DENNY, J., concurring.
STACY, C. J., joins in concurring opinion.
BARNHILL, J., dissenting.
This was a civil action originally instituted by H. W. Hunter against the Board of Trustees of the Retirement System of the city of Wilmington, created by chapter 708, Session Laws, 1943, to obtain a writ of mandamus to compel the secretary of said board of trustees to accept funds deducted from the salaries of the employees of the consolidated Board of Health of New Hanover County, and to compel said trustees to treat said employees as members of said Retirement System and eligible for the benefits thereof. Thereafter Mrs. L. O. Ellis, Miss Emma Woodward and Earl S. Bland, representing respectively the employees of the Associated Charities of Wilmington, the Wilmington Public Library and the Alcoholic Beverage Control Board of New Hanover County were, upon petition, made parties plaintiff and adopted the complaint filed and filed supplemental complaints.
After the pleadings had been filed, by consent of the parties, the cause came on for hearing before the resident judge of the 8th Judicial District at chambers, at which hearing the parties agreed that the court could hear the evidence, find the facts and determine the law arising thereon.
The court entered judgment granting the mandamus sought to H. W. Hunter and other employees of the Consolidated Board of Health of New Hanover County and to Miss Emma Woodward and other employees of the Wilmington Public Library, and dismissed the action of Mrs. L. O. Ellis on behalf of herself and other employees of the Associated Charities of Wilmington and the action of Earl S. Bland on behalf of himself and other employees of the Alcoholic Beverage Control Board of New Hanover County.
From the judgment of Burney, J., the plaintiffs, Mrs. L. O. Ellis and Earl S. Bland, and the defendants, respectively, appealed, assigning errors.
This case may be more clearly understood by discussing the individual appeals taken therein seriatim.
First: The appeal of defendants from judgment allowing the mandamus
sought to H. W. Hunter and other employees of the consolidated Board of Health of New Hanover County. It is the contention of the defendants, appellants, that the court erred in holding that the employees of the Consolidated Board of Health of New Hanover County are joint employees of the city of Wilmington and county of New Hanover, and thereupon adjudging that the trustees of the Retirement System of the city of Wilmington be required to accept from such employees the payments required by chapter 708, Session Laws, 1943, and to place the names of such employees upon the pension rolls of the Retirement System of the city of Wilmington. We are of the opinion that this contention is not sustained by the record.
Chapter 316, Public-Local Laws 1913, is "An Act to Consolidate The Health Departments of The City of Wilmington and The County of New Hanover." Prior to its enactment the city of Wilmington maintained a Health Department, and the county of New Hanover also maintained the New Hanover County Board of Health, authorized by chapter 62 of Public Laws 1911. Both of these bodies were authorized and charged with the duty of making such regulations governing health and sanitation as were necessary to safeguard the welfare of the people in their respective municipalities. To enable the better enforcement of such regulations the above mentioned Act of 1913 was made law. It provides that the body politic thereby created, the Consolidated Board of Health of New Hanover County, is empowered to control, and is invested with the care and responsibility of, the health and sanitary interests and conditions of the county of New Hanover, and shall assume all the duties and powers imposed by law upon the council of the city of Wilmington, with reference to the health and sanitary conditions of said city, and that all salaries, fees and expenses necessary and required to carry out the provisions of the Act shall be contributed and paid by the city of Wilmington and the county of New Hanover in proportion of two-thirds part by the city of Wilmington and one-third part by the county of New Hanover.
The Act further provides that the County Board of Health is to furnish the city of Wilmington and the county of New Hanover, on first
Monday in June of each year, a statement of disbursements made by the County Board during the preceding 12 months and a statement of the requirements for the ensuing 12 months and specifically provides that the council of the city of Wilmington and the board of commissioners of the county of New Hanover at the time designated by law for levying taxes, shall make a levy on all real and personal property sufficient to raise the revenue required to meet and pay each year respectively the said amounts so required; and further, that said city council and county board may reduce the amount asked for if they deemed the amount excessive; and to safeguard the amounts paid by the city council and county board it is provided that they shall pay only one-twelfth of their respective portions each month. The Board of Health of New Hanover County operates under a contract with the State Board of Health, and the employees of the county board are therefore operating under the Merit System of certain departments of the State of North Carolina, as provided by chapter 378, Public Laws 1941, and for this reason neither the city nor county have jurisdiction over their salaries. The contract between the County Board of Health and the State Board of Health is, however, approved both by the mayor of the city of Wilmington and the chairman of the Board of Commissioners of the county of New Hanover, showing a recognition of the consolidated Board of Health as a joint operation. Subsection (b), sec. 7, ch. 708, Session Laws, 1943, and subsection (b), sec. 7, ch. 669, Session Laws, 1943, provide that where employees are employed jointly by the city and county, the deduction from salaries and benefits derived shall be in proportion to the portion of the salaries paid by the city and county respectively.
It being the duty of the city of Wilmington and the county of New Hanover, under ch. 316, Public Laws 1913, to appropriate all salaries, fees and expenses necessary to carry out the provisions of the Act, it would seem that the employees of the consolidated Board of Health of New Hanover County, created by the Act, would be joint employees of such city and county within the legislative intent, and we therefore hold there was no error in the holding of his Honor below to this effect.
Second: Appeal by defendants from judgment allowing the mandamus sought to Miss Emma Woodward and other employees of the Wilmington Public Library.
It is the contention of the defendants, appellants, that the court erred in holding that the employees of the Wilmington Public Library were employees of the city of Wilmington, and thereupon adjudging that the trustees of the Retirement System of the city of Wilmington be required to accept from such employees payments required by ch. 708, Session Laws, 1943, and to place the names of such employees upon the pension
rolls of such Retirement System of the city of Wilmington. We are of the opinion that this contention is not sustained by the record.
The present Wilmington Public Library was created pursuant to ch. 138, Private Laws 1907. Section 1 of this Act makes it mandatory upon the Board of Aldermen of the city of Wilmington to elect five persons as trustees to control and maintain a free library. Section 2 vests the trustees with power to operate a free library.
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DENNY, J., concurring.
STACY, C. J., joins in concurring opinion.
BARNHILL, J., dissenting.
This was a civil action originally instituted by H. W. Hunter against the Board of Trustees of the Retirement System of the city of Wilmington, created by chapter 708, Session Laws, 1943, to obtain a writ of mandamus to compel the secretary of said board of trustees to accept funds deducted from the salaries of the employees of the consolidated Board of Health of New Hanover County, and to compel said trustees to treat said employees as members of said Retirement System and eligible for the benefits thereof. Thereafter Mrs. L. O. Ellis, Miss Emma Woodward and Earl S. Bland, representing respectively the employees of the Associated Charities of Wilmington, the Wilmington Public Library and the Alcoholic Beverage Control Board of New Hanover County were, upon petition, made parties plaintiff and adopted the complaint filed and filed supplemental complaints.
After the pleadings had been filed, by consent of the parties, the cause came on for hearing before the resident judge of the 8th Judicial District at chambers, at which hearing the parties agreed that the court could hear the evidence, find the facts and determine the law arising thereon.
The court entered judgment granting the mandamus sought to H. W. Hunter and other employees of the Consolidated Board of Health of New Hanover County and to Miss Emma Woodward and other employees of the Wilmington Public Library, and dismissed the action of Mrs. L. O. Ellis on behalf of herself and other employees of the Associated Charities of Wilmington and the action of Earl S. Bland on behalf of himself and other employees of the Alcoholic Beverage Control Board of New Hanover County.
From the judgment of Burney, J., the plaintiffs, Mrs. L. O. Ellis and Earl S. Bland, and the defendants, respectively, appealed, assigning errors.
This case may be more clearly understood by discussing the individual appeals taken therein seriatim.
First: The appeal of defendants from judgment allowing the mandamus
sought to H. W. Hunter and other employees of the consolidated Board of Health of New Hanover County. It is the contention of the defendants, appellants, that the court erred in holding that the employees of the Consolidated Board of Health of New Hanover County are joint employees of the city of Wilmington and county of New Hanover, and thereupon adjudging that the trustees of the Retirement System of the city of Wilmington be required to accept from such employees the payments required by chapter 708, Session Laws, 1943, and to place the names of such employees upon the pension rolls of the Retirement System of the city of Wilmington. We are of the opinion that this contention is not sustained by the record.
Chapter 316, Public-Local Laws 1913, is "An Act to Consolidate The Health Departments of The City of Wilmington and The County of New Hanover." Prior to its enactment the city of Wilmington maintained a Health Department, and the county of New Hanover also maintained the New Hanover County Board of Health, authorized by chapter 62 of Public Laws 1911. Both of these bodies were authorized and charged with the duty of making such regulations governing health and sanitation as were necessary to safeguard the welfare of the people in their respective municipalities. To enable the better enforcement of such regulations the above mentioned Act of 1913 was made law. It provides that the body politic thereby created, the Consolidated Board of Health of New Hanover County, is empowered to control, and is invested with the care and responsibility of, the health and sanitary interests and conditions of the county of New Hanover, and shall assume all the duties and powers imposed by law upon the council of the city of Wilmington, with reference to the health and sanitary conditions of said city, and that all salaries, fees and expenses necessary and required to carry out the provisions of the Act shall be contributed and paid by the city of Wilmington and the county of New Hanover in proportion of two-thirds part by the city of Wilmington and one-third part by the county of New Hanover.
The Act further provides that the County Board of Health is to furnish the city of Wilmington and the county of New Hanover, on first
Monday in June of each year, a statement of disbursements made by the County Board during the preceding 12 months and a statement of the requirements for the ensuing 12 months and specifically provides that the council of the city of Wilmington and the board of commissioners of the county of New Hanover at the time designated by law for levying taxes, shall make a levy on all real and personal property sufficient to raise the revenue required to meet and pay each year respectively the said amounts so required; and further, that said city council and county board may reduce the amount asked for if they deemed the amount excessive; and to safeguard the amounts paid by the city council and county board it is provided that they shall pay only one-twelfth of their respective portions each month. The Board of Health of New Hanover County operates under a contract with the State Board of Health, and the employees of the county board are therefore operating under the Merit System of certain departments of the State of North Carolina, as provided by chapter 378, Public Laws 1941, and for this reason neither the city nor county have jurisdiction over their salaries. The contract between the County Board of Health and the State Board of Health is, however, approved both by the mayor of the city of Wilmington and the chairman of the Board of Commissioners of the county of New Hanover, showing a recognition of the consolidated Board of Health as a joint operation. Subsection (b), sec. 7, ch. 708, Session Laws, 1943, and subsection (b), sec. 7, ch. 669, Session Laws, 1943, provide that where employees are employed jointly by the city and county, the deduction from salaries and benefits derived shall be in proportion to the portion of the salaries paid by the city and county respectively.
It being the duty of the city of Wilmington and the county of New Hanover, under ch. 316, Public Laws 1913, to appropriate all salaries, fees and expenses necessary to carry out the provisions of the Act, it would seem that the employees of the consolidated Board of Health of New Hanover County, created by the Act, would be joint employees of such city and county within the legislative intent, and we therefore hold there was no error in the holding of his Honor below to this effect.
Second: Appeal by defendants from judgment allowing the mandamus sought to Miss Emma Woodward and other employees of the Wilmington Public Library.
It is the contention of the defendants, appellants, that the court erred in holding that the employees of the Wilmington Public Library were employees of the city of Wilmington, and thereupon adjudging that the trustees of the Retirement System of the city of Wilmington be required to accept from such employees payments required by ch. 708, Session Laws, 1943, and to place the names of such employees upon the pension
rolls of such Retirement System of the city of Wilmington. We are of the opinion that this contention is not sustained by the record.
The present Wilmington Public Library was created pursuant to ch. 138, Private Laws 1907. Section 1 of this Act makes it mandatory upon the Board of Aldermen of the city of Wilmington to elect five persons as trustees to control and maintain a free library. Section 2 vests the trustees with power to operate a free library. Chapter 5, Private Laws 1921, removes the limitation of appropriations to the library by the city. The Wilmington Public Library is governed by three trustees appointed by the councilmen of the city of Wilmington, and any vacancy occurring among the trustees is filled by the said councilmen. The furniture and equipment of the City Library is the property of the city, and is all housed in quarters in the City Hall, which quarters are furnished free of charge by the city to the library. The councilmen of the city of Wilmington appropriate $5,000.00 a year, in equal monthly installments, to the Wilmington Public Library for its upkeep and maintenance, and the trustees, through their secretary, reports to the city councilmen all receipts and disbursements. The employment of and salaries of employees are passed upon by the trustees. The commissioners of New Hanover County appropriate $1,000.00 annually for the operation of a bookmobile throughout the county, which is supervised and controlled by the said trustees of the Wilmington Public Library. This bookmobile, however, is a distinct and separate operation carried on by said trustees. The appropriation by the city councilmen to the Wilmington Public Library is made from the city's general tax fund. The trustees appointed by the city councilmen exercise absolute authority and control over the Wilmington Public Library, its personnel, payment of salaries and policies of operation.
The law under which the library is created makes its establishment mandatory upon the city government, and the city is obeying the mandate of the law when it pursues the method it has pursued in establishing and operating the library. The Wilmington Public Library as created and operated is but an agent of the council of the city of Wilmington to carry out the mandate of the law. The library is entirely dependent upon city government for its functioning and very existence. Since the Wilmington Public Library is but an agent of the city of Wilmington, under its complete control, it follows that the employees of the library are employees of the city.
We are therefore of the opinion that there was no error in the holding of his Honor below that the employees of the Wilmington Public Library were employees of the city of Wilmington, and as such were eligible to the benefits of the Retirement System under the provisions of ch. 708, Session Laws, 1943.
Third: Appeal by plaintiffs' Mrs. L. O. Ellis, from judgment denying themandamus sought to her and other employees of the Associated Charities of the city of Wilmington.
It is the contention of Mrs. L. O. Ellis, appellant, that the court erred in holding that the employees of the Associated Charities of the city of Wilmington are not employees of the city of Wilmington and thereupon adjudging that the trustees of the Retirement System of the city of Wilmington are not required to accept from said employees any amount deducted from their salaries, or to admit their names upon the pension roll of such system, under the provisions of chapter 708, Session Laws, 1943. We are of the opinion that the contention is not sustained by the record.
The Associated Charities of the city of Wilmington is a private corporation, with its charters duly recorded in New Hanover County, wherein its powers are delineated. It functions with a president and other officers provided by a Board of Directors, none of whom is chosen by the city of Wilmington, and no city official is a member of the board. The corporation performs all of its duties and functions in aid of the poor, indigent and needy solely by virtue of authority of its charter, and not under any authority vested in it by either the city or county. The salaries of the plaintiff Ellis and others are determined by its board of directors. While it is true the Associated Charities submits a budget to the city and county, such budget is only recommendatory in its nature, as it is followed, modified or disregarded at the discretion of the city and county. All funds appropriated to the corporation by the city or county, or derived from other sources, are disbursed by its officers and board of directors. Neither the number of employees, nor the amount of their salaries, nor their duties nor any function performed by them are determined by the city or county.
Under the facts enumerated we are of the opinion that there was no error in the holding of his Honor below that the employees of the Associated Charities of the city of Wilmington were not employees of the city of Wilmington, and therefore were not eligible to the benefits of the retirement system under the provisions of ch. 708, Session Laws, 1943.
Fourth: Appeal by the plaintiff, Earl S. Bland, from judgment denying the mandamus sought to him and other employees of the Alcoholic Beverage Control Board of New Hanover County.
It is the contention of Earl S. Bland, appellant, that the court erred in holding that the employees of the Alcoholic Beverage Control Board of New Hanover County are not employees of the county of New Hanover and thereupon adjudicating that the trustees of the Retirement System of the city of Wilmington are not required to accept from said
employees any amount deducted from their salaries or to admit their names upon the pension roll of such system, under the provisions of ch. 708, Session Laws, 1943. We are of the opinion that the contention is not sustained by the record.
The Alcoholic Beverage Control Board of New Hanover County was created by ch. 49, Public Laws 1937. This Act invests the control of the county board in the State Board of Alcoholic Beverage Control. It appears from section 10 of the 1937 Act that all powers exercised by the county board are subject to approval of the State Board, and by subsection (j) of section 4 of said Act the State Board is specifically granted discretionary powers to approve or disapprove all regulations of the county board as to the operation of county stores. There is no authority whatsoever vested in the city of Wilmington or county of New Hanover to control the Alcoholic Beverage Control Board of New Hanover County, to determine the number of its employees, to fix their salaries, or to assign their duties, or to in any way interfere with the discretionary powers vested in the State and County Boards of Alcoholic Beverage Control.
The only relation between the Alcoholic Beverage Control Board of New Hanover County and the city of Wilmington and the county of New Hanover is that by virtue of ch. 471, Public-Local Laws 1937, provision is made that the city shall receive two-thirds and the county one-third of the net profits realized by the discretionary operation of liquor stores within the city of Wilmington, and that the other municipalities in New Hanover County and the county shall receive certain percentages of such profits from stores operated in other municipalities in the county. Neither the city nor the county determine who shall be or how many employees there shall be of the Alcoholic Beverage Control Board of New Hanover County; neither fix their salaries nor determine their duties, nor in any wise exercise any control over them.
Under the facts as delineated, we are of the opinion that there was no error in the holding of his Honor below that the employees of Alcoholic Beverage Control Board of New Hanover County were not employees of the county of New Hanover, nor of the city of Wilmington, and were therefore not eligible to the benefits of the Retirement System under the provisions of ch. 708, Session Laws, 1943.
The judgment of the Superior Court is
Affirmed.