Queen v. Board of Commissioners

Clarkson, J. Plaintiff contends, (1) the act was unconstitutional abolishing the county court of Haywood County, N. C. Ye cannot so hold. “If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.” Sutton v. Phillips, 116 N. C., at p. 504; Hinton v. State Treasurer, ante, at p. 499. The court was originally established by the board of commissioners of Haywood County, on 3 December, 1924, under a general act, Laws *824 1919, ch. 277. “An act to establish uniform system of recorders’ courts for municipalities and counties in the State of North Carolina.” C. S., 1536 to 1608, inclusive; Public Laws 1921, ch. 110, and acts amendatory. The provision of the Constitution necessary for a decision is part of sec. 29, Art. II, State Constitution. The material part: “The General Assembly shall not pass any local, private, or special act or resolution relating to the establishment of courts inferior to the Superior Court.” The general act was passed, Public Laws 1919, ch. 277, and Haywood County was not included in the general act, nor was it included in amendatory act of 1921, eh. 110. At Extra Session 1921, Public Laws, ch. 80, the amendatory act of 1921 was amended by inserting Haywood County, with Jackson and Swain. Under legislative authority establishing the court, the same power and in practically the same manner that created the court, the Legislature at 1927 session abolished the court. Plaintiff’s title to his office is under authority of a legislative act, the amendment inserting Haywood County, and the same authority, by amendment as it were, abolishes the court and his office. If the Legislature had the right to create the court, it had the right to abolish. Quo ligatur, eo dissolvitur. By the same mode by which a thing is bound, by that it is released. If the act inserting Haywood County, with others, was unconstitutional, the act abolishing it was only declaratory of the existent law, so Haywood County had no constitutional recorder’s court — plaintiff could not complain. Speaking to the subject In re Harris, 183 N. C., p. 633, in that case the acts now discussed were construed. Under Laws 1921, ch. 110, supra, Iredell, Granville, and Cherokee counties were inserted under the county court act, and under the authority a recorder’s court established for Iredell County. Harris was convicted of a misdemeanor and sentenced to imprisonment for a term of 6 months, to be assigned to work on the roads, etc. He sued out a writ of habeas corpus, alleging the judgment illegal and void, “chiefly for the reason that the act providing for the establishment of said court, and conferring jurisdiction thereon, was in violation of Art. II, sec. 29, of the Constitution, prohibiting local, private, or special legislation iñ various matters therein specified, and including acts relating to the establishment of courts inferior to the Supreme Court. On the hearing, his Honor being of opinion that the act was in all respects constitutional and valid, entered judgment in denial of plaintiff’s application, and he was remanded to custody, and is now held under said sentence of the recorder’s court. Thereupon said petitioner applied for and obtained this writ of certiorari, on petition, and which was duly filed and served for the purpose, as stated, of reviewing the adverse judgment in habeas corpus proceedings, and the *825 validity of the sentence under which the petitioner is being detained.” After a full discussion, citing authorities, this Court said (at p. 637): “For the reasons stated, we are of opinion that the petitioner is held under a valid sentence of a competent court, and the judgment denying his application for release must be affirmed.” Roebuck v. Trustees, 184 N. C., 144; Coble v. Comrs., 184 N. C., 342; S. v. Kelly, 186 N. C., 365; Reed v. Engineering Co., 188 N. C., 39; Provision Co. v. Daves, 190 N. C., 7; Ellis v. Greene, 191 N. C., 761; Day v. Comrs., ibid., 780. “The prohibition is against the establishment of courts inferior to the Superior Court by any local, private, or special act or resolution.” Provision Co. case, supra. Plaintiff contends, (2) that the act of 1927, abolishing the recorder’s court of Haywood County, violates Art. IY, see. 30, of the Constitution, which reads 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 8 years.” We cannot so hold. In the famous case of Mial v. Ellington, 134 N. C., p. 131, in which Hoke v. Henderson, 15 N. C., p. 1, was overruled, it was held: “An officer appointed for a definite time to a legislative office has no vested property therein or contract right thereto of which the Legislature cannot deprive him.” The courts we are now considering are the creatures of the Legislature. The creator can establish and abolish. The Mial case, supra, has been approved time and time again, and recently in S. v. Jennette, 190 N. C., p. 96. The positions taken by plaintiff are interesting, but untenable from the decisions of this Court. The law is well settled against his contentions. The judgment below is Affirmed.