Huntley v. Potter, 101

• Decision Date: 22 November 1961
• Docket Number: No. 101,101
• Citation: 255 N.C. 619,122 S.E.2d 681
• Parties: G. W. HUNTLEY, Jr., et al., Petitioners, v. W. H. POTTER, Mayor, William Davis, D. C. Farrior, W. R. Hamilton, Math Chaplain, Bertie Brooks, Commissioners of the Town of Beaufort, and The Town of Beaufort, a municipal corporation of the State of North Carolina, Respondents.
• Court: North Carolina Supreme Court

Page 681

122 S.E.2d 681

255 N.C. 619

G. W. HUNTLEY, Jr., et al., Petitioners, v. W. H. POTTER, Mayor, William Davis, D. C. Farrior, W. R Hamilton, Math Chaplain, Bertie Brooks, Commissioners of the Town of Beaufort, and The Town of Beaufort, a municipal corporation of the State of North Carolina, Respondents.

No. 101

Supreme Court of North Carolina.

Nov. 22, 1961

Gene C. Smith, Beaufort, for petitioners, appellants.

C. R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for respondents, appellees.

MOORE, Justice.

Petitioners contend that the report, prepared by the municipality pursuant to G.S. § 160-453.3, which was made a part of the annexation ordinance, is insufficient on its face (1) to show that the area to be annexed is 'developed for urban purposes,' (2) to show that the municipality plans to extend major municipal services, including sewerage, fire protection and street maintenance, to the area to be annexed 'on substantially the same basis and in the same manner as such services are provided' within the town, and (3) to show that adequate provision has been made for financing service extensions. Petitioners further contend that it was incumbent on the municipality, and the municipality failed, to offer evidence at the review hearing in superior court that it is able to carry out its plans with respect to extension of services and that the plans comply with statutory requirements. In short, petitioners contend that the municipality, as a condition precedent to the right to annex, must file a report showing on its face strict compliance with statutory requirements, and that upon review in superior court has the burden of sustaining the regularity, adequacy, veracity and validity of the report and annexation ordinance by competent evidence. Petitioners point out that the municipality offered no evidence in support of the record and procedures except some testimony with respect to sewerage systems in Tracts One and Two, and they insist that the municipality has failed to carry the burden of proof and that the annexation ordinance should have been declared null and void. Thus, at the threshold we are confronted with the question: Who has the burden of proof in a superior court review of annexation records and procedures?

'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.' 37 Am.Jur., Municipal Corporations, § 24, pp. 640-1. See Anno: 64 A.L.R., Municipal Boundaries--Power to Extend, pp. 1341-1354. 'The only discretion given to the governing boards of * * * municipalities is the permissive or discretionary right to use this new method of annexation (Art. 36, Subchapter VI, Chapter 160, General Statutes of North Carolina) 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.' (Parentheses added.) In re Annexation Ordinances, 253 N.C. 637, 647, 117 S.E.2d 795, 802. In the procedures established by the Act, including the report of plans for extending services and the annexation ordinance, the governing board must comply with and conform to statutory provisions and requirements, and the record of the annexation proceedings must show prima facie complete and substantial compliance. Substantial compliance means compliance with the essential requirements of the Act. People ex rel. Peterson v. Omen, 290 Ill. 59, 124 N.E. 860, 863. If the record of annexation proceedings on its face fails to show substantial compliance with any essential provision of the Act, the superior court upon review must remand to the governing board for amendment with respect to such noncompliance. G.S. § 160-453.6(f), (g). The court itself is without authority to amend the report, ordinance or other part of the record. This is true even if evidence is presented which justifies amendment. 'The annexation of territory to a municipal corporation is a legislative function which may not be delegated to a court. * * *' 37 Am.Jur., Municipal Corporations, § 25, p. 641.

However, where an appeal is taken from the annexation ordinance and a petition has been filed, pursuant to G.S. § 160-453.6, requesting review of annexation proceedings, and where such proceedings show prima facie that there has been substantial compliance with the essential provisions of the Act, the burden is upon petitioners to show by competent evidence failure on the part of the municipality to meet requirements of G.S. § 160-453.3 or G.S. § 160-453.4 as a matter of fact, or irregularity in proceedings which materially prejudice the substantive rights of petitioners. The burden is upon petitioners in such case by reason of the presumption 'that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law.' J. A. Jones Construction Co. v. Local Union 755 etc. Electrical Workers Union, 246 N. C. 481, 488, 98 S.E.2d 852, 857. Accord: In re Housing Authority, 233 N.C. 649, 656, 65 S.E.2d 761; Kirby v. Stokes County Board of Education, 230 N.C. 619, 627, 55 S.E.2d 322. '* * * (I)t is, as a general rule, presumed that a public official properly and regularly discharges his duties, or performs acts required by law, in accordance with the law and the authority conferred on him, and that he will not do any act contrary to his official duty or omit to do anything which such duty may require.' 31 C.J.S. Evidence § 146, pp. 800-802. 'The presumption * * * applies in favor of the acts of * * * a city council * * *.' ibid., p. 812. 'It is * * * presumed, as an element of the general rule, that a public officer, in discharge of his official duties, * * * acts fairly, impartially, and in good faith, and in the exercise of sound judgment or discretion, for the purpose of promoting the public good and protecting the public interest.' ibid., pp. 804-806. 'The presumption of regularity of official acts is rebuttable by affirmative evidence of irregularity or failure to perform duty, but the burden of producing such evidence rests on him who asserts unlawful or irregular conduct. The presumption, however, prevails until it is overcome by * * * evidence to the contrary * * *. Every reasonable intendment will be made in support of the presumption * * *.' ibid., pp. 808-9.

Petitioners except to the court's finding of fact 7 and assert that the annexation ordinance contains no specific findings that the area to be annexed is developed for urban purposes. We agree. The report of plans for extending services states: '* * * the area to be annexed is in the process of being developed for urban purposes and, as such, more than 60% of same is in use for residential, commercial, industrial, institutional or governmental purposes, and that at least 60% of the total acreage, not counting the acreage used on the aforementioned date for commercial, industrial, governmental or institutional purposes, consists of lots and tracts five (5) acres or less in size.' This statement is repeated almost verbatim in the annexation ordinance, and there is no other finding in the record as to whether or not the area to be annexed is developed for urban purposes. The statement is a general conclusion couched in the wording of the statutory definition of 'area developed for urban purposes,' as set out in G.S. § 160-453.4(c). It merely adopts the definition as the only showing relative to the nature of the area. The Act requires that the annexation ordinance contain 'specific findings that the area to be annexed meets the requirements of section 160-453.4.' (Emphasis added.) See G.S. § 160-453.5(e) (1). It is provided in G.S. § 160-453.10 that: 'In determining degree of land subdivision for purposes of meeting the requirements of § 160-453.4, the municipality shall use methods calculated to provide reasonably accurate results. In determining whether the standards set forth in § 160-453.4 have been met in appeal to the superior court under § 160-453.6, the reviewing court shall accept the estimates of the municipality: * * * (2) As to degree of land subdivision, if the estimates are based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable source, unless the petitioners on appeal show that such estimates are in error in the amount of five per cent (5%) or more.' The ordinance in the instant case makes no reference to the method used by the municipality in making its calculations. Nor does it state what the percentages of development actually are. The map appearing in the record does not show on what lots or tracts buildings or other establishments are located. 'Used for residential purposes' means any lot or tract of five acres or less in size on which is constructed a habitable dwelling unit. G.S. § 160-453.9(2). Furthermore, the map shows no acreage computations. There are no specific findings and no showing on the face of the record to support the general conclusion stated. Therefore, the record on its face fails to show substantial compliance with statutory requirements that there be specific findings that the area to be annexed is developed for urban purposes. Because of such failure the annexation ordinance should have been remanded to the governing board for compliance and, if necessary, amendment of boundaries. G.S. § 160-453.6(g) (2).

Petitioners except to the following portion of the court's finding of fact 8: '* * *...