Sams v. Board of County Commissioners

7 S.E.2d 540, 217 N.C. 284, 1940 N.C. LEXIS 223

• Court: Supreme Court of North Carolina
• Decided: March 20, 1940
• Status: Published

Opinion

Devin, J.

Tbe plaintiff instituted bis action against tbe board of county commissioners of Madison County to enforce tbe payment to bim of tbe salary of county physician and quarantine officer, to wbicb office be alleged be bad been elected by tbe county board of bealtb of Madison County as tbat board was constituted under tbe provisions of cb. 322, Public-Local Laws 1931.

Tbe defendant board denied liability chiefly on tbe ground tbat tbe local act of tbe General Assembly creating a county board of bealtb for Madison County, under wbieb plaintiff claims, violated tbe provisions of Art. II, sec. 29, of tbe Constitution of North Carolina, and was therefore void.

Since tbe plaintiff’s action is based on this act of tbe Legislature bis right to maintain bis suit depends upon tbe validity of tbe act. Reed v. Madison County, 213 N. C., 145, 195 S. E., 620; Borden v. Goldsboro, 173 N. C., 661, 92 S. E., 694. Tbe determination of tbe question presented by this appeal was foreshadowed by what was said in Freeman v. Comrs. of Madison County, ante, 209.

Art. II, sec. 29, of tbe Constitution, prohibits tbe General Assembly from passing “any local, private or special act . . . relating to bealtb, sanitation and tbe abatement of nuisances.” It is expressly ordained tbat any local or special act passed in violation of this section shall be void, power being given tbe General Assembly to pass general laws regulating tbe matters therein set out.

Tbe act, cb. 322, Public-Local Laws 1931, under which plaintiff claims, undertakes to create for Madison County, alone, a county board of bealtb and to name its members. Tbe principal duty of this board is to elect a county physician and quarantine officer, for whom is prescribed tbe duty of inspecting tbe county institutions and seeing “tbat each is kept in a sanitary condition.” This board is also authorized by tbe act to select a physician to vaccinate against disease.

It is apparent tbat tbe act is local and tbat it relates to bealtb and sanitation, and thus comes within tbe prohibition of tbe quoted section of tbe Constitution. This is in accord with tbe decision of this Court in Armstrong v. Comrs. of Gaston County, 185 N. C., 405, 117 S. E., 388, where a local act authorizing tbe erection of a hospital for tbe treatment of tuberculosis was held void under Art. II, sec. 29, as being a local act pertaining to bealtb and sanitation. S. v. Warren, 211 N. C., 75, 189 S. E., 108; R. R. v. Lenoir County, 200 N. C., 494 (497), 157 S. E., 610; S. v. Kelly, 186 N. C., 365 (375), 119 S. E., 750; In re Harris, 183 N. C., 633, 112 S. E., 425. To tbe same effect is tbe ruling in Sanitary District v. Prudden, 195 N. C., 722, 143 S. E., 530, where a special act creating a sanitary district for tbe construction and maintenance of a water and sewer system in Henderson County was held to violate this constitutional provision. Furthermore, tbe act is in conflict with tbe State-wide policy as contemplated by tbe Constitution and established by general laws regulating tbe composition of county boards of health, throughout the State and the election of county physicians. C. S., 7064, 7067; S. v. Dixon, 215 N. C., 161 (166), 1 S. E. (2d), 521.

The local act attempting to create a county board of health for Madison County must be held void by reason of its conflict with the constitutional restrictions upon the power of the General Assembly imposed by Art. II, sec. 29, and the persons named as members of the county board of health by this act were thus without power to perform any duty prescribed thereby. Freeman v. Comrs. of Madison County, supra. Nor could validity be given to their acts as de facto officers, for the reason that it is found as a fact that the de jure board of health of Madison County, constituted in accordance with the provisions of the general statute (C. S., 7064), and acting as such, had in April, 1937, elected another person as county physician and quarantine officer for the county, who performed services and was recognized by the board of county commissioners as such. Baker v. Hobgood, 126 N. C., 149, 35 S. E., 253.

We conclude that the plaintiff’s action founded upon the Public-Local Act of 1931 cannot be maintained, and that the judgment of the court below in his favor must be

Reversed.