Broadhurst v. Board of Commissioners, 195 N.C. 439 (1928)

April 4, 1928 · Supreme Court of North Carolina

195 N.C. 439

J. C. BROADHURST, L. L. WALKER, L. H. PETERSON and Others, on Behalf of Themselves and Others Who May Come in and Make Themselves Parties Plaintiffs, v. BOARD OF COMMISSIONERS OF PENDER COUNTY DRAINAGE DISTRICT No. 4, A. V. WILLS & SONS, a Corporation, and EMMET S. WILLS.

(Filed 4 April, 1928.)

1. Drainage Districts — Authority of Court to Appoint Receivers — Quasi-Municipal Corporations.

A drainage district organized pursuant to chapter 442, Public Laws 1909, prior to the amendment of chapter 7, Public Laws 1921, is not a political subdivision of the governmental powers of the State of the same dignity as a county, or city, and where one of these districts has not conformed to the law in its formation, and is therefore void, the courts of the State have in proper instances the authority to preserve the property thereof and protect the rights of those in interest by the appointment of a receiver to the final hearing, without the aid of statute.

2. Drainage Districts — Creation and Existence — Vested Rights — Statutes.

The proceedings in forming a drainage district under the provisions of chapter 442, Public Laws 1909, is judicial and not administrative, and the amendment of chapter 7, Public Laws 1921, making all districts theretofore or thereafter created a political subdivision of the State cannot affect vested rights of landowners acquired under orders, judgments, or decrees made in pursuance of the powers conferred by the original act.

3. Appeal and Error — Requisites and Proceedings for Appeal — Motions— Exceptions.

The question of whether the lower court was in error in issuing orders for the appointment of a receiver for a statutory drainage district arises on appeal to the Supreme Court upon exceptions duly taken, and objections to the regularity thereof as not being entered in the course and practice of the court must be by motion in the cause.

4. Courts — Superior Courts — Power of Trial Judge to Hear Pinal Order of Another.

Where an order of the judge of the Superior Court is finally determinative of the rights of the parties, it may not be considered by another Superior Court judge upon motion to set it aside, such power existing only as to interlocutory orders.

Appeal by plaintiffs from an order of Devin, J., dated 12 December, 1927. From PeNDek.

Reversed.

Tbis is aif action begun in tbe Superior Court of Pender County by summons dated 13 December, 1923, for judgment (1) tbat tbe names of plaintiffs be stricken from tbe assessment rolls of Pender County Drainage District No. 4; (2) tbat certain bonds issued by tbe board of commissioners of said district and delivered to defendant, A. Y. Wills & Sons, contractors, be declared null and void, and tbat said bonds be delivered up and canceled; (3) tbat tbe defendant, board of commissioners of said district be enjoined from making any levies or assessments upon tbe lands of plaintiffs, situate witbin tbe boundaries of said district; and (4) tbat tbe orders, decrees and judgments of tbe court, establishing said district be declared null and void.

On 20 May, 1927, pursuant to tbe prayer of an amended complaint filed by plaintiffs on 19 May, 1927, an order was entered in tbis action, enjoining and restraining defendant, board of commissioners of said district from exercising any of tbe functions of drainage commissioners, and appointing a temporary receiver, to take over and bold all tbe property beld in tbe name of Pender County Drainage District No. 4. Tbe defendants were therein ordered to show cause, if any they bad, before bis Honor, W. M. Bond, at Wilmington, N. C., on 9 June, 1927, why tbe receivership should not be made permanent, and why tbe injunction should not be continued to tbe final bearing. Tbis order was duly served on defendants.

Thereafter, on 9 June, 1927, at Wilmington, N. C., pursuant to tbe foregoing order, tbe following order was signed by Judge Bond:

“This cause coming on to be beard before tbe undersigned judge bolding tbe courts of tbe Eigbtb Judicial District, and being beard upon a rule to sbow cause why a permanent receiver should not be appointed for tbe Pender County Drainage District No. 4;

“It is ordered, considered and adjudged that L. J. Poisson be, and be is hereby, appointed permanent receiver of tbe Pender County Drainage District No. 4, and directed to collect any funds, moneys, property and assets of -the said district and bold tbe same until tbe further orders of this court. Tbe receiver is directed to defend all suits. All claims against tbe district shall be filed, duly verified, with tbe receiver, within ninety days from this date, and upon failure to file said claims they will be barred from participating in assets.

“Tbe receiver will give notice of this order by mail to all known claimants, and will publish a notice of this order in a newspaper once a week for six weeks. The receiver will give bond in tbe sum of $1,000 with surety to be approved by tbe clerk.”

Thereafter, on 12 December, 1927, at Wilmington, N. C., tbe following order signed by Judge Devin was entered in this action:

“This cause coming on to be beard upon motion to vacate tbe receivership and tbe restraining order heretofore issued in this cause, notice of which was made returnable at July Term, 1927, of Superior Court of New Hanover County, at Wilmington, N. 0., and thereafter continued from time to time by consent of tbe parties, until December Term, 1927, of New Hanover Superior Court, and now coming on for bearing on this 12 December, 1927, at Wilmington, N. 0., and being beard by consent, and after argument of counsel, C. D. Weeks and A. G. Ricaud, attorneys for defendants, A. Y. Wills & Sons, and Thomas J. Canovan, trustee in bankruptcy of said A. Y. Wills & Sons, for said motion, and I. 0. Wright, attorney for tbe plaintiffs in tbe above entitled action, tbe court after bearing said argument, and considering tbe same and affidavits offered both in support of and against said motion, finds tbe following facts:

“1. That Pender County Drainage District No. 4 was adjudged and declared to be created and established by tbe orders and decrees of J. E. Johnson, clerk Superior Court, Pender County, North Carolina, made and entered in tbe proceedings for tbe establishment of said district on 19 May, 1917, and on 3 January, 1920, and contained in .the records of said proceeding for tbe establishment of said district, and in tbe drainage record of Pender County, copies of which are attached to tbe affidavit of A. G. Ricaud, duly filed as evidence in this motion, and that, thereafter, said district proceeded to elect a board of drainage commissioners, and began to prosecute tbe drainage work and issue and sell bonds for tbe prosecution of said drainage work and to provide funds for tbe cost of same, and tbe payment thereof, one or more of said drainage bonds being owned by tbe moving defendants.

“2. That on or about 23 December, 1923, tbe plaintiffs in tbe above entitled action, brought said action in tbe Superior Court of Pender County, N. C., for tbe purpose of having said drainage district declared illegally organized, and to have same declared null and void, and tbe bonds issued by said district also declared invalid, null and void, upon tbe.grounds particularly set forth in tbe complaint in said action; that tbe said action was thereafter referred to Hon. Cyrus M. Eaircloth, referee, by tbe Superior Court of Pender County, for bearing and determining, and that tbe same is still pending before said referee, and remains undetermined and undisposed of, and is still pending in tbe Superior Court of Pender County, before said referee.

“3. That while said action was still pending and undecided and un-disposed of both by said court and said referee, tbe plaintiffs appeared before Hon. B. A. Nunn, judge of tbe Superior Court of North Carolina, at Wilson, N. C., on 20 May, 1927, and applied for and obtained, ex parte, an order appointing Hon. L. J. Poisson, temporary receiver of said drainage district, which said appointment was made permanent by bis Honor, W. M. Bond, at Wilmington, N. C., on 9 June, 1927, both of which orders were duly filed in tbe records of tbe above entitled cause and appear in tbe record in this motion. No exception was noted to tbe order of Judge Bond, and no appeal was taken therefrom.

“4. That drainage districts are political subdivisions of tbe State,' and guosi-municipal corporations with all tbe rights, powers, duties and obligations conferred upon them by tbe statutes of North Carolina in relation thereto.

“Thereupon, tbe court orders and adjudges as follows: That while tbe court has power to appoint receivers, and other ministerial agents of tbe court, to take over and bold property in custodia legis during tbe pending of tbe litigation, and for insolvent private corporations, and to carry out and effectuate decrees of tbe court after judgment, that tbe orders of tbe Superior Court heretofore entered in this cause purporting to create a receivership to wind up tbe affairs of, or dissolve tbe said drainage district, and constituting tbe appointee tbe sole person capable of instituting and defending suits in courts, and taking over tbe powers and duties of tbe drainage commissioners before and until tbe said drainage district is declared invalid or illegally constituted by a court of competent jurisdiction, is irregular and void, and,

“It is ordered and adjudged by tbe court that tbe orders heretofore entered by Judge Nunn and Judge Bond be and tbe same are hereby vacated and set aside.

“It is, further ordered that L. J. Poisson, Esq., the said receiver, file in the Superior Court of Pender County, in said above entitled action, a report of bis acts as such receiver, and of all property received or disposed of by him as such receiver, and upon such report and accounting therefor that his bond as receiver be discharged.

“It is further ordered and adjudged that the restraining order against the defendants, N. H. Lockhart, J. T. Wills and A. Lee Bowen, constituting the board of drainage commissioners of Pender County Drainage District No. 4 be and the same is hereby dissolved.”

Plaintiffs excepted to the foregoing order, and appealed therefrom to the Supreme Court.

C. E. McGullen and Isaac G. Wright for plaintiffs.

A. G. Ricaud and Eubanks, Whitmire & Weeks for defendants, A. V. Wills & Son, and T. J. Canovan, trustee in bankruptcy of said defendants.

CoNNOR, J.

The Pender County Drainage District No. 4, was established prior to the enactment of chapter 7, Public Laws 1921. The provision of said statute “that the districts heretofore or hereafter created under the law shall be and constitute political subdivisions of the State” does not determine the nature of said district, at least for all purposes.

In O’Neal v. Mann, 193 N. C., 153, we said: “Whatever may have been the purpose of the General Assembly in enacting this statute, and thereby amending chapter 442, Public Laws 1909, it cannot be held to have affected the nature or character of a district established prior to its enactment.” The proceeding authorized by statute by which a drainage district may be organized and established is a judicial and not an administrative proceeding. The General Assembly is, therefore, without power, by the enactment of subsequent statutes, to affect vested rights of landowners acquired under orders, decrees or judgments made in such proceeding.

It is further said in O’Neal v. Mann, supra, that this Court has uniformly held in decisions sustaining the constitutionality of chapter 442, Public Laws 1909, as amended by subsequent statutes, that a drainage district, established by a proceeding in accordance with the provisions of said statute is not a municipal corporation, falling under the classification which includes counties,. cities or towns, school districts, or road districts; but that such district is a quasi-public corporation, created for private benefit. The primary purpose of such districts is the drainage of lands included therein for agricultural purposes; this is not a public purpose to be accomplished by a governmental agency. The decisions of this Court in support of this statement are cited in the opinion in that ease, in which it is held that a drainage district, upon its organization under chapter 442, Public Laws 1909, was not a public or municipal corporation, functioning as a governmental agency, within a political subdivision of the State.

The contention of appellees in the instant case that the appointment of a receiver for the Pender County Drainage District No. 4 is void, for that the court was without power to make such appointment, cannot be sustained. Whether or not -the Superior Court of this State has the power, by judgment or decree to dissolve a drainage district organized under the laws of this State, without special legislative authority, is not determinative of the question presented by this appeal. The relief sought in this action is, in part, that the bonds issued by the commissioners of the district, be declared null and void, and that they be delivered up and canceled for that reason. It cannot be held that the court was without power to appoint a receiver and to authorize and empower such receiver to take possession of and to hold such bonds, and all assets of the district, until the further orders of the court. Whether or not the orders appointing the receiver in this ca,se were erroneous is not presented by this appeal. If they are erroneous relief could have been had only by appeal to this Court, upon assignments of error based - on exceptions duly taken. If they are irregular, they could have been attacked only by motion in the cause. The record fails to disclose any irregularity in the orders, in that they were entered contrary to the course of practice of the Court.

The order made by Judge Devin, on the motion of appellees, that the orders signed by Judge Nunn, and Judge Bond, respectively, be vacated, on the ground that they are void, must be reversed. The authorities cited by appellees in their brief, filed in this Court, to the effect that a court is without power, in the absence of special legislative authority, to appoint a receiver for a municipal corporation, such as a county, city or town, áre not applicable in the instant case. A drainage district, organized under the statutes of this State is not a municipal corporation of the nature and character of a county, city or town.

The motion made before and heard by Judge Devin was in effect an appeal from the orders of Judge Nunn and Judge Bond. It is well settled by numerous decisions of this Court that no appeal lies from an order of one judge of the Superior Court to another. It has been held that this principle does not apply where the order is merely interlocutory, and not determinative of the rights of the parties. Bland v. Faulkner, 194 N. C., 427. When, however, the order is final, with respect to the matter involved, as in this case, the principle must be given full force, for otherwise we could not have an orderly administration of the law by the courts. Dockery v. Fairbanks-Morse Co., 172 N. C., 529; Cobb v. Rhea, 137 N. C., 295; Cowles v. Cowles, 121 N. C., 276; Henry v. Hilliard, 120 N. C., 487; Alexander v. Alexander, 120 N. C., 474; May v. Lumber Co., 119 N. C., 98.

The sole question presented by tbis appeal is whether the order of Judge Devin was erroneous, as contended by appellants, for that he was without power to vacate the orders entered in the cause by Judge Nunn and Judge Bond. This question must be answered in accordance with the contention of appellants. The order is, therefore,

Reversed.