Laughinghouse v. City of New Bern

• Decision Date: 08 November 1950
• Docket Number: No. 319,319
• Parties: LAUGHINGHOUSE et al. v. CITY OF NEW BERN et al.
• Court: North Carolina Supreme Court

Page 802

61 S.E.2d 802

232 N.C. 596

LAUGHINGHOUSE et al. v. CITY OF NEW BERN et al.

No. 319

Supreme Court of North Carolina.

Nov. 8, 1950

Charles L. Abernethy, New Bern, for plaintiffs.

Lee & Hancock, New Bern, for defendants.

WINBORNE, Justice.

On Plaintiffs' Appeal.

The only assignment of error presented here is based upon exception to the refusal of the trial court to grant a writ of mandamus as prayed by the plaintiffs. On the facts alleged and shown, the exception is not well taken.

'Mandamus lies only to compel a party to do that which it is his duty to do without it. It confers no new authority. The party seeking the writ must have a clear legal right to demand it, and the party to be coerced must be under a legal obligation to perform the act sought to be enforced.' Person v. Doughton, 186 N.C. 723, 120 S.E. 481, 482; White v. Holding, 217 N.C. 329, 7 S.E.2d 825; Steele v. Locke Cotton Mills Co., 231 N.C. 636, 58 S.E.2d 620; Hancock v. Bulla, N.C.., 61 S.E.2d 801.

It is provided by statute in this State that a city or town, as a body politic and corporate, 'shall have the powers prescribed by statute, and those necessarily implied by law, and no other'. C.S. § 2622. See Riddle v. Ledbetter, 216 N.C. 491, 5 S.E.2d 542, 543. In the Riddle case, Devin, J., for the Court, wrote: 'A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the state applicable to all municipal corporations, and the powers granted in the charter will be construed together with those given under the general statutes', citing cases.

In the General Statutes of North Carolina 1943, Chapter 128 Article 3, provision is made for a retirement system for counties, cities and towns, or other eligible employers participating therein. The system is known as the 'North Carolina Local Governmental Employees' Retirement System'. It became operative 1 July, 1943. The statute also provides that the governing body of any incorporated city or town by resolution legally adopted and approved by the board of trustees of the system, may elect to have its employees become eligible to participate in the retirement system. G.S. 128-23(1).

The statute further provides that any eligible employer desiring to participate in the retirement system shall file with the board of trustees an application for participation under the conditions included in this article. In such application the employer shall agree to make the contributions required of participating employers, to deduct from the salaries of the employees who may become members of the contribution required of members under this article, and to transmit such contributions to the board of trustees. It is also provided that the employer shall also agree to make the employer's contribution for the participation in the retirement system of all employees entering the service of the employer after its participation begins, who shall become members. G.S. 128-23(3).

And the statute provides that 'The agreement of such employer to contribute on account of its employees shall be irrevocable * * *' G.S. 128-23(5).

Moreover, the General Assembly of 1945 repealed an original provision, G.S. 128-38, that 'any county, city or town participating in the Retirement System may by action of its governing body later withdraw from the system, and all contributions of employees and employers shall be returned to them or their representatives'. See 1945 Session Laws Chapter 526, Section 8.

Such was the statute in 1947 when the charter of the city of New Bern was amended by Subsection 5(a) and (b) of Section 1 of Chapter 30 of 1947 Session Laws of North Carolina,--the amendment being approved by a majority of the votes cast in the election held on 2 April, 1947.

So, then, when the city of New Bern became a participating member of the State system, 1 June, 1948, it was authorized to do so both by the General Statute, available to all incorporated cities, and by the special amendment to its charter 'that the city * * * shall participate in the State retirement system...