Lutterloh v. City of Fayetteville

• Decision Date: 05 November 1908
• Citation: 62 S.E. 758,149 N.C. 65
• Parties: LUTTERLOH et al. v. CITY OF FAYETTEVILLE.
• Court: North Carolina Supreme Court

62 S.E. 758

149 N.C. 65

LUTTERLOH et al. v. CITY OF FAYETTEVILLE.

Supreme Court of North Carolina

November 5, 1908

Appeal from Superior Court, Cumberland County; Long, Judge.

Action by H. L. Lutterloh and others against the city of Fayetteville, to restrain defendant from collecting taxes out of the residents in the territory in the extension of city limits, or from exercising any jurisdiction over persons or property resident in the extension, under chapter 489, p 1292, Priv. Laws 1907, entitled "An act to enlarge corporate limits of the city of Fayetteville," ratified March 11, 1907. A temporary restraining order issued, being heard upon the pleadings, affidavits, and exhibits, the court found the material facts, dissolved the injunction, and plaintiffs appealed, and filed exceptions to said findings and judgment affirmed.

C. W Broadfoot, George M. Rose, and John W. Hinsdale, for appellants.

J Sprunt Newton and Sinclair & Dye, for appellee.

BROWN J.

1. The plaintiffs contend that the judge should have passed solely upon the necessity for continuing the injunction to the hearing, instead of going fully into the case and deciding the entire controversy. As the only relief asked for in the complaint is a perpetual injunction restraining the defendant's authorities from exercising any jurisdiction within the territory recently included within the municipality, it would have been impossible intelligently to determine whether to continue the restraining order without considering and determining the legal issues presented in the pleadings. There seems to be no controverted issue of fact raised therein necessary to be submitted to a jury. An action for a perpetual injunction is the proper remedy in controversies of this character (28 Cyc. 212); and, where the judge refuses to enjoin the exercise of jurisdiction over the annexed territory, he must necessarily determine the case on its merits.

2. It is contended that the boundaries given in the act of 1907 cannot be located, and that they are indefinite, uncertain, and void. There appears to have been an omission of certain words in enrolling the act of 1907, which error has been cured by the act of the special session of 1908 (Priv. Laws 1908, p. 25, c. 22), but independent of the effect of this latter act, the judge below finds, upon the testimony of the surveyor, that the boundaries of the city, including the extension under the act of 1907, have been located, and that they embrace plaintiffs' property. The surveyor testifies that locating the boundaries under the act of 1907 covers the same territory as those included in the amendatory act of 1908, except a small vacant and unimproved space, containing 1 9/10 acres of land. This testimony of the surveyor is adopted by the judge as a fact, and made a part of his findings. We think that settles the question so far as this court is concerned, as the first section of the act setting out the boundaries is certainly not void on its face.

3. It is contended that the act of 1907 was not read on three several days, and an aye and nay vote taken and recorded, as required by Const. art. 2, § 14, and that therefore the act is void, and can confer no power to levy a tax within the annexed territory. For this position plaintiffs rely on the case of Cotton Mills v. Waxhaw, 130 N.C. 293, 41 S.E. 488. The charter of the city of Fayetteville, as at present organized, was enacted in 1893, and contains full authority for the levying of taxes within the municipal boundaries, however those boundaries may be extended by subsequent legislation. The Waxhaw Case is authority for the position that a municipal charter conferring power to levy a tax must be enacted in accordance with that section of the Constitution. It is not contended that the charter of Fayetteville enacted in 1893 is void for such reason. The act of 1907 does not purport to authorize the levying of any tax, or the contracting of any debt, and there is nothing on its face which could indicate to the General Assembly that it is one of those bills coming within the purview of section 14, art. 2, of the organic law. It is not a city charter, but only an act annexing territory to a chartered municipality already in existence.

4. The plaintiffs except to the following ruling of the court "That, although the terms of the act of March 11, 1907, do not prescribe, with such definite clearness as they might have done, who were qualified voters under the act, nevertheless, construing all of the parts thereof, it would seem that the Legislature intended to provide that the voters of the old town and the annexed district were all entitled to vote in said election. But the act itself is made a part of this finding." The plaintiffs contend that the intention of the Legislature was to confine the election to the voters of the annexed district. The language of the act would seem to give color to such contention; but, taking the entire act as a whole, a careful reading of it, we think, justifies his honor's interpretation. Section 1 of the act describes particularly the territory to be annexed, then adds: "Provided that no part of the city limits as now existing shall be eliminated from said city when so extended." Section 3 provides for an election of "all persons embraced in the above-described boundaries," in which must necessarily be included all parts of the city as then existing; and it also provided "for a registrar of voters living in the city of Fayetteville, including said above-described territory." The same section requires the registrar to register "such persons in said city, and in said above-described new territory as may present themselves for...