Annexation Ordinances Nos. 866-870, City of Raleigh, Areas Nos. 1-5, In re

• Decision Date: 31 March 1960
• Citation: 253 N.C. 637,117 S.E.2d 795
• Court: North Carolina Supreme Court
• Parties: In re ANNEXATION ORDINANCES NOS. 866-870, Adopted by CITY OF RALEIGH, N. C.,

Page 795

117 S.E.2d 795

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.

Jan. 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 oneighth; 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...