Efird v. Board of Commissioners

ScheNck, J. The first question discussed in the briefs relates to the allegations that the plaintiff is entitled to recover as salary $3T5.00 per month from 6 May, 1940, until 1 July, 1940, after the board of commissioners by resolution temporarily suspended the Forsyth County Court on 6 May, 1940. It is the contention of the defendants that it appears upon the face of the complaint that the plaintiff is not entitled to recover upon the allegations, since subsec. 15, see. 1, ch. 519, Public-Local Laws 1939, gave the board of commissioners power to temporarily suspend the court and that such suspension ipso facto terminated the office of judge. It is the contention of the plaintiff that said subsection of the Act of — 102 — 1939 is unconstitutional and void, and therefore the attempted suspension of the court by the commissioners was ineffective. The constitutionality of the said subsection is clearly presented. It reads as follows: “15. That the Board of Commissioners of Forsyth County shall have the right to abolish or temporarily suspend the said Forsyth County Court after the expiration of twelve months from the ratification of this Act; and that in the event the said court is abolished or temporarily suspended all cases then pending therein shall be transferred to the civil issue docket of the Superior Court of Forsyth County and the offices herein created shall ipso facto terminate.” (The act was ratified 3 April, 1939.) It is contended by the plaintiff that the subsection is in contravention of Art. IV, see. 12, North Carolina Constitution, which, in part, reads: “. . . but the General Assembly shall allot and distribute that portion of this (judicial) power and jurisdiction which does not pertain to the Supreme Court among the other courts prescribed in this Constitution or which may be established by law, in such manner as it may deem best; . . .” Art. IV, sec. 2, North Carolina Constitution, is also pertinent to this discussion. It reads: “The judicial power of the State shall be vested in a Court for the trial of impeachment, a Supreme Court, Superior Courts, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law.” It is apparent from these two sections that the General Assembly may provide courts not named therein. The court here involved was created by the General Assembly (ch. 520, Public-Local Laws 1915). The plaintiff contends that since the court was created by the General Assembly only the General Assembly has the power to abolish it, and that this .power cannot be delegated to the board of county commissioners. That the General Assembly had authority to abolish the court cannot be gainsaid. “If the Legislature had the right to create the court, it had the right to abolish. Quo ligatur, eo dissolvitur. By the same mode by which a thing is bound, by that it is released. . . . The courts we are now considering are the creatures of the Legislature. The creator can establish and abolish.” Queen v. Comrs. of Haywood, 193 N. C., 821. This was the holding notwithstanding the term for which the judge was elected had not expired. Whoever accepts public office does so with the principle of law extant that the Legislature which established the office is vested with the power to abolish it, except where restrained by the Constitution, and since the tenure of office does not rest on contract it is not necessarily protected by the Constitution. 22 R. C. L., p. 579, sec. 293. Since the Legislature had the inherent power to abolish the Forsyth — 103 — County Court, even during the term of office of tbe judge thereof, we are confronted with the question as to whether the Legislature was authorized to delegate to the board of commissioners of Forsyth County the right to abolish or temporarily suspend said court. It is a well established principle of law that a legislative body may refer to local authorities questions pertaining to their particular localities for action thereupon, on the theory that local authorities are better advised as to local questions. The Forsyth County Court was a local court, established by a local, private and special act, prior to adoption of Art. II, sec. 29, North Carolina Constitution. The distinction between courts created by the General Assembly and those existing by virtue of the Constitution is well recognized. Queen v. Comrs. of Haywood, supra. While the Legislature may not ordinarily delegate its power to make laws, it may nevertheless make laws and delegate the power to subordinate divisions of the Government to ^determine facts or state of things upon which the law shall become effective. Provision Co. v. Daves, 190 N. C., 7. It was held in Meador v. Thomas, 205 N. C., 142, that while the Legislature could not delegate to another agency the authority committed to it by the sovereign power of the State, the principle had no application to the establishment of a county court by the board of commissioners clothed with the power to find facts with respect to the necessity of the court. If the board of commissioners by authority of the legislative enactment could establish a county court, a fortiori, they could abolish such a court by similar authority. “While legislative power granted by the Constitution may not as a rule be delegated, it is fully recognized that under our system of government such power may be delegated to municipal corporations for local purposes where as agencies of the State they are possessed and in the exercise of governmental powers in designated portions of the State’s territory, whether such localities are the ordinary political subdivisions of the State, or local governmental districts created for special and public quasi purposes.” Tyrrell v. Holloway, 182 N. C., 64. Since the Legislature had the power to abolish the Forsyth County Court, and since it had authority to delegate this power to the board of county commissioners, we are confronted with the question: Has the Legislature actually delegated such power? The language of the act is plain and unambiguous; but it is argued that since the act fails to state what facts must he found by the board of commissioners as a condition precedent to the abolition of the court, that it is arbitrary, discriminatory, and void. Bather than arbitrary, the act is discretionary, which means that the board of commissioners are authorized when, in their fair and honest judgment the public interest dictates it, to abolish or temporarily suspend the court. To hold that the act should specify what — 104 — facts must be found by the board of commissioners as a condition precedent to the abolition or suspension of the court, would be to place upon the Legislature an almost impossible task, and to destroy the very purpose of placing a local problem before a local tribunal. The law does not so fetter the legislative action, and many statutes have been enacted providing for the establishment and abolition of county courts when in the discretion of the board of county commissioners such courts are deemed desirable, the jurisdiction of such courts having been fixed by legislative enactment prior to the establishment of the individual courts. The demurrers, in so far as they relate to the allegations in the complaints that subsec. 15, sec. 1, ch. 519, Public-Local Laws 1939, is unconstitutional and void, and for that reason plaintiff is entitled to recover $375.00 per month from 6 May, 1940, until 1 July, 1940, were properly sustained by the Superior Court. The second question discussed in the briefs relates primarily to the allegations that the plaintiff is entitled to recover as salary $175.00 per month from 1 July, 1939, until October 15, 1939, namely, $612.50, being the difference between $375.00 per month fixed by ch. 335, Public-Local Laws 1925, and $200.00 per month fixed by the board of commissioners on 5 June, 1939, by virtue of subsec. 14, sec. 1, ch. 519, Public-Local Laws 1939. Said subsec. 14, in part, reads: “14. The salary of the Judge of Forsyth County Court shall be fixed from time to time by the Board of County Commissioners of Forsyth County.” It is contended by the defendants that it appears upon the face of the complaint that the reduction in the salary made by the board of commissioners was authorized by said subsection 14, and it is contended by the plaintiff that said subsection 14 is unconstitutional and void, being in contravention of Art. IY, sec. 18, which reads: “The General Assembly shall prescribe and regulate the fees, salaries, and emoluments of all officers provided for in this article; but the salaries of the judges shall not be diminished during their continuance in office.” The plaintiff contends (1) that the General Assembly cannot delegate to the board of commissioners the right to fix the salary of the judge of the Forsyth County Court, since the Constitution provides that the General Assembly shall prescribe and regulate the salaries of all officers provided for in Art. IY, and said article provides for a court for the trial of impeachments, a Supreme Court, Superior Courts, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law, and since the Forsyth County Court has been duly established by statute the Legislature could not delegate the right to fix the salary of the judge thereof to the board of county commissioners. This contention is untenable for the same reasons ad — 105 — vanced against tbe position tbat tbe Legislature could not delegate to tbe board of commissioners tbe right to abolish or temporarily suspend tbe court. Tbe fixing of tbe salary of a judge of a county court is essentially a local question, of purely local interest, and can best be determined by a local body, and it is therefore delegable to tbe sound discretion of such a body to determine tbe facts upon which to base their conclusion. Tbe plaintiff further contends (2) tbat tbe fixing of tbe salary at a less figure than originally fixed by statute is contrary to tbe constitutional provision tbat “tbe salaries of tbe judges shall not be diminished during their continuance in office.” This provision applies only to judges of courts existing by virtue of tbe Constitution and not those established by legislative enactment. Tbe distinction between constitutional courts and legislative courts is one well recognized. If tbe Legislature could delegate tbe finding of tbe facts necessary to abolish or suspend a county court it could a fortiori delegate tbe finding of facts necessary for tbe reduction of tbe salary of tbe judge of such court, and this whether it resulted in a reduction in salary during tbe continuance in office of tbe incumbent or otherwise. Tbat tbe board of commissioners bad tbe power to abolish tbe court during tbe term of tbe judge was held in Queen v. Comrs. of Haywood, supra. Tbe demurrers, in so far as they relate to tbe allegations in tbe complaints tbat subsec. 14, see. 1, cb. 519, Public-Local Laws 1939, is unconstitutional and void and for tbat reason plaintiff is entitled to recover $175.00 per month from 1 July, 1939, to 15 October, 1939, were properly sustained by tbe Superior Court. Tbe third question discussed in tbe briefs relates to whether tbe plaintiff is in a position to challenge tbe constitutionality of tbe act involved in so far as it relates to tbe reduction made in bis salary, since be acquiesced in such reduction by accepting tbe reduced salary. Since we are of tbe opinion tbat tbe act does not contravene tbe Constitution, and is therefore valid, tbe question here presented becomes moot and calls for no decision. Tbe fourth question discussed in tbe briefs relates to tbe plaintiff’s alleged cause of action for $25.00 per month from 1 July, 1934, until 1 July, 1939. Tbe defendants demur to these allegations upon tbe ground that tbe complaint nowhere alleges tbat tbe plaintiff presented this claim to tbe board of county commissioners for audit and allowance or disallowance as required by C. S., 1330 and 1331. This claim is not affected by tbe Act of 1939. C. S., 1330, provides: “And every such action (against a county) shall be dismissed unless tbe complaint is verified and contains tbe following allegations: (1) Tbat tbe claimant presented bis claim to tbe lawful municipal authorities to be audited and — 106 — allowed, and that they neglected to act upon it, or had disallowed it; . . The nearest approach to such an allegation is that the plaintiff requested the municipal authorities to “restore” his salary to $375.00 per month. This falls far short of the requirements of the statute. The fact that the claim was ex contractu and for an amount certain does not relieve the claimant from complying with the statute, the purpose of which is to give the municipal authorities an opportunity to consider and definitely to pass upon the claim before suit can be instituted. Nevins v. Lexington, 212 N. C., 616, and cases there cited. Failure to allege the filing of the claim as required by the statute may be taken advantage of by demurrer. Williams v. Smith, 134 N. C., 249. The demurrers, in so far as they relate to the allegations in the complaints that plaintiff is entitled to recover $25.00 per month from 1 July, 1934, until 1 July, 1939, the difference between $375.00 per month and $350.00 per month for this period, were properly sustained by the Superior Court. The fifth and sixth questions discussed in the briefs are treated together and relate to the allegations in the complaint to the effect that if the Court should hold subsecs. 14 and 15 of sec. 1, ch. 519, Public-Local Laws 1939, constitutional and valid, the defendants in fixing the salary of the judge of the Forsyth County Court at $200.00 per month from 1 July, 1939, until 15 October, 1939, and at $1.00 per month from 15 October, 1939, to 1 March, 1940, and $1.00 'per month for the months of March, April, May, and June, 1940, acted in bad faith, not for the purpose of fixing a fair and just compensation for the judge, and attempting indirectly to abolish and destroy the court without authority of law, which action constituted an abuse of discretion by the board of commissioners. These allegations are by the demurrers admitted to be true. While it is a well recognized principle of law with us that the courts will not ordinarily interfere with the discretionary powers conferred on municipal corporations for the public welfare, still when the actions of such corporations become so unreasonable as to manifest an abuse of such discretion, the courts will furnish relief to one aggrieved thereby. The discretion vested in the municipal corporations is not entirely without limitation. It must be exercised at least in good faith and be free from ulterior motives. It is not consonant with our conception of municipal government that there should be no limitation upon the discretion granted municipalities, and that no remedy is left to him who may be injured by an abuse thereof. Jones v. North Wilkesboro, 150 N. C., 646; Hayes v. Benton, 193 N. C., 379, and cases there cited. The demurrers, in so far as they relate to the allegations in the complaints that the defendants acted in bad faith and not for the purpose — 107 — of fixing a fair and just compensation for tbe judge of tbe Forsyth County Court, wbicb action was an abuse of discretion by tbe board of commissioners, we are constrained to bold were improperly sustained, since we are of tbe opinion tbat tbe alleged facts are sufficient to constitute a cause of action for $175.00 per month from 1 July, 1939, until 15 October, 1939, and for $375.00 per month from 15 October, 1939, until 1 March, 1940, and from 1 March, 1940, until 6 May, 1940 (date alleged in complaint court was temporarily suspended by board of commissioners). Upon tbe filing of an answer there may or may not be a failure on tbe part of tbe plaintiff to prove tbat tbe action of tbe defendants in first fixing tbe salary of tbe judge at $200.00 per month, and later at $1.00 per month, was not taken in good faith, nor for tbe best interest of tbe public, nor in an effort to honestly exercise tbe discretion vested in them. It is not tbe function of tbe court to say, under tbe circumstances then existing, what was or what was not a reasonable compensation for tbe judge, but to submit to tbe jury an issue as to tbe bona fides of tbe action of tbe board of commissioners. While it is true as contended by tbe appellees tbe plaintiff may have bad tbe remedy of mandamus to compel tbe defendants to fix a proper salary for tbe judge of tbe Forsytb County Court, if they bad neglected or refused so to do, we apprehend tbat this remedy was not an exclusive one. As tbe cases are before us on demurrer, we forbear discussing tbe questions presented further than necessary to dispose of tbe exceptions to tbe judgments below. Tbe judgments sustaining tbe demurrers, in so far as they relate to tbe alleged cause of action for tbe difference between $375.00 per month and $200.00 per month from 1 July, 1939, until 15 October, 1939, and for $375.00 per month from 15 October, 1939, until 1 March, 1940, and from 1 March, 1940, until 6 May, 1940 (date alleged in complaint court was temporarily suspended by board of commissioners), by reason of tbe abuse of tbe discretion vested in tbe defendants, are reversed; otherwise, they are affirmed. Tbe judgments of tbe Superior Court will be modified in accord with this opinion. Modified and affirmed.