#### VIRGINIA-CAROLINA CHEMICAL CO. v. F. H. TURNER et al., trading as FARMERS’ SUPPLY CO.

(Filed 12 November, 1925.)

1. Courts — Jurisdiction—Constitutional Law — Statutes.

A court created by statute may not pass upon tbe constitutionality of tbe statute of its creation'; and tbe jurisdiction being derivative, tbe Superior Court may not do so on appeal therefrom, or thus bave tbe matter determined in tbe Supreme Court upon further appeal.

2. Courts — Statutes—"Process—County Courts.

Where a county court is created by a legislative enactment, declaring that its process shall run as process issuing out of tbe Superior Court, which was by reading tbe summons to tbe defendant, an exception by *472defendant to the legality of such service for failure to leave a copy with him is untenable. The provisions of ch. 520, Public Laws of 1915, amended by ch. 92, Public Laws, Extra Session, 1921, are not applicable in such instances.

Appeal by defendant from Forsyth Superior Court. *Finley, J.*

Motion by tbe named defendant to set aside a judgment of tbe Eor-sytb County Court. From a judgment of tbe Superior Court, affirming tbe judgment of tbe Eorsytb County Court, denying defendant’s motion and rendering judgment against tbe defendant and bis surety on bis supersedeas bond, tbe named defendant appealed.

Affirmed.

Tbe facts found by tbe Eorsytb County Court are as follows:

“That summons was issued out of. tbis court on 31 October, 1923, against tbe defendant, E. H. Turner, returnable to a term of tbis court commencing tbe lltb Monday after tbe first Monday in September, 1923, it being tbe 19tb day of November, 1923, and tbat summons was served upon tbe defendant, E. H. Turner, on 5 November, 1923, by reading tbe said summons to tbe said defendant; tbat tbe plaintiff filed a duly verified complaint against tbis defendant and others on 14 November, 1923, setting forth a cause of action and demanding judgment in tbe sum of $1,782.36, with interest thereon from 1 May, 1923; tbat tbe defendant, E. H. Turner, has failed to answer or otherwise plead; tbat judgment was entered by tbis court on Monday, 11 May, 1925, against tbe defendant, E. H. Turner, for tbe sum of $1,782.36, with interest thereon from 1 May, 1923; tbat' tbe said defendant did not file before time for answering expired, and has never filed a motion to remove tbis cause for trial to tbe Superior Court of Ashe County; tbat tbe said defendant was at tbe time of tbe commencement of tbis action, and now is, a resident of Ashe County, and tbat said summons was issued out of tbis court under tbe seal of tbis court to Ashe County, where tbe same was served by tbe sheriff of Ashe County by reading tbe summons to tbis defendant; tbat no defendant named in said summons was a resident of Eorsytb County; tbat tbe plaintiff is a corporation, organized under the laws of tbe State of New Jersey, with a principal place of business in Winston-Salem, North Carolina.”

*Swihlc, Clement & Hutchins for plaintiff.*

*W. JR. Bauguess for defendant.*

Yarser, J.

Tbe first attack on tbe validity of tbe default judgment against E. H. Turner is tbat chapter 520, Public-Local Laws, creating tbe Eorsytb County Court, is unconstitutional, and, therefore, tbe court itself is a nullity.

Tbis motion to declare itself out of existence was addressed to tbe Forsyth County Court. Tbis presents an anomalous situation. A court, *473as such, is asked to declare that it has no legal existence. This cannot be done. The court would first have to decide that it is a court in order to entertain the motion. Then, when the motion is considered, having already determined that it was a court, it would pass again on its own existence; and if the motion is allowed, it would then undo itself and pass out of existence by virtue of its own ruling. Its ruling would be invalid if the act creating it is unconstitutional and the decision would not be, in any sense, judicial.

*Ex nihilo nihil fit*is still a maxim that knows no exception. This self-evident maxim was first applied in this State by *Associate Justice Henderson*in *Beard v. Cameron,*7 N. C., 181, and followed in *S. v. Hall,*142 N. C., 710; *S. v. Wood,*175 N. C., 815; *S. v. Simmerson,*177 N. C., 546. The only case that seems to militate against this position is *S. v. Shuford,*128 N. C,, 588. This case has not been followed, and has only been cited twice: *St. George v. Hardie,*147 N. C., 88, and *S. v. Wood, supra.*In each of these citations it was distinguished. The decision is plainly correct as a substantive proposition, but as to the power of the court to entertain the motion, it is not approved.

The jurisdiction of the Superior Court of Forsyth County is derivative in appeals from the county court; therefore, the question of the constitutionality of chapter 520, Public-Local Laws 1915, was not properly presented to the Superior Court of Forsyth, nor to this Court.

Courts never anticipate a question of constitutional law before the necessity of deciding it arises. They never formulate a rule broader than required by the precise facts presented. The admitted power of the courts 'to determine the constitutionality of acts of the Legislature will never exert itself unless clearly necessary. *Person v. Doughton,*186 N. C., 723, 725; *Liverpool Steamship Co. v. Commissioners of Emigration,*113 U. S., 39, 28 L. Ed., 900; *Comrs. v. State Treasurer,*174 N. C., 148; *Mass. v. Mellon,*S. C. R., 597.

This act creating a special court with full provisions for a jury and the docketing of its judgments in the Superior Court of Forsyth County, and a system of appeals to the Superior Court, is contained in Public-Local Laws 1915, ch. 520; Public-Local Laws 1921, ch. 517; Public Laws 1923, ch. 150, and in two. acts of the 1925 General Assembly designated as S. B. 186, H. B. 119, and S. B. 1094, H. B. 1299. This court is functioning adequately and satisfactorily to the people of Forsyth County.

The defendant contends that the summons was not legally served in that it was “read” and no copy thereof was delivered to him by the sheriff of Ashe County. This makes proper service of summons issuing out of Forsyth County Court. When eh. 520, Public-Local Laws *4741915 was enacted (6 March, 1915), the service of summons within the contemplation of section *1,*thereof, was “by reading.” Revisal, 439. The change of the manner of service of summons issuing from the Superior Court from “reading” to “delivering a copy” was effected by Public Laws, Extra Session, 1921, ch. 92, and expressly limited the change to “all civil actions in the Superior Court.” Public Laws 1923, ch. 216, does not apply to the “Forsyth County Court” because, by its very terms, this act applies only to courts established under its provisions.

The service of summons *in Ashe County,*by the sheriff of Ashe County, is not invalid, for chapter 520, Public-Local Laws 1920, sec. 9, expressly declares that the process of the Forsyth County Court “shall run as process issuing out of the Superior Court,” *i.e.,*anywhere in the State.

The service was proper and the county court had jurisdiction. *Piano Co. v. Newell, 177*N. C., 533; *Guano Co. v. Supply Co.,*181 N. C., 210. If the defendant was not willing for the trial to tahe place in the “County Court” in Forsyth County, it was his duty to move for a removal to Ashe County. *Piano Co. v. Newell, supra.*

It was a question of venue only, and not a question of jurisdiction, and the motion to set aside a judgment will not avail the defendant.

This disposes of the grounds assigned to support the defendant’s motion.

The judgment appealed from is

Affirmed.