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Hull v. Oldham9/3/1991
avior" of defendants independent of their negligence claims.
In their second claims, plaintiffs alleged that the conduct and certain acts of defendant Oldham constitute "neglect, misconduct or misbehavior" and are therefore a breach of his duty. Further, plaintiff Hull in his fourth claim alleged that acts and conduct of defendant McCrary constitute "neglect, misconduct or misbehavior." We conclude that the allegations of plaintiffs' complaints are sufficient to state a claim upon which relief may be granted, and therefore the trial court did not err in denying defendants' motions to dismiss.
III.
Defendants also argue in the alternative that the trial court erred in denying their motions to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) (1990) on the grounds that a sheriff and deputies are state officers and thus under N.C. Gen. Stat. § 143-291 (1990), jurisdiction for these claims lies with the North Carolina Industrial Commission. We disagree.
Article VII of the North Carolina Constitution entitled "Local Government" provides that " he General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities, and towns." N.C. Const. art. VII, § 1. Article VII further provides: " n each county a Sheriff shall be elected by the qualified voters thereof at the same time and places as members of the General Assembly are elected and shall hold his office for a period of four years, subject to removal for cause as provided by law." N.C. Const. art. VII, § 2. In providing for the organization of local governments, our Constitution does not make sheriffs state rather than local officers. In an Alabama case cited by defendants, Parker v. Amerson, 519 So. 2d 442 (Ala. 1987), the court held that a sheriff is a state officer where the state constitution explicitly stated that " he executive department shall consist of a governor . . . and a sheriff for each county." Id. at 443. Our courts have consistently exercised jurisdiction on appeal from the superior courts. See Braswell, 98 N.C. App. 231, 390 S.E.2d 752; Helmly v. Bebber, 77 N.C. App. 275, 335 S.E.2d 182 (1985); Williams, 288 N.C. 501, 219 S.E.2d 198. Defendants have cited no North Carolina case in which sheriffs were not considered local officers.
Affirmed.
Disposition
Affirmed.
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