Teer v. Jordan
| Decision Date | 03 May 1950 |
| Docket Number | No. 458,458 |
| Citation | 232 N.C. 48,59 S.E.2d 359 |
| Parties | TEER, v. JORDAN et al. |
| Court | North Carolina Supreme Court |
Ross & Ross, Lillington, Brooke, McLendon, Brim & Holderness, Greensboro, W. P. Farthing, Durham, and J. C. B. Ehringhaus, Jr., Raleigh, for plaintiff-appellant.
Harry McMullan, Attorney General, John R. Jordan, Jr., Member of Staff, W. T. Joyner and W. T. Joyner, Jr., R. Brookes Peters, General Counsel, State Highway and Public Works Commission, and Kenneth F. Wooten, Jr., and E. O. Brogden, Jr. Members of Staff, Raleigh, for defendants-appellees.
The court below in ruling in favor of the defendants on the ultimate issue of law raised by the pleadings inferentially disposed of two questions which apparently were not pressed on the hearing in the Superior Court, namely, the capacity of the plaintiff to maintain this suit for the purposes declared, and to maintain it against these defendants who compose an agency of the State constituted for governmental purposes. However, we are not disposed to deny the right of an individual who is one of those for whose benefit the law was enacted to be heard on allegations of an illegal diversion of public funds which may in some degree injuriously affect his rights as a citizen, taxpayer, and user of secondary public roads. It is conceivable that, under the allegations contained in plaintiff's complaint, the expenditure from the equalization or stabilization fund for the purchase of machinery for use in constructing or improving secondary roads in other counties might result in the diminution of the amount allocated under the Act to the county of his residence. While the activities of governmental agencies engaged in public service imposed by law ought not to be stayed or hindered merely at the suit of an individual who does not agree with the policy or discretion of those charged with responsibility, the right of a citizen and taxpayer to maintain an action in the courts to restrain the unlawful use of public funds to his injury cannot be denied. State v. Scott, 182 N.C. 865, 109 S.E. 789; Hinton v. Lacy, 193 N.C. 496, 137 S.E. 669; Freeman v. Board of Commissioners, 217 N.C. 209, 212, 7 S.E.2d 354; Shaw v. Liggett & Myers Tobacco Co., 226 N.C. 477, 38 S.E.2d 313. Nor are the doors of the courts closed to suits against the individual members of a Commission which has been by law constituted an agency or arm of the State. Immunity of the State to suit by an individual, except when consent thereto has been expressly given, does not extend to the individuals who in disregard of law invade or threaten to invade the personal or property rights of a citizen even though they assume to act under the authority of the State. Schloss v. State Highway & Public Works Commission, 230 N.C. 489, 53 S.E.2d 517; Pue v. Hood, 222 N.C. 310, 22 S.E.2d 896; Prudential Insurance Co. of America v. Powell, 217 N.C. 495, 8 S.E.2d 619; Vinson v. O'Berry, 209 N.C. 287, 183 S.E. 423; Carpenter v. Atlanta & C. A. L. R. Co., 184 N.C. 400, 114 S.E. 693; White Eagle Oil & Refining Co. v. Gupderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397. Counsel for plaintiff in their brief have cited a number of decisions from other jurisdictions in support of this principle.
This brings us to the consideration of the principal question upon which a ruling is sought. Did the action of the defendants in carrying out the resolution adopted by the State Highway and Public Works Commission to use a portion of the funds derived from the issuance of the County Road Bonds for the purpose of purchasing road building machinery and equipment to be used on a rental basis as outlined, constitute such an illegal diversion of specific public funds from the statutory purpose as to warrant the interposition of a court of equity to restrain?
It was not controverted that under the general statutes creating and regulating the activities of the State Highway and Public Works Commission for the ordinary work of paving, improving and maintaining the public roads of the State, the Commission is authorized to purchase machinery, collect materials, employ labor and supervise the work by its own force. It was likewise conceded that under the Act of 1949 the proceeds of the $200,000,000 bond issue constituted a separate fund devoted exclusively to the...
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