Asheville daily citizen. [volume] (Asheville, N.C.) 1890-1900, 1894-01-02
A NICE POINT OF LAW
AND JUDGE MERRIMON's CON.
sTRUCTION THEREON.

AND JUICE MERRIMON's CON.
sTRUCTION THEREON.
For How L0ux DO superior Court
Judges, Elec,ed to Fill vacan-
cles, 0erve?-Tw0 Opinions ON
The Point
EDITOR THE CITlzEN:-The offices Of
Justice of the Supreme court and Judge
of the Superior court exist by virtue Of
the constitution Of the State. Const !,
Art. w.. Sec. 10. The terms of these
offices are fixed by the constitution. Sec.
II of Art. II. reads as follows:
THE Justices of the Supreme court
shall be elected by the qualified voters of
the State. as is provided for the election
of members of the General Assembly.
They shall hold their Offices for eight
years. The Judges Of the Superior courts,
elected at the first election under this
amendment, shall be elected in like man.
ner as is provided for Justices Of the
Supreme court, and shall hold their
Offices for eight years. The General
Assembly may from time to time, provide
by law that the Judges Of the Superior
courts. chosen at succeeding elections.
instead of being elected by the voters Of
the whole State, as herein provided for,
shall be elected by the voters Of their re-
spcctive districts"
BY this section the term OF office of
Judge of the Superior court is definitely
and permanently fixed at eight years.
1t was intended that the Judges, elected
at the first election under this section,
should be elected in like manner as the
Justices Of the Supreme court, but the
General Assembly was given power to
change the manner Of electing Judges in
succeeding elections. 1t is manifest that
the meaning of the section, as regards
the Judges OF the Superior courts, is
this: The Judges of the Superior courts
shall hold their offices for eight years.
Those elected at the first election under
this amendment, shall be elected in like
manner as is provided for Justices of the
Supreme court, but as to succeeding
elections, instead of being elected by the
voters of the whole State, the General
Assembly may from time to time provide
by law that they shall be chosen by the
voters OF their respective districts. II
this is not true, the Judges OF the Superior
court have now no fixed term Of Office.
The act of 1881 .(ch. 327, pub.
laws, 1SS1) which provides for the
election of judges for the first, second,
third, fourth, fifth and sixth judicial DIS
tricts says nothing about the term OF
office. This was the second election
under this amendment" The code has
nothing in regard to the term Of office
of Judge, SO far as have been able to
discover. Neither the act of 1885 (ch.
$50, pub. laws, 1Ss5) providing TOR
the election CT fjudges. nor the act to in
crease the number of judges (ch. go,
pub. l., 1SS5) makes any mention oi
term Of office.
If the term OF Office of tlR Judges Of the
Superior court was not permanently
established by the constitution, as
have endeavored to show. and there is
no act of the legislature defining the
term, Whence comes the power Of the
governor to issue commission to a
Judge el ct for any certain period oi
time? He might, with as much pro-
priety and the same authority, issue the
commission for 80 years as for eight.
Evidently the General Assembly has
always regarded the term of office of a
judge to be fixed by the constitution at
eight years, and such has been the gen
eral understanding of the public. The
judges continue to be elected in like man.
ner as the justices of the Supreme court,
in the absence of legislation making a
different provision. All Superior court
judges to be chosen for regular terms
must be elected under section 81. unless
provision is elsewhere made in the con
stitution.
Provision for filling vacancies in the
Iiudgeship is made by section rs of art
w., which is as follows: "All vacanciei
occurring in the Offices provided for by
this article of the constitution shall bs
filled by the appointments of the gov
ernor, unless otherwise provided for
and the appointees shall hold theil
places until the next regular election fol
members Of the General Assembly, whcr
elections shall be held to fill such offices
II any person elected or appointed
to anv Of said Offices shall neglec,
and tail to qualify, such office shal
be appointed to, held and fillet
as provided in cases of vacacie:
occurring therein. All incumbents Q
said Offices shall hold until their success
sors are qualified" This section is on,
Of the amendments made by the conven
tion of 1875, to the constitution o
1868.
Section 81 of article ~ OF the constitu
tion of 1868 was in these words: "Al
vacancies occurring in the Offices pro
vidcd for by this article OF the constitu
tion, shall be filled by the appointment
of the governor, unless otherwise pro
vided for. and the appointees shall holt
their places until the next regular elec
: ton
Judge Ruffin speaking of section 25
above quoted. says il contains the who'll
of section 81. as it stood in 1868, wit
modification and two additions" ant
then goes on as follows: This leads u
to the conclusion that the provisions Q
the new constitution were merely subst
tuted tor those Of the old, and that tn
modification and additions were ia
tended to affect the subject matters Ell
braced in the original section. but in NJ
wise to multiply them. :. :. "As to til
mischief intended to be remedied, we a
forced to take notice OF the fact, that tn
construction of that provision of til
constitution of 1868, which gave TIL
appointces OF the governor in certain
: instances, the right to hold their plae
until the next regular election, was a
one time a vexed question, and tha
when brought here for judicial determ
ination. this cour. was itself divided a
IN thn cootru,f ion y,roper n he u; ve ., n n