Orange County v. Heath

• Decision Date: 29 March 1972
• Docket Number: No. 7215SC93,7215SC93
• Citation: 187 S.E.2d 345,14 N.C.App. 44
• Parties: ORANGE COUNTY, a Municipal Corporation v. Forrest T. HEATH and wife, Nancy B. Heath.
• Court: North Carolina Court of Appeals

Page 345

187 S.E.2d 345

14 N.C.App. 44

ORANGE COUNTY, a Municipal Corporation v. Forrest T. HEATH and wife, Nancy B. Heath.

No. 7215SC93.

Court of Appeals of North Carolina.

March 29, 1972 Certiorari Allowed by Supreme Court June 13, 1972.

Graham & Cheshire by Lucius M. Cheshire, Hillsborough, for plaintiff appellee.

Winston, Coleman & Bernholz by Alonzo Brown Coleman, Jr., Hillsborough, for defendants appellants.

BRITT, Judge.

It appears to be well settled law in this State that except where waived under authority of statute, the common law rule of governmental immunity is still the law in North Carolina; and that in enacting and enforcing zoning regulations, a municipality acts an a governmental agency and exercises the police power of the State. Town of Hillsborough v. Smith, 10 N.C.App. 70, 178 S.E.2d 18 (1970) and cases therein cited, cert. den. 1971, 277 N.C. 727, 178 S.E.2d 831.

But defendants contend that by the enactment of G.S. § 1A--1, Rule 65(c) the General Assembly abrogated the common law rule aforesaid where a municipality obtains a restraining order or injunction. Rule 65(c) provides in pertinent part as follows:

'No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the judge deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the State of North Carolina or of any county or municipality thereof, or any officer or agency thereof acting in an official capacity, But damages may be awarded against such party in accord with this rule.' (Emphasis added.)

The question presented by this contention is: Was substantive law changed by a procedural statute? We hold that it was not.

There can be no doubt that G.S. § 1A--1, Rule 65(c) is a procedural statute. The Rules of Civil Procedure were enacted by Chapter 954 of the 1967 Session Laws. The act is entitled 'An Act to Amend the Laws Relating to Civil Procedure.' Section 1, in pertinent part states: 'The Rules of Civil Procedure are as follows:'.

Article IV, § 13(2) of the Constitution of North Carolina provides in part as follows: 'The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division. The General Assembly may make rules of procedure and practice for the Superior Court and District Court Divisions, and the General Assembly may delegate this authority to the Supreme Court. No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury.' (Emphasis ours.)

In Town of Hillsborough v. Smith, Supra, this court, quoting from a case from a sister jurisdiction, said: "As we understand the rule relating to the immunities attaching to sovereignty, such attributes are never to be considered as waived or surrendered by any inference or implication. The surrender of an attribute of sovereignty being so much at variance with the commonly accepted tenets of government, so much at variance with sound public policy and public welfare, the Courts will never say that it has been abrogated, abridged, or surrendered, except in deference to plain, positive legislative declarations to that effect." Furthermore, it is well settled in this jurisdiction that a statute in derogation of the common law is to be construed strictly. Ellington v. Bradford, 242 N.C. 159, 86 S.E.2d 925 (1955); Bell v. Page, 2 N.C.App. 132, 162 S.E.2d 693 (1968).

We think our negative answer to the question posed is fully supported by the basic law of our State.

Defendants also contend that there has been an unlawful interference with the use and enjoyment of their property to such an extent as to amount to a 'taking' of the property. We find no merit in this contention. In 16 Am.Jur.2d, Constitutional Law, § 301, p. 590, we find: 'The fact that police laws and regulations prevent the enjoyment of certain individual rights in property without providing compensation therefor does not necessarily render them unconstitutional as violating the due process clause or as appropriating...