Woodard v. Carteret County , 270 N.C. 55 ( 1967 )

153 S.E.2d 809 (1967) 270 N.C. 55

W. L. WOODARD and M. B. Morey, on behalf of themselves severally and jointly and all others similarly situated,
v.
CARTERET COUNTY, North Carolina, A. B. Cooper, Chairman, George D. Phillips, Moses Howard, E. W. Downum and Staton Moore, the Board of County Commissioners of Carteret County, Raymond T. Edwards, Chairman, Frank A. Cassiano and Clifford R. Tilghman, constituting the Board of Elections of Carteret County, North Carolina, and Thomas Wade Bruton, Attorney-General of the State of North Carolina.

No. 123.

Supreme Court of North Carolina.

April 12, 1967.

Wheatly & Bennett, by Thomas S. Bennett, Beaufort, for plaintiff appellants.

Hamilton, Hamilton & Phillips, by Luther Hamilton, and Harvey Hamilton, Jr., Morehead City, for defendant appellees.

PARKER, Chief Justice.

G.S. § 1-264 states:

"This article [Uniform Declaratory Judgment Act] is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered."

G.S. § 1-254 states in relevant part:

"Any person * * * whose rights, status or other legal relations are affected by a statute * * *, may have determined any question of construction or validity arising under the * * * statute * * *, and obtain a declaration of rights, status or other legal relations thereunder."

The courts have on numerous occasions stated that the Uniform Declaratory Judgment Act furnishes a particularly appropriate method for the determination of controversies relative to the construction and validity of a statute, provided there is an actual or justiciable controversy between the parties in respect to their rights under the statute. 22 Am.Jur.2d, Declaratory Judgments, § 25; 26 C.J.S. Declaratory Judgments §§ 45, 46, 47.

In Chronicle & Gazette Pub. Co. v. Attorney General, 94 N.H. 148, 48 A.2d 478, 168 A.L.R. 879, the Court said:

"A petition for a declaratory judgment is particularly appropriate to determine the constitutionality of a statute when the parties desire and the public need requires a speedy determination of important public interests involved therein."

In Allison v. Sharp, 209 N.C. 477, 184 S.E. 27, the Court held that the Uniform Declaratory Judgment Act affords a means of testing the validity of a statute requiring persons presenting themselves for registration to prove to the satisfaction of the registrar their ability to read and write any section of the Constitution, plaintiffs and all the people of the State being vitally affected by the statute.

G.S. § 1-151 reads: "In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties."

The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of factual averments well stated and such relevant inferences as may be reasonably deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader. McKinney v. High Point, 237 N.C. 66, 74 S.E.2d 440.

It appears that all necessary persons have been made parties to this action by plaintiffs. Considering the allegations in the complaint, according to the established rule, they disclose the existence of a real and justiciable controversy between the parties who have a substantial and legally protectible interest in the subject matter of the litigation, and that the plaintiffs would be adversely affected by the enforcement of the challenged Acts, and that all the people of Carteret County are vitally affected by the challenged Acts as to the following questions: (1) Whether the "one man—one vote" principle announced by the United States Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, and in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506, applies to representation on the Board of County Commissioners; (2) if so, whether the apportionment accomplished in Carteret County by the 1963 and 1965 Acts meets the general standards suggested in Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2d 620, and other United States Supreme Court decisions; (3) whether the North Carolina General Assembly was constitutionally authorized to extend the terms of office of members of the Board of County Commissioners of Carteret County; and (4) whether the court should direct primary and general elections to be held immediately to elect five Commissioners from Carteret County.

Sharp, J., said for the Court in Nationwide Mutual Insurance Co. v. Roberts, 261 N.C., 285, 134 S.E.2d 654:

"This appeal, however, is from an order of the Superior Court sustaining a demurrer to the complaint. When a complaint alleges a bona fide controversy justiciable under the Declaratory Judgments Act, and it does not appear from the complaint that necessary parties are absent from the suit, a demurrer to the complaint should be overruled. The parties are entitled to a declaration of their rights and liabilities and the action should be disposed of only by a judgment declaring them."

To the same effect, Walker v. Charlotte, 268 N.C. 345, 150 S.E.2d 493; 26 C.J.S. Declaratory Judgments § 141; 22 Am.Jur. 2d, Declaratory Judgments, § 91. See Hubbard v. Josey, 267 N.C. 651, 148 S.E.2d 638, which was a civil action for a declaratory judgment to determine the rights of the parties in a 20-foot-wide strip of land known as Hawthorne Lane in Irving Park in Greensboro, North Carolina. At the close of plaintiffs' evidence, the Court dismissed the action by a judgment of nonsuit. The Court in its decision set aside the judgment of nonsuit and remanded the case for a trial de novo and for an adjudication of the respective rights of the parties.

This is said in 22 Am.Jur.2d, Declaratory Judgments, § 91:

"The use and determination of demurrers in declaratory judgment actions are controlled by the same principles that apply in other cases. Nevertheless, it has frequently been stated that a demurrer is rarely an appropriate pleading for a defendant to file to a petition for declaratory judgment. Where the plaintiff's pleading sets forth an actual or justiciable controversy, it is not subject to demurrer since it sets forth a cause of action, even though the plaintiff may not be entitled to a favorable declaration on the facts stated in his complaint; that is, in passing on the demurrer, the court is not concerned with the question whether plaintiff is right in a controversy, but only with whether he is entitled to a declaration of rights with respect to the matters alleged."

The judgment entered below sustaining the demurrer and dismissing the action, with the costs to be taxed against plaintiffs, is reversed. The case is remanded to the Superior Court of Carteret County to the end that defendants may answer within 30 days after the receipt of the certificate from the Supreme Court, G.S. § 1-131, and that thereafter the Superior Court of Carteret County will by judgment adjudicate the rights, status or other legal relations of the parties under the provisions of our Uniform Declaratory Judgment Act. On the demurrer we take the case as made out by the complaint. What position the defendants will take and whether or not bona fide controversies justiciable under our Uniform Declaratory Judgment Act will be raised by the answer, we do not know at this stage of the proceeding.

Reversed and remanded.