The plaintiff, as clerk of the Superior Court of Madison County, claimed to be entitled ex officio to discharge the duties and receive the emoluments of clerk of the District Criminal Court, just as he had done as clerk of the Circuit Criminal Court of Madison County.
The defendant claimed the said office under appointment made by his Honor, Judge Stevens, Judge of the "Western Criminal (154) District Court," by virtue of the act of 1899, ch. 371, sec. 11.
Jury trial waived, his Honor to try the case and find the facts.
Judgment rendered in favor of defendant. Plaintiff excepted (156) and appealed.
This case comes within the principle laid down in Buntingv. Gales, 77 N.C. 283, which is decisive of this. The plaintiff is clerk of the Superior Court of Madison County. When the Criminal Court in said county was first created in 1895 (ch. 75), a separate clerk might have been created for it. It in nowise impaired the legislative power that the Legislature forbore to create the office of clerk of the Criminal Court till 1899 (ch. 371), and in the meantime permitted the clerk of the Superior Court to discharge the duties of clerk of the Criminal Court, and receive the emoluments. The clerk of the Superior Court did not hold the office of clerk of the Criminal Court, for he could not hold two offices (Constitution, Art. XIV, sec. 7), but he discharged the duties of clerk of the Criminal Court, of which emoluments he might have been deprived in 1895, till actually deprived of them in 1899. As was said by Rodman, J., in Bunting v. Gales, supra, "He took his office with a knowledge that the Legislature might establish a Criminal Court," and thus deprive him of the fees of the business transferred (157) to the Criminal Court. "This," as was said in Caldwell v.Wilson, 121 N.C. 469, was a condition "assented to by the defendant (here the plaintiff) in his acceptance of the office."
The Legislature could either elect the clerk of the Criminal Court
itself, as in Bunting v. Gales, supra, and Ewart v. Jones, 116 N.C. 570, or devolve his election upon the people, or other constituency. Constitution, Art. IV, sec. 30. In this act it has chosen to place the election in the people. It could not, under the authority in the Constitution, place the filling of the office in the appointive power of any one, and this has not been attempted, but it unquestionably had the power to prescribe some method of filling the vacancy until an election could be had — both this original vacancy as well as any which may hereafter occur. In Ewart v. Jones, supra (bottom of p. 572), it is said that, since the amendment to the Constitution, the Governor has no power to fill vacancies in office created by legislative authority, by virtue of constitutional authority, but it is, tacitly at least, recognized in Cookv. Meares, 116 N.C. 582, that the Legislature could authorize the Governor to fill vacancies in such offices till an election could be had, and it is expressly so stated in the concurring opinion at p. 589.
If the Legislature could authorize the Governor to fill vacancies by appointment, there is no reason why it can not authorize the judge of the Criminal Court to fill any vacancies in the clerkships of his court until an election by the people — "at the next general election." Indeed, this is in exact analogy to the Constitution which requires (Article IV, sec. 16) that the clerks of the Superior Courts shall be elected by the people, and section 29 of the same article, which provides that vacancies in the clerkships shall be filled by the appointment of the judge. (158) The separate office of clerk of the Criminal Court having been created by the act of 1899, as the Legislature had the power to enact, the clerk of the Superior Court could not thereafter discharge its duty, as he could until it was made into an office.
The presumption is always in favor of the constitutionality of an act of the Legislature. The settled rule is that the courts will hold no statute unconstitutional unless it is clearly and plainly so. Sutton v. Phillips,116 N.C. 502. Besides, the plaintiff must recover on the strength of his own title and not upon the weakness, if there were weakness, in that of the defendant.
The diminution of the plaintiff's emoluments in his only cause of complaint, and that was held constitutional under exactly the same circumstances, in Bunting v. Gales, supra. The ruling of Judge Coble is
Affirmed.
Cited: White v. Auditor, post, 578; Mott v. Griffith, post, 775; Wilsonv. Neal, post, 782; S. v. Hay, post, 1003.
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