Town of Wadesboro v. Holshouser, 22 N.C. App. 65 (1974)

June 5, 1974 · North Carolina Court of Appeals · No. 7420SC307

22 N.C. App. 65

TOWN OF WADESBORO, A MUNICIPALITY v. JAMES E. HOLSHOUSER, AS GOVERNOR OF NORTH CAROLINA AND INDIVIDUALLY; DAVID R. JONES, AS SECRETARY OF THE DEPARTMENT OF SOCIAL REHABILITATION AND CONTROL AND INDIVIDUALLY; BERNIE SELLERS, AS DIRECTOR OF THE PROBATION DEPARTMENT AND INDIVIDUALLY; CHARLES HESTER, AS DISTRICT DIRECTOR OF THE PROBATION DEPARTMENT AND INDIVIDUALLY

No. 7420SC307

(Filed 5 June 1974)

Appeal and Error § 9— repeal of statute — moot case

Appeal is dismissed as moot where the statutory basis for plaintiff’s case has been repealed.

Appeal by plaintiff from Armstrong, Judge, 13 November 1973 Civil Session of Superior Court held in Anson County.

Plaintiff municipality filed this action on 23 October 1973 seeking to enjoin defendants from closing the district headquarters office of the State Probation Commission in the Town of Wadesboro and seeking a mandatory order requiring defendants to proceed with the building of a headquarters building in said Town, funds for which had been appropriated by Sec. 4 of Chapter 523 of the 1973 Session Laws. Defendants filed motion to dismiss under Rule 12 or for summary judgment under Rule 56, stating as grounds that the court lacked jurisdiction both over the subject matter and over the person, that the complaint failed to state a claim upon which relief can be granted, and that the doctrine of sovereign immunity barred the action.

The trial court allowed the motion, finding this action to be one against the State for which the State had not waived its immunity, that the complaint failed to state a claim upon which the relief prayed for can be granted, and that in any event the plaintiff Town lacked standing to maintain such a suit. From the judgment dismissing the action, plaintiff appealed.

Henry T. Drake for plaintiff appellant.

Attorney General Robert Morgan by Assistant Attorney General John R. B. Matthis for defendants.

PARKER, Judge.

We find it unnecessary to pass upon the questions which plaintiff seeks to present by this appeal. Plaintiff’s case is predicated entirely upon a capital improvement appropriation of $200,000.00 made by Chapter 523 of the 1973 Session Laws for a Probation Commission “Headquarters Building — Wadesboro.” By Chapter 1412 of the 1973 Session Laws (2nd Session, 1974), which was ratified and effective 12 April 1974, the Legislature found that “the operation of a Probation Commission Office in Wadesboro is no longer required,” and amended Chapter 523 of the 1973 Session Laws by transferring the $200,000.00 appropriation to another purpose. The statutory basis for plaintiff’s case having been repealed, we find this appeal moot and it is

Dismissed.

Judges Vaughn and Cakson concur.