State v. Ward ( 1976 )

228 S.E.2d 490 (1976) 31 N.C. App. 104

STATE of North Carolina
v.
Franklin Alphon WARD, III.

No. 7614SC389.

Court of Appeals of North Carolina.

October 6, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Norma S. Harrell, Raleigh, for the State.

Nye, Mitchell & Bugg by John E. Bugg, Durham, for respondent-appellant.

HEDRICK, Judge.

The one question presented on this appeal is whether the trial court erred in concluding it had no discretion to dismiss the proceeding against respondent because of the district attorney's failure to bring the proceeding "forthwith".

G.S. 20-223 provides:

"District attorney to initiate court proceeding; petition. — The district attorney, upon receiving the aforesaid abstract from the Commissioner, shall forthwith file a petition against the person named therein in the superior court division of the county wherein such person resides. . . The petition shall request the court to determine whether or not the person named therein is an habitual offender." (emphasis added)

It is presumed that no meaningless or useless words or provisions are used in a statute, but that each word or provision is to be given some effect. Jackson v. Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969); 82 C.J.S. Statutes § 316, pp. 551-552.

Black's Law Dictionary, p. 782 (Rev. 4th ed. 1968) defines "forthwith" as follows: "Immediately; without delay, directly, hence within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch . . .. Within such time as to permit that which is to be done, to be done lawfully and according to practical and ordinary course of things to be performed or accomplished." This Court stated in Simpson v. Garrett, Comr. of Motor Vehicles, 15 N.C.App. 449, 451, 190 S.E.2d 251, 253 (1972), "The word `forthwith' in G.S. § 20-17 does not require instantaneous action but only action within a reasonable length of time." (citation omitted).

Since the court must give some meaning to the word "forthwith" as used in G.S. 20-223, and because the question of whether the district attorney acted forthwith to institute the proceeding depends on the facts and circumstances in each case, we conclude the trial court has discretionary authority to find the facts from the evidence and from the facts found draw legal conclusions as to whether the district attorney acted forthwith in instituting the proceeding and whether any failure on the part of the district attorney to proceed forthwith prejudiced the respondent.

The findings and conclusions made by the trial judge in the instant case that the district attorney had not acted forthwith as required by G.S. 20-223 and that the respondent was prejudiced thereby are not challenged on this appeal. Moreover, the record supports these findings and conclusions. We hold the trial court has the inherent authority to dismiss the proceeding under G.S. 20-223 upon findings and conclusions that the district attorney failed to act forthwith and that the respondent was prejudiced thereby. The trial court erred in not dismissing the action.

The order appealed from is

Reversed.

MORRIS and ARNOLD, JJ., concur.