254 N.C. 204 | N.C. | 1961
The plaintiff brought this action to have the court declare (1) Chapter 1281, Session Laws of 1959, unconstitutional, and (2) the defendants “unlawfully holding and exercising a public office.”
The parties admit the Housing Authority Act, prior to the 1959 amendment, did not authorize the “City of Murphy” — population under 5,000, to establish a Housing Authority. It must be conceded, therefore, if the 1959 amendatory act was passed in violation of Article II, Section 29, Constitution of North Carolina, as alleged, the attempt of the Mayor and Council of Murphy and the Secretary of State to establish the blousing Authority was a nullity. If a nullity, the defendants are not officers; hence the court cannot remove them from office. “Where the Legislature undertakes to create a public office by an unconstitutional statute, is the incumbent of such an office an officer de facto? This query must be answered in the negative for the very simple reason that there can be no officer, either de jure or de facto, unless there is a legally existing office to be filled.” (citing authorities) Idol v. Street, 233 N.C. 730, 65 S.E. 2d 313. So much of the controversy as relates to the right of the defendants to hold office as members of the Housing Authority of the City of Murphy must await determination of the question whether there is such an office.
Is the 1959 amendment within the legislative power? There can be little doubt but that the “Housing Authority Law” relates to health and sanitation. G.S. 157-2 declares the purpose to be the removal of conditions whieh “cause an increase in and spread of disease and crime and constitute a menace to health, safety, morals and welfare of the citizens . . .” Article II, Section 29, North Carolina Constitution, provides: “The General Assembly shall not pass any local, private, or special act . . . relating to health, sanitation and abatement of nuisances, . . . The General Assembly shall have power to pass general laws regulating matters set out in this section.”
The general law provides that for the purposes of the Housing Act “city” shall mean any incorporated municipality whose population is 5,000 or more. The amendment applicable to 14 of the State’s one hundred counties provides “city” for such purpose shall mean any incorporated municipality whose population is 500 or more. The plaintiff contends that Chapter 1281 is an attempt by a local or special act to amend the general law and is forbidden by the Constitution. The defendants contend the amendment is general and not local or
Courts are reluctant to hold invalid any Act of the General Assembly. Before deciding any Act unconstitutional the question must be squarely presented by a party whose rights are directly involved. “Courts will not declare void an Act of the Legislature unless the question of its constitutionality is presently presented and it is found necessary to do so in order to protect rights guaranteed by the Constitution.” Fox v. Commissioners, 244 N.C. 497, 94 S.E. 2d 482. Only an injured party may assail the validity of a statute. Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563.
Is the plaintiff entitled to maintain this action? He alleges he is a taxpayer. He does not allege that public money has been or is to be expended; that taxes have been or are to be levied; that debts have been or are to be incurred. Neither directly nor by inference does the plaintiff allege the defendants individually or as the Housing Authority have invaded or threatened to invade his rights. Hence he fails to show his qualification to maintain this action. True, the parties have stipulated that this is a proper case for Declaratory Judgment. The stipulation, however, involves a question of law — not binding on the courts. Nonsuit in this case should have been entered in the superior court for failure of the plaintiff to show his right to maintain it.
Reversed.
