National Ass'n for the Advancement of Colored People v. Eure , 245 N.C. 331 ( 1957 )

95 S.E.2d 893 (1957) 245 N.C. 331

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, a corporation,
v.
Thad EURE, Secretary of State, and George B. Patton, Attorney General.

No. 449.

Supreme Court of North Carolina.

January 11, 1957.

William A. Marsh, Jr., Conrad O. Pearson, Durham, Robert L. Carter, and Thurgood Marshall, New York City, for plaintiff, appellant.

George B. Patton, Atty. Gen., and Robert E. Giles, Asst. Atty. Gen., and F. Kent Burns, Staff Atty., Raleigh, for the State.

PARKER, Justice.

On this appeal we have for decision solely a question of procedure. The defendant may demur to a complaint when it appears on the face thereof two or more causes of action have been improperly united. G.S. § 1-127.

Joinder of two or more several causes of action in the same complaint must meet the requirements of G.S. § 1-123.

Plaintiff contends the present joinder is authorized by the provisions of G.S. § 1-123, because that statute provides that "plaintiff may unite in the same complaint several causes of action, of legal or equitable nature, or both, where they all arise out of—1. The same transaction, or transaction connected with the same subject of action." But plaintiff in his brief fails to take into consideration this further explicit language in G.S. § 1-123: "But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated." G.S. § 1-123 authorizes the joinder of certain causes of action, "but each of them must affect all the parties to the transaction, section 267 (7). ``It is not sufficient that some of the defendants be affected by each of them. All of the defendants must be affected by each of them to warrant the union of them in one suit.'" Railroad Co. v. Wakefield Hardware Co., 135 N.C. 73, 47 S.E. 234. See McIntosh N. C. Prac. & Proc., 2nd Ed., sec. 1165.

It is manifest that both defendants are not affected by each cause of action plaintiff has alleged and joined in its complaint, or in other words the two alleged causes of action do not affect both defendants. In respect to the alleged cause of action to determine the applicability to plaintiff of G.S. § 55-118—foreign corporation required to file certain instruments in the office of the Secretary of State before being permitted to do business in the State—It would seem that the Secretary of State and the Attorney General are proper parties defendant and the action in varying degrees affects both, because the Secretary of State has certain ministerial duties to perform under G.S. § 55-118, and because the statute provides that "every corporation failing to comply with the provisions of this section shall forfeit to the State five hundred dollars, to be recovered, with costs, in an action to be prosecuted by the Attorney General, who shall prosecute such actions whenever it appears that this section has been violated." In respect to the alleged cause of action to determine the applicability of G.S. Ch. 120, art. 10—Registration in the office of the Secretary of State of persons and organizations principally engaged in influencing public opinion or legislation— it is plain that the Attorney General is not affected. A violation of this article is a misdemeanor, punishable by fine or imprisonment in the discretion of the court. There is no reference in any part of G.S. Ch. 120, art. 10 to the Attorney General. He has no specific enforcement duty in connection therewith, as he has with G.S. § 55-118.

The North Carolina Constitution, art. III, sec. 13, provides that the duties of the Attorney General "shall be prescribed by law." Our Constitution, in art. IV, sec. 23, provides for the creation of solicitorial districts, for each of which a solicitor shall be elected, who shall "prosecute on behalf of the State in all criminal actions in the superior courts." G.S. § 7-43 provides that a solicitor shall be elected for each solicitorial district, and shall "prosecute on behalf of the State in all criminal actions in the superior courts." Statutory duties of the Attorney General are set forth in G.S. Ch. 114. G.S. § 114-2 provides that it shall be the duty of the Attorney General: "1. To defend all actions in the Supreme Court in which the State shall be interested, or is a party; and also when requested by the Governor or either branch of the General Assembly to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State may be a party or interested. 2. At the request of the Governor, Secretary of State, Treasurer, Auditor, Utilities Commission, Commissioner of Banks, Insurance Commissioner or Superintendent of Public Instruction, he shall prosecute and defend all suits relating to matters connected with their departments * * * 4. To consult with and advise the solicitors, when requested by them, in all matters pertaining to the duties of their office." G.S. § 114-6 provides: "The Attorney General shall continue to perform all duties now required of his office by law and to exercise the duties now prescribed by law as to civil litigation affecting the State, or any agency or department thereof."

This Court said in State v. Loesch, 237 N.C. 611, 75 S.E.2d 654, 656: "The Attorney General and the several solicitors of the State are constitutional officers and their duties are set forth in the Constitution and the statutes. In Article III, Section 18, of the Constitution of North Carolina, the General Assembly is authorized and empowered ``to create a Department of Justice under the supervision and direction of the Attorney General, and to enact suitable laws defining the authority of the Attorney General and other officers and agencies concerning the prosecution of crime and the administration of the criminal laws of the State.' Pursuant to the above authority, the General Assembly enacted G.S. § 114-2 prescribing the duties of the Attorney General. Subsection 4 of this section reads as follows: ``To consult with and advise the solicitors, when requested by them, in all matters pertaining to the duties of their office.' Therefore, the duty of the Attorney General in so far as it extends to the solicitors of the State is purely advisory. The Attorney General has no constitutional authority to issue a directive to any other constitutional officer concerning his legal duties."

G.S. § 159-40 prosecution by Attorney General for violations of Ch. 159—Local Government Acts—has no application.

There is no language in G.S. Ch. 120, art. 10 to deprive the solicitor of his constitutional and statutory duty to prosecute violations of this Article. This Court said in State v. McAfee, 189 N.C. 320, 127 S.E. 204, 205: "A solicitor is the most responsible officer of the court, and has been spoken of as ``its right arm.' He is a constitutional officer, elected in his district by the qualified voters thereof, and his special duties prescribed by the Constitution, Art. IV, § 23."

There is no allegation in the complaint that the Governor, or either branch of the General Assembly, or the Secretary of State, or any of the other officers enumerated in G.S. § 114-2, has requested the Attorney General to prosecute plaintiff for any violation, if there has been such, of G.S. Ch. 120, art. 10, by plaintiff. A careful examination of our statutes discloses no grant of power or authority which would authorize the Attorney General, in his official capacity, to prosecute plaintiff for any alleged violation of G.S. Ch. 120, art. 10, if it has committed such, and to take over the constitutional power and duty of the solicitor of the district, in such prosecution, and no such statute has been called to our attention. See Railroad Tax Cases, 8 Cir., 136 F. 233; Parker v. Murry, 221 Ark. 554, 254 S.W.2d 468; Davis v. Pelley, 230 Ind. 248, 102 N.E.2d 910; 7 C. J.S., Attorney General, § 5, p. 1223; 7 Am. Jur., Attorney General, pp. 235-236.

The demurrer was properly sustained for a misjoinder of causes for the reason that the two alleged causes of action do not affect both defendants.

The court below being of the opinion that a decision based on the alleged cause of action in respect to the applicability of G.S. Ch. 120, art. 10, would not settle the controversy between the parties, and that the court should, in its discretion, dismiss that alleged cause of action, dismissed it. The court had such discretion by virtue of the provision of G.S. § 1-257, and we do not find that it abused its discretion. If the court in respect to such alleged cause of action had rendered a decision in plaintiff's favor, it would not be binding on the solicitors for the State, who are not parties in any respect.

Although the court sustained the demurrer, it had the power to sever the two alleged causes of action, and retain the one in respect to the applicability of G.S. § 55-118 to plaintiff. Teague v. Silver City Oil Co., 232 N.C. 469, 61 S.E.2d 345; Railroad Co. v. Wakefield Hardware Co., supra.

G.S. § 55-118 provides that the Attorney General shall prosecute actions for a violation of this section, whenever it appears that the section has been violated. This duty calls for the exercise of some discretion and judgment on his part. It seems that it cannot be successfully contended that our Declaratory Judgment Act authorizes a proceeding against the Attorney General to determine the permissible scope of his official duty under a given statute. It would seem that the Attorney General is not a real party defendant, but that he should be retained as a nominal defendant with the Secretary of State, as the constitutionality of G.S. § 55-118 is being challenged.

The last sentence of the Attorney General's brief states: "The judgment of the trial court should be affirmed, and the case remanded for hearing on the merits to determine whether plaintiff is required to comply with G.S. § 55-118."

Plaintiff has failed to comply with G.S. § 1-123 in that his two alleged causes of action have not been separately stated. Tart v. Byrne, 243 N.C. 409, 90 S.E.2d 692; Mills v. Carolina Cemetery Park Corp., 242 N.C. 20, 86 S.E.2d 893; Rules of Practice in the Supreme Court, Rule 20(2), 221 N.C. 557.

The judgment below is

Affirmed.

JOHNSON and RODMAN, JJ., not sitting.