State Ex Rel. Tillett v. Mustian

91 S.E.2d 696 (1956) 243 N.C. 564

STATE of North Carolina on Relation of James C. TILLETT, Petitioner,
v.
Emily MUSTIAN, Elton Twiford, Robert Young, H. R. Morrison and Jimmy Gray, Respondents.

No. 25.

Supreme Court of North Carolina.

February 29, 1956.

Forrest V. Dunstan and John H. Hall, Elizabeth City, for petitioner, appellant.

Edwards, Sanders & Everett, Durham, for respondents, appellees.

BOBBITT, Justice.

The demurrer admits the allegations of fact contained in the complaint, but does not admit legal conclusions drawn therefrom by the pleader. McKinley v. Hinnant, 242 N.C. 245, 87 S.E.2d 568.

The gist of relator's complaint is that, by reason of the election held 3 May, 1955, Kill Devil Hills ceased to exist as a municipal corporation on and after 1 June, 1955.

The relator alleges that he "is a citizen, resident and taxpayer of Kill Devil Hills." Yet he alleges the non-existence of such municipal corporation. He alleges that on 3 May, 1955, respondents were duly elected to their respective offices. Yet he alleges the non-existence of such offices and asks that respondents be enjoined from performing any duties under color thereof. He makes no claim that he is entitled to any municipal office. Nor does he allege that any respondent, under color of his alleged non-existent office, has interfered in any manner to the prejudice of his personal or property rights.

This action was brought in the name of the State, pro forma, by a private relator. The Attorney General has not participated in the action beyond requiring the bond and granting leave as prescribed by G.S. § 1-515.

Can an action to declare a municipal corporation non-existent be brought except by the State, through the Attorney General, acting ex officio as the representative of the public? Where the sole subject of controversy is the existence or non-existence of the municipal corporation, can such action be brought against individuals rather than against the municipal corporation itself? Decisions in other jurisdictions, based in part on statutory provisions, would seem to point towards conflicting answers. Steelman v. Vickers, 51 N.J.L. 180, 17 A. 153, 14 Am. St. Rep. 675; Holloway v. Dickinson, 69 N.J.L. 72, 54 A. 529; People ex rel. Ray v. Lewistown Community High School Dist., 388 Ill. 78, 57 N.E.2d 486; People ex rel. Barrett v. Gentile Cooperative Ass'n, 392 Ill. 393, 64 N.E.2d 907; Farrington v. Flood, Fla., 40 So. 2d 462; Bass v. Addison, Fla., 40 So. 2d 466. In this connection, it is noted that this action involves a municipal corporation alleged to have been created and organized as a de jure municipal corporation. Does this distinguish this action from cases where the corporate existence is challenged on the ground that, for failure to meet statutory requirements prescribed by general law for its valid organization, the purported municipal corporation did not come into existence either as a de jure or as a de facto municipal corporation?

Since our decision is put on other grounds, we refrain from discussing the serious questions raised as to whether the relator could maintain the action as presently constituted if his legal position were otherwise correct.

The relator's entire case is based on the alleged repeal of the corporate charter of Kill Devil Hills by the result of the election held 3 May, 1955. His contention is that this election was held in substantial compliance with the provisions of G.S. § 160-353 through G.S. § 160-363, being Article 23, Subchapter II, of Chapter 160.

Legislative power vests exclusively in the General Assembly. Article II, Constitution of N. C. It may confer upon municipal corporations certain lawmaking powers relating to matters of local self-government. Articles VII, VIII, IX, Constitution of N. C.; Carolina-Virginia Coastal Highway v. Coastal Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310; State ex rel. Taylor v. Carolina Racing Association, 241 N.C. 80, 95, 84 S.E.2d 390. The power to create and dissolve municipal corporations, being political in character, is exclusively a legislative function. Boone County v. Town of Verona, 190 Ky. 430, 227 S.W. 804.

Section 4, Article VIII, Constitution of N. C., now provides:

"4. Legislature to provide for organizing cities, towns, etc.—It shall be the duty of the Legislature to provide by general laws for the organization of cities, towns, and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessment and in contracting debts by such municipal corporations."

The italicized words, by general laws, were inserted by amendment submitted by ch. 99, Public Laws of 1915, ratified in the general election of November, 1916, and effective 10 January, 1917. This constitutional directive to the General Assembly was implemented by the enactment of ch. 136, Public Laws of 1917, now codified as Subchapter II of Chapter 160 of the General Statutes, under the caption, "Municipal Corporation—Act of 1917."

In Kornegay v. City of Goldsboro, 180 N.C. 441, 105 S.E. 187, this Court held that the 1917 constitutional amendment did not restrict or impair the power of the General Assembly to legislate concerning municipal corporations by special act.

The validity of the 1953 Act incorporating Kill Devil Hills is alleged, not challenged. The legal existence of Kill Devil Hills until 1 June, 1955, is alleged, not challenged.

The Act of 1953 incorporates the Town of Kill Devil Hills. It defines the corporate limits. It provides that the Board of Commissioners of Dare County shall appoint its first officers, to wit, a mayor, three commissioners, and a treasurer, the treasurer to be ex officio clerk to the board of commissioners, to serve until the first day of June, 1955. It provides that "their successors in office shall be elected at an election to be held on Tuesday after the first Monday in May 1955, and biennially thereafter, in accordance with Section 160-30 of the General Statutes of North Carolina." As to its corporate powers, and the authority of its corporate officers, etc., there is no specific provision. It is provided generally that Kill Devil Hills "shall be subject to all of the provisions contained in Chapter 160 of the General Statutes of North Carolina, relative to cities and towns, and all provisions of said Chapter not inconsistent with this Act are hereby made a part of the same."

The election of officers on 3 May, 1955, was in strict compliance with the specific legislative provision therefore in the 1953 Act.

Under G.S. § 160-353 et seq., an election to vote on a proposed amendment to or repeal of the charter of a municipal corporation may be initiated either (1) by ordinance of the governing body, predicated upon its findings that the amendment or repeal is "for the best interest of the municipality," or (2) by petition "signed by not less than twenty-five per centum of the qualified electors entitled to vote at the next preceding regular election in such municipality."

It is neither alleged nor contended that the election of 3 May, 1955, was initiated by ordinance of the governing body. The allegation is that the election was called on the basis of a petition signed by 37 electors residing within the territorial limits of the Town of Kill Devil Hills. Obviously, since there had been no "next preceding regular election in such municipality," the petition did not and could not comply with the statutory requirements.

If it be conceded that the provisions of Article 23, Chapter 160, G.S. § 160-353 through G.S. § 160-363, are applicable to the 1953 Act, a question on which we need not pass, the conclusion reached is that these statutes, construed in pari materia, disclose that the General Assembly did not contemplate or intend that the 1953 Act should be subject to repeal by an election initiated by petition and held prior to or simultaneously with the first regular election to be held in such municipality, to wit, the election of 3 May, 1955, prescribed by the 1953 Act for the choice of its first elected officers; and that the election of 3 May, 1955, while valid as to the election of municipal officers, was void in respect of the alleged repeal of the statutory charter. When a municipal corporation derives its corporate existence from the General Assembly by direct special Act of incorporation, the requirements of a prior general statute, under which an attempt is made in effect to repeal such special Act of the General Assembly, will be strictly construed. It is unnecessary to consider whether the petition, the call for election, the notice thereof, etc., failed to comply with statutory requirements in other respects.

For reasons stated, the order sustaining demurrer is

Affirmed.