Plemmer v. Matthewson , 281 N.C. 722 ( 1972 )

190 S.E.2d 204 (1972)

Walter PLEMMER, Jr., et al.,
v.
W. Ray MATTHEWSON, Mayor, et al.

No. 106.

Supreme Court of North Carolina.

July 31, 1972.

Pearson, Malone, Johnson & DeJarmon, by C. C. Malone, Jr., and W. G. Pearson, II, Durham, for petitioner appellants.

M. L. Cromartie, Jr., Tarboro, Ball, Coley & Smith, by Ernest H. Ball, Raleigh, for respondent appellees.

SHARP, Justice.

Plaintiffs allege—and have contended both in the lower court and on appeal—that the Ordinance is invalid because the board of commissioners did not comply with the annexation procedures specified in N.C.Gen.Stats., Ch. 160, art. 36, Part 1. Plaintiffs also alleged in their complaint that the enactment of the Ordinance violated the equal protection clauses of the North Carolina and United States Constitutions. The latter contention does not appear to have been made in the court below, and it is not made in the brief filed in this Court. It is, therefore, deemed abandoned. Atlantic Coast Line Railroad v. Beaufort County, 224 N.C. 115, 29 S.E.2d 201 (1944); 1 N.C. Index 2d Appeal and Error § 45 (1967).

Plaintiffs now contend (1) that the Act violates N.C.Const., art. II, § 1, in that it delegates legislative authority without sufficient guidelines, and (2) that "the legislature must have intended that the Commissioners comply with the standards set out. . . in Chapter 160 of the General Statutes of North Carolina" and, since they failed to do so, the Ordinance is invalid.

Since plaintiffs' first contention was not made in the court below it may not be raised for the first time on appeal. Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971). However, even if it were properly before this Court, this contention would be without merit. There is no constitutional provision prohibiting the creation of a municipality by an act of the General Assembly, Chimney Rock Co. v. Lake Lure, 200 N.C. 1971, 156 S.E. 542 (1931). A fortiori, by a special act, it may constitutionally enlarge the boundaries of a town which it has created. It may also provide statutory procedures for extending the corporate limits of a municipality organized and existing under the laws of the State. In re Annexation Ordinances, 253 N.C. 637, 117 S.E.2d 795 (1961); Highlands v. Hickory, 202 N.C. 167, 162 S.E. 471 (1932).

This Court has frequently held that the enlargement of municipal boundaries by the annexation of new territory, resulting in the extension of municipal corporate jurisdiction, is a legitimate subject of legislation. "In the absence of constitutional restriction the extent to which such legislation shall be enacted, both with respect to the terms and circumstances under which the annexation may be had, and the manner in which it may be made, rests entirely in the discretion of the Legislature. With its wisdom, propriety, or justice, we have naught to do. It has therefore been held that an act of annexation is valid which authorized the annexation of territory, without the consent of its inhabitants. . . ." Lutterloh v. Fayetteville, 149 N.C. 65, 69, 62 S.E. 758, 760 (1908). Accord, Dunn v. Tew, 219 N.C. 286, 13 S.E.2d 536 (1941); Matthews v. Blowing Rock, 207 N.C. 450, 177 S.E. 429 (1934). Cf. Cox v. Kinston, 217 N.C. 391, 8 S.E.2d 252 (1940).

In delegating to the town commissioners the discretionary right to decide whether to enlarge the corporate limits as specified in the Act, the General Assembly did not delegate legislative authority in violation of N.C.Const. art. II, § 1, or art. I, § 6. Except for approval by the town's board of commissioners, the Act was complete in every respect at the time of its ratification. The only discretion given the commissioners was to decide whether or not to annex the territory specified in the Act, a determination they were required to make within sixty days. In authorizing the annexation, the General Assembly determined that the annexation was suitable and proper.

In In re Annexation Ordinances, supra, this Court upheld the authority of the General Assembly to authorize the governing bodies of municipalities to annex territory upon meeting the requirements of N.C. Gen.Stats., Ch. 160, art. 36, Part 3. The Court made the following statements which are equally applicable here: "The only discretion given to the governing boards of such municipalities is the permissive or discretionary right to use this new method of annexation provided such boards conform to the procedure and meet the requirements set out in the Act as a condition precedent to the right to annex." Id. 253 N.C. at 647, 117 S.E.2d at 802.

"The decisions of this Court support the view that ordinary restrictions with respect to the delegation of power to an agency of the State, which exercises no function of government, do not apply to cities, towns, or counties." Id. at 649, 117 S.E.2d at 803-804. See also Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 162, 166 S.E.2d 78, 83 (1969).

Plaintiffs' second contention is, in effect, that Princeville could only annex the area in question by complying with N. C.Gen.Stats., Ch. 160, art. 36, Part 1. (Part 2, which applies to municipalities of less than 5,000, exempts Edgecombe County from its application and provides that Part 1 shall apply to that county. G.S. § 160-453.12.) This contention assumes that, by the enactment of statutory procedures by which municipalities may annex territory without a special act of the legislature, the General Assembly rendered itself powerless to extend corporate limits. This contention is untenable. An act of the General Assembly is legal unless the Constitution contains a prohibition against it. McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961). "[O]ne legislature cannot restrict or limit by statute the right of a succeeding legislature to exercise its constitutional power to legislate in its own way." State v. Norman, 237 N.C. 205, 211, 74 S.E.2d 602, 607 (1953). Accord, State v. Wall, 271 N.C. 675, 157 S.E.2d 363 (1967). Since defendants proceeded under the Act they did not comply with N.C. Gen.Stats., Ch. 160, art. 36, Part 1, nor as Judge Cowper correctly held, were they required to do so.

The judgment of the Superior Court, which dissolved the restraining order and dismissed the action, is

Affirmed.