Reid v. MAYOR AND BOARD OF COMMISSIONERS

85 S.E.2d 872 (1955)

241 N.C. 551

Richard W. REID v. The MAYOR AND BOARD OF COMMISSIONERS OF the TOWN OF PILOT MOUNTAIN, to wit: J. R. McCormick, Mayor; D. B. Lawson, J. Wilkerson Gordon, Clyde W. Fulk and R. J. Boaz, Commissioners, and W. W. Norman.

No. 18.

Supreme Court of North Carolina.

March 2, 1955.

*874 Woltz & Woltz, Hiatt & Hiatt, Mount Airy, Thomas M. Faw, North Wilkesboro, for defendants-appellants.

Allen, Henderson & Williams, Elkin, for plaintiff-appellee.

WINBORNE, Justice.

Admitting the truth of the facts alleged in the complaint, as is done when the sufficiency of a pleading to state a cause of action is challenged by demurrer, this basic and determinative question arises on this appeal: Did the Mayor and Board of Commissioners of the Town of Pilot Mountain have the power and authority to remove plaintiff as the duly elected judge of the Mayor's Court of the Town of Pilot Mountain,an established court of record inferior to the Supreme Court? The answer is "No",for the Constitution of North Carolina Article IV, Section 31, provides otherwise.

The Constitution, Article IV, Section 2, declares that "the judicial power of the State shall be vested in a court for the trial of impeachments, a Supreme Court, Superior Courts, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law".

And the Constitution, Article IV, Section 31, declares that "any judge of the Supreme Court, or of the Superior Courts, and the presiding officers of such courts inferior to the Supreme Court as may be established by law, may be removed from office for mental or physical inability, upon a concurrent *875 resolution of two-thirds of both houses of the General Assembly"; and this section of the Constitution goes on to provide that "The judge or presiding officer against whom the General Assembly may be about to proceed shall receive notice thereof, accompanied by a copy of the causes alleged for his removal, at least twenty days before the day on which either house of the General Assembly shall act thereon."

Thus it appears that the Constitution states the causes for which, and provides the method by which, a judge or presiding officer of a court inferior to the Supreme Court established by law may be removed from office. The principle that "the express mention of one thing is the exclusion of another" applies here.

"The Mayor's Court of the Town of Pilot Mountain" is a court of record having a seal; it is inferior to the Supreme Court; and it is a court established by law, and has jurisdiction of certain criminal offenses occurring not only within the town of Pilot Mountain, but outside thereof within the limits of Pilot Township, in Surry County. And plaintiff was duly elected judge or presiding officer of the courtfor a term of two years next after the first Monday in May 1953. Private Laws 1891, Chapter 287, Section 12, as amended by Sections 1 and 2 of 1947 Session Laws of North Carolina, Chapter 176; and also 1953 Session Laws of North Carolina, Chapter 431 "an Act to amend G.S. 160-29 relating to municipal elections as applied to the Town of Pilot Mountain".

In passing, it may be noted that in the amended charter of the Town of Pilot Mountain, Private Laws 1891, Chapter 287, authority was given for the election of certain officers, and for the appointment of others. And in Section 17 of the Act, the Mayor is designated the chief executive officer of the town, and given the power and authority, with the concurrence of a majority of the commissioners, to remove "said officers * * * for misconduct in office or neglect of duty". While in Section 12 of the Act the Mayor is constituted an inferior court, there is no mention of a "judge" of such court.

But the General Assembly 1947 Session Laws of North Carolina, Chapter 176, amending Chapter 287 of the Private Laws of North Carolina, 1891, so as to enlarge the jurisdiction of the Mayor's Court of the Town of Pilot Mountain, provided in Section 2 that Section 12 of the 1891 Act be amended by adding at the end thereof a new paragraph in which authority is given to the Board of Commissioners of the town to appoint (1) a judge of the Mayor's Court of the Town of Pilot Mountain, who shall serve for a given term, and (2) an assistant judge of that court to serve, in the absence of the Mayor or the judge, for a given period of time, and enlarging the jurisdiction of the court to cover Pilot Township outside the corporate limits of the Town of Pilot Mountain.

Apparently it is contended that by this latter amendment the judge and assistant judge were merged into the original term "said officers", to whom the provisions in Section 17 of Chapter 287 of Private Laws 1891 for removal related. But in the light of the constitutional provisions above related, it takes a very strained construction to entertain the thought that the General Assembly so intended.

Ordinarily an appeal from order of court below in overruling demurrer ore tenus will not lie. Langley v. Taylor, N.C., 85 S.E.2d 927. However, since this case involves a matter of public interest and the continuance of a restraining order, the Court deems it expedient to entertain this appeal.

Therefore, for reasons stated, the action of the court below in overruling the demurrer and continuing the injunction to final hearing is

Affirmed.