Town of Hillsborough v. Smith , 10 N.C. App. 70 ( 1970 )

178 S.E.2d 18 (1970) 10 N.C. App. 70

TOWN OF HILLSBOROUGH, a Municipal Corporation
v.
Clarence Dupree SMITH and wife, Mae L. Smith.

No. 7015SC452.

Court of Appeals of North Carolina.

December 16, 1970. Certiorari Denied February 2, 1971.

Graham & Cheshire, by Lucius M. Cheshire, Hillsborough, for plaintiff-appellee.

Alonzo Brown Coleman, Jr., Winston, Coleman & Bernholz, Hillsborough, for defendants-appellants.

Smith, Moore, Smith, Schell & Hunter, by Larry B. Sitton, Greensboro, for Fidelity & Deposit Co. of Maryland, surety on plaintiff's bond.

Certiorari Denied by Supreme Court February 2, 1971.

BROCK, Judge.

"Prior to the legislative enactment on 14 April 1951 of Chapter 1015 of the Session Laws of 1951, now codified as G.S. §§ 160-191.1 to 160-191.5, the common law rule of governmental immunity prevailed in North Carolina. Millar v. [Town of] Wilson, 222 N.C. 340, 23 S.E.2d 42. Under this common law rule a municipality is not liable for the torts of its employees or agents committed while performing a governmental function." Galligan v. Town of Chapel Hill, 276 N.C. 172, 171 S.E.2d 427. Except where waived under authority of statute the common law rule of governmental immunity is still the law in North Carolina. Galligan v. Town of Chapel Hill, supra; Stephenson v. Raleigh, 232 N.C. 42, 59 S.E.2d 195.

"In enacting and enforcing zoning regulations, a municipality acts as a governmental agency and exercises the police power of the State." Taylor v. Bowen, 272 N.C. 726, 158 S.E.2d 837. See also 5 Strong, N.C. Index 2nd, Municipal Corporations, § 12, p. 633.

G.S. § 1-496 and G.S. § 1-497 were repealed effective 1 January 1970, at which time G.S. § 1A-1, Rule 65 became effective. Therefore at the time plaintiff instituted this action and at the time the opinion of the Supreme Court of North Carolina was filed in this action on 10 December 1969, G.S. § 1-496 and G.S. § 1-497 were in effect.

Defendants strenuously argue that because the legislature did not exempt municipalities from the necessity of posting bond in accordance with G.S. § 1-496, it follows that posting bond as required by statute constitutes an authorized waiver of governmental immunity. Defendants contend that their argument is strengthened by the provisions of the new G.S. § 1A-1, Rule 65; it is their contention that under Rule 65 the State or one of its political subdivisions will waive its governmental immunity by seeking an injunction. It is unnecessary for us to interpret G.S. § 1A-1, Rule 65 at this time; suffice to say, we find therein no expression of past legislative intent.

A municipal corporation may not waive or contract away its governmental immunity in the absence of legislative authority for such action. Galligan v. Town of Chapel Hill, supra. G.S. § 160-179 authorizes a municipality to institute an action to restrain a violation of its zoning ordinances, Gastonia v. Parrish, 271 N.C. 527, 157 S.E.2d 154; but this statute does not authorize or require the municipality to waive its governmental immunity. And a municipality does not waive that immunity by the mere act of instituting a civil action. Morgantown Graded School v. McDowell, 157 N.C. 316, 72 S.E. 1083; Battle v. Thompson, 65 N.C. 406. We think the language used in Hollifield v. Keller, 238 S.C. 584, 121 S.E.2d 213, is appropriate here:

"As we understand the rule relating to the immunities attaching to sovereignty, such attributes are never to be considered as waived or surrendered by any inference or implication. The surrender of an attribute of sovereignty being so much at variance with the commonly accepted tenets of government, so much at variance with sound public policy and public welfare, the Courts will never say that it has been abrogated, abridged, or surrendered, except in deference to plain, positive legislative declarations to that effect."

"Our legislative history amply shows that the General Assembly has been fully cognizant of this sound principle of law. It has in several instances by express enactment prescribed the cases in which actions are allowed against counties, cities, towns and the State Highway Department. And in those enabling statutes the Legislature has invariably set forth with care and precision the terms and conditions upon which suit may be brought."

Thus, the act of the Town of Hillsborough in posting the bond was an unauthorized attempt to waive its governmental immunity, and, as such, was ultra vires. Because the act was ultra vires it follows that immunity was not waived, and the Town of Hillsborough has no liability to defendant.

It does not follow, however, that the surety on the bond is also protected by governmental immunity. A surety for an idiot or an infant, or a surety for a corporation or governmental entity acting ultra vires, may be liable, although the principal is liable neither to the obligee nor to the surety. Davis v. Commissioners, 72 N.C. 441; Poindexter v. Davis, 67 N.C. 112.

We discern no basis in law, nor in public policy, for relieving the surety of its obligation, voluntarily undertaken for a premium, by extending to it vicarious protection of sovereign immunity.

We affirm so much of the judgment of the trial court as holds the Town of Hillsborough not liable to defendant by reason of governmental immunity. However, we reverse so much of the judgment of the trial court as holds the surety (Fidelity and Deposit Company of Maryland) not liable to defendant on the bond. As to the surety (Fidelity and Deposit Company of Maryland) this cause is remanded to the Superior Court of Orange County for an appropriate hearing upon the question of damages. Originally this hearing would have been conducted in accordance with G.S. § 1-497; but, since the Rules of Civil Procedure became effective 1 January 1970, the hearing will be conducted in accordance with G.S. § 1A-1, Rule 65(e).

Affirmed, as to the Town of Hillsborough.

Reversed and remanded, as to the Fidelity and Deposit Company of Maryland.

MORRIS and GRAHAM, JJ., concur.