The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-05-02
SUPREME COURT DECIDES
Judge Shaw Must Hold the Court for
Buncombe.
THE OPINION WRITTEN BY JUDGE CLARK
There Can Be No Judge Until There is a District
for Him, and There VIII Be No Sixteenth
Judicial District Until
June 30th.

The Supreme court yesterday decided
that George A. Jones is not yet a judge
and cannot hold a term of Superior court
till June Goth. Judge Clark writes the
opinion, holding that "as there will be
no Sixteenth Judicial district till June
30th, 1901. the Legislature could not au-
thorize the creation of the office of Judge
of the Sixteenth district to begin and
take effect before the district existed
This is the first act of the recent Legis-
lature to come before the court and it
is declared, in this particular, unconsti-
tutional
Judge Clark, in course of his opinion,
says
THE Constitution (Article ", sections
10 and III provides that there shall be
Judge for each Superior court district,
that each judge shall reside in his dis
trict and that the judges shall hold the
courts of the several districts in rotation.
From these provisions it is clear that
there can be no judge of the Superior
court in North Carolina unless there is
a district to which he belongs.
The act increasing the number OF dis
tricts provides that Except as to the
Fifteenth district) the act should not
take effect till Both of June, 1901. There
can therefore be no Sixteenth district till
June 30th, and consequently till that date
there can be no such office in existence
as Judge of the Sixteenth Judicial dis
trict.'' l
1.-THE implication from the words in
the act that the courts of the Fifteenth
district shall be held by the Judge of
the Sixteenth district" and the direct
authority conferred on the Governor in
the supplemental act to appoint and
commission the new officers provided by
the first act, can have no other authorl-
ty, at the most, than to empower him to
nominate and issue commissions to the
appointees. Certainly such commissions
could not become effective so as to clothe
the appointees with the power to exercise
the duties of the office or enjoy it's
emoluments, until the new districts shall
come into existence. **
in Cook VS.. Meares, lie N. c., $50,
it was held that the General Assembly
could not elect one to fill an office till
an act creating the office was ratified.
1t is true, this case differs from that;
here the act providing for the office has
been ratified, but it prescribes that II
shall begin existence.in future, for when
it says the Sixteenth district shall not be
in existence till June Both, the Constitu-
ton steps in and says. till there is a
district there can be no judge for the
district. Were it otherwise. there would
be no constitutional inhibition upon the
number of unassigned or unattached
Judges Judges in waiting" so to speak.
If there could be one. there could be
dozen.
1.-The attempt to create a judge with
the power of Superior court judge,
without Superior court district assigned
him, was held invalid as to Judge Ewart
in Rhyme vs. Lipscombe. 122 N. c.,
650 4
what we feel compelled to hold is that
there is not, and cannot be, any office
of Judge of the Sixteenth Judicial dis
trict." till June so, 1901 when that dis
trict is to begin its existence, and that one
attempting to perform the duties OF such
an alleged office now is neither de
facto nor a de jure officer, and his acts
are null and void.
''The statute here in question is plainly
and clearly in conflict with the constitu-
tional provision, in attempting to create
a Judge of the Superior court without
a district The office which he offered to
exercise was not in existence, and his
acts were not those OF de facto officer,
and hence must be treated as null and
void. In view of the statute he doubt
less felt that he ought not to refuse to
attempt to exercise the duties OF the Of
flee. and that the proper course was to
submit the constitutionality of the act
to this court
Elsewhere in the opinion, touching this
point, Judge Clark says:
Amy possible difficulty could be avoid
ed, if thought proper, by authority issued
to Judge Shaw to hold a special term in
Buncombe."