State v. . Lueders
200 S.E. 22
N.C.
1938
Check Treatment
*560 Stacy, O. J\

Tbe purpose of this appeal, frankly avowed, is to obtain a reconsideration of the decision in S. v. Lawrence, 213 N. C., 674, and to test again the constitutionality of ch. 155, Public Laws 1935.

There are certain irregularities appearing on the face of the record which preclude a consideration of the constitutional question. S. v. Smith, 211 N. C., 206, 189 S. E., 509.

In the first place, the defendant entered no plea in the Superior Court, where, on appeal, the cause was to be tried de novo. In fact, it does not appear whether he was present when the case was heard. In the absence of a plea to the indictment or charge, there was nothing for the jury to determine. See S. v. Camby, 209 N. C., 50, 182 S. E., 715.

Speaking to a similar situation in S. v. Cunningham, 94 N. C., 824, Ashe, J., delivering the opinion of the Court, said: “There is manifest error in the judgment of the Superior Court. First, for the reason that there was no plea filed by the defendant, and therefore no issue to be submitted to the jury, and consequently the verdict returned by them was a nullity; and it must follow, as a necessary consequence, that no judgment could be pronounced upon such a verdict.” See S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Walters, 208 N. C., 391, 180 S. E., 664; S. v. Stewart, 89 N. C., 563.

Secondly, the verdict of the jury was rendered on an agreed statement of facts, and the defendant excepts to the verdict. Whether these “agreed facts,” signed only by counsel, may properly be regarded as admissions binding on the defendant, we need not now determine. See S. v. Grier, 209 N. C., 298, 183 S. E., 272; S. v. Butler, 151 N. C., 672, 65 S. E., 993; Turner v. Livestock Co., 179 N. C., 457, 102 S. E., 849; S. v. Foster, 130 N. C., 666, 41 S. E., 284; Dick v. United States, 40 F. (2d), 609, 70 A. L. R., 90, and note; Weeks on Attorneys, 393; Wharton’s Cr. Evidence, Vol. 2, 1109. There is no contention that the verdict is a special one. S. v. Hill, 209 N. C., 53, 182 S. E., 716; S. v. Allen, 166 N. C., 265, 80 S. E., 1075.

It is not the custom of appellate courts to decide constitutional questions except in the exercise of judicial power properly invoked. S. v. Smith, supra; S. v. Williams, 209 N. C., 57, 182 S. E., 711; In re Parker, ibid., 693, 184 S. E., 532. Indeed, it is only in such cases, i.e., in cases calling for the exercise of judicial power — the power to say, not what the law ought to be, but what it is — that the courts may render harmless invalid acts of the General Assembly. Wood v. Braswell, 192 N. C., 588, 135 S. E., 529; Moors v. Bell, 191 N. C., 305, 131 S. E., 724. For this reason, they never anticipate questions of constitutional law in advance of the necessity of deciding them, nor venture advisory opinions on constitutional questions. S. v. Corpening, 191 N. C., 751, 133 S. E., 14; Person v. Doughton, 186 N. C., 723, 120 S. E., 481. It is only when *561 tbe courts are exercising the judicial power vested in them by the Constitution that they are authorized to declare acts of the General Assembly in contravention of the organic law. Moore v. Bell, supra; Adkins v. Children’s Hospital, 261 U. S., 525. And further, the rule is, that if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of lesser moment, 'the latter alone will be determined. Reed v. Madison County, 213 N. C., 145, 195 S. E., 620. “It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case”— Mr. Justice Pickham in Burton v. U. S., 196 U. S., 283.

This policy of refraining from deciding constitutional questions, even when properly presented, if there be also present some other ground upon which the case may be made to turn, is predicated on the following considerations :

1. In considering the constitutionality of a statute, every presumption is to be indulged in favor of its validity. S. v. Revis, 193 N. C., 192, 136 S. E., 346; Sutton v. Phillips, 116 N. C., 502, 21 S. E., 968; S. v. Manuel, 20 N. C., 144.

2. If the act of assembly be fairly susceptible of two interpretations, one constitutional and the other not, in keeping with the rule of favorable construction, the former will be adopted and the latter rejected. S. v. Casey, 201 N. C., 620, 161 S. E., 81; S. v. Yarboro, 194 N. C., 498, 140 S. E., 216; S. v. Revis, supra; Hopkins Fed. S. & L. Assn. v. Cleary, 296 U. S., 315, 80 Law Ed., 251.

3. The courts will not determine a constitutional question, even when properly presented, if there be also present some other ground upon which the case may be made to turn. Reed v. Madison County, supra; In re Parker, supra; S. v. Ellis, 210 N. C., 166, 185 S. E., 663.

4. The courts will not declare an act of the General Assembly unconstitutional even when clearly so, except in a case properly calling for the determination of its validity. Newman v. Comrs. of Vance, 208 N. C., 675, 182 S. E., 453; Wood v. Braswell, supra; S. v. Corpening, supra; Person v. Doughton, supra.

5. It is only in the exercise of the judicial power vested in the courts by the Constitution that they are authorized to render harmless invalid acts of the General Assembly. Wood v. Braswell, supra; Moore v. Bell, supra.

It is one of the attributes of the American system that its organic charter is binding on, and unalterable' by, the law-making body. The Constitution, or the law “according to which the community hath agreed to be governed,” is above the government as well as the governed, and enforceable against both. Hence, an act of the Legislature in conflict with the organic law is not simply impolitic but void. To search out *562 and find this conflict, where such exists, is the function of an independent judiciary, but this it does only in cases properly presenting the question. 11 Am. Jur., 712. The reason for this arises out of the delicacy of the task. To oblige a government to control itself is a matter of no small moment. But from the authority vested in the courts to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and to reject that of an inferior act of legislation which, transcending the. Constitution, is of no effect and binding on no one. Adkins v. Children s Hospital, supra; 11 Am. Jur., 713.

The cause will be remanded for trial according to the usual course and practice in such cases.

Error and remanded.