The opinion
Faircloth, C. J.,
dissenting. My objection to the opinion is that thq orders were made without authority, that is, that the Judge had no jurisdiction. We know that the Superior Court Judges hold the courts in the several judicial districts successively, called rotation. Code, sec. 911. We know that the Pall Term, 1899, of the courts in the Sixth Judicial District, began July 1, and continued until December 31. Acts 1885, chap. 180, sec. 8. We also know that the resident Jridge of the Second District was the presiding Judge of the Sixth District during the Fall Term, 1899. Thq first *863 order in tbis contempt proceeding, upon motion in the original action, was made July 8, 1899, the second on the 12th of Julv, and the third on the 19th of July. These orders were made, not by the presiding Judge of the district, but by the resident Judge, who- was then the presiding Judge of another district. The order to show cause, etc., thus made was returnable before the presiding Judge, then at New Bern in the Second District, who made the final order adjudging the plaintiffs in contempt in failing to obey the order made in the Sixth District by another Judge.
Jurisdiction is a term frequently used, and sometimes without an accurate understanding of its precise application. Jurisdiction of the court is essential, and without it any judgment is a nullity. As to the scope of the term “jurisdiction” there was for a time some controversy, but “the rule now supported by high, and abundant authority and excellent reason, is that the court must not only have jurisdiction over the person and the matter, but authority to render the particular judgment.” 'I Am. and Eng. Enc. (2d Ed.), 36.
The only acts constituting contempt in North Carolina are specified by statute, all other acts recognized at common law, as such, are repealed and annulled. Code, sec. 648.
The action in which this motion was made is quo wau'ra/rdo for the office of the Board of Education of Sampson County, and it had been adjudged by the Superior Court that the plaintiffs were entitled to the office, from which judgment the defendants appealed to this Court, where the judgment was affirmed. Pending said appeal, the .plaintiffs peaceably entered the office and took possession of the key and the school books. They were ordered to deliver the books and key to the defendants. They declined to do> so, on the ground that they were entitled to keep them, and on the ground that the order was made by a Judge who was without authority to do so.
*864 This refusal is alleged to be a violation, and contempt of court, as defined in The C'odei, sec. 648, sub-sec. 4. The language of that section is “willful disobedience of any process or order lawfully issued by any court.” It will be noted that the order must be “lawfully issued,” and that involves the question whether the order was issued by a court having jurisdiction and authority to render this particular judgment
It is argued that pending an appeal the Court may make incidental orders not affecting the matter in the appeal,'such as making new parties, requiring better security for the costs, and protecting any property in custodia legis, and the like. I concede all that. But what court or Judge can make even these incidental orders? Are they not to be made at term time by the Judge then presiding in that district? Can any other Judge make such orders at will out of term time ? That is not my understanding of the practice heretofore. Suppose A sues B, both living in Currituck County, and one notifies the other to appear before the presiding Judge, who is then in Cherokee County, to show cause, etc. It occurs to me that the inconvenience of such practice is a sufficient reason for requiring such orders to be made returnable within the district and county where the parties live, and where the action is pending. Before rotation was allowed, each Judge acted only in his district, except by special commission. During that period, the Governor issued a commission, to the Judge of the Sixth District to hold court in the Third District. A kindred question came to' this Court, and the Court said: “A Superior Court Judge has no authority to vacate injunctions or to set aside attachments regularly granted, except for causes pending in his own district,” which I understand means when he is on duty in his own district. * * * “Judges who exchange districts by the consent of the Gov *865 ernor for a whole riding or a series of courts, taire the place of each other for all purposes during that series of courts. When the Governor requires a Judge to hold a term of a court for some county outside of his proper district, the authority of the Judge is special; the jurisdiction of the proper Judge of the district is superseded by that of the substituted Judge-in that county during the specified term, but not elsewhere,, nor for a longer time; the substituted Judge has, in respect to all cases pending in the specified county during the specified term, all the powers of the proper Judge of the district.” Bear v. Cohen, 65 N. C., 511, 519 . “A District Court Judge is not authorized to dissolve injunctions or to punish parties for a contempt in disobeying an injunction, except in his own district, unless he has been duly assigned to hold the court in the county where the original process is returnable.” Morris v. Whitehead, 65 N. C., 637 . “The resident Judge of a district has no other powers within such district in vacation, than any other Judge of the Superior Court — that each Judge of the Superior Court has general jurisdiction only in the judicial district to which he is assigned by the statute, except in cases of exchange,” etc. State v. Bay, 97 N. C., 510, 514 . The statutes authorize any Judge to issue a restraining order for twenty days, but that order must be returnable before the resident or presiding Judge, as the case may be. There is a scarcity of authorities on the main question, probably from the fact that such a question is seldom presented.
Reasoning by analogy from the above authorities, it seems to me that when the term of a presiding Judge, fixed by statute, begins, he is the only Judge who can adjudge important and grave questions in that district during the term..
If it be true, then, upon the facts before us, the order for deliver up the key and books, and the order to show cause, etc., were made by a Judge without authority or jurisdiction *866 and of course all subsequent proceedings are void, including the final judgment for contempt.
I can not for a moment consider tbe possibility that the Executive will or may exercise his pardoning prerogative, if he has the power to do so.
• I have written briefly, to avoid the just inference from my silence on this important question.
Douglas, J., also dissents.