Huntley v. Potter, No. 101

Docket NºNo. 101
Citation255 N.C. 619, 122 S.E.2d 681
Case DateNovember 22, 1961
CourtUnited States State Supreme Court of North Carolina

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,'

Page 686

(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 [255 N.C. 627] 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 [255 N.C. 628] 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

Page 687

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...

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53 practice notes
  • Perry v. Pamlico Cnty., No. 4:13–CV–107–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 16, 2015
    ...to act in good faith. See, e.g., In re Annexation Ordinance No. 300–X, 304 N.C. 549, 551, 284 S.E.2d 470, 472 (1981) ; Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of ......
  • Petersen v. Midgett, No. 2:12–CV–60–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 25, 2015
    ...to act in good faith. See, e.g., In re Annexation Ordinance No. 300–X, 304 N.C. 549, 551, 284 S.E.2d 470, 472 (1981) ; Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cty. of W......
  • Russ v. Causey, No. 7:09-CV-17-FL
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • August 5, 2010
    ...evidence," id., and "every reasonable intendment will be made in support of the presumption [of good faith]," Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). This showing has not been made here as to defendants Causey, McMahon, and MacNeish. As the court has noted, plainti......
  • Perry v. Pamlico Cnty., No. 4:13-CV-107-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 16, 2015
    ...to act in good faith. See, e.g., In re Annexation Ordinance No. 300-X, 304 N.C. 549, 551, 284 S.E.2d 470, 472 (1981); Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of W......
  • Request a trial to view additional results
53 cases
  • Perry v. Pamlico Cnty., No. 4:13–CV–107–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 16, 2015
    ...to act in good faith. See, e.g., In re Annexation Ordinance No. 300–X, 304 N.C. 549, 551, 284 S.E.2d 470, 472 (1981) ; Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of ......
  • Petersen v. Midgett, No. 2:12–CV–60–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 25, 2015
    ...to act in good faith. See, e.g., In re Annexation Ordinance No. 300–X, 304 N.C. 549, 551, 284 S.E.2d 470, 472 (1981) ; Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cty. of W......
  • Russ v. Causey, No. 7:09-CV-17-FL
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • August 5, 2010
    ...evidence," id., and "every reasonable intendment will be made in support of the presumption [of good faith]," Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). This showing has not been made here as to defendants Causey, McMahon, and MacNeish. As the court has noted, plainti......
  • Perry v. Pamlico Cnty., No. 4:13-CV-107-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • February 16, 2015
    ...to act in good faith. See, e.g., In re Annexation Ordinance No. 300-X, 304 N.C. 549, 551, 284 S.E.2d 470, 472 (1981); Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961). A party may overcome that presumption only with competent and substantial evidence. See Leete v. Cnty. of W......
  • Request a trial to view additional results

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