#### THE TOWN OF FUQUAY SPRINGS, a Municipal Corporation, v. W. I. ROWLAND, Judge of the FUQUAY SPRINGS RECORDER’S COURT, and W. O. COUNCIL, Clerk of the FUQUAY SPRINGS RECORDER’S COURT.

(Filed 15 January, 1954.)

1. Judges § 4—

A judge of a court of this State is not subject to civil action for errors committed in tbe discharge of his official duties, and .therefore an action under the Declaratory Judgment Act against a judge to determine the correctness of his adjudication as to what items should be included in a bill of costs in a criminal action will be dismissed, eyen ex mero motu, for failure to state a cause of action.

a. Appeal and Error § 6c (1): Pleadings § 16—

The failure of the complaint to state a cause of action is a defect upon ■the face of the record proper requiring dismissal in the Supreme Court ex mero motu in the absence of an assignment of error.

S. Declaratory Judgment Act § 1—

The failure of a clerk of a local court to collect and account for moneys rightfully belonging to a municipality because of alleged error in the taxing of costs in criminal prosecutions in his court may not be instituted under the Declaratory Judgment Act, since that statute does not vest in the Superior Court the general power to oversee, supervise, direct or instruct officials of inferior courts in the discharge of their official duties.

Appeals by plaintiff and defendant Rowland from Harris, JOctober Term, 1953, Watce.

Civil action purportedly instituted under tbe Declaratory Judgment Act, Gr.S. cb. 1, art. 26, to determine wbat items of cost should be included in tbe bill of cost in a criminal action tried in tbe Fuquay Springs Recorder’s Court.

It is tbe duty of defendant W. 0. Council as clerk of said court to tax tbe bill of cost in eacb and every criminal action tried in said court. “Tbe fees charged in tbe bill of cost shall be tbe same as tbe fees allowed in courts of justices of tbe peace in Wake County,- except there shall be charged, in lieu of tbe trial fee, a recorder’s fee in such case of three dollars, and fee in each criminal case of five dollars for each defendant which fee shall be a prosecuting attorney’s fee . . .” Sec. 17, cb. 280 P.L.L. 1917, as amended by sec. 6, cb. 496 P.L.L. 1929. Tbe costs to be taxed by justices of the peace in Wake County are listed in cb. 866 S.L. 1951. Certain other fees are to be taxed as provided by law, to wit:

(1) Law Enforcement Officers’ Benefit and Retirement Fund ... $2.00.

(2) Wake County Officers’ Pension Fund ... $1.00.

(3) Arrest fee ... $2.00.

(4) Jail fees of $1.50 per day, plus $1.00 turnkey fee.

*300(5) Jury fee, when applicable ... $18.00.

On or about 22 April 1953, defendant Rowland, as judge of said court, directed defendant Council, as clerk, not to tax in any bill of cost tbe arrest fee of $2.00 when tbe arrest was made by a salaried officer, or tbe $1.00 for uncontested judgment, or tbe $2.00 for contested judgment, on tbe theory tbe $3.00 recorder’s fee “in lieu of the trial fee” allowed by law was a substitution of tbe judgment fees listed in tbe costs to be taxed by a magistrate.

Plaintiff, alleging that it “has a vital financial interest in said bills of cost in all cases tried in said court, as under tbe various acts regulating fees, certain items are paid over to said Town of Fuquay Springs to cover expenses of furnishing courtroom, beat, lights, water and a clerk for said court, and other clerical services and jail, and also costs of printing forms, et cetera ” instituted this action for judgment (1) adjudging that tbe items of cost set forth in paragraphs 7 and 8 of its complaint are tbe •proper and legal costs to be assessed in criminal actions tried in said court, and (2) directing defendant Council as clerk to charge tbe same in each and every bill of cost in criminal actions tried in said court and collect and distribute same according to law.

Defendant Council, answering, admitted all tbe allegations of tbe complaint. Defendant Rowland first demurred to tbe complaint for that (1) tbe complaint does not state a cause of action for tbe reasons therein stated, (2) there is a misjoinder of parties, (3) the plaintiff is without capacity to sue tbe defendant in bis official capacity, and (4) it is not made to appear that plaintiff has any interest in any particular item of cost listed by it. Tbe demurrer was overruled.

Thereupon, said defendant filed answer in which be contests tbe right to tax certain fees contended for by plaintiff and pleads certain defenses and denies tbe right of plaintiff to maintain this action.

When tbe cause came on for bearing in tbe court below, tbe trial judge entered judgment listing tbe items of cost to be charged in bills of cost in said court, including both tbe fees for judgment allowed magistrates and tbe recorder’s fee of $3.00; adjudging that tbe prosecuting attorney’s fee of $5.00 should not be taxed in a case where tbe defendant pleads guilty or nolo contendere or where the tbe offense charged is within tbe jurisdiction of a justice of tbe peace; and “authorizing” defendant Council as clerk to follow tbe schedule of fees set forth in tbe judgment in preparing bills of cost in criminal cases tried in said court. Both plaintiff and defendant Rowland excepted and appealed.

Mordecai é Mills for plaintiff appellant.

Wm. B. Oliver for defendant appellant Rowland.

*301Barnhill, J.

Defendant Rowland fails to assign as error tbe order overruling bis demurrer or to bring tbe exception forward and discuss tbe same in bis brief. Even so, in tbe light of our conclusion herein, this is immaterial.

A judge of a court of this State is not subject to civil action for errors committed in tbe discharge of bis official duties. Consequently no cause of action is stated against defendant Rowland, and as to him tbe action is dismissed ex mero motu.

“When . . . tbe complaint fails to state a cause of action, that is a defect upon tbe face of tbe record proper, of which tbe Supreme Court on appeal will take notice, and when such defects appear tbe Court will ex mero motu dismiss the action.” Denny, J., in Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E. 2d 644, and cases cited; S. v. Ivey, 230 N.C. 172, 52 S.E. 2d 346; Dare County v. Mater, 235 N.C. 179, 69 S.E. 2d 244; Aiken v. Sanderford, 236 N.C. 760, 73 S.E. 2d 911.

While we concede that tbe Declaratory Judgment Act, Gr.S. cb. 1, art. 26, is comprehensive in scope and purpose, it does not, and was not intended to, embrace an action such as this. We cannot perceive that tbe Legislature, in enacting that statute, intended to vest in the Superior Courts of tbe State tbe general power to oversee, supervise, direct, or instruct officials of inferior courts in the discharge of their official duties.

Tbe defendant Council did not appeal. Even so, be is an official of tbe court. If be fails to collect and account for moneys rightfully belonging to plaintiff, or taxes items of cost which should not be taxed, or fails to tax items which should be taxed, tbe law provides an adequate and expeditious remedy in behalf of those who have tbe right to raise the issue in any of these particulars.

TJnder tbe circumstances it is unnecessary for us to discuss errors in tbe judgment in respect to certain items of cost.

The appeals are dismissed and tbe cause is remanded with direction that it be dismissed from tbe docket.

Appeals dismissed.