J. A. Jones Construction Co. v. Local Union 755 of the International Brotherhood of Electrical Workers
98 S.E.2d 852
N.C.
1957
Check Treatment
PARKER, J.

The defendant Local Union 755 I. B. E. W. (A. F. of L.) assigns as error the failure of the court to dismiss the action as to it, because as an unincorporated labor union it cannot be sued, and further because no lawful service of process has been had upon it, as set forth in its “motion to dismiss and special demurrer.”

On 10 December 1956 Judge Sharp heard evidence upon the “motion to dismiss and special demurrer” of defendant Local Union 755 I. B. E. W. (A. F. of L.), and continued the hearing until 14 December 1956 at the same place. At the hearing evidence to this effect was introduced: Local Union 755 I. B. E. W. (A. F. of L.) is an unincorporated labor union located in, and with headquarters in, Forsyth County, North Carolina, and it has failed to appoint any process agent. Defendant W. W. Caudle is business agent for defendant Local Union 755, is in charge of its affairs, and collects and disburses money for it. From this evidence and from defendants’ j oint answer -introduced in evidence when the hearing was resumed, it clearly appears that defendant Local Union 755 is an unincorporated labor union, which is doing business in North Carolina by performing acts for which it was formed. It is, therefore, suable as a separate legal entity. G.S. 1-69.1; G.S. 1-97 (6); Stafford v. Wood, 234 N.C. 622, 68 S.E. 2d 268.

G.S. 1-69.1, which became effective on 1 July 1955, and was in force when this case was instituted, provides that an unincorporated labor union may hereafter sue or be sued under the name by which it is commonly known and called, or under which it is doing business, to the same extent as any other legal entity established by law and without naming any of the individual members composing it. The words “sue” and “be sued” used in this statute “normally include the natural and appropriate incidents of legal proceedings” (Reconstruction F. Corp. v. J. G. Menihan Corp., 312 U.S. 81, 85 L. Ed. 595), and “embrace all civil process incident to the commencement or continuance of legal proceedings.” 83 C.J.S., p. 775.

Defendant Local Union 755 has failed to appoint any process agent. The Record shows that the Sheriff of Wake County on 30 November 1956 served a copy of the summons, petition and temporary injunction of Judge Huskins on the Secretary of State of North Carolina, and on 19 December 1956 he served on the same official a copy of the complaint. By virtue of G.S. 1-97 (6) such service of process — Local Union 755 doing business in this State by performing acts for which it was formed, and having appointed no process agent — is legal and binding on *488 defendant Local Union 755. There is no evidence that the Secretary of State of North Carolina did not forward to Local Union 755 a copy of the process served upon him. “There is a presumption that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law.” In re Housing Authority, 233 N.C. 649, 65 S.E. 2d 761. If the Secretary of State did not forward a copy of the process served upon him to defendant Local Union 755, the burden was on Local Union 755 to show it, and it has not done so. Kirby v. Board of Education, 230 N.C. 619, 55 S.E. 2d 322.

The Record also shows that on 28 November 1956 the Sheriff of For-syth County served on the defendant W. W. Caudle, business agent of the defendant Local Union 755, a copy of the summons and petition, and that on 14 December 1956 the Sheriff of Mecklenburg County served on the defendant Caudle a copy of the complaint and the temporary injunction of Judge Huskins. Certainly, W. W. Caudle’s relationship to defendant Local Union 755 is such that it can reasonably be expected he would give notice of the action to Local Union 755. That Local Union 755 had full notice of the summons, petition, temporary restraining order and complaint cannot be doubted.

Judge Sharp did not find the facts in respect to the “motion to dismiss and special demurrer,” but merely denied and overruled it. The defendant Local Union 755 did not ask Judge Sharp to find the facts, as it did to find the facts upon which the temporary restraining order was continued to the final hearing, which the Judge did, though after judgment the Local Union 755 excepted to Judge Sharp’s failure to find the facts. There is no statute which required Judge Sharp to find the facts on this “motion to dismiss and special demurrer,” and in the absence of a request that findings of fact be made, “it is presumed that the Judge, upon proper evidence, found facts to support his judgment.” Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287.

Judge Sharp properly denied the “motion to dismiss and special demurrer,” and the assignments of error in respect thereto are overruled.

Defendants assign as error the overruling of the demurrer to the complaint, because as they contend in their brief the court had no jurisdiction of the subject matter of the action, because jurisdiction is vested exclusively in the National Labor Relations Board and the Federal Courts by virtue of the Labor Management Relations Act, 1947, as amended.

G.S. 1-127(1) provides that the defendant may demur to the complaint when it appears upon the face thereof that the court has no jurisdiction of the subject of the action. A demurrer lies only when the defect asserted as the ground of demurrer is apparent upon the face *489 of the pleading attacked. Kennerly v. Town of Dallas, 215 N.C. 532, 2 S.E. 2d 538; 41 Am. Jur., Pleading, sec. 208. A demurrer which requires reference to facts not appearing on the face of the pleading attacked is a “speaking demurrer,” and is bad. McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E. 2d 860, where numerous authorities are cited. In that case the Court said: “The Court will not consider the supposed fact introduced by the ‘speaking demurrer’ in passing on the legal sufficiency of the facts alleged in the complaint.”

The Supreme Court of Vermont said in Vermont Hydro-Electric Corp. v. Dunn, 95 Vt. 144, 112 Atl. 223, 12 A.L.R. 1495: “It has been held that a demurrer is not aided by facts not appearing in the pleadings, even though conceded at the hearing.”

Southerland v. Harrell, 204 N.C. 675, 169 S.E. 423, was an action by an administrator to recover damages for the wrongful death of his intestate. Both defendants in apt time filed pleas to the jurisdiction of the court alleging that the North Carolina Industrial Commission had exclusive jurisdiction of the claim of plaintiff against them, and that the Superior Court had no jurisdiction of the cause of action alleged in the complaint. The lower court dismissed the action. This Court reversed the judgment below saying the pleas to the jurisdiction of the court are, in effect, demurrers, and no facts alleged in the pleas can be considered in passing on the demurrer, and that a defect of jurisdiction does not appear on the face of the complaint. To the same effect, see Hanks v. Utilities Co., 204 N.C. 155, 167 S.E. 560; Ball v. Hendersonville, 205 N.C. 414, 171 S.E. 622.

G.S. 1-133 states, “when any of the matters enumerated as grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer.”

There is no allegation of fact in the complaint stating that plaintiff was, or is, engaged in a business affecting interstate or foreign commerce, and no allegation from which such fact can reasonably be inferred. Hence, nothing appears on the face of the complaint showing that the National Labor Management Relations Act of 1947, as amended, has any application.

In Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 83 L. Ed. 126, Chief Justice Hughes speaking for the Court, said: “Thus, the ‘commerce’ contemplated by the Act (aside from that within a Territory or the District of Columbia) is interstate and foreign commerce. The unfair labor practices which the Act purports to reach are those affecting that commerce. Section 10(a). In determining the constitutional bounds of the authority conferred, we have applied the well settled principle that it is the effect upon interstate or foreign commerce, not the source of the injury, which is the criterion.”

*490 In 31 Am. Jur., Labor, sec. 140, it is written: “Notwithstanding the broad words of the preamble, the National Labor Relations Act may be, and is to be, construed so as to operate within the sphere of the constitutional authority of Congress. So construed, the act in empowering the National Labor Relations Board to prevent any person from engaging in any unfair labor practice ‘affecting commerce’ (Sec. 10(a), 29 U.S.C.A., Sec. 160(a)) merely reaches what may be deemed to burden or obstruct interstate and foreign commerce, aside from that within a territory or the District of Columbia.”

In Weber v. Anheuser-Busch, 348 U.S. 468, 99 L. Ed. 546, 558, the Court said: “We realize that it is not easy for a state court to decide, merely on the basis of a complaint and answer, whether the subject matter is the concern exclusively of the federal Board and withdrawn from the State.”

Here we are asked to pass on the question on the basis of the face of the complaint alone.

The court below properly overruled the demurrer to the complaint on the ground of lack of jurisdiction of the court over the subject matter of the action, for it does not appear upon the face of the complaint that the court has no jurisdiction over the subject of the action, nor does it appear on the face of the complaint that the exercise of any rights of the defendants protected by the National Labor Management Relations Act of 1947, as amended, is involved.

Defendants assign as error the overruling of their demurrer to the complaint on the ground that the complaint fails to state facts sufficient to constitute a cause of action for injunctive relief. In support of this assignment of error, based upon an exception, no reason or argument is stated or authority cited in defendants’ brief, and it is taken as abandoned. Rules of Practice in the Supreme Court, Rule 28, 221 N.C. 544, 563; G.S. Vol. 4A, Supreme Court Rules, p. 185; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; S. v. Bittings, 206 N.C. 798, 175 S.E. 299; Swinton v. Realty Co., 236 N.C. 723, 73 S.E. 2d 785; Robinson v. Thomas, 244 N.C. 732, 94 S.E. 2d 911.

Upon motion of the defendants that Judge Sharp find the facts upon which the temporary restraining order of Judge Huskins was continued to the final hearing upon the merits, the Judge found the facts to be as set out in plaintiff’s complaint. The defendants assign this as error as a broadside finding. This assignment of error is without merit. Owen v. DeBruhl Agency, Inc., 241 N.C. 597, 86 S.E. 2d 197.

Upon the question as to whether the temporary injunction should be continued to the final hearing on the merits, it appears from the Record that defendants introduced no evidence, except their answer. We are of opinion that the facts set forth in the complaint, which the Judge *491 found as facts, are sufficient to support the continuance of the temporary injunction to the final hearing on the merits, and that the admission of plaintiff as to the size of its business, which the Judge found as a fact, together with the other facts found by the Judge, are not sufficient to show that a state court has enj oined the exercise of any rights of defendants, which the Federal Labor Management Act, 1947, as amended, protects. Local Union No. 10, A. F. of L. v. Graham, 345 U.S. 192, 97 L. Ed. 946, which affirmed a judgment of the Law and Equity Court of the City of Richmond restraining labor unions from peaceful picketing, which the Virginia Courts enjoined on the ground that it was carried on for purposes in conflict with the Virginia “Right to Work” Statute; Pappas v. Stacey, 151 Me. 36, 116 A. 2d 497 (appeal of this case to U. S. Supreme Court dismissed in a Per Curiam decision, 350 U.S. 870, 100 L. Ed. 776); Vogt, Inc. v. International Brotherhood of Teamsters, 270 Wis. 315, 74 N.W. 2d 749, which case was affirmed on appeal to the U. S. Supreme Court on 17 June 1957, . U.S., .L. Ed. When the case comes on for final hearing on the merits, defendants may, or may not, be able to show by evidence that the state court has no jurisdiction over the subject of the action by .virtue of the Federal Labor Management Act, 1947, as amended. They have not done so by their meager evidence before Judge Sharp.

This Court said in Huskins v. Hospital, 238 N.C. 357, 78 S.E. 2d 116: “The findings of fact and other proceedings of the judge who hears the application for an interlocutory injunction are not binding on the parties at the trial on the merits. Indeed, these findings and proceedings are not proper matters for the consideration of the court or jury in passing on the issues determinable at the final hearing.”

The other assignments of error brought forward and mentioned in defendants’ brief are supported by no citation of authority, have been considered, and are all overruled.

In this Court plaintiff filed a written motion to dismiss defendants’ appeal for the alleged reason that pending the hearing and determination of the appeal all controversies arising in this case between the parties have become moot by reason of the completion of the construction job at Jefferson, and no relief can be granted by any court to either party respecting anything in this case. Defendants have filed a written reply to the motion opposing the dismissal of their appeal, and asserting that the questions and issues involved in the case are alive and as vigorously disputed as they ever have been, and are in no way moot. Plaintiff’s motion to dismiss the appeal is denied.

The defendants’ answer raises the question of whether the Superior Court has jurisdiction over the subject of the action by reason of the National Labor Management Relations Act, 1947, as amended, and also raises other issues. Whether the questions and issues in the case have *492 become moot, or are vigorously alive, can be determined when the case comes on for trial in the court below on the merits.

The judgment below is

Affirmed.