It is admitted that the relator, Mott, was elected Solicitor of the Superior Courts of the Ninth Judicial District in November, 1898, for a term of four years; was regularly inducted into that office; that said term of office has not expired, and that the county of Forsyth is one of the counties composing the Ninth Judicial District.
It is also alleged and admitted, that the defendants are the County Commissioners of Forsyth County, and that they have not drawn a grand jury for the Superior Court of that county since February, 1899, and while they say that the plaintiff never demanded the drawing of a grand jury for the Superior Court, they do not say that they would have drawn' one if such demand had been made; anid in fact, they substantially! say that they would not have done so, as they justify theirM action in not drawing said jury under chap. 371, Acts oí [ 1899, and that this act justified them in not drawing a grand jury, if the same is constitutional. And as it was not expected that they, acting in this respect, as ministerial officers, should pass upon its constitutionality, they were therefore not to blame for obeying the Act of 1899, until it should be passed upon by the courts and declared unconstitutional. While it is contended that Mott., who is a resident and citizen } of Wilkes County, is not the proper relator, the main and *868important question is the constitutionality of the Act of 1899. This is not only an important, but a serious question, and should receive a careful consideration, and after it has re-ceived this, if it should plainly appear to be unconstitutional, it will be our duty to so declare. That is, if we shall find that the provisions of the Act of 1899, in effect abolishing the grand jury of the Superior Court in Forsyth County, is plainly in conflict with the Constitution, it will be our duty to sa.y so.
Where an Act of the Legislature is in conflict with the terms of the Constitution, they can not both stand, one must give way to the other; and as the Constitution is superior to the legislative act, the latter must give way to the former. “It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it.” Marbury v. Madison, 1 Cranch, 49. But we do not think it necessary at this late day for us to undertake to establish the proposition that the Constitution is superior to ordinary legislative acts, and that when they conflict the latter must yield to the former.
Taking this to be conceded, we will proceed to the consideration of the constitutionality of the Act of 1899, so far as it deprives the Superior Court of Forsyth County of any grand Jury, and if upon this examination it shall be found to conflict with the Constitution the act must give way and not the Constitution.
The amended Constitution, Art. IV, sec. 12, authorizes the Legislature to establish courts inferior to the Supreme Court, “so far as the same may be done without conflict with the other provisions of this Constitution.” So it must be held that the Act of 1899 is constitutional so' far as it does “not conflict with” some of. “the other provisions, of the Constitution.” But if it conflicts with any of the oilier provisions of the Constitution it is to' that extent unconstitutional.
*869In considering this question it must be understood that it is not the constitutionality or unconstitutionality of the Criminal Court of Forsyth that is being considered, but only those provisions in the Act of 1899 establishing the Criminal Court of Forsyth, and other counties, that deprive the Superior Court of its grand jury. Is 'that, part of said act which deprives the Superior Court of Forsyth of its grand jury in conflict with any of the other provisions of the Constitution ? This is the question.
The Constitution, Art. IY, see. 2, establishes a Supreme Court, Superior Courts and Courts of Justices of the Peace. Art. IY, see. 8, defines the jurisdiction of the Supreme Court, .and Art. IY, sec. 21, defines the jurisdiction of courts of ■Justices of the Peace. But the jurisdiction of the Superior Court is no where defined in the Constitution. Sec. 10 pro4 vides for the division of the State into judicial districts, for each of which a: Judge shall be chosen, “and there shall be a Superior Court held in each county at least twice in each year.” Sec. 11, provides that “every Judge of the Superior ¡ •Court shall reside in the district for which he is elected. The; ■Judges shall preside in the courts of the different districts •successively, but no Judge shall hold the courts in the same district oftener than once in four years.” Sec. 18, prohibits the reduction of the salaries of Judges during their terms of office, and sec. 22, provides that, “The Superior Courts shall be, at all times, open for the transaction of all business within their jurisdiction, except the trial of issues of fact requiring jury.”
Thus it is seen that the Constitution establishes Superior Courts; that it has- provided for dividing the State into judicial districts; that it has provided that each of these districts shall have a Judge, and .that these Judges shall rotate, and shall not hold the courts of the same district oftener than *870once in every four years.; that they 'shall preside and hold a Superior Court ini ea,ch county as often at least as twice a year, and that the Superior Courts shall at all times be open for the transaction of ail business not requiring a jury.
These are constitutional requirements, and yet the Constitution has noi where in express terms given the Superior Courts any jurisdiction. While the jurisdiction of all the other courts are prescribed and defined, not a word is saiid as to' the jurisdiction of the Superior Courts. And- yet we know that they have a jurisdiction, well known and understood by every lawyer, recognized and acted upon at every team of the Superior Court and of this Court. Indeed we can not conceive the idea that the Constitution would establish such courts as Superior Courts, next in dignity to the Supreme Court, and leave them without jurisdiction. Their constitutional jurisdiction, then, is to be found to include everything below the Supreme Court and above the courts of Justices of the Peace’. These courts are established by the Constitution, and have their constitutional jurisdiction defined, of which they can not be deprived by the Legislature. This we think will be conceded. But as there is no express grant of jurisdiction to the Superior Courts in the Constitution, it remains to be seen what their jurisdiction is. We know they have a jurisdiction — that is known of all men- — and as we have said, is constantly acted upon by this Court. How did they get this jurisdiction? If we can determine this, then we are in a position to ascertain and determine what it is, as the same reason that gives these courts their jurisdiction will determine what that jurisdiction is. This jurisdiction is to be found in the fact that these courts — Superior Courts — are not creatures of the Constitution but' adoptions of the Constitution. The Constitution found them here, established institutions, with their jurisdiction well known and established, *871and the Constitution, not wishing to make any change as tojf the jurisdiction of these courts, simply adopted them as they/! were. In this adoption it made provision for the holding of these courts by providing Judges to hold them, by requiring the Judges to reside in the district for which they were elected, by requiring them to rotate and to hold at least two terms a year in each county in the State, and that these courts —Superior Courts — should at all times be open for the transaction of all business that did not require the intervention of a jury.
Yet not a word is said as to' what their jurisdiction should be. They were to do business, because these courts were to be open to the transaction of all business that did not require a jury. But it can not be inferred from this that they were not to have a jury, but the inference is otherwise — that they were to do business at term time where the Court had a jury ■ — as we know this was the fact, as the terms of these courts were provided with Judges. We say these courts — these Superior Courts — -were here before the Constitution, and became constitutional courts by adoption, and without any change or modification as to jurisdiction — a part of which was a gr and jury. This was not the case with the other courts established by the Constitution. There were changes made in the jurisdiction of each of the other courts from what they were at the time of adopting the Constitution. This made it necessary to define their jurisdiction, and in doing this the jurisdiction of the Superior Courts were substantially defined. The whole law of the State was to be administered. The Superior Courts were courts of general jurisdiction, and when the jurisdiction of the other courts, which were special, were taken out, the remainder was left as the jurisdiction of the Superior Courts.
While the question now before the Court has not before *872been directly presented, it has been discussed to some extent in several recent opinions of this Court.
In Rhyne v. Lipscombe, 122 N. C., 650, this Court said: ■“The Constitution, Art. IV, sec. 2, establishes the Supreme 'Court, Superior Courts and Courts of Justices of the Peace, and authorized the Legislature to create other courts inferior to the Supreme Court. Sec. 12, of the same Article, provides 'that the General Assembly shall have noi power to deprive the .judicial department of any power or' jurisdiction which rightfully pertains to it, but that it shall allot and distribute that portion of the power and jurisdiction which does not pertain to the Supreme Court, among the other courts prescribed in the Constitution, or which may be established by law, in such manner as it may deem best * * * so far ■as the same may be done without conflict with the other provisions of this Constitution.” * * * But under our 'State Constitution the Superior Courts and Courts of Justices of the Peace are created by the Constitution itself, and the 'General Assembly can not abolish them.
The term “Superior Court” had a well-defined signification .at the time of the adoption of the Constitution, and the language of that instrument must be taken as referring thereto. * * -x- “While the General Assembly is given the power to .allot and distribute the jurisdiction of the courts below the ‘Supreme Court, this is with the important limitation that it must be done ‘without conflict with other provisions of this ‘Constitution.’ This renders it essential to consider what is "the inherent nature of the Superior Courts created by those ‘other provisions’ of the. Constitution itself which treats "them with so much consideration, prescribing the election and terms of whose offices, besides tire other provisions above re■cited. The General Assembly may allot and distribute the jurisdiction below the Supreme Court, but it can not in doing *873so, create new courts with, substantially the same powers as the Superior Courts, and mate the offices elective, otherwise than by the people, subject to be abolished by legislative enactment, and hence without independent tenure of office, as prescribed by tire Constitution and freed from the provision, as to rotation, the residence of the Judges and the requirements as to two terms annually in each county, and being- always open. All this can not be done by simply creating new Superior Courts or Criminal Courts, or otherwise. * * * Applying these reasonable rules of construction to the Superior Courts established by the Constitution, and fenced about, as its importance demanded, by so, many provisions in the Constitution, what was the Superior Court, as the term was well understood, at the time of adoption’of the Constitution ? It means the highest court in the State next to the Supreme Court, and superior to all others, from which alone appeals lay directly to the Supreme Court, and possessed of general jurisdiction, criminal as civil and both in law and equity.* * * The constitutional guarantees, and the inherent nature and general jurisdiction of the Superior. Courts, recognized by the historical and legal meaning of the term at the adoption of the Constitution,, can not be held revoked and discarded by the incidental authority to the Legislature to create Criminal Courts in cities,' and other inferior courts (which the Constitution did not deem of sufficient importance even to name), and to allot the jurisdiction among them. Even- this provision is guarded, as already stated, by the requirement that the allotment shall not conflict with the other provisions of the Constitution.”
We must be pardoned for quoting so, extensively from this case of Rhyne v. Lipscombe, as it is so recent an expression of this Court and though written by Justice Clabk, was concurred in by the entire Court.
*874These extensive quotations seem to fully sustain the contention of the plaintiff. But this opinion was delivered in a case of a direct appeal from the Criminal Court to this Court, and not involving the question now before the Court, as to the jurisdiction of the Superior Court, and can not be claimed as an adjudication. But as it seems to us it is valuable for the strength of its argument upon the question now presented for our consideration and determination, and should go a long way in its determination. But there are expressions in that opinion such as “exclusive jurisdiction except as to the right of appeal,” which defendants claim tend to weaken the argument of the case. But upon' a careful review of the case it seems to us that these expressions were inadvertences. They were not necessary to the decision of the case — certainly that part which speaks of the exclusive jurisdiction, was not — and they are the only expressions in the opinion that seem to be in conflict with the contention of the plaintiff, and they are in conflict with the argument of the opinion. So we think we are justified in saying that they must have been inadvertences, as they are at entire variance with the whole argument of the opinion. The argument of the opinion in Rhyne v. Lipscombe is that the Superior C'ourts had a known and established jurisdiction at the adoption of the Constitution. That the Constitution' adopted these Superior Courts, and mad© them constitutional courts, with their known and established jurisdiction, thereby adopting the jurisdiction they had at the adoption of the Constitution, and making such jurisdiction the constitutional jurisdiction of the court.
If this be true, and we think it is (and it is certainly the argument of Rhyne v. Lipscombe), then the contention of defendants and the construction they put upon Rhyne v. Lipscombe can not be correct. It is said in Rhyne v. Lips- *875 combe that “the Legislature cam, not take the constitutional jurisdiction from the Superior Courts.” This cam mot be true if the Legislature cam give the inferior courts original and exclusive jurisdiction of all criminal offences and take from the Superior Courts'their jurisdiction. , The Superior Courts are essentially courts of original jurisdiction, with very little appellate jurisdiction, and in almost all cases where it had appellate jurisdiction (from Justice’s Courts) the trial is de novo, as if originally commenced in the Superior Court. And if its jurisdiction under the Constitution is original the Legislature has no power to take this jurisdiction from it.
Chief Justice Mabshall, in speaking of the Constitution of the United States, and the Acts of Congress, uses this language: “If Congress remains at liberty to give this Court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction when the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution is form without substance.” Marbury v. Madison, 1 Cranch 49, on page 67. Besides this being from the greatest Judge and the highest court of this country, it is so clearly correct that we do not hesitate to adopt and follow it.
It seems to us to be a necessary result that as this act takes from the Superior Court its constitutional right to a grand jury, the effect of which is to deprive that Court of its original jurisdiction, the act SO' depriving the Superior Court of this jurisdiction is in conflict with that part of the Constitution that gave the Superior Court a gramd jury and original jurisdiction- as a constitutional court.
But we said the contention of the defendants could not be true, and was in conflict with the reasoning of the opinion in Rhyne v. Lvpscombe, that if it were true its logical result would lead to the utter destruction of the Superior Courts. *876It must be admitted — in fact it is admitted — that if the Legislature cam deprive the Superior Courts of all their original criminal jurisdiction, that the Legislature may also deprive the Superior Courts of all their original civil jurisdiction.
Suppose the Legislature establishes another inferior court for the county of Eorsytli and the other counties composing the criminal circuit, and gives th eon. original exclusive jurisdiction of all civil actions, in which act it provides that it shall be unlawful for the Clerk of the Superior Court to issue any summons returnable to the Superior Court and if the act taking the grand jury from the Superior Court, thereby cutting off the means by which it obtained original jurisdiction is constitutional, it would be constitutional to take away the civil jurisdiction of the Superior Court in the way w© have suggested; we would them have the carcass of the Superior Court, without life. This can not be done.
Almost this very question was presented in' Rhyne v. Lipscombe. The Legislature of 1897 undertook to give Judge Ewao't both civil and criminal jurisdiction, equal to that of the Superior Courts, and this Court said it could not be done. Rut if what the Legislature of 1899 did in taking from the Superior Courts their grand juries and giving Judge Stevens exclusive original jurisdiction can be done, then the Court was in error in holding that it could not bei given to Judge Ewart, because it can make no difference, so far as the constitutional question is concerned, whether this exclusive original jurisdiction is. given to on© or to two Judges.
The cases of State v. Ray, 122 N. C., 1097, and Tate v. Commissioners, 122 N. C., 661, are cited by defendants. But they simply follow Rhyne v. Lipscombe, and are put upon that case, and we do not deem it necessary to give them a separate consideration.
In Wilson v. Jordan, 124 N. C., 683, the same argument *877was advanced as to grand juries, putting that argument upon Rhyne v. Lipscombe. This opinion was concurred in by all the Court except Justice Clark, who' filed a lengthy dissenting opinion, based entirely upon other grounds, apparently agreeing to this argument in that case, as he does not allude to it, unless it is in saying, if Hiere are other errors they can be corrected by the Legislature.
The only remaining question is the objection made to Mott’s being the proper relator. But as it is admitted that he is the Solicitor of Forsyth Superior Court, and entitled to the fees and emoluments, we think he has such an interest as entitles him to bring and maintain this action. Houghtalling v. Taylor, 122 N. C., 141; Hines v. Vann, 118 N. C., 3.
There was error in the judgment appealed from, and the writ of mandamus should have been issued as prayed for.
Error.