White v. Pate

• Citation: 304 S.E.2d 199,308 N.C. 759
• Decision Date: 07 July 1983
• Docket Number: No. 511PA82,511PA82
• Court: United States State Supreme Court of North Carolina
• Parties: Hazel WHITE, Beatrice McCoy, Artis Chadwick, Linwood Chadwick, and Mary H. White v. Dorothy PATE, Clerk of Superior Court of Craven County; S.W. McCoy, Fletcher McCoy, and Carlton Ward, Commissioners of the Core Creek Drainage District.

Page 199

304 S.E.2d 199

308 N.C. 759

Hazel WHITE, Beatrice McCoy, Artis Chadwick, Linwood Chadwick, and Mary H. White v. Dorothy PATE, Clerk of Superior Court of Craven County S.W. McCoy, Fletcher McCoy, and Carlton Ward Commissioners of the Core Creek Drainage District.

No. 511PA82.

Supreme Court of North Carolina.

July 7, 1983.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith and John A. Dusenbury, Jr., Greensboro, for plaintiffs-appellants.

Rufus L. Edmisten, Atty. Gen., Millard R. Rich, Jr., Deputy Atty. Gen., Raleigh, for defendant-appellee Dorothy Pate, Clerk of Superior Court of Craven County.

Ward & Smith, P.A. by William Joseph Austin, Jr., New Bern, for defendants-appellees S.W. McCoy, Fletcher McCoy and Carlton Ward, Com'rs of the Core Creek Drainage Dist MITCHELL, Justice.

The principal question presented is whether the provisions of G.S. 156-81(a) and (i) giving Clerks of Superior Court discretionary authority to appoint drainage commissioners, in lieu of such commissioners being elected as otherwise provided by law, deny the plaintiffs the equal protection of the laws guaranteed by Article I, § 19 of the Constitution of North Carolina. We hold that they do not.

The plaintiffs are landowners in the Core Creek Drainage District [hereinafter "drainage district"]. They brought this action by the filing of a complaint in Superior Court on 27 February 1981 in which they alleged that the provisions of G.S. 156-81(a) and (i) giving the Clerk of Superior Court the discretionary authority to appoint drainage commissioners in lieu of their election by eligible voters within the drainage district denies the plaintiffs their right to vote in a manner which deprives them of the equal protection of the laws guaranteed by the Constitution of North Carolina. The plaintiffs specifically prayed for relief in the form of an injunction permanently prohibiting the defendant Pate from appointing commissioners and the other defendants from accepting appointments as commissioners for the drainage district and ordering that commissioners of the drainage district henceforth be elected and not appointed.

The plaintiffs alleged inter alia in their complaint that the drainage district is constituted pursuant to the requirements of Chapter 156 of the General Statutes of North Carolina and is located entirely within Craven County. The plaintiffs are residents and owners of land in the drainage district. The defendants, S.W. McCoy, Fletcher McCoy and Carlton Ward, are commissioners of the drainage district who have been appointed and reappointed to successive terms of office by the defendant, Honorable Dorothy Pate, Clerk of Superior Court of Craven County.

The drainage district consists of approximately 8,884.30 acres. This land is benefited by the public works located in the drainage district which drain the land and make it suitable for cultivation. An additional 28,852.62 acres adjoin the drainage district and are also drained, made fit for cultivation and otherwise benefited by the public works of the drainage district.

Each of the plaintiffs pays an annual assessment upon his or her land for the purpose of paying for the public works of the drainage district and providing for their maintenance and upkeep. Owners of benefited land lying beyond the boundaries of the drainage district are not required to pay any such assessments or other charges.

The sole method for enlarging the boundaries of a drainage district is by a proceeding instituted by the drainage commissioners pursuant to G.S. 156-93.3. The plaintiffs have repeatedly requested the defendant commissioners to take action to enlarge the district boundaries to include lands adjoining the drainage district which are benefited by the drainage district's public works. The defendant commissioners have failed to do so. The plaintiffs also allege that the defendant commissioners have failed to file annual reports regularly or to have those reports that they have filed audited and that such failures are contrary to law.

The plaintiffs allege that the acts or failures to act by the defendant commissioners are due at least in part to the fact that the defendant Pate has appointed and reappointed the defendant commissioners without regard to their failure to properly perform their duties. The plaintiffs allege that the appointment and reappointment of the defendant commissioners has made them unresponsive to the legitimate needs of the landowners in the drainage district and has caused and will cause the plaintiffs irreparable injury of a type not adequately compensible by money damages. They further allege that their only adequate remedy is injunctive relief permanently enjoining the appointment of commissioners of the drainage district and ordering that commissioners henceforth be elected by the qualified voters of the drainage district. In their complaint, the plaintiffs specifically pray such relief.

None of the defendants filed an answer to the complaint. Instead, each defendant filed a motion to dismiss asserting that the complaint failed to state a claim upon which relief could be granted, that exclusive original jurisdiction of the action lay with the Clerk of Superior Court, and that the complaint failed to join certain necessary parties. On 17 June 1981, the trial court dismissed the action for each of the reasons asserted by the defendants and for the further reason that the injunctive relief sought by the plaintiffs would deprive the defendants of privileges of citizenship without due process of law. The plaintiffs appealed to the Court of Appeals which affirmed the order of the trial court dismissing the action. We allowed the plaintiffs' petition for discretionary review under G.S. 7A-31.

In reaching its decision affirming the order of the trial court dismissing the plaintiffs' action, the Court of Appeals proceeded directly to the question of the constitutionality of G.S. 156-81. Having decided that the statute was constitutional, the Court of Appeals did not reach the plaintiffs' other assignments of error. In addition to the single constitutional question involving the equal protection of the laws which was brought forward to the Court of Appeals and to this Court, we undertake to address the plaintiffs' remaining assignments of error.

The plaintiffs assign as error the trial court's determination that exclusive jurisdiction of their claim for relief rests with the Clerk of Superior Court and that their claim for relief may not be adjudicated in the Superior Court. The plaintiffs contend that jurisdiction was properly vested in the Superior Court and that the trial court erred in dismissing their claim on the ground that the Clerk of Superior Court had exclusive jurisdiction. We agree.

The powers and functions of Clerks of Superior Court with regard to drainage districts are set forth in Chapter 156 of the General Statutes of North Carolina. Some of these powers and functions are executive in nature and some are judicial. We find nothing in Chapter 156 or elsewhere, however, tending to indicate that the General Assembly intended that exclusive original jurisdiction of an action to enjoin enforcement of an unconstitutional statute be vested in the Clerk of Superior Court simply because the subject matter of the statute so challenged involves the authority of the Clerk. Quite to the contrary, the General Assembly has specifically provided that civil actions are brought properly in Superior Court when the principal relief prayed is enforcement of a claim of constitutional right or injunctive relief against the enforcement of a statute. G.S. 7A-245. The trial court erred to the extent that it based its order of dismissal upon the ground that exclusive original jurisdiction over this action was in the Clerk of Superior Court.

The plaintiffs also assign as error that portion of the order of the trial court dismissing the plaintiffs' action for failure to join necessary parties. The trial court determined that the remaining landowners in the drainage district and the Board of Drainage Commissioners as an entity were necessary parties to the plaintiffs' action. The trial court specifically made the failure to join these parties a ground for its order of dismissal. The plaintiffs contend that this was error by the trial court. We agree.

The absence of parties who are necessary parties under Rule 19 of the Rules of Civil Procedure does not merit a dismissal. Booker v. Everhart, 294 N.C. 146, 240 S.E.2d 360 (1978). Cf. Carding Developments v. Gunter & Cooke, 12 N.C.App. 448, 183 S.E.2d 834 (1971) (dismissal under Rule 41 for failure to comply with a court order to join necessary parties). When the absence of a necessary party ¹ is disclosed, the trial court should refuse to deal with the merits of the action until the necessary party is brought into the action. Any such defect should be corrected by the trial court ex mero motu in the absence of a proper motion by a competent person. Booker v. Everhart, 294 N.C. at 158, 240 S.E.2d at 367. Therefore, the trial court erred to the extent that it based the order of dismissal upon the ground that necessary parties had not been made parties to the action.

By their complaint, the plaintiffs also alleged that the statute under review creates separate emoluments and privileges contrary to Article I, § 32 of the Constitution of North Carolina. They further alleged in their complaint that the statute denies them the due process of law embodied in the term "law of the land" as used in Article I, § 19 of the Constitution of North Carolina. The plaintiffs have brought forward no reasons or arguments concerning these two alleged defects in the statute nor cited any authority concerning them in their brief before this Court. Therefore, any contentions by the plaintiffs that the statute under challenge violates these specific constitutional provisions are deemed abandoned and will...