Sams v. . Comrs. of Madison , 217 N.C. 284 ( 1940 )

The plaintiff instituted his action against the board of county commissioners of Madison County to enforce the payment to him of the salary of county physician and quarantine officer, to which office he alleged he had been elected by the county board of health of Madison County as that board was constituted under the provisions of ch. 322, Public-Local Laws 1931.

The defendant board denied liability chiefly on the ground that the local act of the General Assembly creating a county board of health for Madison County, under which plaintiff claims, violated the provisions of Art. II, sec. 29, of the Constitution of North Carolina, and was therefore void.

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

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

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

It is apparent that the act is local and that it relates to health and sanitation, and thus comes within the prohibition of the quoted section of the Constitution. This is in accord with the decision of this Court inArmstrong v. Comrs. of Gaston County, 185 N.C. 405, 117 S.E. 388, where a local act authorizing the erection of a hospital for the treatment of tuberculosis was held void under Art. II, sec. 29, as being a local act pertaining to health 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 the same effect is the ruling in Sanitary Districtv. Prudden, 195 N.C. 722, 143 S.E. 530, where a special act creating a sanitary district for the construction and maintenance of a water and sewer system in Henderson County was held to violate this constitutional provision. Furthermore, the act is in conflict with the State-wide policy as contemplated by the Constitution and established by general laws regulating the 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.