State Ex Rel. Meador v. Thomas

Adam:s, J. At the session of 1923, tlie General Assembly enacted the following statute: “In each county of this State there may be established a court of civil and criminal jurisdiction, which shall be a court of record and which shall be maintained pursuant to this act, and which court shall be called the General County Court and shall have jurisdiction over the entire county in which said court may be established.” Public Laws, 1923, chap. 216, sec. 1. Section 20 provided that before establishing the court the board of county commissioners should submit the question of its creation to the qualified voters of the county; but in 1924 this section was amended by providing that the commissioners of any county, if in their opinion the public interests would thereby best be promoted, might establish a general county court by resolutions reciting the reasons therefor and that it should not be necessary that an election be called on the question; also that upon adoption of such resolutions the commissioners might establish the court without holding an election. Public Laws, 1924, Extra Session, sec. 2(24-a). On 5 May, 1926, the board of commissioners of Alamance County established a General County Court by a resolution duly adopted, in which the reasons for taking such action were fully set forth in compliance with the statute. The plaintiff assails the resolution and the establishment of the county court on the ground that these functions were exercised by the board of commissioners in pursuance of delegated legislative powers; but in our opinion he cannot avail himself of this position. True, it is a general rule, subject to exceptions, that the General Assembly cannot delegate to any other agency the authority committed to it by the sovereign power of the State. The principle has no application, however, to the establishment of county courts by a board of county commissioners clothed with power merely to find the facts with respect to the necessity or expediency of the court, for in such case the distribution of judicial power is made by the legislative department. Provision Co. v. Daves, 190 N. C., 7. In the present case the board of commissioners did not undertake or pretend to confer any degree of jurisdiction; its only duty was to find certain facts and to adopt a resolution containing specified recitals. Furthermore, the Legislature of 1927 passed a general law ratifying the acts of county commissioners in the organization of general county courts theretofore organized under the act of 1923 and its amendments, the appointment of the judge being an essential part of the organization. In addition to these facts there is another. The plaintiff stipulated and agreed that the resolution passed *146 by the board of commissioners of Alamance County on 3 May, 1926, and affixed to tbe answer as an exhibit, was sufficient to establish or organize the General County Court of Alamance County under the provisions of the act of 1923 and the acts amendatory thereof and that the court has since been and is now in existence under and by virtue of the resolution. The fundamental question is whether the board of commissioners had the legal right to elect the judge of the county court. The answer depends primarily upon the construction of Article IY, sec. 30, of the Constitution, which is as follows: “In case the General Assembly shall establish other courts inferior to the Supreme Court, the presiding officers and clerks thereof shall be elected in such manner as the General Assembly may from time to time prescribe, and they shall hold their offices for a term not exceeding eight years.” Section 2 states the division of judicial powers in these words: “The judicial power of the State shall be vested in a court for the trial of impeachments, a Supreme Court, Superior courts, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law,” and section 14 directs that “the General Assembly shall provide for the establishment of special courts for the trial of misdemeanors in cities and towns, where the same may be necessary.” In this enumeration general county courts are not mentioned. They must be ranked among the “other courts” alluded to in the second and thirtieth sections, and provision for the manner of their election is expressly committed to the Legislature. Justices of the Supreme Court shall be elected by the qualified voters of the State, and judges of the Superior Court by the qualified voters of the State or of their respective districts. Solicitors and clerks of the Superior Court are elected by the qualified voters; the clerk of the Supreme Court is appointed; justices of the peace may be elected or appointed; but the judge of a general county court created under the act of 1923 and the acts amending it “shall be elected in such manner as the General Assembly may from time to time prescribe.” The distinction between the prescribed modes is significant. The word “election” does not necessarily import a popular choice by qualified electors; to elect is to choose or designate for an office by a majority or plurality vote. The Legislature may elect officers when not forbidden by the Constitution. (Ewart v. Jones, 116 N. C., 570), and when in the exercise of power conferred by the Constitution, the Legislature designates another body or agency to make such election, its action in this respect may not be regarded as the unlawful delegation of legislative power. Vide S. v. Gales, 77 N. C., 283; White v. Murray, 126 N. C., 153. *147 In 1924 tbe second section of tbe act of 1923 was amended by adding thereto tbe following clause: “If in tbe opinion of tbe board of commissioners tbe best interests of tbe county will be promoted thereby, tbe said board may appoint such judge, fixing bis term of office, in which event tbe judge so appointed shall bold office pursuant to such appointment, and shall not be elected by a vote as herein provided for.” In tbe resolution adopted on 5 May, 1926, tbe commissioners declared that in their opinion tbe best interests of tbe county would be promoted by tbe appointment of tbe judge and not by'bis election by a vote of tbe people. They fixed bis term of office at two years and provided that a judge should be appointed biennially, evidently intending that tbe facts as found should apply to tbe appointee and bis successors. It is of negligible importance whether tbe choice be called an appointment or an election; tbe two words are used indiscriminately in tbe proceedings of tbe board, and at tbe regular meeting on 2 May, 1932, tbe defendant was declared “elected.” Tbe selection of tbe defendant was made by ballot, tbe chairman not voting. Four ballots were cast, three for tbe defendant who was thus chosen for tbe office by a majority vote. Judgment Affirmed.