Rodwell v. Rowland

Brown, J.,

dissenting. I regret that I am compelled to differ with my able and learned brethren in the conclusion arrived at in this case. Were it not for a firni conviction that this question has been settled in this State for thirty years past, I should yield my judgment to theirs. I am convinced that this question has been put at rest for the past thirty years in this State: 1st, by the settled judicial decisions of this *641Court, composed of some of tbe ablest lawyers that bave ever adorned its judicial history; 2d, by acquiescence in this judicial construction and its adoption by the Constitutional Convention of 1815, and by legislative construction of the Constitution ever since; 3d, by the uniform practice of the Superior Court Judges for thirty years in filling vacancies in the office of Clerk of that Court.

1. Ever since the decision of Gloud v. Wilson, decided in 1875, the words “until the next regular election,” and those other words of similar purport, “until an election can be regularly held,” have been taken by the legislative and judicial departments of the State government to mean “until the next regular election for the office in which a vacancy has occurred.” That decision was made by a Court of exceptional ability and the opinion was written by Chief Justice Pearson, one of the greatest Judges this or any other State has produced. Among lawyers his is "Clarum et venerabile nomen.” It is true Judge Beade dissented, but it was not as to the meaning of these words, but as to the application of them to a particular judicial election. If I were not deeply sensible of the eminent ability, profound research and painstaking care of my esteemed brother who speaks for the Court in this case, I should say he had wholly failed to consider the scope and significance of both of the opinions in Cloud v. Wilson, and had not noted their very words, since he says that this Court does not overrule the principles decided and pronounced in that case. It is unnecessary for me to quote from the conclusive argument of the great Chief Justice, but I note the language of Judge Beade for the purpose of showing that he is not only in accord with Chief Justice Pearson as to the meaning of the words under discussion, but makes it clearer even than the opinion of the Court: “It is also .a useful inquiry: Eor how long a time would the people be lihely to part with this important elective power? As théy parted *642with it temporarily to suit their convenience, they would resume it as soon as convenient. The next inquiry is, is such convenient time indicated in the Constitution? It is the ‘stated, established, usual period’ when the people meet together for the first time, after the vacancy occurs, to vote for Judges of the Superior Courts. Then it is as convenient to fill a vacancy resulting from accident, as from the expiration of a term.” Even a cursory reading of the opinions in that case, I am sure, will convince the profession that the construction of the Constitution therein promulgated is overruled by the opinion in this case. Therefore, I am unwilling to give it my concurrence. I believe in the stability of judicial decisions, and when acquiesced in for a long time they should not be lightly set aside. Misera est servitus ubi jus vagum aut incertum. “It is the function of a Judge,” says Lord Coke, “not to make but declare the law according to the golden metewand of the law, and not by the crooked cord of discretion.” If the rule of stare decisis is of any value, it should be adhered to and not set aside except for a very cogent and compelling reason, for “Omnis innovatio plus novitate per-turbat quam utilitate prodest.”

The vacancy in the office of Clerk of the Superior Court of Warren County occurred prior to the general election in 1904, at which election such clerks were not regularly elected. They were regularly elected in 1902 for four years. The next election when Clerks will be regularly elected occurs in November, 1906. Judge Peebles commissioned the defendant until that time, and in my opinion he acted according to the well-settled construction of the Constitution and according to the unvarying precedents in this State since 1875.

The adjective “regular” is used to qualify election so as to distinguish it from other kinds of elections. “Regular elections,” says Judge Beade, “for an officer to fill an office, are those by which the office was originally and continuously *643filled according to stated and set rules at periodical times.” Cloud v. Wilson, supra. Judge Pearson expressly declares in bis opinion that tbe words “regular election” mean tbe next regular election for tbe office in wbicb tbe vacancy occurs. He says: “We think this construction tbe true one in respect of Justices of the Supreme Court, Clerks of tbe Superior Court and Solicitors.” He further declares that this is tbe construction adopted by tbe General Assembly. It is not to be supposed that tbe framers of tbe Constitution used words needlessly and without regard to their natural and recognized significance. Why use tbe words “can be regularly elected” ? why not say “until tbe next election,” or “until an election can be held for members of tbe General Assembly” ? While tbe Constitution declares that clerks shall be elected at tbe time and in tbe manner prescribed by law for tbe election of members of tbe General Assembly, it fails to state that the vacancies shall be filled at any election for members of tbe General Assembly. It is not my purpose, however, to attempt to strengthen tbe arguments of such consummate judicial writers as Pearson and Peade. My only purpose is to show, if I can, bow completely and fully tbe contentions of tbe defendant in this case are supported by both tbe opinions in Cloud v. Wilson. It is true that this rule of construction has not been adopted and followed in a number of States; but it must be remembered that in tbe great Northwest, where cases are as plentiful as crops, precedents can be found for almost any legal proposition. Tet tbe decision in Cloud v. Wilson has been endorsed in several other respectable jurisdictions. In Lynch v. Budd, 34 L. R. A., 46, the Supreme Court of California defines tbe meaning of tbe words “next regular election,” and says that it means tbe next election provided for filling tbe particular office vacant, not tbe next general election. In Matthews v. Shawnee County Commissioners, 34 Kansas, 606, tbe Court *644says: “The words ‘regular election’ do not mean necessarily general election. * "‘ * They simply mean the regular election prescribed by law for the election of the particular officer to be elected.” To the same effect are the following cases: McGee v. Gardner, 3 S. D., 554; Sawyer v. Haydon, 1 Nev., 75; Watson v. Cobb, 2 Kansas, 32; Love v. Mathewson, 47 Cal., 442. In the California case first cited, the case of Cloud v. Wilson is cited with approval.

The construction adopted in Cloud v. Wilson was expressly recognized in 1882 as applying to vacancies in the office of Clerk of the Superior Court in Deloatch v. Rogers, 86 N. C., 358 and 731, by a Court composed of such eminent Judges as Smith, Ashe and Ruffin. It is not likely that so careful a Judge as Chief Justice Smith could have been inadvertent to the language he used. A portion of his opinion, on page. 731, shows unmistakably that the Court over which he presided recognized the rule of constitutional construction laid down in Cloud v. Wilson as being applicable to Clerks of the Superior Court, and that such rule was not changed by the Convention of 1875. Not long before the general election for members of the General Assembly and other officers in November, 1880, Thomas D. Boone was appointed Clerk of the Superior Court of Hertford County to fill a vacancy for the unexpired term, just as this defendant has been appointed. Boone was voted for at said election. The ballots were declared worthless paper, as there was no vacancy, showing clearly that the question of vacancy or no vacancy was considered by the Court. The Court says: “But as the decision sustains the ruling of the Court in the rejection of all the ballots that have the name of the person voted for to fill the office of Clerk, when there was no vacancy to be supplied, the oversight does not affect the conclusion reached and the proper determination of the appeal.” (P. 731). In Norfleet v. Staton, 73 N. C., 546, while the case turned *645upon, the power of a de facto Judge to appoint a clerk, Judge Beade says: “By reason of the failure of the person elected to qualify there was a vacancy in the office of Superior Court Clerk for the term of four years. The Constitution provides that the Judge of the Superior Court shall fill such vacancy.” This was written the term following the decision in Cloud v. Wilson. In Peebles v. Boone, 116 N. C., 58, this Court' recognizes the fact that an unexpired term of a clerk, who resigned December 7, 1883, extended to December 1, 1886, and that a Judge of the Superior Court properly filled the vacancy for the unexpired term. I cite this case to show how generally the construction of the Constitution laid down in Cloud v. Wilson has been recognized and accepted by this Court as applicable to vacancies in the office of Clerk of the Superior Court. The Opinion of the Judges, 114 N. C., 925, is not a precedent, as there was no case before the Court to be adjudicated. It was the opinion of three very able lawyers given at the request of the Governor of the State, written by the eminent lawyer who presided over this Court at that time. But I am willing to give it all the force of a precedent, for there is not a line in it that controverts any contention of the defendant in this case. The only question decided was whether a Judge, who had been elected by the people to fill a vacancy, was elected for the unexpired term of his predecessor or for a full term of eight years. The judges do say that the word “vacancy” means, ex vi termini, an unexpired term, and this agrees with the defendant’s contention in this case as to, the meaning of the words of the Constitution.

2. The authority of the decisions has been recognized and its construction acquiesced in by a constitutional convention and the legislative department of the State government. The Constitutional Convention of 1875 met within six months after the decision in Cloud v. Wilson was handed *646down. Tbe able lawyers of that body took the ease of Cloud v. Wilson under a careful consideration. They studied the full scope and effect of the opinions. This is manifest from the concurring opinion of Judge Avery (who was a prominent member of that convention) in Ewart v. Jones, 116 N. C., 575. In consequence of the opinions in Cloud v. Wilson the Convention amended the Constitution of 1868 in respect to Judges of the Superior Court and of all other appointees of the Governor; but the Convention allowed the section in regard to Clerks of the Superior Court to remain unchanged, section 35, Article IV, of the Constitution of 1868 being brought forward and being now section 29, Article IV, Const, of 1875. Not only'are the two phrases “until the next regular election” and “until an election can be regularly held” of similar purport and meaning, but this Court in Cloud v. Wilson expressly and in unmistakable terms declared that the construction of the phrase therein given applied to vacancies in the office of Clerk of the Superior Courts. “We think this construction the true one,” says Chief Justice Pearson, “in respect to Justices of the Supreme Court, Judges of the Superior Courts, Clerks of the Superior Courts and Solicitors.” It is idle to conjecture for a moment that such thorough lawyers as R. T. Bennett, Chairman of the Committee on Judicial Department, Shepherd, Manning, Avery, Jarvis, and other eminent lawyers and men, who were members of the Convention of 1875, should have overlooked the plain language of the Chief Justice extending the construction laid down by him to the article of the Constitution relating to Clerks of the Superior Courts. With those unmistakable words before them, why then did they not make the same changes in that section as in the sections relating to judges and other appointees of the Governor ? There can be but one logical answer to that question. They ratified such construction and desired that *647Clerks of tbe Court should be elected only once every four years aud that tbe appointee of tbe Judge should bold for tbe unexpired term. If the Convention bad any other view, it would have amended that section as it did tbe others and thereby relieve tbe matter of any possible doubt. As counsel for tbe defendant say in their very able brief: “Tbe Convention bad tbe opinion of tbe Court before it; it weighed it and deliberated upon it, and its failure or refusal to make any change in tbe Constitution in regard to tbe office of Clerks of tbe Superior Court is equivalent to a declaration by tbe Convention that in regard to that office it would abide by tbe decision of tbe Court. It was more than acquiescence, it was direct ratification.” So I think that now tbe decision is entitled to more weight in its reference to tbe office of Clerk than it was before tbe Convention. Tbe construction announced was adopted by tbe Convention in reference to that office and practically becomes thereby a part of tbe organic law of tbe State. The phrases “regular election” and “regularly elected” have been judicially defined and such definition recognized and acted upon by the Convention, and so long as tbe phrase is retained in our organic law we cannot escape tbe legal import as declared by this Court. We are compelled to infer that wherever in tbe Constitution or statute of this State either phrase was therefore employed, it was used with full knowledge of and acquiescence in this judicial definition and interpretation.

Tbe legislative view: “When tbe scales are so evenly balanced we deem it our duty to settle tbe preponderance by casting tbe legislative view, which is of peculiar weight in this case, into tbe scale where it belongs.” Opinion of the Judges, supra,. Every General Assembly that has met since 187 5 has construed the' Constitution in its relation to tbe office of Clerk of the Superior Court in accordance with the contention of the *648defendant in this case. Until after the amendment of the Constitution in 1876 there could not be held an election to fill a vacancy in the office of Superior Court Judge, but after the Constitution of 1876 was adopted the General Assembly made provision for holding elections to fill vacancies for unexpired terms in judicial offices. Laws of 1876-N7, chap. 275, sec. 275. It is a most significant fact that neither the General Assembly of 1876-N7 or any subsequent one has made any provision whatever for holding an election to fill a vacancy in the office of Clerk of the Superior Court. The Act of 1876-N7 is incorporated in The Code of 1883, sec. 2736, and it names the offices for which elections must be held to fill vacancies for unexpired terms. The office of Clerk of the Superior Court is conspicuous by its absence from the section. It is nowhere named in it. AYhy provide for elections to fill unexpired terms in other offices and entirely ignore the office of Clerk of the Superior Court ? Because Cloud v. Wilson declared the unexpired term is to be filled by the Judge. That decision was recognized and endorsed by the General Assembly which enacted The Code and the identical case is cited at the end of the section.

The Election Law of 1901, chap. 89, sec. 4, is practically identical with section 2736 of The Code, but in reference to the office of Clerk it leaves no doubt of the legislative view of the proper constitutional construction, for in section 1 it practically prohibits an election for Clerk in 1904. It provides that on the first Tuesday after the first Monday in November, 1902, and every four years thereafter an election shall be held in each county for Clerk of the Superior Court and at such times an election shall be held in the several judicial districts for solicitors. On the same page of the act provision is made for an election to fill vacancies in the office of Solicitor by election, but none whatever to fill *649vacancies in office of Clerk of the Superior Court by election. Why was this? Evidently, because the Genral Assembly continued to give its approval to the construction of the Constitution laid down in Cloud v. Wilson and acted on and acquiesced in for thirty years past. Certainly the Constitution is no more self-executing in providing the machinery for a clerk’s election than as to any other offices named in it. In view of this legislative history, the conclusion is irresistible that the several General Assemblies which have convened since the adoption of the Constitution of 1875 have construed the language of the Constitution to mean that in the case of a vacancy in the office of Clerk of the Superior Court, the Judge has a right to appoint and his appointee shall hold until the next regular election for Clerks of the Superior Court as provided for in the Constitution, which election will occur in 1906.

3. The construction by the Judges of the Superior Court.

These judges ever since 1875 and prior thereto have uniformly appointed Clerks of the Superior Court for unexpired terms, and such appointments have been recognized as legal throughout the entire State. In the past thirty years there must have been a great many of such appointments and never, until this case, has the right of the Judge to appoint for the unexpired term been questioned. I think it highly probable that the four members of this Court who served on the Superior Court bench made such appointments, and their appointees served for the unexpired term without challenge to their authority. This fact is entitled to weighty consideration, as it is hardly to be supposed that all the Superior Court Judges would have habitually misconstrued the law or usurped authority which was not conferred upon them.

4. Independent of the constitutional question there was no legal election.

*650Elections can be beld only as directed by law. No election is valid, no matter bow great the desire for it or how many participants, unless the requisite machinery is provided by law. Monroe v. Wells, 83 Md., 506.

The Constitution is no more self-executing in the case of vacancies in the Clerk’s office than as to other vacancies. Stress is laid by the Court upon section 16, Article 4: “A Clerk of the Superior Court, etc., shall be elected, etc., at the time and in the manner prescribed by law for the election of members of the General Assembly.” This must be construed with reference to section 17, which provides that clerks shall hold office for four years, otherwise it would be lawful to elect a clerk every two years, when members of the General Assembly are elected. There is then, taking’ the two sections together, no constitutional warrant whatever for holding an election for Clerk at more frequent intervals than every fourth year. I have already shown that the Act of 1901 expressly provides for holding such election in 1902 and 1906 only.

In Van Amringe v. Taylor, 108 N. C., 198, Merrimon, C. J., says: “The ascertainment of the popular will or desire of the electors under the mere semblance of an election, unauthorized by law, is wholly without legal force or effect, because such election has no legal sanction. In settled, well regulated government, the voice of electors must be expressed and ascertained in an orderly way prescribed by law. It is this that gives order, certainty, integrity of character, dignity and authority of government to the expression of the popular will. An election without the sanction of law expresses simply the voice of disorder, confusion, revolution, however honestly expressed.”

In Commissioners v. Baxter, 35 Pa., 263, it is said that “majorities go for nothing at an irregular election; they are *651not even regarded as majorities, for orderly citizens bave tbe right to stay away from such elections.”

In Sawyer v. Saydon, 1 Nev., 75, tbe Court says: “We think no Court or Judge has gone so far as to bold that tbe people might bold an election, or vote for any particular officer at a general election, unless special provision was made for electing such officer for tbe particular term for which be was seeking to be elected, either in tbe Constitution or in some statutory enactment.”

It is not sufficient that an election be authorized or warranted by tbe Constitution, but tbe time and manner of its being held must be specifically provided, and there must be affirmative legislation providing tbe necessary machinery for bolding the same. Tbe only election for Clerk of tbe Superior Court mentioned in or authorized by tbe Constitution is . tbe regular election every four years, and then it must be held in tbe manner and at the time prescribed for tbe election of members of tbe General Assembly. That is tbe plain meaning of tbe Constitution. Tbe attempted election in Warren County in 1904 was a nullity. Nowhere, in Constitution or in statute, is there any provision made for voting for a Clerk of tbe Superior Court in case of a vacancy. There is ample provision made for bolding elections to fill vacancies in tbe offices of Secretary of State, Treasurer, Auditor, Superintendent of Public Instruction, Attorney-General, Solicitor, Justice of tbe Supreme Court, Judge of tbe Superior Court, pr any other State officer. But not one word do we find about elections to fill vacancies in tbe office of Clerk of tbe Superior Court. Expressio unius, exclusio alterius.

For these reasons, I am of opinion that tbe judgment of tbe Superior Court should be affirmed.