Town of Hudson v. (69 CVS 448) City of Lenoir

181 S.E.2d 443 (1971) 279 N.C. 156

TOWN OF HUDSON
v.
CITY OF LENOIR.
ATLANTIC INVESTMENT COMPANY, Inc. et al.
v.
TOWN OF HUDSON, a Municipal Corporation and City of Lenoir, a Municipal Corporation.

No. 104.

Supreme Court of North Carolina.

June 10, 1971.

West & Groome, by H. Houston Groome, Jr., Lenoir, for appellant Town of Hudson.

Ervin, Horack & McCartha, by C. Eugene McCartha, Charlotte, associated on the brief for appellant Town of Hudson.

Norwood Robinson of Hudson, Petree, Stockton, Stockton & Robinson, Winston-Salem, for plaintiff appellees, Atlantic Investment Company, Inc. and others.

Carpenter & Bost, by W. T. Carpenter, Jr., Lenoir, for defendant appellee, City of Lenoir.

HUSKINS, Justice:

Hudson contends it acquired prior and exclusive jurisdiction to annex the disputed area because it was first to pass a resolution of intent to annex the Joyceton area and Lenoir could not therefore proceed with voluntary annexation. Hudson relies on the majority rule stated in 2 McQuillin, Municipal Corporations (3d Ed., 1966), § 7.22a, which reads in pertinent part, as follows:

"The rule that among separate equivalent proceedings relating to the same subject matter, that one which is prior in time is prior in jurisdiction to the exclusion of those subsequently instituted, applies, generally speaking, to and among proceedings for the municipal incorporation, annexation, or consolidation of a particular territory; i. e., in proceedings of this character, while the one first commenced is pending, jurisdiction to consider and determine others concerning the same territory is excluded. Thus, where two or more bodies or tribunals have concurrent jurisdiction over a subject matter, the one first acquiring jurisdiction may proceed, and subsequent purported assumptions of jurisdiction in the premises are a nullity."

See Landis v. City of Roseburg, 243 Or. 44, 411 P.2d 282 (1966); Town of Greenfield v. Milwaukee, 259 Wis. 77, 47 N.W.2d 292 (1951); Town of Clive v. Colby, 255 Iowa 483, 123 N.W.2d 331 (1963); State ex rel. Harrier v. Spring Lake Park, 245 Minn. 302, 71 N.W.2d 812 (1955); Daytona Beach v. Port Orange, 165 So. 2d 768 (Fla.App.1964); People ex rel. Forde v. Corte Madera, 115 Cal. App. 2d 32, 251 P.2d 988 (1953); Joplin v. Shoal Creek Drive, 434 S.W.2d 25 (Mo.App.1968); Comment, Municipal Corporations: Prior Jurisdiction Rule, 7 Wake Forest L.Rev. 77 (1970).

We hold that the prior jurisdiction rule is not applicable to the facts of this case for two reasons. The record shows that upon dissolution of the restraining order both Hudson and Lenoir began annexation proceedings anew on the same day, June 17, 1969. Therefore, neither municipality could have gained exclusive jurisdiction under the "first to start" rule. Hudson argues, nevertheless, that its resolution of June 17 relates back to its original resolution passed on April 4, 1969. This contention is without merit. It is clear that all parties regarded the June proceedings as completely new and independent. In fact, Hudson's resolution on June 17 manifested the Town's intent to annex property not contained in the original resolution of April 4 and attempted to correct or supply omissions in the April proceeding. Furthermore, Hudson's Report on Annexation dated June 1969 states specifically that its procedure began on June 17, 1969, when its governing board adopted a Resolution of Intent to consider annexation of the areas described in the report. No other resolution and no other starting time is mentioned. In this posture, the resolution is similar to an ordinance: it is presumed prospective. "* * * [N]o ordinance shall be construed as having a retroactive effect unless such intention clearly appears. Thus, ordinances or by-laws operate in the future only, and are never to be given a retrospective or retroactive effect if susceptible of any other construction." 62 C.J.S. Municipal Corporations § 443; Smith v. Mercer, 276 N.C. 329, 172 S.E.2d 489 (1970). In the new resolution, there is no language indicating any intention that it is to have retroactive effect. If so intended, the intention of the Town Board should have been manifested at the time of its passage.

Aside from the fact that neither municipality was prior to the other in initiating annexation proceedings, the two proceedings were not "equivalent." The voluntary procedure initiated by the landowners and future municipal taxpayers has understandably been made simpler and quicker than the involuntary annexation procedures available to and followed by Hudson. The variations in procedural requirements with respect to voluntary and involuntary annexation make it possible for property owners in the affected area to inject an element of choice as to which municipality will govern them. Compare G.S. 160-452, which governs voluntary annexation, with G.S. 160-453.1 through G.S. 160-453.12, which governs involuntary annexation by municipalities of less than 5,000 population. It is significant here that the landowners affected preferred to be in Lenoir rather than Hudson. The applicable statutes recognize this possibility and afford the landowners an avenue of choice if they wish to travel it. But see Town of Clive v. Colby, 255 Iowa 483, 123 N.W.2d 331 (1963), where voluntary and involuntary annexation procedures were treated, by implication, as equivalent.

Hudson contends that the trial judge, upon finding that the record of its annexation proceedings failed to show substantial compliance with the essential provisions of the statutes under which it proceeded, was required to remand the proceeding to the governing board of the town of Hudson for amendment with respect to such noncompliance. Ordinarily, this is so. G.S. 160-453.6(g); Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961). It is well established, however, that the literal language of a statute will be interpreted to avoid an absurd result. Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 164 S.E.2d 2 (1968); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). Any new or amended proceeding by the Town of Hudson correcting all procedural irregularities would have been an exercise in futility after 30 June 1969 when the disputed area became a part of the City of Lenoir. After that date any attempt by the Town of Hudson to annex the disputed area would be in violation of G.S. 160-453.4(b) (3), which prohibits the annexation of an area already included within the boundary of another incorporated municipality. Failure to remand under such circumstance was not error.

The record discloses that on 17 June 1969, following dissolution of the temporary order signed by Judge Copeland, the City Council of Lenoir met in special session and received a petition, signed by each owner of real property in the disputed Joyceton area, requesting that the area described therein be annexed into the corporate limits of Lenoir. The petition was referred to the city clerk for checking and certification. The clerk, after reviewing the petition and checking it according to the map of the area, determined its sufficiency and so certified. The Council thereupon, by resolution, set a public hearing on the question of annexation, to be held at the Lenoir City Council Room at 9 a. m. on 30 June 1969. Notice of the public hearing was published in the Lenoir News Topic on Wednesday, 18 June 1969, more than ten days prior to the date of the public hearing. The Lenoir City Council then met in special session on June 30, 1969, and no one appeared at the public hearing in opposition to the annexation. The Council then determined that the petition of the property owners met the requirements of G.S. 160-452 and adopted an ordinance annexing the territory described in the petition, effective immediately. Thus, the requirements of G.S. 160-452 were fully met, and the disputed area became a part of the City of Lenoir on 30 June 1969. It was not thereafter available for annexation by any other municipality.

In view of the foregoing conclusions, it is unnecessary to discuss or decide whether Hudson complied with the requirements of G.S. 160-453.1 et seq. governing involuntary annexations by municipalities of less than 5,000 population. Whether it did or not, it could in no event annex an area already within the boundary of another incorporated municipality. G.S. 160-453.4(b) (3); 2 McQuillin, supra, § 7.22.

No error.