Title: S.L. 1989-959
Category: Session Law

GENERAL ASSEMBLY OF NORTH CAROLINA
1989 SESSION

CHAPTER 959
SENATE BILL 1616

AN ACT TO ALTER THE MANNER FOR SELECTING DRAINAGE COMMISSIONERS AND TO PROVIDE NOTICE PRIOR TO ASSESSMENT.

The General Assembly of North Carolina enacts:

Section 1.  Chapter 156 of the General Statutes is amended by adding a new section to read:
"§ 156-82.2.  Appointment of drainage commissioners.
Notwithstanding any other provision of law (including, where applicable, any special acts or local modification of general law), the General Assembly hereby appoints all sitting drainage district commissioners and drainage commission treasurers, as of the date of ratification of this section, as commissioners, officers, and treasurers of their respective districts.  Said commissioners, officers, and treasurers shall continue in office until such time as appointments shall be made as provided in G.S. 156-81 and G.S. 156-81.1, which appointments shall be made by the clerk or clerks of the superior court not later than January 1, 1991."
Sec. 2.  G.S. 156-79 reads as rewritten:
"§ 156-79.  Appointment and organization under original act.
After the drainage district has been declared established, as aforesaid, and the survey and plan therefor approved, the court shall appoint three persons, in the manner set forth in G.S. 156-81, who shall be designated as the board of drainage commissioners. Any vacancy thereafter occurring shall be filled by the clerk or clerks of the superior court in the manner set forth in G.S. 156-81.  Such three drainage commissioners, when so appointed, shall be immediately created a body corporate under the name and style of 'The Board of Drainage Commissioners of ........District,' with the right to hold property and convey the same, to sue and be sued, and shall possess such other powers as usually pertain to corporations. They shall organize by electing from among their number a chairman and a vice-chairman. They shall also elect a secretary, either within or without their body. Such board of drainage commissioners shall adopt a seal, which they may alter at pleasure. The board of drainage commissioners shall have and possess such powers as are herein granted."
Sec. 3.  G.S. 156-81 reads as rewritten:
"§ 156-81.  Appointment and organization under amended act.
(a)	Method of Appointment. – 
The manner of appointment shall be as follows:
(1)	If the drainage district shall lie solely within one county, the clerk of superior court for such county shall appoint such commissioners.
(2)	If the said district shall lie in more than one county, then such commissioners shall be appointed by unanimous action of the clerks of court for the counties wherein any part of such district lies.
(b)	Organization. – Immediately after the appointment of the board of drainage commissioners, the clerk of the court of the county wherein such drainage proceeding is pending shall notify each of the commissioners in writing to appear at a certain time and place within the district and organize. The clerk or clerks of court, as the case may be, shall appoint one of the three members as chairman of the board of drainage commissioners, and in doing so he or they shall consider carefully and impartially the respective qualifications of each of the members for the position.
(c)	Term of Office. – The term of service of the members of the board of drainage commissioners so appointed shall begin upon their appointment.  Where all three commissioners are appointed at once, one commissioner shall serve for one year, one for two years, and the other for three years, the term to be computed from the first day of October following their organization. The members so serving for one, two, and three years, respectively, shall be unanimously designated by the clerk or clerks of the court.  Thereafter each member shall be appointed for three years. The clerk of the court for the county wherein the proceeding is pending shall record in the drainage record the date of appointment, the members appointed, and the beginning and expiration of their term of office.
(d)	Vacancies Filled. – If a vacancy shall occur in the office of any commissioner by death, resignation, or otherwise, the remaining two members are to discharge the necessary duties of the board until the vacancy shall be filled; and if the vacancy shall be in the office of chairman or secretary, the two remaining members may elect a secretary, and the clerk or clerks, as the case may be, shall appoint one of the two remaining members to act as chairman to hold until the vacancy in the board shall be filled. The clerk of the county wherein the proceeding is pending shall keep a similar record of any appointment to fill vacancies.  The person appointed to fill the vacancy shall be appointed in the manner set forth in subsection (a) of this section and shall serve until the expiration of the term of his predecessor. The secretary of the board of drainage commissioners shall promptly notify the appropriate clerk or clerks of the superior court of any vacancy in the board.
(e)	Failure to Appoint. – If for any reason the clerk or clerks of the court shall fail to provide for the appointment of drainage commissioners prior to the expiration of a term, the incumbents shall continue to hold their office as commissioners until their successors are appointed and qualified. The term of office of boards of drainage commissioners heretofore elected and appointed shall expire immediately upon the appointment of new commissioners pursuant to subsection (a) of this section.
(f)	Meetings. – The board shall meet once each month at a stated time and place during the progress of drainage construction, and more often if necessary. After the drainage work is completed, or at any time, the chairman shall have the power to call special meetings of the board at a certain time and place. The chairman shall also call a meeting at any time upon the written request of the owners of a majority in area of the land in the district.
(g)	Compensation. – The chairman of the board of drainage commissioners shall receive compensation and allowances as fixed by the clerk of the superior court. In fixing such compensation and allowances, the clerk shall give due consideration to the duties and responsibilities imposed upon the chairman of the board. The other members of the board shall receive a per diem not to exceed twenty-five dollars ($25.00) a day, while engaged in attendance upon meetings of the board, or in the discharge of duties imposed by the board. The  secretary of the board shall receive such compensation and expense allowances as may be determined by the board.
The chairman and members of the board of drainage commissioners shall also receive their actual travel and subsistence expenses while engaged in attendance upon meetings of the board, or in the discharge of duties imposed by the board. The compensation and expense allowances as herein set out shall be paid from the assessments made annually for the purpose of maintaining the canals of the drainage district, or from any other funds of the district.
(h)	Application of Section. – The provisions of this section shall apply to all drainage districts now or hereafter existing in this State, without regard to the date of organization.
	."
Sec. 4.  G.S. 156-93.1(a) reads as rewritten:
"(a)	The board of drainage commissioners may annually levy maintenance assessments in the same ratio as the existing classification of the lands within the district. The amount of these assessments shall be determined by the board of drainage commissioners of the district.  The proceeds of these assessments shall be used for the purpose of maintaining canals of the drainage district in an efficient operating condition and for the necessary operating expenses of the district.  In the event that any interested and aggrieved party disagrees with the said assessment, he may, within 20 days of the mailing of the notice of the assessment, file with the clerk for the county wherein the proceeding is pending, a notice specifically setting forth his objection.  The Secretary of the District shall file in the records of the proceeding a certification setting forth the date of the mailing of the notice of the annual maintenance assessments.  The clerk shall thereupon notify the senior resident superior court judge of such district who shall set the objection down for hearing at the earliest possible time.  The court shall hear the matter upon the objections duly set forth in the notice of objection.  Notice of the meeting at which the board of drainage commissioners determines the amount of the annual levy shall be published in a newspaper of general circulation in the area for four successive days, not more than 30 or less than 10 days prior to the meeting.  The notice shall be not less than one-fourth page in size and shall state the time, place, and purpose of the meeting.  At such meeting any interested person shall have the right to be heard prior to action on the proposed assessment.
The board of drainage commissioners shall have the authority to employ engineering assistance, construction equipment, superintendents and operators for the equipment necessary for the efficient maintenance of the canals, or the maintenance may be done by private contract made after due advertisement as required for the original construction work."
Sec. 5.  Chapter 156 of the General Statutes is amended by adding a new section to read:
"§ 156-82.3.  Validation of Previous Actions.
(a)	All expenditures heretofore incurred, and all actions heretofore taken, by a drainage district for purposes authorized by this Chapter are hereby validated notwithstanding any defect in the selection of any or all of its commissioners or any other defect.
(b)	The provisions of this section are expressly made applicable to any and all bonds and other financial obligations of any such district.  No action based on the alleged invalidity of the assessments heretofore made or of any such bonds or other obligations of a district shall lie after January 1, 1991, to enjoin or contest the enforceability of any such assessment, bond, or other obligation."
Sec. 6.  G.S. 156-81.1 reads as rewritten:
"§ 156-81.1.  Treasurer.
The appointing authority as determined by G.S. 156-81 shall appoint a treasurer for the drainage district for a term not to exceed 12 months. The treasurer so appointed may be a member of the board of commissioners of the district or some other person deemed competent, and shall furnish bond as may be required by the said clerk of the superior court. The treasurer shall continue in office until a successor has been appointed and qualified.
All references in Subchapter III of Chapter 156 of the General Statutes of North Carolina, to 'treasurer' or 'county treasurer' or 'county auditor' are hereby amended to refer exclusively to the treasurer appointed as hereinbefore provided."
Sec. 7.  If any provision or clause of this Chapter or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this Chapter that can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable.
Sec. 8.  This act is effective upon ratification.
In the General Assembly read three times and ratified this the 18th day of July, 1990.

Page 	S.L. 1989-959	Senate Bill 1616

Senate Bill 1616	S.L. 1989-959	Page