State ex rel. Carringer v. Alverson, 21

• Decision Date: 01 March 1961
• Docket Number: No. 21,21
• Citation: 118 S.E.2d 408,254 N.C. 204
• Parties: STATE of North Carolina, Upon the Relation of John CARRINGER, Plaintiff, v. C. L. ALVERSON, W. D. Townson, Frank Mauney and Merle Davis, Defendants.
• Court: North Carolina Supreme Court

Page 408

118 S.E.2d 408

254 N.C. 204

STATE of North Carolina, Upon the Relation of John CARRINGER, Plaintiff, v. C. L. ALVERSON, W. D. Townson, Frank Mauney and Merle Davis Defendants.

No. 21

Supreme Court of North Carolina.

March 1, 1961

T. C. Gray, Hayesville, for plaintiff, appellant.

McKeever & Edwards, Murphy, for defendants, appellees.

HIGGINS, Justice.

The plaintiff brought this action to have the court declare (1) Chapter 1281, Session Laws of 1959, unconstitutional, and (2) the defendants 'unlawfully holding and exercising a public office.'

The parties admit the Housing Authority Act, prior to the 1959 amendment, did not authorize the 'City of Murphy'--population under 5,000, to establish a Housing Authority. It must be conceded, therefore, if the 1959 amendatory act was passed in violation of Article II, Section 29, Constitution of North Carolina, as alleged, the attempt of the Mayor and Council of Murphy and the Secretary of State to establish the Housing Authority was a nullity. If a nullity, the defendants are not officers; hence the court cannot remove them from office. 'Where the Legislature undertakes to create a public office by an unconstitutional statute, is the incumbent of such an office an officer de facto? This query must be answered in the negative for the very simple reason that there can be no officer, either de jure or de facto, unless there is a legally existing office to be filled.' (Citing authorities.) Idol v. Street, 233 N.C. 730, 65 S.E.2d 313, 315. So much of the controversy as relates to the right of the defendants to hold office as members of the Housing Authority of the City of Murphy must await determination of the question whether there is such an office.

Is the 1959 amendment within the legislative power? There can be little doubt but that the 'Housing Authority Law' relates to health and sanitation. G.S. § 157-2 declares the purpose to be the removal of conditions which 'cause an increase in and spread of disease and crime and constitute a menace to health, safety, morals and welfare of the citizens * *.' Article II, Section 29, North Carolina Constitution, provides: 'The General Assembly shall not pass any local, private, or special act * * * relating to health, sanitation and abatement of nuisances, * * * The General Assembly shall have power to pass general laws regulating maters set out in this section.'

The general law provides that for the purposes of the Housing Act 'city' shall mean any incorporated municipality whose population is 5,000 or more. The amendment applicable to 14 of the State's one hundred counties provides 'city' for such purpose shall mean any incorporated municipality whose population is 500 or more. The plaintiff contends that Chapter 1281 is an attempt by a local or special act to amend the general law and is forbidden by the Constitution. The defendants contend the amendment is general and not local or special, in scope. For discussion, see the following authorities: Board of Managers etc., Memorial Hospital v. City of Wilmington, 237 N.C. 179, 74 S.E.2d 749; State ex rel. Taylor v. Carolina Racing Association, 241 N.C. 80, 84 S.E.2d 390; Carolina-Virginia Coastal Highway v. Coastal Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310; Orange Speedway, Inc. v. Clayton, 247 N.C. 528, 101 S.E.2d 406; Idol v. Street, supra;...