Pharr v. Garibaldi, 449

• Decision Date: 30 June 1960
• Docket Number: No. 449,449
• Citation: 115 S.E.2d 18,252 N.C. 803
• Court: North Carolina Supreme Court
• Parties: Arthur L. PHARR v. Linn D. GARIBALDI, Chairman, and Edgar Gurganus, James M. Parrott, Jr., Dr. Harley Shands, Dr. M. B. Davis, W. W. Shope, Mrs. J. Melville Broughton, Members of the North Carolina State Prison Commission, and William F. Bailey, Director of Prisons.

Page 18

115 S.E.2d 18

252 N.C. 803

Arthur L. PHARR v. Linn D. GARIBALDI, Chairman, and Edgar Gurganus, James M Parrott, Jr., Dr. Harley Shands, Dr. M. B. Davis, W. W Shope, Mrs. J. Melville Broughton, Members of the North Carolina State Prison Commission, and William F. Bailey Director of Prisons.

No. 449

Supreme Court of North Carolina.

June 30, 1960

Jordan, Dawkins & Toms, Raleigh, for plaintiff, appellee.

T. W. Bruton, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Giles R. Clark, Raleigh, and Carl C. Churchill, Members of Staff, for defendants, appellants.

BOBBITT, Justice.

Analysis of the complaint discloses:

1. The action is solely for injunctive relief, specifically to require defendants, in their official capacities, to discontinue operation of Camp Polk Prison on the site where it has been and is now maintained.

2. Plaintiff's property is on Lake Boone Trail, within one mile of the corporate limits of Raleigh and 'in close proximity' to Camp Polk Prison. A part of Camp Polk Prison is also located within one mile of the limits of Raleigh.

3. There are approximately five hundred residences within a radius of one mile of Camp Polk Prison, but there is no allegation that plaintiff's property is within this area.

4. Escapees and other prisoners, including discharged prisoners, have committed serious crimes 'in the area' surrounding Camp Polk Prison, or have trespassed upon the property of residents 'of the area' in such manner as to constitute a threat to the safety of such persons and their property, but it is not alleged that any such incident has occurred on plaintiff's property or in the immediate vicinity thereof or that plaintiff or any member of his household has been directly affected thereby.

5. The alleged ground for injunctive relief is the apprehension that plaintiff's safety and property is endangered by acts of escapees and other prisoners, including discharged prisoners, on property beyond the limits of Camp Polk Prison; but there is no allegation that any condition exists within the limits of Camp Polk Prison that constitutes an annoyance to plaintiff or adversely affects his property.

It is here noted that the decisions upon which plaintiff relies, cited below, relate to factual situations where the plaintiff owned property contiguous, in whole or in part, to the prison property, or so close as to be directly affected by conditions within the jail or prison. All, except the Totten case, infra, deal with annoyances such as alleged unsanitary conditions, obscene, boisterous and disorderly conduct, invasion of privacy by exposure of the plaintiff's premises to the view, remarks and gesticulations of prisoners, etc.

The State Prison Department was created by G.S. § 148-1(a) as the State's agency for the performance of an essential governmental function. A suit against the State Prison Department eo nomine is essentially a suit against the State. Hence, absent constitutional or legislative authority therefor, plaintiff could not maintain such suit. Moody v. State's Prison, 128 N.C. 12, 38 S.E. 131, 53 L.R.A. 855; Schloss v. State Highway Commission, 230 N.C. 489, 53 S.E.2d 517, and cases cited.

While a suit against State officials is not necessarily a suit against the State, 'where the state, although not a party to the record, is the real party against which relief is sought, and where a judgment for the plaintiff, although nominally against the officer as an individual, could operate to control the action of the state or subject it to liability,' such suit 'is to be deemed a suit against the state, and is not maintainable unless the state has consented to be sued.' 49 Am.Jur., States, Territories, and Dependencies § 92; Vinson v. O'Berry, 209 N.C. 287, 183 S.E. 423. Whether a suit against State officials is a suit against the State 'is to be determined by the essential nature and effect of the proceeding.' Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 65 S.Ct. 347, 350, 89 L.Ed. 389, and cases cited.

In Schloss v. State Highway Commission, supra, Barnhill, J. (later C. J.), said [230 N.C. 489, 53 S.E.2d 519]: 'When public officers whose duty it is to supervise and direct a State agency attempt to enforce and invalid ordinance or regulation or invade or threaten to invade the personal or property rights of a citizen in disregard of law, they are not relieved from responsibility by the immunity of the State from suit, even though they act or assume to act under the authority and pursuant to the directions of the State.' (Our italics.) A statement to like effect was made by Devin, J. (later C. J.), in Teer v. Jordan, 232 N.C. 48, 59 S.E.2d 359.

The official status of defendants, standing alone, does not immunize them from suit. Whether plaintiff can maintain this action depends upon the essential nature and effect of the proceeding, specifically whether the facts alleged, if true, are sufficient to show plaintiff's rights have been invaded or threatened by unlawful conduct on the part of defendants.

It is noted that, while the time, place and circumstances of such incidents are not alleged, the complaint contains general allegations as to crimes and trespasses heretofore committed 'in the area.' It is noted further there is no allegation as to what incidents, if any, occurred while defendants have held their alleged respective official positions. Even so, plaintiff does allege, upon information and belief, that Camp Polk Prison is maintained and operated by defendants, 'in their official capacities,' as a 'minimum security prison' and that 'its inhabitants are not closely confined and are not closely guarded' and are given 'considerable freedom.'

Under the provisions of Article XI of the Constitution of North Carolina, the General Assembly has plenary authority to provide for a State Prison System. It is noted that Section 1 thereof expressly authorizes 'the employment of such convict labor on public works or highways, or other labor for public benefit, and the farming out thereof, where and in such manner as may be provided by law; but no convict shall be farmed out who has been sentenced on a charge of murder, manslaughter, rape, attempt to commit rape, or arson.' Sections 4 and 5 of Article XI expressly recognize that rehabilitation of a prisoner as well as punishment for past criminal conduct is a proper function of prison administration.

The State's prison policy, as defined by the General Assembly, contemplates that able-bodied prisoners shall engage in useful labor, either on the prison premises or elsewhere, G.S. § 148-6, and so 'reduce the cost of their keep while enabling them to acquire or retain skills and work habits needed to secure honest employment after their release,' G.S. § 148-26. Also, see G.S. § 148-33.1 relating to prisoners granted the option of serving sentences under the 'work release plan' therein authorized. The cited provisions, as well as provisions with reference to paroles, G.S. Chapter 148, Article 4, are predicated upon the idea that the ability as well as the disposition of released prisoners to engage in honest employment and become law-abiding members of society is calculated to serve the best interests of the State and of its citizens.

The statutory responsibility of the State Prison Commission, to be exercised at meetings held as provided, is 'to formulate general prison policies, to adopt prison rules and regulations, to approve budgetary proposals of the State Prison Department, and to advise with the Director of Prisons on matters pertaining to prison administration.' G.S. § 148-1(b). The statutory duty of the Director of Prisons, as executive head of the Department, is to 'administer the affairs of the State Prison Department subject to the duly adopted policies and rules and regulations of the Commission.' G.S. § 148-1(c). The Director of Prisons, subject to the rules and regulations of the Commission, is expressly authorized to designate the places of confinement within the State Prison System where prisoners committed to his custody shall serve their sentences. G.S. § 148-4, as amended by Chapter 109, Session Laws of 1959.

'The erection and operation of prisons and jails, whether by the state, a county, or a municipality, is a purely governmental function, being an indispensable part of the administration of the criminal law, * *. They are a part of the police system for the preservation of order and the security of society, and are established by the state in the exercise of its sovereign powers, in performance of its duty to provide for the custody, employment, and maintenance of convicts. They are a public necessity.' 41 Am.Jur., Prisons and Prisoners § 3; Burwell v. Comrs. of Vance County, 93 N.C. 73; Moody v. State's Prison, supra.

'It is true that nobody would be pleased at the erection of a jail in the vicinity of his residence, but it must be built somewhere. It is a public necessity. It is authorized by law. In no sense, or rather in no legal sense, is it a nuisance. Nothing that is legal in its erection can be a nuisance per se; much less can that which public necessity demands be one.' Bacon v. Walker, 77 Ga. 336.

A prison is not a nuisance per se. Hence, the construction of a prison on a site selected by public officials pursuant to statutory authority will not be enjoined. Burwell v. Comrs. of Vance County, supra; Bacon v. Walker, supra; Hughes v. McVay, 113 Wash. 333, 194 P. 565, 14 A.L.R. 681; Baptist Church of Madisonville v. Webb, Tex.Civ.App., 178 S.W. 689. Smith, C. J., speaking for this Court in Burwell v. Comrs. of Vance County, supra, said: 'For if they could thus have the aid of the Court, so could residents of any other part of the town, for the same and perhaps stronger reasons, because more thickly settled, as well as contiguous proprietors could prevent the erection elsewhere. The special damage in such case is incidental to what the general interest of the...