State Ex Rel. White v. Murray

Clark, J. This case comes within the principle laid down in Bunting v. 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 (chap-. 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 (chap. 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,” *157 and thus deprive him of tbe fees of tbe business transferred to tbe Criminal Court. “This,” as was said in. Caldwell v. Wilson, 121 N. C., 469, was a condition “assented to by tbe defendant (here the plaintiff) in bis acceptance of the office.’ Tbe 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 bis election upon tbe people, or other constituency. Constitution, Art. IV, sec. 30. In this act it has chosen to place tbe election in the people. It could not, under the authority in the Constitution, place the filling of the office in the appointive power of anyone, and this has not been attempted, but it unquestionably bad tbe power to prescribe some method of filling tbe 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 G-overnor 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 Cook v. Meares, 116 N. C., 582, that tbe Legislature could authorize the Governor to fill vacancies in such offices till an election could be bad, and it is expressly so stated in tbe 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 bis court until an election by the people — “at the next general election.” Indeed, this is in exact analogy to the Constitution which requires (Art. IV, sec. 16), that the Clerks of the Superior Courts shall be elected by the people, and sec. 29 of the same article which provides that vacancies in the clerkships shall be filled by the *158 appointment of the Judge. 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 am 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 is 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.