Farthing v. Carrington

MONTGOMERY, J.: This case was submitted to the court below under section 567 of The Gocle, and is here by appeal. This section of The Code answers a most excellent and useful purpose, in that it enables parties to have their questions in difference settled upon an agreed state of facts, without delay and without the cost of witnesses and a trial below. It disregards forms, as such, and the perplexities of pleadings. It requires only that, by affidavit, it shall be made to appear that a real case exists and that the controversy is submitted in good faith to determine the rights of the parties. One of the long standing rules of practice of this Court, number 10, provides that, “ When by consent of counsel it is desired to submit a case without oral argument, the Court will receive printed arguments without regard to the number of the case on the docket, or date of docketing the appeal * * ” Eule 13 amongst other things provides that the Court at the instance of a party to a cause directly involving a matter of great public interest, may assign an earlier place in the calendar or fix a day for the argument thereof which shall take precedence of other business. Under these rules we have felt it to be our duty to give an early hearing to the matters involved in the case before us, because of its public and general interest. Upon examination of the proceeding before us, we are not satisfied that the facts are stated with sufficient full — 320 — ness to entirely comply with the statute under which the matter is submitted; but the question of law which is submitted is presented with entire distinctness. And while ordinarily we might dismiss the proceeding because the case is not full enough as to its statement of facts, yet where a matter involves a great public interest, as does this matter, we have concluded to follow a late precedent of this Court — “ Treat the case as in the nature of a submission of the controversy without a formal action.” The precedent to which we refer will be found in Appendix “A,” 114 N. C. Reports, and is as follows : Executive Department, March 29, 1894. To the Justices of the Su/preme Goxort, Sibs : There exists a difference of opinion in the minds of the citizens of the State in regard to the term of office of a Judge elected by virtue of the provisions of section 25, Article IY, of the Constitution. The Attorney General, in an opinion filed at my request in this office, has advised me that every Judge elected under that section is elected for a full term of eight years. A considerable number of able members of the legal profession differ from him in his construction, and contend that a Judge so elected is only elected for the unexpired term of his predecessor in office. It is all important that the question should be determined by the highest Court in the State before the election of Judges shall take place in 1894. The importance of having this matter determined will be apparent from section 2689 of The Code, which is as follows: “When the election shall be finished the registrars and judges of election, in the presence of such of the electors as may choose to attend, shall open the boxes and count the ballots, reading aloud the names of the persons who shall appear on each ticket; and if there shall be two or more tickets rolled up — 321 — together, or any ticket shall contain the names of more persons than such elector has a right to vote for, or shall have a device upon it, in either of these cases such ticket shall not be numbered in taking the ballots, but shall be void, and the counting of votes shall be continued without adjournment until completed, and the result thereof declared.” I am informed by the Attorney General* that this section has been'construed by the Supreme Court in the case of Deloatch v. Rogers, 86 N. C. Reports, page 351, to mean that if a ticket contains the names of more persons than the elector has a right to vote for “it is not only inoperative as to the person improperly voted for, but as to all others for whom the elector.may vote. The entire ballot for all is vitiated and must-be rejected from the count.” This section has not been modified or repealed, and is a part of our present election law. By virtue of its provisions the whole Judicial ticket may be void if it should contain more names than the elector has a right to vote for. It will contain more names than the elector has a right to vote for if upon it is printed or written the name of a candidate for the office of Judge, when the term of such office will not have expired by January 1, 1895. It is manifest that this result will occur if the Attorney General’s opinion contains a correct construction of Section 25, Art. IV, of the Constitution, and the electors of the State vote for Judges upon a ticket printed or written in accordance with the opposite construction. In view of the importance of determining the doubt prevailing upon the subject I respectfully request you to indicate what is your construction of the Constitutional provisions relating thereto. I have the honor to be, Very respectfully yours, (Signed) Elias Cabe, Governor. — 322 — Raleigh, N. C., April 3, 1894. To the Governor : Your communication of the 29th ult., requesting an opinion respecting the term of office of the Judges elected under the provisions of Section 25, Art. IY, of the Constitution, has been received and duly considered by us. We beg to assure your Excellency that we appreciate the importance of the question you have submitted for our consideration, and that we would at once give to it the thorough investigation which its solution would require if we could feel that, in expressing an opinion upon the subject, we were not overstepping the bounds which a proper sense of propriety prescribes for our action. As you are aware, Justices Clark and MaoRae of this Court, and-Judges Armfield, Bynum, Sliuford, Whitaker and Boykin, of the Superior Court, have rights of property in offices which would be affected by a judicial determination of the question which you ask us to answer, and we find our perplexity increased by the fact that these gentlemen do not join your Excellency in requesting us to examine into the matter and express an opinion thereon. If we could be assured that such is their desire, we should feel less embarrassed in coming to a conclusion as to what action we should take in this emergency. We desire to state that Justices Clark and MaoRae have deemed it proper that they should abstain from taking any part whatever in this correspondence. We are yours very respectfully, (Signed by) Shepherd, C. J., and Avery and Burwbll, JJ. The Associate Justices of the Supreme Court and the Judges of the Superior Court, whose tenure of office was affected by the question involved, joined in a request that — 323 — the matter should be left to tbe decision of Chief Justice Shepherd and Associate Justices Avery and Burwell, and the following reply to the Governor contains their opinion : Raleigh, May 11, 1894. To THE GOVERNOR, "Bear Sir: — The communication from our associates and the Judges of the Superior Court which has been forwarded by your Excellency to us relieves us of embarrassment in complying with your request, since it is in the nature of a submission of the controversy in reference to their terms of office without a formal action,” &c., &a. (Signed by) Shepherd, C. J., and Avery and Burwell, JJ. The controversy arises upon a state of facts which brings before us the construction of the Act of the General Assembly of March 13, 1895, entitled, “An Act to regulate Assignments and other conveyances of like nature in North Carolina.” Section 1 is as follows : “That all conditional sales, assignments, mortgages or deeds in trust, which are executed to secure any debt, obligation, note or bond which gives preference to any creditor of the maker, shall be absolutely void as to existing creditors.” The plaintiff contends that the mortgage in this case is void under the provisions of the act. We are of the opinion that the mortgage is valid, and that the Act is limited to conditional sales, assignments, mortgages and deeds in trust made to secure pre-existing debts and obligations, and that mortgages of the nature of the one before the Court, growing out of the transaction itself and executed for a present consideration, do not come within the operations of the statute referred to, and that it (the statnte)-evidently refers to pre-existing debts, and was not intended to embrace transactions of this kind where the debt grows out of the — 324 — transaction itself and is for a present consideration. We are supported in this position by an opinion of this Court at its January Term, 1871, delivered by Chief' Justice Pmarson in the case of McKay v. Gilliam, 65 N. C., 130, construing the Act of 1861, Ch. 4, Sec. 12, which Act is substantially like the one now under consideration. ' The same principle of construction is also recognized in Reeves v. Cole, 93 N. C., 90, although that case arose on the construction of the statute concerning agricultural supplies. However, after deciding the point raised in that case, Chief Justice SMITH, for the Court, further said: “A similar method of construction was pursued in ascertaining the meaning and giving effect to a section in the Act of September 11, 1861, which declared that “all deeds, of trust and mortgages hereafter made and judgments confessed to secure debts shall be void as to creditors” unless providing for the payment pro rata of all the debts aud liabilities of the maker. It was held in McKay v. Gilliam, supra, that, notwithstanding the broad terms of the act, its purpose was “to take from debtors the right to give preference to some creditors to the exclusion of others,” and its operation was confined to pre-existing debts and did not include a loan contracted at the time of the execution of the deed and secured by it.” We are therefore further of the opinion that the act before us is intended only to prevent a preference in favor of pre-existing creditors in the cases specified in the Act itself. The appellant will pay the costs of this proceeding.