dissenting.
Because the doctrine of sovereign immunity bars all in personam contempt proceedings against the State and its administrative agencies; and because the action, as filed, was insufficient to give the district court either personal or subject matter jurisdiction, I respectfully dissent.
I begin by noting that I agree with the conclusion reached in section D of the majority opinion: To the extent that G.S. 20-179.3(k) permits the DMV to unilaterally invalidate a properly entered court order, it violates the separation of power provisions of the North Carolina Constitution. See N.C. Const. art. I, § 6. Accord Hamilton v. Freeman, 147 N.C. App. 195, 204, 554 S.E.2d 856, 861 (2001), disc. *27review denied sub nom., Hamilton v. Beck, 355 N.C. 285, 560 S.E.2d 802 (2002); Thomas v. N.C. Dept. of Human Resources, 124 N.C. App. 698, 706-10, 478 S.E.2d 816, 821-23 (1996), aff'd per curiam, 346 N.C. 268, 485 S.E.2d 295 (1997). However, for the following reasons, I believe the district court was without authority to enter the order that is at issue in this case.
First, our “contempt statutes refer generally to persons. ‘In common usage, the term ‘person’ does not include the sovereign and statutes employing the word are ordinarily construed to exclude it.’ ” N.C. Dept. of Transportation v. Davenport, 334 N.C. 428, 431-32, 432 S.E.2d 303, 305 (1993) (citations omitted). Accordingly, the doctrine of sovereign immunity bars the State and its administrative agencies, as entities, from being held in contempt. Id. at 430, 432 S.E.2d at 304. Sovereign immunity also bars the issuance of injunctions against the State and its administrative agencies; as entities, because “an injunction . . . use[s] the in personam contempt power of the court. . . .” Orange County v. N.C. Dept. of Transportation, 46 N.C. App. 350, 385, 265 S.E.2d 890, 912, disc. review denied, 301 N.C. 94, — S.E.2d — (1980).
Here, defendant sought to have “DMV... adjudged in willful criminal and/or civil contempt,” and “[a] preliminary and permanent injunction issue[d] from the court restraining and enjoining DMV from denying the defendant a limited driving privilege . . . .” (Emphasis added.) Nowhere in his motion did defendant seek to have any individual officer of the DMV held in contempt or enjoined. Furthermore, the district court entered an order “enjoining the Division of Motor Vehicles from denying the Defendant a Limited Driving Privilege[.]” (Emphasis added.) Since all of the remedies prayed for and granted were directed toward the North Carolina Division of Motor Vehicles, as an entity, and not toward any individual public officer, I would hold that the doctrine of sovereign immunity barred the district court from granting the prayed for relief.
The majority reasons that by enacting G.S. 20-179.3 and giving the court the authority to order the DMV to issue a limited driving privilege, the State has by necessary implication waived its sovereign immunity for purposes of enforcing these orders. I disagree. The State and its governmental units can only be deprived of sovereign immunity by a “ ‘plain, unmistakable mandate’ ” of the lawmaking body. Wood v. N.C. State University, 147 N.C. App. 336, 338, 556 S.E.2d 38, 40 (2001) (citations omitted), disc. review denied, 355 N.C. *28292, 561 S.E.2d 887 (2002). “[Sovereign immunity] should not and cannot be waived by indirection or by procedural rule.” Id.
Our Supreme Court has concluded that there are no North Carolina statutes in existence “in which the sovereign State of North Carolina has consented to be subject to the contempt power of the court.” Davenport, 334 N.C. at 431, 432 S.E.2d at 305. Nothing contained in G.S. 20-179.3 purports to alter this conclusion. Since sovereign immunity may not be waived indirectly, I would hold that it has not been waived here.
Second, while I agree with the majority insofar as it reasons that the district court must be able to enforce its own judgments, I do not agree that the mechanism chosen in this case was appropriate. “Mandamus is the proper remedy to compel public officials ... to perform a purely ministerial duty imposed by law, where it is made to appear that the plaintiff, being without other adequate remedy, has a present, clear, legal right to the thing claimed and it is the duty of the respondents to render it to him.” Hamlet Hospital and Training School for Nurses, Inc. v. Joint Committee on Standardization, 234 N.C. 673, 680, 68 S.E.2d 862, 867 (1952). Although the statutory authority for the special remedy of mandamus by civil action has been repealed, see G.S. 1-511 et seq., “the remedy formerly provided by the writ of mandamus is still available . . . and the substantive grounds for granting the remedy as developed under our former practice still control.” Fleming v. Mann, 23 N.C. App. 418, 420, 209 S.E.2d 366, 368 (1974) (citation omitted) (emphasis added). See also G.S. 4-1 (2001) (declaring all parts of common law not otherwise repealed or abrogated in full force and effect). Moreover, “in this State, where the court exercises both legal and equitable jurisdiction, in a suit against a public official or board there is no practical difference in the results to be obtained by the common-law remedy of mandamus and the equitable remedy of mandatory injunction.” Sutton v. Figgatt, 280 N.C. 89, 92, 185 S.E.2d 97, 99 (1971) (emphasis added). However, “neither a mandamus nor an injunction is effective against the public office; rather, they both use the in personam contempt power of the court to coerce the individual public officer in the performance of a plain duty or to prevent the official from taking actions outside of his legal authority.” Orange County, 46 N.C. App. at 384-85, 265 S.E.2d at 912 (citations omitted) (emphasis added).
Here, defendant did not seek relief against any individual public officer; rather, defendant sought a court order directing that the DMV, *29as an entity, comply with the order granting him a limited driving privilege. Therefore, notwithstanding the sufficiency of the remaining factual allegations, see Figgatt, 280 N.C. at 92, 185 S.E.2d at 99 (where allegations sufficiently allege cause of action for mandamus, the court may treat it as a petition and grant the appropriate relief), defendant’s motion fails as a matter of law to sufficiently invoke the district court’s subject matter jurisdiction to grant either mandamus or a mandatory injunction.
Furthermore, “[d]ue service of process is necessary to subject a party to the jurisdiction of the court.” Southern Mills, Inc. v. Armstrong, 223 N.C. 495, 496, 27 S.E.2d 281, 282 (1943). “ ‘Jurisdiction in case of actions in personam can only be acquired by personal service of process within the territorial jurisdiction of the court . . . and unless jurisdiction of the party can be acquired, the attempted procedure is a nullity ....’” Id. at 497, 27 S.E.2d at 282 (citation omitted).
It is well established that a court may obtain personal jurisdiction over a defendant only by the issuance of summons and service of process by one of the statutorily specified methods. Absent valid service of process, a court does not acquire personal jurisdiction over the defendant and the action must be dismissed.
Glover v. Farmer, 127 N.C. App. 488, 490, 490 S.E.2d 576, 577 (1997) (citations omitted), disc. review denied, 347 N.C. 575, 502 S.E.2d 590 (1998). See N.C.R. Civ. P. 4(j)(1).
Here, no complaint or petition was filed instituting the action. Likewise, no summons was issued and neither a complaint nor a summons were served on any DMV officer. While DMV, as an entity was given notice of the hearing and DMV’s attorneys appeared on the agency’s behalf, this was insufficient to establish personal jurisdiction over any individual DMV officer. Accordingly, I would hold that the district court lacked personal jurisdiction over the proper party defendants.
For all the foregoing reasons, I would hold that the decision of the trial court should be reversed.