McIntyre v. Clarkson, 239

• Court: North Carolina Supreme Court
• Writing for the Court: MOORE; HIGGINS; BOBBITT; It is noted, with emphasis, that, in respect of jurisdiction, procedure, etc.; This excerpt from the opinion of the Court, by Clarkson
• Citation: McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (N.C. 1961)
• Decision Date: 03 May 1961
• Docket Number: No. 239,239
• Parties: William C. McINTYRE, a resident citizen and taxpayer of Charlotte, Mecklenburg County, North Carolina, on his own behalf and on behalf of the other taxpayers of said County. v. Honorable F. O. CLARKSON, Senior Resident Judge of the 26th Judicial District of North Carolina, and Jessie Caldwell Smith, Treasurer of Mecklenburg County, North Carolina, and Walker H. Busby, Mecklenburg County Auditor and Accountant.

Page 888

119 S.E.2d 888

254 N.C. 510

William C. McINTYRE, a resident citizen and taxpayer of Charlotte, Mecklenburg County, North Carolina, on his own behalf and on behalf of the other taxpayers of said County. v. Honorable F. O. CLARKSON, Senior Resident Judge of the 26th Judicial District of North Carolina, and Jessie Caldwell Smith, Treasurer of Mecklenburg County, North Carolina, and Walker H. Busby, Mecklenburg County Auditor and Accountant.

No. 239

Supreme Court of North Carolina.

May 3, 1961

J. F. Flowers and Mercer J. Blankenship, Charlotte, for plaintiff.

E. McA. Currie, Charlotte, for defendant F. O. Clarkson.

Dockery, Ruff, Perry, Bond & Cobb, Charlotte, for defendants Busby and Smith.

Whiteford S. Blakeney, Charlotte, for the District Bar of the Twenty-Sixth Judicial District, as amicus curiae.

MOORE, Justice.

In this Court defendants demur ore tenus to plaintiff's complaint on the grounds that it does not state facts sufficient to constitute a cause of action, and does not show that the plaintiff has sufficient legal interest to maintain the action.

Defendants contend that a resident, citizen and taxpayer, as such, does not have sufficient interest in the controversy to maintain an action, for himself and on behalf of others similarly situated, to challenge the constitutionality of a statute providing for the appointment of justices of the peace for the county in which he resides and for payment of their salaries from the general fund of the county.

"Courts will not declare void an Act of the Legislature unless the question of its constitutionality is presently presented and it is found [to be] necessary to do so in order to protect rights guaranteed by the Constitution.' Fox v. Commissioners, 244 N.C. 497, 94 S.E.2d 482, 485. Only an injured party may assail the validity of a statute. Yarborough v. North Carolina Park Commission, 196 N.C. 284, 145 S.E. 563.' State ex rel. Carringer v. Alverson, 254 N.C. 204, 208, 118 S.E.2d 408, 410.

But this Court has in numerous cases determined the constitutionality of statutes upon suit for injunctive relief by taxpayers where the expenditure of public funds is involved. Dennis v. City of Raleigh, 253 N.C. 400, 116 S.E.2d 923; Freeman v. Board of Commissioners of Madison County, 217 N.C. 209, 7 S.E.2d 354.

Here, the Commissioners of Mecklenburg County have made an appropriation from the general fund of the county for payment of salaries of justices of the peace under the purported authority of Article 14A, Chapter 7, of the General Statutes of North Carolina. When the case was argued in this Court it was admitted that the resident judge had appointed justices of the peace for Mecklenburg County in conformity with the resolution of the Commissioners putting Article 14A into effect. The appointments were made before the interlocutory injunction was issued by this Court. The present suit calls into question the legality of the appointments and the resolutions of the Commissioners adopting the provisions of Article 14A and appropriating funds for salaries and other expenses of justices of the peace. These matters are of serious concern to the citizens and taxpayers of Mecklenburg County and of the State at large. It is essential to the effective and orderly government of Mecklenburg County that an immediate determination of the case be had on the merits. In addition to the issuance of warrants and the adjudication of certain civil and criminal actions, justices of the peace have many official duties and powers, including the performing of marriage ceremonies and the taking of acknowledgments of deeds and deeds of trust. Their activities vitally affect the business and social life of the State. It would be stretching a procedural rule to the breaking point to hold that a citizen and taxpayer must violate a criminal law, breach a contract, commit a tort, contract a questionable marriage or make a doubtful acknowledgment of a deed, before he may, on his own part and on behalf of other citizens and taxpayers of his county, invoke the equitable jurisdiction of the courts to have determined the validity of a statute which so vitally affects the public welfare and public funds.

The demurrer ore tenus is overruled.

Prior to the enactment of Article 14A, Chapter 7, of the General Statutes of North Carolina (G.S. § 7-120.1 to § 7-120.11), there were four methods of selecting justices of the peace: (1) popular elections in the township (G.S. § 7-113); (2) appointments by the Governor (G.S. § 7-114 and § 7-115;) (3) appointments by the General Assembly (In re Omnibus Justice of the Peace Bill, 227 N.C. 717); and (4) filing of vacancies by the clerks of superior court (G.S. § 7-114). These methods were all statewide in application.

In 1949 the General Assembly passed the law in question on this appeal--Article 14A, Chapter 7, hereinafter referred to as the 1949 Act. It is permissive only, and becomes effective in a particular county if and when adopted by resolution of the county commissioners of that county. It empowers the commissioners to fix the number of justices of the peace to be appointed and authorizes the resident judge of the superior court to make the appointments and to remove from office for cause, after hearing. The appointees serve two-year terms and are paid salaries from the general county fund in lieu of fees. They are required to give bond and make daily deposits of all fees, fines and forfeitures collected. The commissioners are required to provide offices and to designate the place or places where each justice of the peace shall sit regularly. The Act purports to repeal G.S. § 7-113 and the last two sentences of G.S. § 7-114 and G.S. § 7-115, and thereby to abrogate all other methods of election or appointment of justices of the peace in the particular adopting county, except that vacancies are filled by the clerk of superior court. The Act exempted 73 counties from its operation. In 1957 Hoke County was added. There are presently 72 exempted counties.

In 1955 the General Assembly rewrote G.S. § 7-115, hereinafter referred to as the 1955 Act. It now provides that in case of need resident judges in their discretion may, from time to time, appoint one or more fit persons as justice of the peace in the county or counties within their respective districts. The term of office is two years and the appointees may be removed by the resident judge for cause, after hearing. This Act is 'In addition to other methods provided by law for appointment or election of a justice of the peace.' This Act is a statewide law and no counties are exempted.

'* * * (A) doctrine firmly established in the law is that a State Constitution is in no matter a grant of power. All power which is not limited by the Constitution inheres in the people, and an act of a State legislature is legal when the Constitution contains no prohibition against it.' Lassiter v. Northampton County Board of Elections, 248 N.C. 102, 112, 102 S.E.2d 853, 861.

The members of the General Assembly are representatives of the people. The wisdom and expediency of a statute is for the legislative department, when acting entirely within constitutional limits. The courts will not disturb an act of the lawmaking body unless it runs counter to a constitutional limitation or prohibition. Southern Auto Finance Co. v. Pittman, 253 N.C. 550, 553, 117 S.E.2d 423; State v. Warren, 252 N.C. 690, 696, 114 S.E.2d 660; Lilly & Co. v. Saunders, 216 N.C. 163, 170, 4 S.E.2d 528, 125 A.L.R. 1308.

'It is well settled in this state that the courts have the power, and it is their duty, in proper cases to declare an act of the General Assembly unconstitutional; but it must be plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.' Glenn v. Board of Education, 210 N.C. 525, 529-530, 187 S.E. 781, 784. See also State v. Moore, 104 N.C. 714, 717, 10 S.E. 143.

Plaintiff contends that the 1949 Act contravenes Article II, section 29, of the Constitution of North Carolina, in that it is a special and local Act and is not a general Act applicable to the entire State.

In 1916 three constitutional amendments were ratified--Article II, sec. 29; Article VIII, §§ 1, 4. They became effective 10 January 1917. They were designed to remove some sixteen or more subjects from the field of local, private and special legislation.

It was argued by the proponents of the amendments that they were necessary and essential for that the membership of the General Assembly as a whole had little knowledge of local, private and special needs and conditions, the General Assembly should be permitted to devote more time and attention to general legislation of statewide interest and concern, local self-government should be strengthened by delegating local matters by general laws to local officials, and legislation should relate to the State 'as a single united commonwealth rather than as a conglomeration of innumerable discordant communities.' Prior to the adoption of the amendments a large percentage of the laws enacted by the Legislature was 'local, private and special': 1911-- 85%; 1913--87%; 1913 (Special Session)--84%; 1915--81%. During the period, 1868 to 1917, there were 225 local, private and special Acts relating to the appointment of justices of the peace. Popular Government, issue of February-March, 1949. Idol v. Street, 233 N.C. 730, 732, 65 S.E.2d 313.

Article II, section 29, of the Constitution of North Carolina, as it relates to this appeal, is as follows: 'The General yassembly shall not pass any local, private or special act or resolution relating to * * * the appointment of justices of the peace * * * nor shall the General Assembly enact any such local, private or special act by partial repeal of a general law, * * * Any local, private or special act or resolution passed in violation of the provisions of ...