White v. Pate

CLARK, Judge. We elect to proceed directly to the constitutional question without considering whether the trial court erred in the rulings relating to collateral attack and to joinder of necessary parties. Plaintiffs here contend that G.S. 156-81, which provides for election of drainage commissioners, or their appointment by the Clerk of Superior Court is unconstitutional in that it deprives them of voting rights given landowners in other districts of the State where the commissioners are elected. We disagree. As a general rule, our courts give deference to the legislature and indulge every presumption in favor of the constitutionality of statutes. Marks v. Thompson, 282 N.C. 174, 192 S.E. 2d 311 (1972). The provisions of G.S. 156-81(a) and (i) which give the Clerk of Superior Court the discretionary authority to appoint drainage commissioners apply statewide. Nesbit v. Kafer, [404] 222 N.C. 48, 21 S.E. 2d 903 (1942). Every Clerk of Court in a county in which a drainage district is located has the same authority. Therefore, the law applies uniformly to all eligible counties in this State. See Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E. 2d 18 (1968). The result would be different if the statute mandated election of commissioners in some districts and appointment in other districts, since all counties would not be treated the same. We, therefore, hold that G.S. 156-81(a) and (i) which provide for the appointment of drainage commissioners by the clerk are constitutional and do not violate plaintiffs’ equal protection rights under the United States and North Carolina Constitutions. We find that the Clerk of Craven County properly exercised her discretionary authority to appoint the drainage district commissioners. Neither mandamus nor a mandatory injunction may be issued to control the manner of a public official’s exercise of a discretionary duty. Electric Co. v. Turner, 275 N.C. 493, 168 S.E. 2d 385 (1969). It follows that plaintiffs’ complaint states a defective claim in that it requested relief — that the clerk be enjoined from appointing commissioners and that the defendants be enjoined from accepting appointment — which the court was powerless to grant regardless of what facts could be proved. See Forrester v. Garrett, Comr. of Motor Vehicles, 280 N.C. 117, 184 S.E. 2d 858 (1971). The order of dismissal is Affirmed. Judges Webb and Whichard concur.