Durham Provision Co. v. Daves

• Citation: 128 S.E. 593,190 N.C. 7
• Decision Date: 24 June 1925
• Docket Number: 338.
• Parties: DURHAM PROVISION CO. v. DAVES.
• Court: United States State Supreme Court of North Carolina

128 S.E. 593

190 N.C. 7

DURHAM PROVISION CO. v. DAVES.

No. 338.

Supreme Court of North Carolina

June 24, 1925

Appeal from Superior Court, Durham County; Calvert, Judge.

Action by the Durham Provision Company against W. M. Daves. Judgment for plaintiff, and defendant appeals. Reversed.

Act delegating to commissioners of county discretion and power to confer limited civil jurisdiction upon established recorder's court, held void.

Civil action to collect balance due on open account, amounting to $268.46, tried at the May term of the recorder's court of Durham county.

The action was originally brought in the superior court of Durham county and transferred to the recorder's court of said county for trial, under authority of Senate Bill 1359, House Bill 1748, of the Legislature of 1925, the pertinent provisions of which are as follows:

"Section 1. That in any county of this state in which there is now established by law whether by general or special act or in which there may hereafter be established by general or special law a recorder's court or a county court which possesses county-wide criminal jurisdiction of misdemeanors and also possesses jurisdiction in criminal matters to bind over to the superior court persons charged with felony, the board of commissioners of such county may at any regular meeting thereof after the ratification of this act pass a resolution conferring upon such above-designated recorder's court or county court civil jurisdiction as hereinafter provided and when such resolution is duly adopted by said board of commissioners according to law such recorder's court or county court hereinabove designated, shall have and exercise the civil jurisdiction hereinafter provided with the right to try and determine civil actions as hereinafter provided.

Sec. 2. (a) Concurrent jurisdiction with justices of the peace in all civil actions, matters and proceedings including all proceedings whatever, provisional and remedial to civil actions which are now or hereafter may be within the jurisdiction of justices of the peace.

(b) Concurrent jurisdiction with the superior court in all civil actions, matters and proceedings including all proceedings whatever, ancillary, provisional and remedial in civil actions founded on contract or tort, wherein the superior court of such county now has exclusive original jurisdiction provided that the sum demanded or the value of the property in controversy shall not exceed twenty-five hundred dollars and the title to real estate shall not be in controversy and provided further that no injunctive relief may be granted."

"Sec. 18. That all civil causes now pending in superior court of such county coming within the provisions of this act, shall be triable in the court herein provided for in this act and come within the provisions of said act, and it shall be the duty of the clerk of the superior court of such county to prepare the calendars and dockets so that the procedure may be had for the trial of said causes as soon as may be."

"Sec. 21. Provided the provisions of this act shall not affect the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth. Twentieth judicial districts."

On April 6, 1925, the board of commissioners of Durham county, in regular meeting assembled, by resolution duly adopted, conferred civil jurisdiction, as authorized by said act, upon the then existing recorder's court of Durham county, which hitherto had exercised limited jurisdiction in criminal matters, as described in section 1 of the act above set out.

When the case was called in the recorder's court, the defendant entered a special appearance and demurred to the jurisdiction of the court on the ground that it was without authority to hear and determine the cause. Demurrer overruled; judgment for plaintiff; affirmed on appeal to superior court, from which latter judgment the defendant appeals, assigning errors.

James Washington Barbee and Brawley & Gantt, all of Durham, for appellant.

McLendon & Hedrick, Basil M. Watkins, W. B. Guthrie, and R. H. Sykes, all of Durham, for appellee.

STACY C.J.

If the Legislature of 1925 thought it wise to confer certain civil jurisdiction on the recorders' courts, already established and existing in the Tenth judicial district, which hitherto had exercised limited jurisdiction in criminal matters only, as now advised, we see no valid reason why this could not have been done either by general or special act. There is nothing in article 2, § 29, of the Constitution which prohibits the Legislature from increasing or decreasing the jurisdiction of recorders' courts or county courts already in existence. The prohibition is against the establishment of courts inferior to the superior court, by any local, private, or special act or resolution. But when the General Assembly, either by general or special act, undertakes to say that such additional jurisdiction may be conferred on recorders' courts or county courts by the board of commissioners of the county, quite a different question is presented. Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525. See Singer Sewing Machine Co. v. Burger, 181 N.C. 241, 107 S.E. 14, for history of constitutional changes bearing on the matter.

It is provided in article 4, § 12, of the Constitution, that the "General Assembly shall allot and distribute that portion of this [judicial] 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," and it is the position of the defendant here that the body to whose judgment and wisdom this duty of allotment and distribution of judicial powers, inferior to those exercised by the Supreme Court, has been intrusted, may not relieve itself of such responsibility by choosing other agencies and delegating it to them. The Constitution plainly commits the authority to the General Assembly, and it is a maxim of constitutional law that when the sovereign power of the state has vested such authority in the Legislature, ordinarily it may not be delegated by that department to any other body or agency Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 62 L.Ed. 294; State v. Young, 29 Minn. 552, 9 N.W. 737; State v. Sawyer County, 140 Wis. 634, 123 N.W. 248.

The power of local legislation commonly bestowed on municipal and quasi municipal corporations does not trench upon the maxim, "legislative powers may not be delegated, except when authorized by the Constitution," since this is authorized, impliedly at least, by the Constitution itself (articles 7, 8, and 9, Const.); and even the maxim is to be understood in the light of an immemorial practice which has always recognized the policy and propriety of vesting such powers in these corporations, being created, as they are, for the purpose of aiding the state government in the business of municipal rule. State v. Simons, 32 Minn. 543, 21 N.W. 750; State v. Young, supra. Nor is it a violation of this principle for the Legislature to authorize the board of agriculture to make and prescribe regulations for the quarantine of cattle, or for the inspections of oils sold in the state, and to give to such regulations the force and effect of law. State v. Garner, 158 N.C. 630, 74 S.E. 458; State v. Southern R. Co., 141 N.C. 846, 54 S.E. 294; Kimmish v. Ball, 129 U.S. 217, 9 S.Ct. 277, 32 L.Ed. 695; Red "C" Oil Mfg. Co. v. Board of Agriculture (C. C.) 172 F. 695, affirmed 222 U.S. 380, 32 S.Ct. 152, 56 L.Ed. 240.

Speaking to a similar question in Board of Education v. Com'rs, 174 N.C. 474, 93 S.E. 1001, 1003, Hoke, J., said:

"We are not inadvertent to the position earnestly urged for defendant that the act providing for a determination of the amount required for a four months school by the superior court judge is unconstitutional, in that it attempts to confer legislative powers on the courts, but we do not think the statute is open to such objection. It only empowers the courts to ascertain and determine a disputed fact relevant to a pending issue between the two boards, and thereupon command that the tax be levied accordingly, both the finding of the fact and the judgment thereon being, in our opinion, judicial in their nature. In re Applicants for License, 143 N.C. 1 and 6. The tax, however, is authorized, as it should be, by legislative enactment, and is to be levied and collected by the usual and ordinary administrative and executive officers of the county government."

It is not like authorizing the establishment of municipal and county recorders' courts (C. S. 1536 and 1563) by the governing bodies of cities, towns, and counties and prescribing in the same or other act what the jurisdiction of said courts shall be when established; for there the allotment and distribution of the judicial powers is made by the General Assembly, and only the question of fact as to whether local conditions render it desirable for the establishment of such courts is referred to the local bodies. Vesta Mills v. City Council, 60 S.C. 1, 38 S.E. 226. Article 4, § 14, of the Constitution, is as follows:

"The General Assembly shall provide for the establishment of special courts, for the trial of misdemeanors, in cities and towns where the same may be necessary."

Mr. Cooley, in his Constitutional Limitations (6th Ed.) p. 137, says:

"One of the settled maxims in constitutional law is, that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by

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