Smith v. State

209 S.E.2d 336 (1974)

23 N.C. App. 423

C. Capers SMITH v. STATE of North Carolina et al.

No. 7425SC181.

Court of Appeals of North Carolina.

November 6, 1974.

Certiorari Denied December 30, 1974.

*337 Hatcher, Sitton & Powell by Claude S. Sitton, Morganton, and James J. Booker, Winston-Salem, for plaintiff-appellee.

Blanchard, Tucker, Denson & Cline by Charles F. Blanchard, Raleigh, for defendant-appellee Byrd.

Atty. Gen. Robert Morgan by William F. O'Connell and Parks H. Icenhour, Asst. Attys. Gen., Raleigh, for defendants-appellants.

Certiorari Denied by Supreme Court December 30, 1974.

PARKER, Judge.

THE MOTION TO DISMISS

Appellants assign error in the trial court's denial of their motion to dismiss on grounds that sovereign immunity barred plaintiff's suit. As a preliminary, we must determine the nature of plaintiff's action insofar as it relates to the State of North Carolina and the other defendants in their official capacity. In this respect, plaintiff's action is clearly based on contract. Plaintiff has alleged (1) his proper appointment in 1970 to a six-year term as Superintendent of Broughton Hospital, an employment contract authorized by former G.S. § 122-25 (later amended, effective 22 May 1973, in 1973 Session Laws, c. 673, § 2, and repealed, effective 1 July 1973, by Sec. 133 of Ch. 476 of the 1973 Session Laws, "An Act to Further *338 Effectuate the Reorganization of State Government"); (2) his acceptance of the position, satisfactory performance of its attendant duties, and his dismissal without just cause; and (3) his damages resulting from defendants' breach thereof.

In support of their position that sovereign immunity bars plaintiff's action, appellants, noting that the sovereign cannot be sued in its own courts or elsewhere without its consent, Electric Co. v. Turner, 275 N.C. 493, 168 S.E.2d 385 (1969), argue that no such consent has been given in the instant case. We disagree. We hold that by entering into a statutorily authorized contract of employment for a specific term of years, the State in this case has waived its immunity from suit for a breach thereof. To hold otherwise would attribute to the Legislature an intent to authorize the State's entry into a curious sort of contract, one binding upon the other party but not upon the State. While we rest our decision here upon the somewhat narrow grounds that in this case the express statutory authorization to contract for a specific term of years included by logical implication a waiver of sovereign immunity from a suit for breach of a contract made pursuant to that statutory authorization, we note and commend the trend of recent decisions from other jurisdictions against enforcement of the doctrine of governmental immunity. A truly democratic government should be required to observe the same rules of conduct that it requires of its citizens. Some of the decisions adopting this view are: Kersten Co., Inc. v. Department of Social Services, 207 N.W.2d 117 (Iowa 1973), overruling Megee v. Barnes, 160 N.W.2d 815 (Iowa 1968); V. S. DiCarlo Construction Co., Inc. v. State, 485 S.W.2d 52 (Mo.1972); George & Lynch, Inc. v. State, 197 A.2d 734 (Del. 1964); Meens v. Board of Educa., 127 Mont. 515, 267 P.2d 981 (1954), and Regents of University System v. Blanton, 49 Ga.App. 602, 176 S.E. 673 (1934).

Nor is our decision here inhibited by decisions in our own jurisdiction. Cases cited by appellants are distinguishable. Electric Co. v. Turner, supra, involved a suit for mandatory injunction to control the manner of exercise of discretionary duties of public officials; in the case at bar plaintiff merely seeks monetary damages resulting from the State's alleged breach of contract. In Construction Co. v. Dept. of Administration, 3 N.C.App. 551, 165 S.E.2d 338 (1969), this Court held that plaintiff's suit was not authorized by statute, while in the instant case legislative authority to maintain this suit stems from the fact that plaintiff's contract was itself expressly authorized by statute, G.S. § 122-25. Orange County v. Heath, 282 N.C. 292, 192 S.E.2d 308 (1972) concerned an attempt to hold a county liable for damages resulting from an improvidently issued restraining order obtained by the county to enforce a zoning ordinance. A similar factual situation also distinguishes Town of Hillsborough v. Smith, 10 N.C.App. 70, 178 S.E.2d 18 (1970). Mial v. Ellington, 134 N.C. 131, 46 S.E. 961 (1903) held that a public office is not private property and that the Legislature has power to abolish offices created by it; in the present case the position which plaintiff held was not abolished when his cause of action arose.

THE MOTION FOR CHANGE OF VENUE

As their second assignment of error, appellants contend that the trial court erred in denying their motion for change of venue from Burke to Wake County. G.S. § 1-77 provides, in pertinent part:

"§ 1-77. Where cause of action arose. Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial, in the cases provided by law: * * * * * * "(2) Against a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office; or against a person who by his *339 command or in his aid does anything touching the duties of such officer."

In applying this portion of G.S. § 1-77, the Court must determine, inter alia, where the cause of action arises, Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965). In the case at bar, it is clear that plaintiff's cause of action arose in Burke County where both the controversy over the tape recordings took place and plaintiff's allegedly unjustified dismissal was effected. The mere fact that plaintiff's discharge was thereafter affirmed by various State officials based in Raleigh does not entitle appellants, as a matter of right, for a change of venue to Wake County under the statute.

The rulings of the trial court are

Affirmed.

BROCK, C. J., concurs.

BALEY, J., dissents.

BALEY, Judge (dissenting).

Plaintiff has brought an action against the State. Any waiver of the State's immunity from suit must be by "plain, unmistakable mandate" of the Legislature and cannot be by implication or construction. Orange County v. Heath, 282 N.C. 292, 296, 192 S.E.2d 308, 310; State ex rel. State Bd. of Public Affairs v. Principal Funding Corp., 519 P.2d 503 (Okl.1974). There being no clear waiver of immunity in the statute authorizing his employment, it follows that plaintiff cannot maintain this action. The order of the trial court denying defendant's motion to dismiss should be reversed.