Leete v. County of Warren

443 S.E.2d 98, 114 N.C. App. 755, 1994 N.C. App. LEXIS 498
CourtCourt of Appeals of North Carolina
DecidedMay 17, 1994
DocketNo. 939SC529
StatusPublished
Cited by3 cases

This text of 443 S.E.2d 98 (Leete v. County of Warren) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leete v. County of Warren, 443 S.E.2d 98, 114 N.C. App. 755, 1994 N.C. App. LEXIS 498 (N.C. Ct. App. 1994).

Opinion

MARTIN, Judge.

The sole issue presented by this appeal is whether defendants’ proposed payment of “severance pay” to Mr. Worth violates Article I, Section 32 of the North Carolina Constitution. For the reasons set forth herein, we hold that it does not. Accordingly, we reverse the order of the trial court.

Article I, Section 32 provide as follows:

Exclusive emoluments.
No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services.

[757]*757By its definition, this Constitutional provision does not proscribe all exclusive emoluments absolutely, but prohibits them except in consideration of public service. 5 N.C. Index 4th, Sec. 130. Defendants argue that the proposed payment to Mr. Worth is, in the words of the Constitution, a payment made “in consideration of public services.” Plaintiffs contend that the payment constitutes a prohibited exclusive emolument, since it is no more than a gratuity which the Warren County Board of Commissioners is under no obligation to pay.

The legislature has vested county boards of commissioners with broad discretion to direct fiscal policy of the county, G.S. § 153A-101, and with specific authority to fix compensation for all county officers, G.S. § 153A-92. Courts may not interfere with the exercise of discretionary powers of local boards for the public welfare unless the action taken is so unreasonable that it amounts to an oppressive and manifest abuse of discretion. Jones v. Hospital, 1 N.C. App. 33, 34-5, 159 S.E.2d 252, 253 (1968).

Courts have no right to pass on the wisdom with which [county officials] act. Courts cannot substitute their judgment for that of the county officials honestly and fairly exercised. For a court to enjoin the proposed expenditure, there must be allegation and proof that the county officials acted in wanton disregard of public good.

Barbour v. Carteret County, 255 N.C. 177, 181, 120 S.E.2d 448, 451 (1961) (citations omitted). Absent contrary evidence, it is presumed “[t]hat public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law.” Painter v. Board of Education, 288 N.C. 165, 178, 217 S.E.2d 650, 658 (1975) (citations omitted). Furthermore, the burden is on the party challenging the validity of public officials’ actions to overcome this presumption by competent and substantial evidence. Id.

In its order enjoining the payment to Mr. Worth, the trial court concluded:

1. The proposed payment of $5,073.12 to Charles J. Worth in addition to his regular compensation would constitute a separate emolument not in consideration of public service and in violation of Article I, Section 32 of the Constitution of North Carolina.
[758]*7582. In keeping with the ruling of Brown v. Board of Commissioners of Richmond County, 223 NC 744 (1943), the County Commissioners of Warren County cannot lawfully make an appropriation of public moneys except to meet a legal and enforceable claim, and the requested payment of $5,073.12 to Charles J. Worth does not constitute a legal or enforceable claim.

In Brown v. Comrs. of Richmond County, 223 N.C. 744, 28 S.E.2d 104 (1943), relied upon by the trial court, the plaintiff was elected as presiding judge of the county recorder’s court. The following year, the recorder’s court was abolished by the General Assembly, and the plaintiff’s office, along with its duties and emoluments, was terminated. Subsequently, the General Assembly passed an act requiring the Richmond County Board of Commissioners to pay the plaintiff the salary he would have been paid during his term of office had the office not been abolished. Thereafter, the plaintiff sought a writ of mandamus to compel the board of commissioners to pay him the salary as provided by the legislative act. The Brown court held that payment by the county of the salary which would have accrued had the recorder’s court not been abolished would constitute a gift or gratuity, violative of Article I, Section 7 (now Article I, Section 32).

Brown is distinguishable from the facts before us. Brown held that payment to a public employee for services which had not been, and would never be, rendered constituted a private gift of public funds and, as such, violated Article I, Section 32 of the Constitution. The Brown court based its ruling on the principle that the General Assembly could not compel or authorize a municipality to pay a gratuity to an individual to adjust a claim which the municipality is under no obligation to pay.

In contrast, Mr. Worth had served the Warren County as county manager for nine years prior to his resignation. North Carolina case law demonstrates that it is permissible to compensate public service previously rendered without violating the constitutional ban on private emoluments, even though the recipient may have no legal and enforceable right to the benefit. Defendants correctly cite to Hinton v. State Treasurer, 193 N.C. 496, 137 S.E. 669 (1927) and Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281 (1945) as support for this proposition. The issue in Hinton was whether the General Assembly could constitutionally enact legislation whereby veterans of the First World War could obtain loans on favorable terms [759]*759for the purchase of homes. The legislation recited that its purposes were to recognize the veterans’ military service, to encourage patriotism, to promote the ownership of homes, and to provide a means by which the veterans could acquire homes on favorable terms. In addressing the validity of this enactment under Article I, Section 7 (now Article I, Section 32) the Court found that it did not constitute an exclusive emolument since the enactment was in recognition of the veterans’ past service to this State. The Court stated that “[p]ast services may also be compensated, and pensions may also be granted to those who were wounded, disabled, or otherwise rendered invalids while in the public service, even in cases where no prior promise was made or antecedent inducement held out.” (Emphasis supplied.) Hinton, at 508, 137 S.E. at 676. In Hinton, the veterans had no legal or enforceable claim for the enactment of legislation providing loans to veterans on favorable terms. However, because the Act was in consideration of the veterans’ past public service, this was not an exclusive emolument.

In Brumley v. Baxter, the court upheld the validity of an act authorizing donation of land by the City of Charlotte for the building of a veterans’ center. The veterans had no legal or enforceable claim for the donation of land for a veterans’ center, but the donation of land was held not to be an impermissive emolument since it was in consideration of public service. Brumley, at 698, 36 S.E.2d at 286.

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Related

Board of Education of the Hickory Administrative School Unit v. Seagle
463 S.E.2d 277 (Court of Appeals of North Carolina, 1995)
Leete v. County of Warren
462 S.E.2d 476 (Supreme Court of North Carolina, 1995)

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443 S.E.2d 98, 114 N.C. App. 755, 1994 N.C. App. LEXIS 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leete-v-county-of-warren-ncctapp-1994.