State v. Lewis
| Decision Date | 22 December 1890 |
| Parties | STATE v. LEWIS. |
| Court | North Carolina Supreme Court |
This was an indictment for assault and battery with a deadly weapon, tried at the July term, 1890, of the superior court of Rockingham county, before WHITAKER, J. The judge was acting by virtue of the following commission from the governor: "Raleigh, July 8, 1890. To Hon. Spier Whitaker--Greeting: We, reposing special trust and confidence in your integrity and knowledge, do by these presents appoint you to hold fall terms of the superior courts of Rockingham county beginning July 22, 1890, and Stokes county beginning August 4, 1890, in the ninth judicial district, in lieu of Hon. Wm. Shipp, deceased, and do hereby confer upon you all the rights, privileges, and powers useful and necessary to the just and proper discharge of the duties of your appointment. In witness whereof his excellency, Daniel G Fowle, our governor and commander in chief, hath signed with his hand these presents, and caused our great seal to be affixed thereto. Done at our city of Raleigh, this 8th day of July, in the year of our Lord, one thousand eight hundred and ninety, and in the one hundred and fifteenth year of our American independence. DAN'L G. FOWLE, Governor. By the governor. WM. L. SAUNDERS, Sec. of State. "There was a verdict of guilty, prayer for judgment, motion in arrest of judgment for that, Judge SHIPP having recently died, and the position of superior court judge for the eleventh judicial district being now vacant, by reason of the governor's failure to appoint his successor as required by the constitution and laws of North Carolina to do, there is no one authorized to hold the court which in the order of rotation should have been held by Judge SHIPP. The appointment of Judge SPIER WHITAKER to hold this regular term of court is without authority under the constitution, he being in the order of rotation of judges required to hold the court of the second district, Judge SHIPP'S successor under sections 11 and 25 of article 4 of the constitution being the only person required or authorized to hold said term of said court. That this case is therefore coram non judice. His honor, having found as a fact that Judge SHIPP was dead before his special commission to hold this court was issued, arrested the judgment, and the solicitor appealed.
For concurring opinion, see 13 S.E. 247.
In the absence of objection before trial, the acts of a de facto judge are valid and binding.
The Attorney General and R. H. Battle, for the State.
AVERY J., (after stating the facts as above.)
If Judge SPIER WHITAKER was acting either de jure or de facto as judge of the superior court of Rockingham county, in opening and organizing that court, and in presiding at the trial of the defendant, until the jury returned a verdict of guilty it was error to allow the motion of the defendant, and enter the order arresting the judgment. Were we to concede not only that the governor did not have the power under the constitution to appoint him and clothe him with the rightful authority, but that his acts as a de facto officer also ceased to be valid and binding, as to the public and third persons, when he declared in open court his purpose to abdicate because he was of opinion that the said term could not have been lawfully held except by a successor regularly appointed and commissioned by the governor to fill the vacancy caused by the death of Judge SHIPP, still his refusal to proceed further with the business of the court would not affect the validity of any previous act done under color of his appointment from the governor, and when he was holding himself out to the public as the rightful incumbent by virtue of the special commission entered of record. Judge WHITAKER was a de facto officer, so long as he continued to preside and to assert his power under and by virtue of the commission issued by the governor, even if we concede for the sake of the argument that he was not the rightfully constituted judge of the superior court of Rockingham county, and that his power as a de facto officer continued only so long as he exercised it. Chief Justice BUTLER, in the case of State v. Carroll, 38 Conn. 449, after a very exhaustive examination and review of the English and American authorities, defines and classifies officers de facto as follows: "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the officer were exercised--First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; second, under color of a known and valid appointment or election, but where the officer failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; third, under color of a known election or appointment, void because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; fourth, under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such." If it be admitted that the governor was not empowered by article 4, § 11, of the constitution, to require Judge WHITAKER to hold the term of Rockingham court, which Judge SHIPP before his death had been assigned to hold, still, when the commission was issued even without authority, and the appointee undertook to discharge the duties required of him, he was, in so far as it affected the public and the rights of third persons, de facto judge of the court, so long as he assumed to act in that capacity, belonging to the third class mentioned in the opinion of Chief Justice BUTLER. The defendant, finding the judge holding the court by authority of a commission from the governor requiring him to discharge that duty, without objection, if he had ground for raising any, pleaded not guilty to the charge of assault and battery, and, after a trial in which no exceptions were entered to the rulings of the court, the jury returned a verdict of guilty. Up to this point, his honor was assuming his judicial functions, and it is not material, if his real purpose was to make a case on appeal for this court in which the validity of his official acts as judge of that court would be brought in question, because, so long as he proceeded in the transaction of the business of the term, he was judge de facto of the superior court of Rockingham county, and his acts were as valid and conclusive on the defendant, Lewis, as though he had claimed himself, and been admitted by all others, to be the judge de jure of that court. If the defendant should be again put upon trial for the same offense, there can be no question that the record of this trial, including a copy of Judge WHITAKER'S commission, would sustain a plea of former conviction. After the judge had determined that he was not empowered to hold the court by virtue of the commission, he ordered, on motion, that the judgment be arrested. If, by his own volition he ceased to be a de facto officer after the verdict was entered, then he had no authority to arrest the judgment. If he was still a de facto officer, there was no sufficient reason why the judgment of the court should not have been pronounced, as it must hereafter be entered, on motion of the solicitor. The principles we have stated, as embodied in the opinion in State v. Carroll, supra, are sustained by the decisions of this court as well as the courts of other states. Burke v. Elliott, 4 Ired. 355; Gilliam v. Reddick, Id. 368; Norfleet v. Staton, 73 N.C. 546; State v. Edens, 95 N.C. 693; State v. Speaks, Id. 689; Attorney General v. Crocker, 138 Mass. 214; Petersilea v. Stone, 119 Mass. 465; State v. Carroll, supra, and authorities cited; Diggs v. State, 49 Ala. 311; Venable v. Curd, 2 Head, 582; Conover v. Devlin, 15 How. Pr. 470; State v. Williams, 5 Wis. 308; Woodruff v. McHarry, 56 Ill. 218. The views which we have thus far presented have the approval of all of the members of the court.
A majority of the court concur in resting our ruling upon two additional grounds: (1) That there is nothing in the record which, in legal contemplation, excludes the possibility that the governor appointed the judge to hold two special terms,--one in Rockingham and the other in Stokes county; and if he did not have the power to require the judge assigned to a different district to hold "specified regular terms under the provisions of section 11, art. 4, it will nevertheless be presumed that he was exercising his rightful authority in ordering the holding of special terms. (2) That the governor did not in fact transcend his authority, if he issued the commission, not because it appeared to him that special terms were necessary in the counties named therein, but under the idea that he was empowered to require the judge appointed to hold "specified" regular terms, on account of the death of the judge assigned to the ninth judicial district, and while he had under consideration the selection of his successor. Section 11, art. 4, of the constitution is as follows: ...
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