St. George v. Hanson

• Decision Date: 15 January 1954
• Docket Number: No. 598,598
• Citation: 239 N.C. 259,78 S.E.2d 885
• Parties: ST. GEORGE v. HANSON et al.
• Court: North Carolina Supreme Court

Page 885

78 S.E.2d 885

239 N.C. 259

ST. GEORGE v. HANSON et al.

No. 598

Supreme Court of North Carolina.

Jan. 15, 1954

McClelland & Burney, Rountree & Rountree, Wilmington, for plaintiff-appellant.

Poisson, Campbell & Marshall, Wilmington, for defendants-appellees.

PARKER, Justice.

The parties waived trial by jury. Therefore, the findings of fact of the trial judge are as conclusive as the verdict of a jury if there was competent evidence to support them. Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.

The plaintiff assigns as errors Nos. 1 to 4, both inclusive, that the court failed to make certain findings of fact. At the hearing in the lower court the plaintiff made no request of the court to make any specific finding of fact or facts. 'It is too late for the plaintiff on appeal to complain of failure of the court to find specific facts, when no specific request therefor was made at the hearing.' Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133, 137, and cases there cited; McIntosh N. C. Prac. and Proc., p. 555.

The plaintiff has no exception to the evidence, nor does he contend that there is no evidence to support the facts found by the court. Therefore, his assignment of error No. 7 to the signing of the judgment presents the sole question as to whether the facts found support the judgment. Best v. Garris, 211 N.C. 305, 190 S.E. 221; Swink v. Horn, 226 N.C. 713, 40 S.E.2d 353; Cannon v. Blair, 229 N.C. 606, 50 S.E.2d 732.

The judge is only required to find and state the ultimate facts under G.S. § 1-185. Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639, and cases cited.

The judge made these findings of ultimate facts. One the plaintiff for a number of years in the past was a licensed pilot, acting under the supervision of the defendants and their predecessors in office. Second, that his license was revoked on several occasions; the last revocation being dated December 29, 1931. Three, several occasions since the plaintiff has made application for a renewal of said license, but such renewal has been refused in the discretion of the defendant Board. Four, the plaintiff waited from December 31, 1931 until November 6, 1951 to bring an action for restoration of his license, though for about 17 years of this period he was living outside New Hanover County.

The plaintiff contends that according to the stipulation entered into by counsel,and set forth above, he was one of the pilots actively engaged in piloting on the Cape Fear River at the time of the enactment of the Amendment of March 7, 1927 to what is now G.S. § 76-2 referred to in Article 5 of his Complaint; that G.S. § 76-2 has a proviso reading as follows: 'Provided, that the present number of eleven pilots now actively engaged in the service shall not be reduced except for cause or by resignation, disability or death'; that he, as one of the original eleven pilots, cannot have his license revoked or may not be refused re-instatement of his license except for cause 'and that cause must be another cause than simply a cause for the reduction in number of those specific pilots on the Cape Fear River and Bar and that to refuse the appellant his State Pilot's License simply because the Board in its discretion believes that there is a sufficient number of pilots for the commerce on the river flies in the face of the Act, and such action on the part of the defendants, Board of Navigation and Pilotage, constitutes arbitrary and unreasonable action, not permitted by the statute, and therefore the plaintiff should be granted his writ.'

G.S., Ch. 76, is entitled Navigation. Art. 1 of this Chapter is captioned Cape Fear River. This act is constitutional. St. George v. Hardie, 147 N.C. 88, 60 S.E. 920. When it is shown that pilotage is subject to governmental control, the power and duty of the Legislature to prescribe rules for ascertaining and declaring who are competent by reason of age, character, skill, experience, etc., follow. This power comes within the principle upon which the state prescribes the qualifications of those who are admitted to practice law, medicine, etc. St. George v. Hardie, supra.

G.S. § 76-2 reads as follows: 'Rules to regulate pilotage service.--The board shall from time to time make and establish such rules and regulations respecting the qualifications, arrangements, and station of pilots as to them shall seem most advisable, and shall impose such reasonable fines, forfeitures and penalties as may be prescribed for the purpose of enforcing the execution of such rules and regulations. The board shall also have power and authority to prescribe, reduce, and limit the number of pilots necessary to maintain an efficient pilotage service for the Cape Fear River and bar, as in its discretion may be necessary: Provided, that the present number of eleven pilots now actively engaged in the service shall not be reduced except for cause or by resignation, disability, or death. When, in the opinion of a majority of the board, the best interests of the port of Wilmington, the State of North Carolina, and the pilotage service shall require it, the board shall have power and authority to organize all pilots licensed by it into a mutual association, under such reasonable rules and regulations as the board may prescribe; any licensed pilot refusing to become a member of such association shall be subject to suspension, or to have his license revoked, at the discretion of the board.'

We have said in many cases that a party seeking a writ of mandamus must have a clear legal right to demand it, and the party to be coerced must be under a positive legal obligation to perform the act sought to be required. Hancock v. Bulla, 232 N.C. 620, 61 S.E.2d 801; Laughinghouse v. City of New Bern, 232 N.C. 596, 61 S.E.2d 802; Steele v. Locke Cotton Mills Co., 231 N.C. 636, 58 S.E.2d 620; Ingle v. State Board of Elections, 226 N.C. 454, 38 S.E.2d 566; White v. Holding, 217 N.C. 329, 7 S.E.2d 825; Mears v. Board of Education, 214 N.C. 89, 197 S.E. 752; Person v. Doughton, 186 N.C. 723, 120 S.E. 481. 'A mandatory injunction, when issued to compel a board or public official to perform a duty imposed by...