Rhyne v. Lipscombe

• Decision Date: 22 February 1898
• Citation: 29 S.E. 57,122 N.C. 650
• Parties: RHYNE v. LIPSCOMBE.
• Court: North Carolina Supreme Court

29 S.E. 57

122 N.C. 650

RHYNE v. LIPSCOMBE.

Supreme Court of North Carolina

February 22, 1898

Appeal from circuit court, Buncombe county; Ewart, Judge.

Action by James Rhyne against E. H. Lipscombe, before a justice of the peace, to recover on a note, taken on appeal to the superior court of Buncombe county, of which appeal the circuit court of Buncombe, Madison, Haywood, and Henderson counties assumed jurisdiction. There was a verdict in favor of plaintiff, which defendant moved to set aside, on the ground that the court was without jurisdiction. The motion was denied, and from the judgment rendered on such verdict defendant appeals. Judgment quashed.

J. C Martin and Geo. A. Shuford, for appellant.

James H. Merrimon, for appellee.

CLARK J.

The constitution (article 4, § 2) establishes the supreme court superior courts, and justices of the peace, and authorizes the legislature to create other courts inferior to the supreme court. Section 12 of the same article provides that the general assembly shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it, but that it "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, *** so far as the same may be done without conflict with other provisions of this constitution." Under the constitution of the United States (article 3, § 1), the supreme court alone is created and all other courts are the creatures of congress; hence congress has created and abolished districts, and also created and abolished a system of circuit courts, at will. But under our state constitution the superior courts and courts of the justices of the peace are created by the constitution itself, and the general assembly cannot abolish them. The term "superior court" had a well-defined signification at the time of the adoption of the constitution, and the language of that instrument must be taken as referring thereto. The superior court was considered of so much importance that by sections 10, 11, 21, art. 4 the people are guarantied the right to elect the judges, their terms are fixed, and it was provided that each judge thereof shall reside in the district for which he is elected, that the judges shall rotate, and that no judge thereof shall hold the courts of the same district oftener than once in four years, and that at least two terms thereof shall be held annually in each county; and by section 22 these superior courts shall at all times be open for the transaction of all business except the trial of issues of fact by a jury. Sections 16 and 23 give the people the right to elect the solicitors and clerks of said court, and also fixes their terms. While the general assembly is given the power to allot and distribute the jurisdiction of the courts below the supreme court, this is with the important limitation that it must be done "without conflict with other provisions of this constitution." This renders it essential to consider what is the inherent nature of the superior courts created by those "other provisions" of the constitution itself, which treats them with so much consideration, prescribing the election and terms of whose officers, besides the other provisions above recited. The general assembly may allot and distribute the jurisdiction below the supreme court, but it cannot in doing so create new courts with substantially the same powers as the superior courts, and make the officials thereof elective otherwise than by the people, subject to be abolished by legislative enactment, and hence without independent tenure of office, as prescribed by the constitution, and freed from the provisions as to rotation, the residence of the judges, and the requirements as to two terms annually in each county, and being always open. All this cannot be done simply by creating new superior courts, styling them "circuit courts" or "criminal courts" or otherwise. The United States constitution (sixth and seventh amendments) provides for the right of trial by jury in the United States courts. It has been held that the word "jury" must be interpreted in the sense it had at the time of the adoption of those amendments, and hence that, in the federal courts, a jury must consist of 12 men, and their verdict must be by unanimity, because this was the accepted meaning of the right of trial by jury at that time, notwithstanding this meaning no longer universally attaches, as many states provide now for juries less than 12, and have abolished the requirement of unanimous verdicts. Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618. This has also been held under the state constitutions which provide for trial by jury, except in those states whose constitutions expressly permit juries less than 12 or dispense with the common-law requirement of unanimity. Cooley, Const. Lim. (6th Ed.) 390, 695, and cases there cited; 1 Benn. & H. Lead. Cr. Cas. 482, and notes.

Applying this reasonable and settled rule of construction to the superior court established by the constitution, and fenced about, as its importance demanded, by so many provisions in the constitution, what was the "superior court," as the term was well understood, at the time of the adoption of the constitution? It meant the highest court in the state next to the supreme court, and superior to all others, from which alone appeals lay direct to the supreme court, and possessed of general jurisdiction, criminal as well as civil, and both in law and equity. It cannot be deprived of that superiority and pre-eminence, or deprived of either its criminal or civil jurisdiction, without conflict with the constitutional provisions creating it. That jurisdiction may be made largely appellate, by conferring such part of its original jurisdiction on inferior courts as the general assembly may provide, but it cannot retrench the extent of its jurisdiction which it must retain, either by original or appellate process. It is made flexible, so that more than two terms can be held in each county annually, if the general assembly thinks proper, which can also increase the number of the superior court judges with the increase of population and of legal business in the state; but, when they are increased, all the officers of such courts must be elected by the people at the next general election, and they must hold for the fixed term named in the constitution, and the judges must rotate in regular succession. The constitutional guaranties and the inherent nature and general jurisdiction of the superior court, recognized by the historical and legal meaning of the term at the adoption of the constitution, cannot be held revoked and discarded by the incidental authority to the legislature to create criminal courts in cities and "other inferior courts" (which the constitution did not deem of enough importance even to name), and to allot the jurisdiction among them. Even this provision is guarded, as already stated, by the requirement that the allotment shall not conflict with the other provisions of the constitution. Nor can the allotment be such as to take from the justices of the peace the jurisdiction conferred by section 27 of article 4, nor to repeal the right given by that section of appeal, both in criminal and civil actions, to the superior court from the court of justices of the peace. There are these restrictions, and the further inherent one, as above stated, that the superior court is at the head of the court system below the supreme court, and that from it alone appeals can...