75 N.C. 136 | N.C. | 1876
The defendant was convicted of larceny at Spring Term, 1876, of the Superior Court of Anson (which is in the Fifth Judicial District), held by Schenck, judge of the Ninth Judicial District, under a commission from the Governor, and he therefore moved in arrest of judgment "for want of jurisdiction," without specifying more particularly the ground for the motion. As the indictment is in the usual form, and the defendant has no counsel in this Court, we should have been at a loss to conjecture the ground; but the Attorney-General suggests that probably the supposed ground is to be found in the language of the commission under which his Honor, Judge Schenck, acted. The commission is addressed to Hon. D. Schenck, judge of the Ninth Judicial District, and proceeds as follows: "By virtue of authority vested in me as Governor, etc., by sec. 14 of Art. IV of the Constitution, I hereby consent to a partial exchange of circuits between Hon. D. Schenck, judge of the Ninth Judicial District, and Hon. R. P. Buxton, judge of the Fifth Judicial District, by which exchange and consent his Honor, Judge Schenck, is authorized and *111 empowered to hold the Superior Courts in the said Fifth Judicial District for the Spring Term, 1876, in the counties of Anson and Richmond. In witness," etc.
The Constitution, Art. IV, sec. 14, says:
1. The judges may exchange districts with each other with the consent of the Governor.
2. And the Governor for good reasons, which he shall report to the Legislature, etc., may require any judge to hold one or more specified terms of said courts in lieu of the judge in whose districts they are.
In Myers v. Hamilton,
As to the point that the Governor did not require Judge Schenck to hold Anson Court. We consider that when the Governor authorized and empowered the judge to hold the court, and the judge under that authority held the court, as between the judge and suitors in the court the authority was equivalent to a command. How it would be if the judge in such a case should refuse to hold the court, whether he would be punishable for a breach of duty, it is unnecessary for us to say. That the reason assigned by the Governor in the commission is stated to be that the two judges had agreed to a partial exchange (139) of districts, does not in our opinion avoid the commission. The *112 Governor is not obliged to assign any reason in the commission, or to this Court. As to all the world, except the Legislature, he is the final judge of the fitness of his reasons. It may be that he desired to accommodate the two judges, and no public inconvenience occurred to him as probable. If so,we cannot say that the reason was insufficient; and that being insufficient, it avoided the commission. By doing so we would clearly encroach on the Executive duty and responsibility. There is
PER CURIAM. No error.
Cited: S. v. Graham, post 256; S. v. Lewis,