Rheinhardt v. Yancey
| Decision Date | 01 December 1954 |
| Docket Number | No. 525,525 |
| Citation | 241 N.C. 184,84 S.E.2d 655 |
| Parties | T. B. RHEINHARDT and G'enn Hemphill, on behalf of themselves and such other citizens of Gaston County as may care to join, v. W. Harrelson YANCEY, Mayor, and Ed C. Adams, R. A. Ferguson, Ed Coffey, Nathaniel Barger, Marshall T. Rauch and A. D. Davis, Members of the City Council of the City of Gastonia, North Carolina. |
| Court | North Carolina Supreme Court |
L. B. Hollowell, Gastonia, for defendants-appellants.
O. F. Mason, Jr., O. A. Warren and R. G. Cherry, Gastonia, for plaintiffs-appellees.
In the exercise of its power to regulate the extension of the boundaries of a municipality, McQuillin on Municipal Corporations, 3rd ed., Vol. 2, sec. 7.10 et seq., the General Assembly in 1947 enacted 'An Act to Provide for the Orderly Growth and Extension of Municipalities Within the State of North Carolina', ch. 725, 1947 Session Laws, which, now codified as G.S. § 160-445 et seq., bears directly upon the question presented for decision.
The procedure requires that the municipal governing body give public notice in manner prescribed, 'thus notifying the owner or owners of the property located in such territory,' that such governing body will meet to consider passage of an ordinance extending the corporate limits to include adjacent territory described by metes and bounds in such notice. If, at such meeting, a petition is filed with such governing body, bearing the signatures of 15% or more of the qualified voters resident in the area proposed to be annexed, requesting a referendum, 'the governing body shall, before passing said ordinance, annexing the territory, submit the question as to whether said territory shall be annexed to a vote of the qualified voters of the area proposed to be annexed,' G.S. § 160-446. The procedure for the call and conduct of the election is prescribed. G.S. § 160-448. The annexation becomes effective only if and when the majority of the qualified voters in the area proposed for annexation who vote in such election cast their ballots 'For Extension.' G.S. § 160-449. There is no provision for any lapse of time between successive proposals for annexation or referenda. 25 N.C.L.R. 453-455.
In limine, we note that the municipality pays the costs of such election. G.S. § 160-448. Thus, in the event the votes 'For Extension' do not constitute a majority of the votes cast in such election, taxpayers within the present corporate limits bear the entire expense of such election. Taxpayers within the present corporate limits are not parties to this action. No question arises here as to their rights.
The statutory requirements relevant here are mandatory. Therefore, there can be no annexation of the area described in Exhibit B, under the facts alleged, unless and until a majority of the qualified voters in the area proposed to be annexed cast their ballots 'For Extension' in an election called and conducted as prescribed; and, in the absence thereof, any attempted annexation by ordinance or otherwise would be void. The gist of the complaint is that the defendants propose to pass at the meeting to be held 3 August, 1954, an annexation statute, which will be in disregard and in violation of the statutory mandate and therefore void.
The question for decision is this: Accepting as true the allegations of the complaint, are the plaintiffs entitled to an order restraining the defendants, as members of the City Council of Gastonia, from passing an ordinance, which, under the facts alleged, would be void? While the precise question seems to be one of first impression in this jurisdiction, the application of recognized general principles to the facts of this case impels a negative answer.
Ordinarily, a court of equity, being vested with judicial, not legislative, powers, has no jurisdiction to interfere with the enactment of an ordinance by the governing body of a municipality in the exercise of powers that are legislative in character. And even when it appears that the proposed ordinance would transcend the legislative powers of the municipal governing body, and would be unconstitutional or otherwise void, a court of equity will intervene and grant injunctive relief only when it appears that irreparable injury will result to plaintiffs from the mere passage of the ordinance as distinguished from injury that may result from the carrying out or enforcement thereof. If the carrying out or enforcement of the ordinance, if and when passed, will cause the injury, it is such conduct on the part of the municipality and its agents...
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Markham, In re, 676
...the City Council of Durham acts in its legislative capacity and not in a judicial or quasi-judicial capacity. In Rheinhardt v. Yancey, 241 N.C. 184, 84 S.E.2d 655, the plaintiffs sought to restrain the members of the City Council of Gastonia from passing an ordinance relating to annexation.......
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Texfi Industries, Inc. v. City of Fayetteville, 126
...area proposed to be annexed." G.S. 160A-35. A favorable vote is a prerequisite, a condition precedent to annexation. Rheinhardt v. Yancy, 241 N.C. 184, 84 S.E.2d 655 (1954). Under Part 3, however, the only prerequisite, or condition precedent, to annexation is that the area meet statutory u......
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Wishart v. City of Lumberton, 738
...preparing to put public property to an unauthorized use, citizens and taxpayers had the right to seek equitable relief. Rheinhardt v. Yancey, 241 N.C. 184, 84 S.E.2d 655; Jamison v. City of Charlotte, 239 N. C. 682, 80 S.E.2d 904; Brown v. Candler, 236 N.C. 576, 73 S.E.2d 550; McGuinn v. Ci......
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