Northampton County Drainage Dist. Number One v. Bailey

• Decision Date: 13 June 1990
• Docket Number: No. 576A88,576A88
• Citation: 392 S.E.2d 352,326 N.C. 742
• Court: North Carolina Supreme Court
• Parties: NORTHAMPTON COUNTY DRAINAGE DISTRICT NUMBER ONE, Plaintiff v. Larry Donald BAILEY, Jr. and wife, Maxine Spence Bailey; Betty Gatlin, Unmarried; Claude M. Fennell and wife, Brenda D. Fennell; Thomas L. Redd and wife, Connie B. Redd; Jesse B. Outlaw and wife, Dessie B. Outlaw; William Slade and wife, Kathleen Slade; James M. Bush and wife, Dorothy W. Bush; Thomas David Tann and wife, Vernear O. Tann; Jesse Lee Eason and wife, Lily M. Eason; Lucius Cornell Slade, Unmarried; Whallon Holloman and wife, Sawyer Holly Holloman; James O. Buchanan, Trustee for Farmer's Home Administration, lienholder; Joseph J. Flythe, Trustee for the Federal Land Bank of Columbia, lienholder; Thurman E. Burnette, Trustee for Farmer's Home Administration, lienholder; Joseph J. Flythe, Trustee for John M. Fields, lienholder, Defendants and Manning P. Cooke, Agent, Robert Darrell Morris, John Southgate Vaughan, Phillip B. Parker and John D. Snipes, Jr., Intervenor-Defendants

Page 352

392 S.E.2d 352

326 N.C. 742

NORTHAMPTON COUNTY DRAINAGE DISTRICT NUMBER ONE, Plaintiff v. Larry Donald BAILEY, Jr. and wife, Maxine Spence Bailey Betty Gatlin, Unmarried; Claude M. Fennell and wife, Brenda D. Fennell; Thomas L. Redd and wife, Connie B. Redd; Jesse B. Outlaw and wife, Dessie B. Outlaw; William Slade and wife, Kathleen Slade; James M. Bush and wife, Dorothy W Bush; Thomas David Tann and wife, Vernear O. Tann; Jesse Lee Eason and wife, Lily M. Eason; Lucius Cornell Slade Unmarried; Whallon Holloman and wife, Sawyer Holly Holloman; James O. Buchanan, Trustee for Farmer's Home Administration, lienholder; Joseph J. Flythe, Trustee for the Federal Land Bank of Columbia, lienholder; Thurman E Burnette, Trustee for Farmer's Home Administration, lienholder; Joseph J. Flythe, Trustee for John M. Fields, lienholder, Defendants and Manning P. Cooke, Agent, Robert Darrell Morris, John Southgate Vaughan, Phillip B. Parker and John D. Snipes, Jr., Intervenor-Defendants

No. 576A88.

Supreme Court of North Carolina.

June 13, 1990.

Frank M. Wooten, Jr. and Browning, Sams, Poole, Hill & Hilburn by Robert R. Browning and P. Gwynett Hilburn, Greenville, for plaintiff appellee.

Baker, Jenkins & Jones, P.A. by Ronald G. Baker, Ahoskie, for defendants.

Charles J. Vaughan, Woodland, for intervenor-defendants appellants.

Geo. Thomas Davis, Jr., Swan Quarter, for Hyde County Drainage Dist. # 7.

William P. Mayo, Washington, for Beaufort County Drainage Dist. Number One (Pantego Creek Drainage District), Beaufort County Drainage Dist. Number Two (Broad Creek Drainage Dist.), Beaufort County Drainage Dist. Number Five (Albemarle Drainage Dist.), and Beaufort County Pungo Drainage Dist. Number One (Pungo River Drainage Dist.), amicus curiae.

Robert B. Broughton, Gen. Counsel, and Fred Alphin, Associate Gen. Counsel, Raleigh, for North Carolina Farm Bureau Federation, Inc., amicus curiae.

Lacy H. Thornburg, Atty. Gen. by Daniel C. Oakley, Sp. Deputy Atty. Gen., and Philip A. Telfer, Asst. Atty. Gen., Raleigh, for the State of N.C., amicus curiae.

WEBB, Justice.

This appeal involves several questions regarding drainage district assessments. Chapter 156 of the General Statutes of North Carolina which was enacted in 1909 authorizes the creation of drainage districts. The constitutionality of this statute was established in Sanderlin v. Luken, 152 N.C. 738, 68 S.E. 225 (1910). We held in that case that the procedure which allowed the clerks of superior court to order the establishment of drainage districts did not constitute an unconstitutional delegation of legislative power. We also held that drainage district assessments, which are assessed for the benefit of the members of the district, are not taxes which require a vote of the people before they may be imposed. The defendants in this case raise several questions as to parts of Chapter 156.

The first question posed by this appeal is whether the defendants who are residents of Hertford County have been denied the equal protection of the laws under article I, section 19 of the Constitution of North Carolina and the fourteenth amendment to the Constitution of the United States. The defendants contend they are deprived of the equal protection of the laws because they cannot vote for the Clerk of Superior Court of Northampton County, who appoints the commissioners of the drainage district, while the owners of property in the drainage district who live in Northampton County can vote for the clerk. We agree with the defendants and reverse the Court of Appeals.

In this case we receive guidance from White v. Pate, 308 N.C. 759, 304 S.E.2d 199 (1983). In that case the plaintiffs brought an action to prevent the clerk of superior court from appointing drainage district commissioners. They alleged that because the commissioners were not elected they were deprived of the equal protection of the laws under the North Carolina Constitution by not being allowed to vote for the commissioners. The drainage district in that case was located in a single county. Justice Mitchell, writing for this Court and relying on several cases, said that in deciding an equal protection case a two tiered scheme of analysis must be made. When a classification operates to the disadvantage of a suspect class or if a classification impermissibly interferes with the exercise of a fundamental right a strict scrutiny must be given the classification. Under the strict scrutiny test the government must demonstrate that the classification it has imposed is necessary to promote a compelling governmental interest. If the classification does not interfere with a fundamental right or create a suspect class a rational basis analysis is required. If the governmental classification bears some rational relationship to a conceivable legitimate interest of government the classification does not violate the equal protection of the laws.

We held in White that the owners of land in a drainage district do not comprise a suspect class. We also held in that case that the plaintiffs were not deprived of a fundamental right by not being allowed to vote for drainage district commissioners because no one was allowed to so vote. We said, "[n]othing in our prior decisions, however, should be taken as indicating that the right to vote, per se, is constitutionally protected." White v. Pate, 308 N.C. 759, 768, 304 S.E.2d 199, 205.

This case is distinguished from White in that the drainage district in this case lies in two counties. In White the drainage district was in one county. The landowners in that district who lived in the county could vote for the clerk who appointed the commissioners. In this case a part of the landowners who live in the drainage district can vote for the clerk who appoints the commissioners and a part may not. The right to vote on equal terms is a fundamental right. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Texfi Industries v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980). The defendants have been deprived of a fundamental right. We must use strict scrutiny in determining whether the equal protection of the laws was denied the defendants in this case.

We hold that the plaintiff has not demonstrated that the classification of voters made in this case was necessary to promote a compelling governmental interest. The interest which was to be promoted was the placing in office of drainage district commissioners. The clerk could have accomplished this by having elected commissioners which would not have deprived the defendants of the right to vote on equal terms with owners of land in the district who live in Northampton County. It was not necessary to have appointed commissioners in this case in order to promote the governmental interest.

The appellee argues that it is erroneous to equate ownership of land in the district with the right to vote. They say that owning land in either county of the district does not qualify or disqualify a person from voting for the clerk of superior court. A person may own land in the Northampton part of the district and not be allowed to vote for the clerk if he does not live in Northampton County. On the other hand a person may own land in the Hertford part of the district and vote for the clerk if he or she lives in Northampton County. We can concede this may be the case without changing the outcome of this case. The fact that there are owners of land in the Hertford County section of the district who cannot vote for the clerk while owners of land in the district who live in Northampton County can vote for the clerk establishes the constitutional infirmity of this procedure.

The defendants next contend that the unfettered discretion provided by N.C.G.S. § 156-81(a) and (i) to the clerks of superior court to determine whether drainage commissioners should be elected or appointed is an unconstitutional delegation of legislative powers. Article II, section 1 of the Constitution of North Carolina provides: "[t]he legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives." This section of the Constitution has been interpreted to mean that the General Assembly cannot delegate a portion of its legislative power to subordinate agencies or units of government without accompanying such a delegation with adequate guiding standards to govern the exercise of the delegated power. Adams v. Dept. of N.E.R., 295 N.C. 683, 249 S.E.2d 402 (1978); Watch Co. v. Brand Distributors, 285 N.C. 467, 206 S.E.2d 141 (1974); Turnpike Authority v. Pine Island, 265 N.C. 109, 143 S.E.2d 319 (1965); Williamson v. Snow, 239 N.C. 493, 80 S.E.2d 262 (1954); Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310 (1953); Efird v. Comrs. of Forsyth, 219 N.C. 96, 12 S.E.2d 889 (1941).

The plaintiff and the defendants agree that giving the clerks of superior court the power to determine whether commissioners shall be elected or appointed is a delegation of legislative power. No standard was set by the General Assembly for the making of this decision. The plaintiff, relying on Adams, says this is not an unconstitutional delegation of legislative power. It says this is so because the General Assembly has not delegated the power to set policy to the clerks. It quotes from N.C.G.S. § 156-54 which says the drainage of swamplands and surface water are the objects to be maintained and the way commissioners are chosen was considered to be inconsequential by the General Assembly to the main thrust of the drainage law. The decision as to whether commissioners are to be elected or appointed should be considered, says the plaintiff, as a ministerial act.

We cannot hold that the decision as to how a governing board of a drainage district is chosen is a ministerial act. The purpose of the act to have commissioners selected can be attained without the General Assembly's...