#### STATE v. HALL.

(Filed December 18, 1906).

Plea Denying Existence of Court — Jurisdiction—Appeals.

1. Tile plea of tbe defendant that the Court was unlawfully called and organized because the Governor was absent from the State when he attempted to order the holding of the Court was properly overruled, as the plea is subversive of itself.

2. The legal existence of a Court cannot be drawn in question by a plea to the jurisdiction, for such a plea presupposes that the Court was regularly called and organized, as jurisdiction means the right to hear and determine causes between litigants, which nothing but a Court can do.

3. A plea denying the very existence of the Court before which the plea is filed is unknown to the science of pleading, for no Court can pass upon the validity of its own constitution and organization. It must always decide that it is a Court, because the moment it is admitted that it does not exist, and has never existed, as a legal entity, so to speak, it is at once settled that it never had the power to decide anything, not even the plea denying that it ever was a Court.

4. This Court can acquire jurisdiction to correct errors only where they have been committed by a Court, constituted and organized according to law or recognized as having the essential attributes of a properly constituted tribunal, and competent to exercise jurisdiction 'of controversies between litigants.

INDICTMENT against George Hall, beard by Judge B. P. Long and a jury, at tbe August (Special) Term, 1906, of tbe Superior Court of Rowan.

Tbe defendant was indicted for conspiring witb divers persons to break and enter tbe common jail of Rowan County, witb tbe intent to kill Nease Gillespie, John Gillespie and Jack Dillingham, therein confined as prisoners.

“Before pleading to tbe indictment and before announcing bis readiness for trial, tbe defendant filed a plea to tbe jurisdiction of tbe Court, and moved tbe Court not to proceed witb tbe trial, and for tbe discharge of tbe defendant. Tbe motion was based upon the affidavit of tbe defendant, which *711was then filed, and wbicb is in tbe following words and figures, namely: 'Tbe defendant, George Hall, being duly sworn, says: That be is advised and believes, and so avers, tbat tbis Court is without jurisdiction to try bim for tbe offense charged in tbe bill of indictment. Tbat be is informed and believes tbat tbis special term of court was ordered and tbe commission of Hon. B. F. Long, tbe Judge presiding, issued by Bobert B. Glenn, purporting to make said order and to issue said commission by virtue of bis alleged office as Governor of North Carolina; whereas, affiant is informed and believes said Bobert B. Glenn, at tbe time of making said order and tbe issuing of said commission, was wholly without authority or warrant of law for so doing, being, as affiant is informed and believes, at said time, to-wit, on tbe 17th day of July, 1906, and for many days prior and subsequent thereto, absent from tbe State of North Carolina, and actually in tbe State of New Jersey, and defendant is advised and believes tbat bis said action, while so absent from the-State, was wholly without warrant of law, unlawful and void, and tbat all proceedings thereunder are and have been unlawful and void, and tbat tbis Court is without lawful constitution or jurisdiction to try tbis case against affiant, or any other cause. Wherefore defendant demands tbat be go without day.’ ”

In support of tbis motion, defendant introduced Hon.. Bobert B. Glenn, Governor of North Carolina, who testified' as follows: “Q. Ton are the Governor of tbe State? A. Yes, sir. Q. I will ask you where you were on tbe 17 th day of July, 1906 ? A. I was in Atlantic City, New Jersey. Q. You were absent from tbe State on tbe 17th day of July,. 1906 ? A. I was in Atlantic City, N. J., on that day. Q. Governor, did you sign tbe commission of Judge Long-to bold tbis Court ? A. I sent a telegram to my private secretary and be signed the commission. I seldom sign commissions. Q. By the State: Did you direct and authorize bim *712to sign it ? A. I did. He could not get tbe Lieutenant-Governor, and be applied to me. I got tbis telegram at Atlantic City, and as it needed attention at once, I ordered tbe Commissioners to bold tbis special term of court, because I wanted to stop tbis lynching in North Carolina. Tbis signature (to tbe commission which was produced by tbe Judge) is my signature, but it is stamped with a rubber stamp. I ordered it on a telegram, and directed my private secretary to give tbis order and stamp my name. I directed him to order a special term of court commencing 6 August, 1906.” Tbe commission of Judge Long was then introduced. It is in tbe usual form, and it is not necessary to set it out in full.

Tbe Court, in passing on tbe defendant’s plea to tbe jurisdiction, considered tbe minutes of tbe Board of Ooxmty Commissioners relating to tbe special term, and those minutes were made a part of tbe case. They show that a special meeting of tbe board was called on 17 July, 1906, to take action in regard to tbe Governor’s notice to tbe chairman that tbe special term bad been ordered for tbe trial of criminal cases, to begin on 6 August, 1906, and continue for one week, and that a grand jury bad also been ordered to be drawn and summoned for tbe term. Tbe Board directed that notice of tbe term be published and that jurors drawn by them in that meeting be summoned by tbe Sheriff of tbe county.

The defendant objected to tbe introduction of tbe minutes. Tbe objection was overruled and be excepted. Tbe Court, upon consideration, overruled tbe plea to tbe jurisdiction, and tbe defendant excepted. There was a verdict of guilty. Tbe defendant moved for a new trial and in arrest of judgment, for tbe same reason which be assigned in support of bis plea. . Tbe motions were overruled and be again excepted.

Judgment having been entered upon tbe verdict, tbe defendant appealed.

*713 Robert D. Gilmer, Attorney-General, and Walter Ciarle, Jr.j for tbe State.

T. F. Kluttz for tbe defendant.'

Walkee, J.,

after stating tbe case: As we view tbe case there is but one question presented for our decision. When be was called upon to answer tbe indictment, tbe defendant entered what is called a plea to tbe jurisdiction of tbe Court, but in tbe formal statement of tbe grounds of bis objection to tbe further prosecution of tbe case, be does not, either in fact or in a technical sense, attack tbe jurisdiction of tbe Court, but be denies its right to proceed against him solely upon tbe ground that tbe Court was unlawfully called and organized, or, in other words, that it was not a court, never having bad any legal existence under tbe law. Jurisdiction, when applied to courts and speaking generally, consists in tbe power to bear and determine causes. 12 PL and Pr., 116. It presupposes always, and of course, that there is a court to exercise it, for it is not predicable of anything but a lawfully existing tribunal. It relates to tbe subject-matter of tbe controversy or to tbe person, and never is applied to any question touching the existence of tbe Court itself. It is not conferred until the Court designated to exercise it has been brought into being according to tbe mode prescribed by law. Tbe defect here alleged is not that, if tbe Court bad been properly called and organized, it would still not have bad tbe necessary jurisdiction of tbe subject-matter of tbe prosecution and of the person of tbe defendant, but that there was no such court as that which pretended to indict and try him. This presents a somewhat different case from an exception to tbe right of a court, admitted to exist, to try a particular cause. Tbe distinction is clear. Burt v. Railroad, 31 Minn., 475. We believe there is no such thing known to tbe science of pleading as a plea denying tbe very existence of tbe Court before which tbe plea is filed, and, in tbe nature *714of things, there cannot be, for no court can pass upon the validity of its own constitution and organization. It must always decide that it is a court, because the moment it is admitted that it does not exist, and has never existed, as a legal entity, so to speak, it is at once settled that it never had the power to decide anything, not even the plea denying that it ever was a court. How can a body, having no legal existence, and consequently no judicial power or authority, decide anything? Therefore it is that jurisdiction, or the right to hear and determine, necessarily involves the idea that there is some tribunal having legal existence under the law to hear and decide., This is not by any means a new proposition. It certainly has the full sanction of reason and common sense, as it would be a legal solecism for a court to deny or disavow its own existence, and it is also, we think, supported by high authority. In Beard v. Cameron, 7 N. C., 181, the very question was presented to this Court. There, a plea to the jurisdiction was filed, and Judge Henderson said: “It is to my mind a very strange and incongruous proposition that an answer is required to be given by A B, whether he be a Judge, which answer he cannot give unless he be a Judge. I plead that you are not a Judge,- a Judge alone can decide the plea; and I call on you to decide. This certainly cannot be the way of testing Judge Baker’s appointment.” And again: “It is said that the extent of the jurisdiction of all courts is settled by the courts themselves. This is true; but then it must be remembered that in all such cases there is a court competent to decide; and it is called upon not to decide whether it is a court, but the extent of its jurisdiction. The plea must, therefore,, be overruled.” That was a case in' which the defendant pleaded to the jurisdiction because the Judge, as he alleged, had no authority whatever to preside over the Court — not even color of authority — and that he was no more than a private person, and consequently there was in fact, as well as in law, no court.. With respect to this con*715tention Ohief Justice Taylor, wbo delivered a separate opin-' ion, thus met tbe objection put forth in the plea: “The defendant prays judgment if he ought to be compelled to answer to the plaintiff in his said plea here depending. Whom does he ask to pronounce this judgment ? The person who is asserted by the plea to be constitutionally incompetent to render any judgment. If the person holding the Court were not a Judge, duly authorized and rightfully commissioned, he could render a judgment in no case; none of his acts or proceedings could possess a judicial character, or be capable of affecting, in any shape, the rights or property of the citizen. It must be nugatory, then, to propound to the person assuming this authority a question involving his competency to decide; for that were to ascribe to his decision authority which the very statement of the question denies it to possess. If he were to decide that he is a Judge, and proceed to try the cause and give final judgment, no efficacy could be imparted to such judgment by his decision; it would be ipso facto a nullity, in the one case as well as in the other, and no act of his could give it the force of res adjudicata. The highest evidence of the opinion of a person acting in the character of a Judge, that he has a right to do so, is exercising the functions of the office. This has already been given; and the strength of such evidence is not increased by his particular opinion to the same effect expressed on a plea to the jurisdiction.” The Ohief Justice did not mean here to deny the proposition that there might be a Judge cte facto. State v. Lewis, 107 N. C., 967; State v. Speaks, 95 N. C., 689; Norfleet v. Staton, 73 N. C., 546; Burke v. Elliott, 26 N. C., 360; Burton v. Patton, 47 N. C., 124. He was discussing the case upon the assumption of the defendant, as stated in his plea, that the irregularity in the Judge’s appointment not only disqualified him and rendered him incompetent to preside, but that it had the added effect of destroying the existence of the tribunal itself, so that there could be no *716court to bear and decide. It is difficult, and we think impossible, to distinguish that case from the one at bar. In principle they are the same, and the reason which prevailed with the Court in the one should control the decision in the other. It all comes to this, that by his plea the defendant has called upon the Court to deny its own existence and to exercise a judicial function in doing so, whereas, by the very nature of the plea, and, indeed, by its very terms, he avers that it has no such function because it has no existence in law.

If we treat the plea as technically one to the jurisdiction, we must, of course, first assume that the Court had a legal existence, for, as we have seen, it could not possess or exercise jurisdiction of any kind, either of the person or the subject-matter, unless it was a court. If we eliminate the plea, as one denying the existence of the Court, which we must do, and also exclude all evidence bearing upon it, as it must share the fate of the plea itself, we only have left the record proper in the case, which shows on its face, and without resorting to any extraneous facts, that the Court was regularly called, organized and held, so that the plea, regarded merely as one to the jurisdiction, but not to the existence of the Court, must be overruled, for the record proper shows that it had jurisdiction of the person and the subject-matter.

We do not understand that the defendant intended to raise, any objection to the “jurisdiction of the Court,” using that term in its only legitimate sense, but that he merely intended to challenge the right of the Court to exercise judicial authority under any circumstances, because in fact it was not a court recognized by the law. In either view the plea was bad and was properly rejected. Again, if there was no court to hear and determine, how is it that anything has been heard and determined? If the proceedings were void ab initio there was no indictment, no arraignment, no trial, and no judgment, and it follows, logically, that there was nothing to appeal from to this Court, and we have, therefore, no juris*717diction, to review tbe proceedings. This Court can acquire jurisdiction to correct errors only where they have been committed by a court constituted and organized according to law or recognized as having the essential attributes of a properly constituted tribunal, and competent to exercise jurisdiction of controversies between litigants. We cannot entertain an appeal from anything except a court, or a person, such as a Judge, who is clothed with judicial power.

The reasoning by which the conclusion of this Court was reached in Beard v. Cameron, supra, is satisfactory to us, as it commends itself to our sense of the fitness of things and accords with our notion of the fundamental principles of the law relating to the formation and the peculiar functions of courts. The plea of the defendant that there was no court to indict and try him is subversive of itself, as it violates the maxim ex nihilo nihil fit. You cannot deduce the right to hear the plea from the premise that there was no court, for that is to deny and affirm at the same time.

As the plea must be overruled and as all the evidence introduced in its support must fall with it, there is nothing left for’ us to do but to inspect the record to see if there is any defect or error therein, and finding none and confining ourselves strictly to the question before us, we must declare that there was no error in overruling the plea of the defendant.

No Error.