The opinion
Montgomery, J.,
dissenting, thinks that under sec. 12, of Art. IV, of the State Constitution, the’ General Assembly has the power to. create Criminal Courts, and to give them all, or such part as it pleases,of the original criminal or original civil jurisdiction above that given by the Constitution to Justices of the Peace, and even as to that it may confer concurrent original jurisdiction, all subject to the right of appeal to the Superior Courts. Rhyne v. Lipscombe, 122 N. C., 650 ; Tate v. Commissioners, Ibid, 661; Pate v. Railroad, Ibid, 879; State v. Ray, Ibid, 1098; State v. Hinson, 123 N. C., 755 .
Clark, J.,
dissenting. Prior to the Constitution of 1868 all the courts, including the Supreme Court, were created by the Legislature, which allotted to each court such jurisdiction as it thought proper. The Supreme Court was remodeled by tire Legislature at least three different times. K. P. Battle’s *878 History of the Supreme Court, 103 N. C. 475 —479. The Constitution of 1868, Art. IV, sec. 4, provided: “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 Special Courts.” And sec. 15: “The.Superior Courts shall have exclusive original jurisdiction of all civil actions, whereof exclusive original jurisdiction is not given to some other courts; and of all criminal actions in which the punishment may exceed a fine of $50 or imprisonment for one month.” And sec. 19 authorized the General Assembly to establish Special Courts for the trial of misdemeanors in towns and cities. It was soon held in consequence that these Special Courts had no jurisdiction in civil cases (Wilmington v. Davis, 63 N. C., 582 ; Edenton v. Wool, 65 N. C., 379 ), and no criminal jurisdiction, except over misdemeanors. State v. Pender, 66 N. C., 313 ; Washington v. Hammond, 76 N. C., 33 .
This “straight-jacket” system not being satisfactory to the people of the State they amended the Constitution in 1875 by stalking out this see. 15, which fixed the Superior Court with original jurisdiction. By that repeal, of itself, the jurisdiction of the Superior Court was restored to legislative control, as was the case before 1868. But to put the matter beyond controversy, the same convention amended the above sec. 4 (now become sec. 2), of Art. IV, by striking out the words “Special Courts” and inserting in lieu thereof the words “such other courts inferior to the Supreme Court as may be established by law.” Sec. 12, as to the number of Superior Court districts, was re-written and made sec. 10, reducing the number of Superior Court Judges from twelve to nine, and adding the words: “But the General Assembly may reduce or increase the number of districts.” And then a new section 12 was inserted which is as follows: “The *879 General Assembly shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to is as a co-ordinate department of the government; but the General Assembly 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, provide also a proper system of appeals; and regulate by law when necessary, the methods of proceeding in the exercise of their powers, of all the courts below the Supreme Court, so far as the same may be done without conflict with other provisions of this Constitution.” By striking out and repealing the provision of the Constitution of 1868, which had given the Superior Courts original civil and criminal jurisdiction, by inserting' the new provision authorizing the Legislature to establish other courts inferior to the Supreme Court, to. reduce at will the number of Superior Court districts, and to “allot and distribute” the jurisdiction below the Supreme Court among the other courts (whether named in the Constitution or established by law) m such manner as the Legislature “may deem best,” it is clear that the organic law put the remodeling of the jurisdiction of all the courts below the Supreme Court into the hands of the General Assembly, reverting (except as to the Supreme Court) back to the system which, prior to 1868, placed all the courts, even the jurisdiction and constitution of the Supreme Court itself, in'the power of the Legislature. Should, therefore, the Legislature see fit to deprive the Superior Courts of all original jurisdiction, making it purely an intermediate appellate court, like courts of that kind in New York and other States, it is clearly within legislative discretion by the express words of the amendments made to the Constitution, in 1875. This is *880 still dearer by reference to tire legislative power over* the jurisdiction of the courts up to 1868, and the evident intent and purpose to. restore that power by the repeal of the provisions in the Constitution of 1868, which gave the Superior Courts original jurisdiction. This Court can not re-enact and replace provisions stricken out of the Constitution by the convention of 1815, whose action in so doing has been ratified by the people at the ballot bocx.
The very utmost that was reserved to the Superior Courts, after the amendments of 1875, is that they retain the headship of the judicial system below the Supreme Court, and that from them alone appeals lie to- this Oo-urt, and that appeals lie to the Superior Courts from Justices of the Peace-. Sec. 27, Art. IV. Whatever jurisdiction the Superior Courts have beyond this, is a matter of legislative enactment, and not of constitutional right, as this Court (as now constituted) has over and again, decided.
In Rhyne v. Lipscombe, 122 N. C., at p. 655 , this Court said: “Subject to these constitutional restrictions” (just recited as being the right of appeal from Justices to the Superior Courts, and that all appeals to this Court must come from the Superior Courts), “the General Assembly may allot the jurisdiction below the Supreme Court. It may create Criminal Courts, or Circuit Courts, City Courts,. or other courts, and give them all, or such part as it thinks proper, of the original criminal or original civil jurisdiction above that given by the Constitution, to. Justices of the Peace, and even as to that it may confer concurrent original jurisdiction with the Justices of the Peace, for their jurisdiction is not exclusive.” This decision is expressly in point, was concurred in by all the Judges, and adjudged that the Legislature had power to give to the Criminal Courts all the original civil and criminal jurisdiction heretofore used by the Superior *881 Courts — but denied that the Legislature could make them the equal of the Superior Courts by taking away the headship of the Superior Court through its appellate supervision of them.
In Tate v. Commissioners, 122 N. C., at page 663 , this Court again said: “It is competent for the General Assembly to give to said Circuit Court, or any other court it may erect, original jurisdiction, either exclusive or concurrent, with the Superior Court, civil as well as criminal, of all matters which may originate in said counties, subject to the right of appeal therefrom to the Superior Courts.” And this is emphasized and reiterated on the next page.
In Pate v. Railroad, 122 N. C., at page 819 , it is said that Art. IV, sec. 12, “conferred on the Legislature power to give to courts created by it original jurisdiction, exclusive or concurrent with the Superior Courts,” subject only to appellate supervision over .such subordinate court by the Superior Courts, since appeals lay to this Court only from the Superior Courts.
In State v. Bennie Ray, 122 N. C., at page 1098 , it is said that the act creating the Criminal Circuit Court of Buncombe, etc. (the court 'whose jurisdiction is here called in question), “confers upon said court exclusive original jurisdiction of all crimes, misdemeanors and offenses committed within the counties composing said districts.” And adds that the Court has held that provision of the statute valid in Rhyne v. Lipscombe, supra, and reaffirms that decision.
State v. Rumbough, 122 N. C., 1104 , and State v. Potsell, 122 N. C., 1105 , were decided “upon the ruling in State v. Bennie Ray ” supra.
In Malloy v. Fayetteville, 122 N. C., at page 482, the above cases of Rhyne v. Lipscombe, Tate v. Commissioners, and State v. Ray, were all cited on that point “that the power of *882 tiie General Assembly to allot and distribute the jurisdiction below this Court was unlimited” save as in those cases stated (as above recited).
The same three cases were cited as authority by Faircloth, C. J., in State v. Hinson, 123 N. C., 755 , the Court holding that the defendant was not entitled to a trial de novo by a jury in the Superior Court, but only to an appeal upon matters of law, as the Legislature had so prescribed, and that it had the right so to prescribe under Constitution, Art. IY, sec. 12. State v. Hinson is cited as authority for that proposition in State v. Davidson, 124 N. C., at page 844, and in State v. Bost, 125 N. C., at page 709.
Rhyne v. Lipscombe is cited as authority by Furches, J., in Wilson v. Jordan, 124 N. C., at page 690, and in McCall v. Webb, 125 N. C., at page 247, and by Douglas, J., 125 N. C., 729 .
Several of the above cases have been also cited as authority in opinions at this term.
After the above repeated and reiterated construction of the amended Constitution as giving the General Assembly power to confer upon courts created by it “all the original jurisdiction, civil as well as criminal,” which was formerly in the 'Superior Courts, subject only to tire appellate jurisdiction of the Superior Court, it should seem that the matter was settled. The Judges who concurred in all the above decisions are the same who now sit on the Court.
In the above cases, the jurisdiction was construed at the instance of parties in civil actions, and of both the State and defendants in criminal actions, directly raising the question of jurisdiction. In the present case it is somewhat indirectly raised. The plaintiff who is seeking by mandamus to compel the County Commissioners to draw a grand jury is not a citizen of the county, and his only interest is in the *883 fees which as Solicitor o-f the Superior Court he might receive if the original jurisdiction of criminal cases, in whole or in paid, should be taken from the Criminal Court to which the 'General Assembly has seen fit to “allot and apportion” it, •as empowered by the express language of the Constitution .and so construed by the above numerous decisions of this Court. The statute creating the Criminal Court reserves, a-s the decisions hold necessary, the right of appeal in matters ■of law to the Superior Court, Fairclotb:, C. J., in State v. Hinson, supra.
All the decisions of all courts that exercise the power at all -of declaring an act of the Legislature unconstitutional hold that it can only be done when it is plainly and clearly so, and if there is any reasonable doubt, the presumption in favor of constitutional action by the co-ordinate branch of the government will prevail. Sutton v. Phillips, 116 N. C., 502 . After the above repeated decisions sustaining the jurisdiction of Criminal Courts when conferred by the Legislatures of 1895 .and 1897, this Court is in no condition to hold that the same jurisdiction thus held valid is plainly and clearly unconstitutional when conferred by the Legislature of 1899. There is no clause of the Constitution which conflicts with the act abolishing the grand jury in the Superior Court of Forsyth ■County.
There is no constitutional provision requiring a grand jury ■at any term of the Superior Court, and since the amendments <of 1875, no constitutional bestowal upon the Superior Courts of the original criminal jurisdiction, which would require a grand jury. In Wakei, and many other counties, certain terms of the Superior Court have no grand jury, but are purely for civil business. If, therefore, the peremptory mandamus should issue as prayed for, it should properly issue, if. at all, to the General Assembly, for the County Commissioners of Forsyth are not empowered to legislate as to what *884 terms of tbe Superior Courts must, be for criminal business,, requiring a grand jury, and what terms may be for civil business, not necessitating a grand jury.
It may be true, and doubtless is, that the growth of population and business does not yet require a Superior Court system having only appellate: jurisdiction. The Legislature, the best and only judge of that matter, has so thought, and-in only a few counties at present is the Superior Court made appellate, and in them only as to' criminal business. It may also be true that a frank increase of the number of Superior Court Districts with Judges elected for fixed terms by the people, is preferable to the creation of Criminal Courts, with non-rotating Judges and liable to be abolished and recreated at the will of Legislatures, changing with the vicissitudes of parties. But under the Constitution that question is to be settled by the General Assembly, a:s from time to time “it may deem fit,” -and not by the decrees of this Court.