In the exercise o.f its legislative power the General Assembly has made provision for the establishment and organization of general county courts. N. 0. Code of 1931, ch. 27, subch. 5, secs. 1608(£)-1608(dd). By the act of 1929 these statutes'were made applicable to Buncombe County. Pub. Laws 1929, ch. 159. Section 1608(f)! provides that if in their opinion the public interest will best be promoted thereby, the commissioners of any county may establish a general county court by resolution reciting the reasons for their action together with the opinion that the call of an election is not necessary. The right of appeal is preserved. Section 1608(cc).
Pursuant to authority thus conferred the board of commissioners of Buncombe County on 30 September, 1929, formally established a general county court, appointed a judge and a prosecuting officer, prescribed their terms of office, and fixed their respective salaries, which were to be payable monthly.
On 24 October, 1930, the plaintiff instituted the present action to recover damages for personal injury suffered through the alleged negligence of the defendants. After their demurrer was overruled the defendants filed a plea purporting to be in bar and in abatement of the action. The asserted ground is the want of jurisdiction; and in support of their plea the defendants assail certain statutes purporting to authorize the creation of the court which, they say, are in conflict with the Constitution. They specifically impeach the validity of the following sections: 1608(g), which provides that if the public interest calls for such action the county commissioners may appoint the judge and prescribe his term of office; section 1608(u) which permits, if it does not presume, the waiver of a trial by jury; section 1608(f)2, which invests the board with .power to abolish the court; section 1608(t), which assimilates
Before entering upon an examination of the objections interposed to the constitutionality of the several statutes under which the court in question was created, we may take notice of the preliminary proposition urged by the plaintiff and sustained in the judgment: that is, that the jurisdiction exercised by the county court cannot be questioned in this proceeding. The defendants say their plea is not an attack upon the constitutionality of the county court m toto or a denial of its right to perform legitimate functions; that the power of the Legislature to authorize the creation of a county court with capacity to exercise inferior criminal and civil jurisdiction is admitted, provided the jurisdiction is in accord with the fundamental law. The plea is intended to raise only one question: whether the county court has jurisdiction of the cause of action set forth in the complaint. The jurisdiction of a court is generally prescribed and defined, and as a rule every court has the inherent power to determine whether it has jurisdiction' of a pending action. A justice of the peace, for example, may adjudge whether a cause of action is within or beyond his jurisdiction. So it is with the Superior Court, and indeed with all other courts. On this point the citation of authority is not necessary. It is no less manifest that in such instances the decision of the lower court is subject to review on appeal. Hence we need consume no time in comparing or distinguishing S. v. Shuford, 128 N. C., 588, Chemical Co. v. Turner, 190 N. C., 471, and analogous cases, which were .cited in .the briefs or in the oral argument; and as the statutes under which the court was established are neither local, private, nor special we need only remark that its creation is not within the inhibition of the twenty-ninth section of article two. The single question raised by the appellants directs attention to the allotment and distribution of that portion of the power and jurisdiction of the judicial department which does not pertain to the Supreme Court.
In the Constitution of 1868, Art. IV, sec. 4, it was provided that the judicial power of the State should be vested in a court for the trial of impeachments, a Supreme Court, Superior Courts, courts of justices of the peace, and special courts; and in section 19 that the General Assembly should provide for the establishment of special courts for the trial of misdemeanors in cities and towns. These were the only special
“The judicial power of the State shall be vested in a court for the trial of impeachments, a Supreme Court, Superior Courts, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law.” Art. IV, sec. 2.
“The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it as a coordinate department of the government; but the General Assembly shall allot and distribute that portion of this power and jurisdiction which does not pertain to the Supreme Court among the other courts prescribed in this Constitution or which may be established by law, in such manner as it may deem best; provide also a proper system of appeals; and regulate by law, when necessary, the methods of proceeding, in the exercise of their powers, of all the courts below the Supreme Court, so far as the same may be done without conflict with other provisions of this Constitution.” Art. IV, sec. 12.
To what extent is the General Assembly empowered to allot and distribute that portion of this power and jurisdiction which does not pertain to the Supreme Court to the other courts prescribed in the Constitution or established by law? This is the controlling and decisive question.
The Superior Court is a constitutional court; it cannot be abolished; its inherent powers cannot be destroyed. Mott v. Commissioners, 126 N. C., 866; S. v. Baskerville, 141 N. C., 811. The General Assembly cannot displace it from its position in the judicial system or establish another court of equal jurisdiction upon a plan different from that provided by the Constitution. Rhyne v. Lipscombe, 122 N. C., 650; Tate v. Commissioners, ibid., 661. But an allotment or division of jurisdiction is within the contemplation of Article IV, sec. 12. The Legislature may therefore allot to inferior courts a portion of the jurisdiction of the Superior Court, providing also for the right of appeal. N. C. Pleading & Practice, secs. 53, 54.
The principle was elucidated in the two cases last herein cited and in Mott v. Commissioners, supra. Rhyne’s case and Tate’s dealt with the Circuit Court of Buncombe, Madison, Haywood, and Henderson coun
In Rhyne’s case, supra, it was shown that an action had been tried before a justice of the peace, from whose judgment an appeal had been taken to the Superior Court of Buncombe. The Circuit Court of the four counties assumed jurisdiction and tried the case at the June Term of 1897. There was a verdict for the plaintiff, which the defendant moved to set aside on the ground that the court had no jurisdiction. The motion was denied and the defendant appealed.
In Tate’s case, supra, the plaintiff applied to the same Circuit Court for a writ of mandamus to compel the board of commissioners of Haywood County to levy a special tax for working the public roads of the county, which had been authorized by chapter 249 of the Public Laws of 1897. The Circuit Court gave judgment for the plaintiff and the defendants appealed, assigning as error the court’s ruling that it had jurisdiction of the cause and that the commissioners were compelled to levy the tax.
In its review of the Rhyne case the Supreme Court held that the legislative power to allot and distribute the jurisdiction of the courts below the Supreme Court is subject to the limitation that it must be done “without conflict with the other provisions of this Constitution”; that in making the allotment it cannot create new courts and make the officials thereof elective otherwise than by the people, subject to legislative annulment, without independent tenure of office, and freed from the provisions of rotation, restriction of residence, and the requirement that at least two terms must be held annually in each county, and at
But this Court held that the act conferring upon the Circuit Court jurisdiction equal and concurrent in all respects with that exercised by judges of the Superior Court was unconstitutional and void, and that the plea to the jurisdiction should have been sustained. The judgment was quashed and the cause was remanded to the Superior Court.
Reaching the same conclusion in Tate v. Commissioners, supra, this Court said in addition: “It is competent for the General Assembly to> give to said Circuit Court, or any other court it may erect, original jurisdiction, either exclusive or concurrent with the Superior Court,, civil as well as criminal, of all matters which may originate in said counties, subject to the right of appeal therefrom to the Superior Courts, created by the Constitution, and provided, as to concurrent matters, the Circuit Court first acquires jurisdiction, but it cannot transfer the concurrent jurisdiction of cases which have originated and are pending-in the Superior Courts downwards to the Circuit or. other inferior courts. The intent expressed in section 12, Article IY (which is an amendment to the Constitution), is not to abolish the Superior Courts, but to^ authorize inferior courts thereto, with such jurisdiction as the General Assembly may think proper to relieve, to that extent, the pressure upon.
The power of the General Assembly to allot a portion of the jurisdiction of the Superior Court to inferior courts and to make the jurisdiction of the latter courts exclusive as well as original is sustained in Bunting v. Gales, 77 N. C., 283, S. v. Jones, 97 N. C., 469, S. v. Weddington, 103 N. C., 364, S. v. Ray, 122 N. C., 1098, and S. v. Collins, 151 N. C., 648 in which it is said that the Legislature has the power, under the Constitution, to establish inferior courts, not only for cities' and towns (Article IY, sec. 14), but also for counties. S. v. Shine, 149 N. C., 480. The statutes authorizing the general county courts purport to allot only a part of the jurisdiction of the Superior Court and in this respect materially differ from the acts creating the Circuit Court dealt with in Rhyne v. Lipscombe.
The criticism in Mott v. Commissioners, supra, of such expressions in the Rhyne case as “exclusive jurisdiction except as to the right of appeal” is inapplicable to the .act under consideration, which purports to confer, not exclusive, but concurrent jurisdiction upon the general county court. In subsequent cases it has been suggested that in Rhyne v. Lipscombe, supra,.the Supreme Court considered only the relative position as to power and jurisdiction of the Superior Court as a part of our judicial system and the right of the latter alone to hear appeals from the courts of justices of the peace. But by reference to the original file it may be seen that the judge of the Circuit Court prepared an elaborate opinion in defense of the court’s jurisdiction, which was a part of the case on appeal. In consequence, the Supreme Court properly considered the question of jurisdiction in connection with pertinent sections of the Constitution. The division or allotment of jurisdiction as therein promulgated has been recognized in many of our decisions, has often been practically applied, and as pointed out in Sewing Machine Co. v. Burger, 181 N. C., 241, has been exercised very generally by the Legislature in the establishment of inferior courts.
We conclude, upon consideration of the record, that the General County Court of Buncombe County was lawfully constituted pursuant
There was no error in allowing the defendants to file an answer. On the plaintiff’s appeal the judgment is
Affirmed.