Lee v. Poston

• Decision Date: 02 May 1951
• Docket Number: No. 531,531
• Court: North Carolina Supreme Court
• Parties: LEE, v. POSTON et al.

Page 835

64 S.E.2d 835

233 N.C. 546

LEE, v. POSTON et al.

No. 531

Supreme Court of North Carolina.

May 2, 1951

Henry L. Strickland, Charlotte, and Kenneth D. Thomas, Hickory, for plaintiff, appellee.

Russell W. Whitener, Newton, and Eddy S. Merritt, Hickory, for defendants, appellants.

ERVIN, Justice.

The appeal presents a question of venue. The plaintiff asserts that the general statutory provision set forth in G.S. § 1-82 allows him to bring the action in Mecklenburg County, where he resides, whereas the defendants contend that the special statutory provision embodied in G.S. § 1-77 localizes the action in Catawba County, where it arose.

Under G.S. § 1-77, an action 'Against a public officer * * * for an act done by him by virtue of his office * * * must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial, in the cases provided by law.' This statute governs the venue of actions against municipal corporations because such actions are essentially actions against public officers for official acts. Godfrey v. Tidewater Power Co., 224 N.C. 657, 32 S.E.2d 27; Murphy v. City of High Point, 218 N.C. 597, 12 S.E.2d 1.

The defendants predicate their demand for a change of venue from Mecklenburg County to Catawba County on these arguments: The plaintiff's cause of action arose in Catawba County. He prosecutes it against the defendants in their capacities as trustees of the Ball's Creek Methodist Church and Camp Ground. As such trustees, the defendants constitute a municipal corporation. Consequently, the action is against a municipal corporation, and G.S. § 1-77 fixes its venue in Catawba County, where it arose.

The plaintiff's cause of action undoubtedly arose in Catawba County. Nevertheless, G.S. § 1-77 does not make Catawba County the proper place for its trial. This is so for the very simple reason that the trustees of Ball's Creek Methodist Church and Camp Ground constitute a religious corporation and not a municipal corporation. This conclusion becomes indisputable when recourse is had to the characteristics of such corporations, and the incorporating act, i. e., Chapter 47 of the Private Laws of 1879. It is observed, in passing, that this act was adopted more than a third of a century before Article VIII, Section 1, of the North Carolina Constitution was rephrased so as to deprive the General Assembly of unrestricted power to create corporations by special acts.

A municipal corporation may be defined with terseness as a subordinate agency created by the State to assist in the civil government of the territory and people embraced within its limits. Brooks v. City of Wichita, 8 Cir., 114 F. 297, 52 C.C.A. 209. See, also, in this connection: Southern Assembly v. Palmer, 166 N.C. 75, 82 S.E. 18. A religious corporation is a corporation whose purposes are directly ancillary to divine worship or religious teaching. 54 C.J., Religious Societies, section 3.

Chapter 47 of the Private Laws of 1879 creates a self-perpetuating body of trustees for 'Ball's Creek Methodist Church and Camp Ground in the County of Catawba', and declares such trustees to be 'a body politic and corporate in deed and in law.' When the act is read aright, it shows that the trustees are incorporated for the single purpose of maintaining a particular church and camp ground, namely, the Ball's Creek Methodist Church and...