rights of property of the citizens of the State, is unconstitutional and void.

The power that pertains to the Supreme Court, as a court, to issue remedial writs clearly cannot be conferred upon a single member but only upon the organized body. Therefore, I conclude, upon more mature reflection, that it is in violation of the Constitution to impose upon a single justice of the Supreme Court any of the powers that the Legislature has attempted to confer upon that Court. What I have written so far is applicable to all of the election cases where the original hearing has been had before, and the appeal taken from the judgment of, a justice of this Court.

But, in this particular case, the controversy involved the right of certain persons to act as registrars of election under Section % of Chapter 159 of the Laws of 1895, known as the Election Law, and the opinion of the Court sustains the right of a single justice of this Court to order the removal of a registrar or judge of election after he was appointed by the clerk of the superior court of Buncombe county under said section, and had been inducted into office because the clerk had not followed the requirements of said section as construed by this court, in the selection of persons belonging to different political parties, and in acting on the recommendation of the chairmen as therein prescribed.

I am not disposed to question the correctness of the construction given to the section of the statute under consideration. But certain persons had been appointed and inducted into office as registrars on the fifth day of October and had continued to act until the 24-tli of the same month. The conclusion of the Court is that a justice of the Supreme Court had authority to order the clerk to remove those incumbents and induct into office the persons whom he ought to have appointed at first, under the construction placed upon the act by this Court. To this ruling I wish to dissent also upon other grounds.

In Worthy v. Barrett, Justice Read® delivering the opinion of the Court, said that every person who is appointed or elected under the provisions of law to discharge a public duty and is required to take an oath to support the Constitution of the United States (as registrars and judges are required to do under said Section 7) is a public officer. A further evidence that one is an officer, as distinguished from a mere placeman, is the fact that the law allows him fees and emoluments (as does our statutes, Section 50, Ch. 159, Laws of 1895). As already intimated, Chief Justice PbaesoN went further in Clark v. Stanly, supra, and for the Court announced the principle that the right “ of appointing to a public office constitutes of itself a public officer.” I will not suffer myself to be diverted from the proposed line of my argument by discussing the question suggested by the announcement of this principle, to sustain which Chief Justice Pbakson relied upon what he denominated that “ mine of learning, Hoke v. Henderson, 4 Dev., 1. But it would seem difficult to show that the power of appointing judges and registrars of election was not an attempt to confer upon a clerk another office while admitting that the power to appoint railroad directors was an attempt to give to the presiding officers of the two branches of the Legislature dual official duties growing out of the new agency for the public. The principle decoded in Clark v. Stanley, supra, was approved in Eliason v. Coleman, 86 N. C., 235, and Cloud v. Wilson, 72 N. C., 155.

An office is property, and che Legislature cannot deprive an incumbent of his right to it by merely clothing another official with arbitrary power to remove. Hoke v. Henderson, supra. This principle is too familiar to warrant any elaboration of it.

If, then, it be conceded that the registrars who had qualified and entered upon the discharge of their duties on the 5th of October were incumbent officers on the 24th of October, and had a property in the offices, it seems to me to follow that no judge or justice could proceed to adjudicate the question involved in the face of the constitutional provision (Sec. 19, Art. 1) that “ in all controversies at law respecting property the ancient mode of trial by jury is one of the best securities of the rights of the people and ought to remain sacred and inviolable.” The law points out clearly how the boards of County Commissioners shall proceed in inducting a Sheriff into office. Suppose the Legislature should pass a statute empowering a judge of the superior court, a justice of the Supreme Court or all of the members of that Court to remove one incumbent and substitute another without the intervention of a jury, would any lawyer hesitate to pronounce the act unconstitutional ? Yet, the definition of a public officer in all of the recent decisions of this Court as clearly covers a registrar or judge of election as a Sheriff, and I cannot see why the Legislature might not with the same propriety and show of authority attempt to give a single judge or justice supervisory power over the Board of Commissioners in the induction of Sheriffs and clerks into office, including the right of removing one already inducted. Without-denying the correctness of the interpretation of the law affecting registrars and judges, it seems to me that the Constitution protects them against such summary methods of ejectment as fully as it does him who is in possession of land and appears on a preliminary hearing to be a trespasser from being ousted 'without the intervention of a jury. But it is contended that, because the Legislature has clothed single justices of the Supreme Court with certain other powers which have been exercised by them without question, therefore, whatever may be its language, it follows that it wTas not an infringement on the organic law to authorize them to direct the clerk of the Court to remove an officer after his induction into office. If all of the statutes granting authority were analogous to that before us for construction, which I do not concede, it would not follow that two or a dozen infractions of the Constitution, which had so far gone unchallenged, should authorize the Legislature to disregard its provisions again, and the courts to lend their sanction to the claim of the legislative rights to do so.

The case of In re Bryan, 60 N. C., 1, and other cases reported in the same volume and relied on as authority, were decided in 1863, before the provisions of the Constitution of 1868, which are now before us for consideration, were passed, and involved the right of the Supreme Court judges of this State to issue writs of habeas corpus to inquire into the rightfulness of the detention of prisoners by Confederate officers.

But, supposing that the Constitution of 1868 had then been adopted, the remedy provided in compliance with the Constitution (Art. 1, Sec. 18) for all persons restrained of their liberty is, under the provisions of the statute {The Code, Sec. 1623), the ancient writ of habeas corpus. The Constitution required the Legislature to furnish an adequate remedy, and when it was declared that all such persons should have the right to “prosecute a writ of habeas corpus” it followed, ex vi termini, that they were entitled to demand this remedy before any judge or any court of general jurisdiction in this country. The power of all judges to grant it was conceded before Magna Charta, and was only reaffirmed, like many other cardinal principles, in that instrument and those that followed reaffirming it. Hurd on Habeas Corpus (2nd Ed.), p. 132; Church on Habeas Corpus, Sec. 3.- From the earliest times it extended to all cases of illegal imprisonment, and the jurisdiction was exercised by the judges of King’s Pencil, Chancery and Common Pleas. Bl'ackstone says (3 Com., pp. 40 to 44) of all of these courts that they exercised as well original as appellate jurisdiction, and some of them acted upon judicial questions in courts of nisiprius. 3 PL, Com., p. 59 et seq. When in England the right to prosecute a writ of habeas coopus was granted it was construed to authorize an application to any of these judges. So, when the Con" stitution enjoined upon the Legislature the duty of providing a remedy, and in the exercise of that duty they passed the statute, the right to “ prosecute that writ” implied the right to apply to any judge of an inferior court of general jurisdiction or a court of appeal. Besides all this, the right to bring persons before a court, whose presence is necessary in order to the exercise of its powers, like the right to try its own officers for alleged torts or criminal acts done under color of office, is inherent in every court of general jurisdiction, and its exercise is essential to the preservation of its power and dignity. State v. Hoskins, 77 N. C., 530, 534.

The power to commit to answer a criminal charge is the converse of that to relieve from illegal restraint. It has been held from the earliest English history to be inherent in. every judicial officer clothed with jurisdiction to try criminal offences, so that the creation of any such office carries with it to the incumbent the right to issue a warrant for arrest and conduct a preliminary examination. It is the beginning of tlie exerciseof criminal jurisdiction and passes whenever the jurisdiction is given. Thus Section 27, Art. IY confers the authority on justices of the peace to try certain criminal offences, and this grant of jurisdiction carries with it by implication the right to conduct preliminary examinations under such regulations as the Legislature may prescribe.

The order in the exercise of a police power that a person convicted on a trial for bastardy or any other criminal offence shall be sent to the workhouse till he work out the cost, as has been decided in the late opinions in bastardy cases, is not a sentence or judgment rendered upon the trial of an action. The power is entrusted to boards of commissioners as well as justices of the peace, not for the purpose of inflicting punishment but to protect the public. The superintendent of an insane asylum is empowered to compel patients to work on the farms attached to such institutions, and the authority is exercised, not as a punishment but sometimes to promote the health of the patient and sometimes to get the benefit of his labor as a contribution towards his own support. Neither the County Commisioners nor superintendents of asylums, in the cases we have referred to, can be said to impose a sentence or usurp the jurisdiction of a court.

---

Lead Opinion

Fukoiiks, <L:

Tlie Court being of the opinion that the opinion, findings and judgment of the court below were correct and should be affirmed if the act of 1895, Ch. 159, known as “ The Election Law,” is constitutional;

Aud it having been decided in the case of McDonald v. Morrow, at this Term, that said act is constitutional, therefore, adopting the discussion of the constitutional question in the case of McDonald v. Morrow and the opinion of the court below for the discussion of the other matters involved in the case as the opinion of this Court, the judgment appealed from is affirmed.