In Re Annexation Ordinances Nos. 866-870, Etc.

117 S.E.2d 795 (1961) 253 N.C. 637

In re ANNEXATION ORDINANCES NOS. 866-870, Adopted by CITY OF RALEIGH, N. C., March 31, 1960, AREAS NOS. 1-5.

No. 463.

Supreme Court of North Carolina.

January 20, 1961.

Emanuel & Emanuel, Raleigh, for petitioners-appellants.

Paul F. Smith, Manning, Fulton & Skinner, William Joslin, Raleigh, for respondent-appellee.

DENNY, Justice.

The record in these five proceedings, consolidated for hearing in the court below, contains 115 assignments of error based on 148 exceptions. Obviously, it is neither practical nor necessary to discuss each of these assignments seriatim.

We have carefully examined the pleadings, the documentary and oral evidence introduced in the hearing below, and in our opinion each finding of fact to which the petitioners have excepted is supported by competent evidence, and we so hold. Consequently, such findings have the force and effect of a jury verdict upon the issues involved and they are conclusive on appeal. City of Goldsboro v. Atlantic Coast Line R. R., 246 N.C. 101, 97 S.E.2d 486; St. George v. Hanson, 239 N.C. 259, 78 S.E.2d 885; State Trust Co. v. M. & J. Finance Corp., 238 N.C. 478, 78 S.E.2d 327; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464. Therefore, it is only necessary for us to consider the legal questions raised by the pleadings, challenging the constitutionality of Chapter 1009 of the 1959 Session Laws of North Carolina.

The appellants contend that the Act under consideration is unconstitutional; that it is contrary to and in violation of Article I, section 8, and Article II, section 1 of the Constitution of North Carolina in that it constitutes an unlawful delegation of legislative power to a municipal governing body and vests such body with the discretion to act or not to act as it may deem expedient. They further contend that such discretion cannot be delegated to a subordinate agency of the State, citing Carolina-Virginia Coastal Highway v. Coastal Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310, 316, and quoting therefrom as follows: "It is a settled principle of fundamental law, inherent in our constitutional separation of government into three departments and the assignment of the lawmaking function exclusively to the legislative department, that except when authorized by the Constitution, as is the case in reference to certain lawmaking powers conferred upon municipal corporations usually relating to matters of local selfgovernment, Const., Articles VII, VIII, and IX; Durham Provision Company v. Daves, 190 N.C. 7, 128 S.E. 593, the Legislature may not abdicate its power to make laws or delegate its supreme legislative power to any other department or body. * * * Here we pause to note the distinction generally recognized between a delegation of the power to make a law, which necessarily includes a discretion as to what it shall be, and the conferring of authority or discretion as to its execution. The first may not be done, whereas the latter, if adequate guiding standards are laid down, is permissible under certain circumstances. 11 Am.Jur., Constitutional Law, Sec. 234; See also Pue v. Hood, Com'r of Banks, 222 N.C. 310, 22 S.E.2d 896." (Emphasis added.)

This Court further said in the above case: "* * * (T)he legislative body must declare the policy of the law, fix legal principles which are to control in given cases, and provide adequate standards for the guidance of the administrative body or officer empowered to execute the law. This principle is implicit in the general rule prohibiting the delegation of legislative power, and is affirmed by numerous authoritative decisions of this Court. Motsinger v. Perryman, supra (218 N.C. 15, 20, 9 S.E.2d 511); Durham Provision Company v. Daves, supra; State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658; State v. Curtis, supra (230 N.C. 169, 52 S.E.2d 364). See also Annotation, 79 L.Ed. 474, 487.

"In short, while the Legislature may delegate the power to find facts or determine the existence or nonexistence of a factual situation or condition on which the operation of a law is made to depend, or another agency of the government is to come into existence, it cannot vest in a subordinate agency the power to apply or withhold the application of the law in its absolute or unguided discretion, 11 Am. Jur., Constitutional Law, Sec. 234."

The statute under attack in the foregoing case was held unconstitutional because the General Assembly had not determined the policy of the State with respect to the creation of a municipal corporation to be created by the Municipal Board of Controls for the purpose of constructing and operating a toll road and a toll bridge, and the Legislature had further failed to lay down adequate standards for the guidance of such agency when created.

The Act now under consideration is not defective in either respect.

The policy of the State with respect to the annexation of additional territory by a municipality having a population of 5,000 or more, is set forth in Part 3 of the Act, G.S. § 160-453.13, as follows: "It is hereby declared as a matter of State policy:

"(1) That sound urban development is essential to the continued economic development of North Carolina;

"(2) That municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and governmental purposes or in areas undergoing such development;

"(3) That municipal boundaries should be extended in accordance with legislative standards applicable throughout the State, to include such areas and to provide the high quality of governmental services needed therein for the public health, safety and welfare;

"(4) That new urban development in and around municipalities having a population of five thousand (5,000) or more persons is more scattered than in and around smaller municipalities, and that such larger municipalities have greater difficulty in expanding municipal utility systems and other service facilities to serve such scattered development, so that the legislative standards governing annexation by larger municipalities must take these facts into account if the objectives set forth in this section are to be attained;

"(5) That areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality as soon as possible following annexation."

With respect to the completeness of the Act now under consideration, the appellants quote from 11 Am.Jur., Constitutional Law, section 215, page 924, as follows: "One of the most important tests as to whether particular laws amount to an invalid delegation of legislative power is found in the completeness of the statute as it appears when it leaves the hands of the legislature. The generally recognized principle is that a law must be so complete in all its terms and provisions when it leaves the legislative branch of the government that nothing is left to the judgment of the electors or other appointee or delegate of the legislature. * * * The law must be perfect, final and decisive in all of its parts, and the discretion which is given must relate only to execution."

The petitioners then say in their brief: "We are fully confident that the drafters of Chapter 1009, Session Laws of 1959, and the respondent in this case, were aware of the principle enunciated above. Their workmanship and execution give every appearance of conformity with the requirements. (Emphasis added.) We are equally confident, however, that in their zeal and determination to place into the hands of the municipalities, the unhampered power of annexation, they did violence to the substance and essence of these principles, leaving a mere shell or ritual of conformity therewith."

It is provided in this new method of annexation that the governing board of any municipality having a population of 5,000 or more, may extend its corporate limits under the procedure set forth in the Act. G.S. § 160-453.14. Therefore, it is clear that by the enactment of Chapter 1009 of the 1959 Session Laws of North Carolina, the General Assembly did not delegate to the municipalities of the State having a population of 5,000 or more, any discretion with respect to the provisions of the law. The guiding standards and requirements of the Act are set out in great detail. 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.

It certainly cannot be considered a mere shell or ritual of conformity when the governing body of a municipality, in good faith, obtains all the information required by the Act, with respect to the character of the area or areas to be annexed, the density of the resident population therein, the extreme boundaries thereof, and the percentage of such boundaries which are adjacent or contiguous to the municipality's boundaries, which must be at least oneeighth; and further provides or makes provision to extend all the governmental services to the newly annexed area or areas, comparable to the services provided for the residents within the city prior to annexation of the new area or areas.

The General Assembly of North Carolina is vested with complete authority over municipalities, except in certain specified matters which are not related to this litigation. State ex rel. East Lenoir Sanitary District v. City of Lenoir, 249 N.C. 96, 105 S.E.2d 411, and the authorities cited therein.

In Lutterloh v. City of Fayetteville, 149 N.C. 65, 62 S.E. 758, 760, this Court said: "We have held, in common with all the courts of this country, that municipal corporations, in the absence of constitutional restrictions, are the creatures of the legislative will, and are subject to its control; the sole object being the common good, and that rests in legislative discretion. Dorsey v. Town of Henderson, [148 N.C. 423], 62 S.E. 547, and Perry v. Commissioners, [148 N.C. 521], 62 S.E. 608; Manly v. City of Raleigh, 57 N.C. 370, 372.

"Consequently, it follows that the enlargement of the municipal boundaries by the annexation of new territory, and the consequent extension of their corporate jurisdiction, including that of levying taxes, are legitimate subjects 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, to a municipal corporation, having a large unprovided for indebtedness, for the payment of which property included within the territory annexed became subject to taxation." Matthews v. Town of Blowing Rock, 207 N.C. 450, 177 S.E. 429; Town of Dunn v. Tew, 219 N.C. 286, 13 S.E.2d 536.

In Town of Highlands v. City of Hickory, 202 N.C. 167, 162 S.E. 471, the General Assembly had enacted Chapter 41, Private Laws 1931, an Act entitled, "An act for the extension of the corporate limits of the City of Hickory, for an election in furtherance thereof, for the repeal of the charters of other towns within the extended limits, and for other purposes." The validity of the Act was challenged on the ground that the General Assembly was without power, because of constitutional limitations, to enact the same. On appeal, this Court said: "This challenge cannot be sustained. There are no limitations in the Constitution of this state or of the United States upon the power of the General Assembly to provide by statute for the extension of the corporate limits of a municipal corporation organized and existing under the laws of this state, or for the repeal of a statute under which a municipal corporation in this state was organized." Chimney Rock Co. v. Town of Lake Lure, 200 N.C. 171, 156 S.E. 542.

It is said in 37 Am.Jur., Municipal Corporations, section 24, page 640, "A municipal corporation or its corporate authorities have no power to extend its boundaries otherwise than provided for by legislative enactment or constitutional provision. Such power may be validly delegated to municipal corporations by the legislature, and when so conferred must be exercised in strict accord with the statute conferring it. The legislature may also prescribe and fix the terms and conditions on which such a law may come into operation. The determination of the requisite facts or expediencies, or of acceptance or assent to the annexation, may be given by the legislature to the municipal council, or to county commissioners, boards of supervisors, or other public body * * * without violating constitutional provisions against delegation of legislative functions. * * *" (Emphasis added.)

"It is a cardinal principle of our system of government that local affairs shall be managed by local authorities, and general affairs by the central authority; and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule." Stoutenburgh v. Hennick, 129 U.S. 141, 9 S.Ct. 256, 257, 32 L.Ed. 637.

In State v. Dudley, 182 N.C. 822, 109 S.E. 63, 64, this Court, speaking through Hoke, J., later C. J., said: "It is well recognized that except in the case of municipal corporations when in the exercise of governmental functions on local matters, legislative power may not be delegated." Durham Provision Co. v. Daves, 190 N.C. 7, 128 S.E. 593, Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252.

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. The Legislature had the right, unhampered by constitutional restrictions, to grant the power given in the Act under consideration to municipalities having a population of 5,000 or more since the power granted is incidental to municipal government in matters of purely local concern. Hence, the contention that Chapter 1009 of the Session Laws of 1959 of North Carolina is unconstitutional on the grounds assigned, cannot be sustained.

The appellants contend that this Act is unconstitutional for that it denies to them the right of trial by jury in violation of Article I, section 19 of the Constitution of North Carolina. The procedure and requirements contained in the Act under consideration being solely a legislative matter, the right of trial by jury is not guaranteed, and the fact that the General Assembly did not see fit to provide for trial by jury in cases arising under the Act, does not render the Act unconstitutional.

The right to a trial by jury, guaranteed under our Constitution, applies only to cases in which the prerogative existed at common law, or was procured by statute at the time the Constitution was adopted. The right to a trial by jury is not guaranteed in those cases where the right and the remedy have been created by statute since the adoption of the Constitution. Groves v. Ware, 182 N.C. 553, 109 S.E. 568; McInnish v. Board of Education, 187 N.C. 494, 122 S.E. 182; Hagler v. Mecklenburg Highway Commission, 200 N.C. 733, 158 S.E. 383; Unemployment Compensation Commission v. J. M. Willis, 219 N.C. 709, 15 S.E.2d 4; Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897; Utilities Commission of North Carolina v. Great Southern Trucking Co., 223 N.C. 687, 28 S.E.2d 201. This contention of petitioners is without merit.

These petitioners likewise contend that the Act under consideration is invalid because twelve counties were excluded from the Act; that such exclusion prevents the Act from being general in character within the purview of Article VIII, section 4 of our Constitution.

This Court has uniformly held that the requirement in Article VIII, section 1 of our Constitution, with respect to general laws, refers to private or business corporations, and does not refer to public or quasi-public corporations acting as governmental agencies. Mills v. Board of Com'rs, 175 N.C. 215, 95 S.E. 481; Dickson v. Brewer, 180 N.C. 403, 104 S.E. 887; Kornegay v. City of Goldsboro, 180 N.C. 441, 105 S.E. 187, 190.

In the last cited case the appeal involved the constitutionality of an act authorizing cities, towns, townships and school districts in Wayne County to sell bonds at less than par. The question presented was identical to that now before us. In considering Article VIII, section 4 of our Constitution, the Court said: "It contains no prohibition on the exercise of legislative power, and has in it no declaration that private, local, or special acts shall not be passed relating to the organization of cities and towns, and conferring particular powers, and this omission, when considered in connection with the history of the recent amendments to the Constitution, is fatal to the claim that local or special acts may not be legally enacted, conferring special authority on municipal corporations."

Judge Cooley, in his work on Constitutional Limitations (7th Ed.), page 554, Note 2, said: "To make a statute a public law of general obligation, it is not necessary that it should be equally applicable to all parts of the State. All that is required is that it shall apply equally to all persons within the territorial limits described in the act," citing State ex rel. Webster v. County Commissioners of Baltimore, 29 Md. 516; Pollock v. McClurken, 42 Ill. 370; Haskel v. City of Burlington, 30 Iowa 232; Unity v. Burrage, 103 U.S. 447, 26 L.Ed. 405.

The foregoing statement was quoted with approval by this Court in Carolina Tennessee Power Co. v. Hiawassee River Power Co., 175 N.C. 668, 96 S.E. 99, and in Kornegay v. City of Goldsboro, supra. In the Kornegay case this Court upheld the validity of the challenged Act.

In Holton v. Town of Mocksville, 189 N. C. 144, 126 S.E. 326, 328, the constitutionality of Chapter 86, Private Laws of 1923, an act relating to the financing of street improvements in the Town of Mocksville was attacked. This Court in upholding the private act said: "Section 4 of Article VIII of the Constitution imposes upon the General Assembly the duty to provide by general laws for the improvement of cities, towns, and incorporated villages. It does not, however, forbid altering or amending charters of cities, towns and incorporated villages or conferring upon municipal corporations additional powers or restricting the powers theretofore vested in them. We find nothing in section 4, Article VIII of the Constitution rendering this act unconstitutional, nor does the act relate to any of the matters upon which the General Assembly is forbidden by section 29 of Article II to legislate. Kornegay v. City of Goldsboro, 180 N.C. 441, 105 S.E. 187." (Emphasis added.)

Among the cases which have followed the decisions in the Kornegay and Holton cases are Gallimore v. Town of Thomasville, 191 N.C. 648, 132 S.E. 657; Holmes v. City of Fayetteville, 197 N.C. 740, 150 S.E. 624; Webb v. Port Commission, 205 N.C. 663, 172 S.E. 377; In re Assessments, 243 N.C. 494, 91 S.E.2d 171; and Candler v. City of Asheville, 247 N.C. 398, 101 S.E.2d 470.

In view of the construction placed on Article VIII, section 4 of the Constitution of North Carolina by this Court in previous decisions, we hold that the Act under consideration is not unconstitutional because it applies only to eighty-eight counties in the State. Under our Constitution, the Legislature may grant additional powers to a single municipality or to municipalities within one or more counties.

As evidence of the urban character of the five areas annexed by the City of Raleigh, the petitioners' evidence reveals the fact that there are 68.4 miles of paved streets and 31.1 miles of unpaved streets, a total of 99.5 miles of streets in the five annexed areas. Moreover, they contain a resident population in excess of 14,500. The petitioners' evidence is to the further effect that the total population in these five areas, based on the 1960 preliminary census data, is about 16,922, including residents who reside on land in the area which is not urban in character but was subject to annexation under the provisions set forth in G.S. § 160-453.16(d)(1).

The petitioners contend that by reason of these annexations in the manner in which they have been brought about, they have been deprived of their liberty and property without due process of law, in violation of Article I, section 17 of the Constitution of North Carolina and the Fourteenth Amendment to the Constitution of the United States. The record in these proceedings does not support the petitioners' contention in this respect. Certainly it would seem that they do not desire to have their respective properties subject to the levy of city taxes. Even so, where additional territory is annexed in accordance with the law, the fact that the property of the residents in such area will thereby become subject to city taxes levied in the future, does not constitute a violation of the due process clause of the State and Federal Constitutions.

The appellants by their exceptions and assignments of error have shown no prejudicial error in the hearing below that would justify disturbing the result thereof.

Each judgment entered below pertaining to the respective five annexed areas, is upheld.

Affirmed.