Summary
In S. v. Watson, 75 N.C. 136, which is quoted in S. v. Lewis, the Court said: "The Governor is not bound to assign any reason in the commission or to this Court.
Summary of this case from State v. WoodOpinion
June Term, 1876.
Judge — Special Terms.
The Governor, under sec. 14, Art. IV of the Constitution, can require a judge of the Superior Court to hold a term of the court in a county not within his own district. And when the Governor so authorizes and empowers a judge to hold such court, expressing in the commission that it is done with his consent, and under that authority, the judge holds the court, as between the judge and the suitors in the court, the consent and authority granted by the Governor is equivalent to a command.
LARCENY, tried before Schenck, J., at the Spring Term, 1876, of ANSON.
The defendant was indicted for stealing ten pounds of bacon, and on the trial in the court below was found guilty. His counsel moved in arrest of judgment, for the want of jurisdiction. Judge Schenck, presiding in the Ninth Judicial District, had partially exchanged courts with Judge Buxton, of the Fifth District, in which Anson County is included. This exchange was with the consent of his Excellency, Governor Brogden, who commissioned Judge Schenck to hold Anson court.
The defendant's motion to arrest the judgment was refused by his Honor, whereupon the defendant appealed.
Attorney-General Hargrove for the State.
(137) No counsel for defendant.
The defendant was convicted of larceny at Spring Term, 1876, of the Superior Court of Anson (which is in the Fifth Judicial District), held by Schenck, judge of the Ninth Judicial District, under a commission from the Governor, and he therefore moved in arrest of judgment "for want of jurisdiction," without specifying more particularly the ground for the motion. As the indictment is in the usual form, and the defendant has no counsel in this Court, we should have been at a loss to conjecture the ground; but the Attorney-General suggests that probably the supposed ground is to be found in the language of the commission under which his Honor, Judge Schenck, acted. The commission is addressed to Hon. D. Schenck, judge of the Ninth Judicial District, and proceeds as follows: "By virtue of authority vested in me as Governor, etc., by sec. 14 of Art. IV of the Constitution, I hereby consent to a partial exchange of circuits between Hon. D. Schenck, judge of the Ninth Judicial District, and Hon. R. P. Buxton, judge of the Fifth Judicial District, by which exchange and consent his Honor, Judge Schenck, is authorized and empowered to hold the Superior Courts in the said Fifth Judicial District for the Spring Term, 1876, in the counties of Anson and Richmond. In witness," etc.
The Constitution, Art. IV, sec. 14, says:
1. The judges may exchange districts with each other with the consent of the Governor.
2. And the Governor for good reasons, which he shall report to the Legislature, etc., may require any judge to hold one or more specified terms of said courts in lieu of the judge in whose districts they are.
In Myers v. Hamilton, 65 N.C. 567, the question here made, though not presented for decision, was noticed and an opinion was intimated that judges could not exchange one or two counties even with the consent of the Governor, by reason of the many (138) inconveniences that may result from such a practice. The meaning and policy of the Constitution was evidently as here intimated. By the general rule judges are confined to their respective districts. Two exceptions are made: They may exchange districts for their own convenience, but to provide against a detriment to the public, the consent of the Governor is required, which it is supposed he will not give if the public is to be injured or incommoded. Then to provide for the possible cases in which a judge cannot (as from sickness), or ought not (as from being interested, or having been of counsel in certain cases, or other good reason), to hold a certain term, which nevertheless the public good requires to be held, the Governor is authorized to require some other judge to hold that term. The mandate of the Constitution is directed to the Governor, without whose commission no court can be held by any judge except in his own district. But how if the Governor shall consent to an exchange of one or two counties for any or for no reason, and shall commission a judge to hold a specified term in a county out of his proper district? The question before us: Can this Court, in such a case, hold the commission and the acts of the judge nullities on the ground that actions tried before him were coram non judice?
As to the point that the Governor did not require Judge Schenck to hold Anson Court. We consider that when the Governor authorized and empowered the judge to hold the court, and the judge under that authority held the court, as between the judge and suitors in the court the authority was equivalent to a command. How it would be if the judge in such a case should refuse to hold the court, whether he would be punishable for a breach of duty, it is unnecessary for us to say. That the reason assigned by the Governor in the commission is stated to be that the two judges had agreed to a partial exchange (139) of districts, does not in our opinion avoid the commission. The Governor is not obliged to assign any reason in the commission, or to this Court. As to all the world, except the Legislature, he is the final judge of the fitness of his reasons. It may be that he desired to accommodate the two judges, and no public inconvenience occurred to him as probable. If so, we cannot say that the reason was insufficient; and that being insufficient, it avoided the commission. By doing so we would clearly encroach on the Executive duty and responsibility. There is
PER CURIAM. No error.
Cited: S. v. Graham, post 256; S. v. Lewis, 107 N.C. 974, 981.