Sams Et Al v. Bd. Of County Com'rs Of Madison County

• Decision Date: 20 March 1940
• Docket Number: No. 90.,90.
• Citation: 7 S.E.2d 540,217 N.C. 284
• Parties: SAMS et al. v. BOARD OF COUNTY COM'RS OF MADISON COUNTY et al.
• Court: North Carolina Supreme Court

217 N.C. 284

7 S.E.2d 540

SAMS et al.

v.BOARD OF COUNTY COM'RS OF MADISON COUNTY et al.

No. 90.

Supreme Court of North Carolina.

March 20, 1940.

Appeal from Superior Court, Madison County; J. A. Rousseau, Judge.

Action by Dr. W. A. Sams, individually and as a citizen and taxpayer of Madison County, N. C, for and on behalf of himself and all other taxpayers of Madison County, N. C, who desire to become parties to the action, against the Board of County Commissioners.of Madison County, N. C, a body politic and corporate, and others to enforce payment to plaintiff of salary of county physician and quarantine officer. From an adverse judgment, defendants appeal.

Reversed.

Roberts & Baley, of Marshall, for defendants-appellants.

Smathers & Meekins, of Asheville, for plaintiff-appellee.

DEVIN, Justice.

The plaintiff instituted his action against the Board of County Commissioners of Madison County to enforce the payment tohim of the salary of county physician and quarantine officer, to which office he alleged he had been elected by the County Board of Health of Madison County as that Board was constituted under the provisions of Chap. 322, Public-Local Laws 1931.

The defendant Board denied liability chiefly on the ground that the local act of the General Assembly creating a County Board of Health for Madison County, under which plaintiff claims, violated the provisions of Art. II, sec. 29, of the Constitution of North Carolina, and was therefore void.

Since the plaintiff's action is based on this Act of the Legislature his right to maintain his suit depends upon the validity of the Act. Reed v. Madison County, 213 N.C. 145, 195 S.E. 620; Borden v. Goldsboro, 173 N.C. 661, 92 S.E. 694. The determination of the question presented by this appeal was foreshadowed by what was said in Freeman v. Com'rs of Madison County, N.C., 7 S.E.2d 354, decided at this term.

Art. II, sec. 29, of the Constitution, prohibits the General Assembly from passing "any local, private, or special act * * * relating to health, sanitation, and the abatement of nuisances." It is expressly ordained that any local or special act passed in violation of this section shall be void, power being given the General Assembly to pass general laws regulating the matters therein set out.

The Act, Chap. 322, Public-Local Laws 1931, under which plaintiff claims, undertakes to create for Madison County, alone, a County Board of Health and to name its members. The principal duty of this Board is to elect a county physician and quarantine officer, for whom is prescribed the duty of inspecting the county institutions and seeing "that each is kept in a sanitary condition." This Board is also authorized by the Act to select a physician to vaccinate against disease.

It is apparent that the Act is local and that it relates to health and sanitation, and thus comes within the prohibition of the quoted section of the Constitution. This is in accord with the decision of this court in Armstrong v. Com'rs of Gaston County, 185 N.C. 405, 117 S.E. 388, where a local act authorizing the erection of a hospital for the treatment of tuberculosis was held void under Art II, sec. 29, as being a local act pertaining to health and sanitation. State v. Warren, 211 N.C. 75, 189 S.E. 108; Atlantic Coast Line R. Co. v. Lenoir County, 200 N.C. 494,...