The opinion
Sea well, J.,
concurring in part, dissenting in part: In my judgment, the Legislature was without constitutional power to delegate to tbe board of commissioners of Forsytb County tbe unqualified right “to abolish or temporarily suspend” tbe Forsytb County Court.
1. Under our system, tbe creation and establishment of courts has *108 been considered a legislative function, controlled, of course, by appropriate constitutional restrictions. I think the abolishment or suspension of a court is strictly a legislative function, involving a nondelegable power.
It is true that under a general law, and if not restricted by the Constitution, no doubt, under a special law, the power may be delegated to a fact-finding body to determine the existence of conditions or circumstances under which the establishment or abolishment of a court might be achieved by operation of the law and declare the same; that is to say, that they may find the conditions under which the law itself operates to establish or abolish the court. 11 Am. Jur., p. 494 , sec. 235; A. L. A. Schecter Corporation v. United States, 295 U. S., 495 , 79 L. Ed., 729 ; Brown v. Arkansas City, 135 Kansas, 453, 11 P. (2d), 607 ; State v. Smith, 130 Kansas, 228, 285 P., 542 . This is but the event upon the happening of which the law comes into effect and involves the exercise of no discretion on the part of the fact-finding body. But this is far from saying that the Legislature could delegate to such a body, or any body, the “right” to abolish or suspend a court at their pleasure. 11 Am. Jur., p. 943 , sec. 230. Moreover, I think such an. act is void, unless the limitations upon its exercise are plainly stated in the act, not in detail certainly, but in such a way that would indicate that the Legislature did not intend the body to either create or suspend the court at its pleasure, and without the finding of those facts. It is a question here of the power delegated and its extent. It is not a question as to whether reasonable men would act discreetly and abolish or suspend the court under a conscientious guidance by the public interest, convenience, or necessity. Such powers are to be construed strictly and there is nothing in the act justifying the assumption that the Legislature intended other than the plain naked power which it gave to the county commissioners to abolish or suspend the court. The power to establish or abolish a court is strictly within the nondelegable legislative function. It cannot abdicate or delegate its discretion with reference thereto. Albertson v. Albertson, 207 N. C., 547 , 178 S. E., 352 ; Constitution, Art. IV, sec. 2. This is easily illustrated in the present case, since the inference is compelling that the hoard of county commissioners suspended the court, not because it had become unuseful or the public interests ceased to demand it, but solely in order to get rid of the incumbent judge.
Article 24 of subchapter 5 of the Consolidated Statutes relates to the establishment, organization, and jurisdiction of general county courts. Sections 1608 (f) (1) and 1608 (f) (2) provide how such courts may be established and abolished. They require the board of county commissioners, by resolution, to recite the reasons for the establishment or abolition of the court, upon facts which they have found, that the public *109 interest will be promoted by the establishment of the court in the case of establishment, and “that the conditions prevailing in such county are such as to no longer require the said court.” Similar provisions apply to the establishment and discontinuance of recorders’ courts. These provisions have no application to the suspension or abolishment of the Forsyth County Court, which was established by chapter 520, Public-Local Laws of 1915. But they were carefully drawn, fully respecting the constitutional inhibition against the delegation of the legislative function, and are mentioned here only by way of illustration.
2. Article II, section 29, of the Constitution, provides: “The General Assembly shall not pass any local, private, or special act or resolution relating to the establishment of courts inferior to the Superior Court . . . but the General Assembly may, at any time, repeal local, private, or special laws enacted by it.”
I am of the opinion that to give this section of the Constitution the broad construction which its terms require, the suspension of Forsyth General County Court, or its abolishment, must necessarily come within this prohibition relating to the establishment of courts. If so, the only manner in which the General Assembly is constitutionally permitted to pass a law affecting this court as established by such public-local act is not by way of suspension but by way of repealing the act.
I think the plaintiff, under the pleading in a proper showing of fact, is entitled to his salary for so much of his term as may have existed during the attempted suspension of the court.
In other parts of the opinion I concur.