Williams v. Town of Grifton

• Decision Date: 27 July 1972
• Citation: 199 S.E.2d 288,19 N.C.App. 462
• Court: North Carolina Court of Appeals
• Parties: Jean H. WILLIAMS et al. v. The TOWN OF GRIFTON, a municipal corporation. In re Annexation Ordinance Adopted by the TOWN OF GRIFTON, a North Carolinamunicipal corporation, on

Page 288

199 S.E.2d 288

19 N.C.App. 462

Jean H. WILLIAMS et al. v. The TOWN OF GRIFTON, a municipal corporation.

In re Annexation Ordinance Adopted by the TOWN OF GRIFTON, a

North Carolinamunicipal corporation, on July 27,

1972 (72 CVS 1511).

Howard L. PARKER et al. v. The TOWN OF GRIFTON, a municipal corporation.

In re Annexation Ordinance Adopted by the TOWN OF GRIFTON, a

North Carolinamunicipal corporation, on July 27,

1972 (72 CVS 1512).

No. 733SC391.

Court of Appeals of North Carolina.

Sept. 26, 1973.

Wallace, Langley, Barwick & Llewellyn by F. E. Wallace, Jr., Kinston, and Owens, Browning & Haigwood by Mark W. Owens, Jr., Greenville, for petitioners.

Gaylord & Singleton, by L. W. Gaylord, Jr., Greenville, for respondent.

MORRIS, Judge.

So many of the facts as are necessary for decision in this matter will be set out in the discussion of each appeal.

Petitioners' Appeal

Petitioners reside in two subdivisions. The petitioners residing in Country Club Hills are 104 in number. We will hereafter refer to Country Club Hills as Tract No. 1. Petitioners residing in Forest Acres are 85 in number. We will hereafter refer to Forest Acres as Tract No. 2. It appears from the record that the subdivision Forest Acres is interchangeably referred to as Forest Hills and Forest Acres. We have used Forest Hills where used in the record. However, the two designations refer to the one subdivision, Forest Acres.

The Town of Grifton is a municipality with a population of less than 5,000 persons. On 9 May 1972, its governing board adopted a resolution to consider the annexation of Tract No. 1 and Tract No. 2. Notice of a public hearing was given as required by statute and 14 days prior to the hearing to be had on 14 June 1972, the Town filed in the Clerk's office a report setting forth its plans for extension of services to the two areas to be annexed. At the public hearing the report was explained and everyone present given an opportunity to be heard. On 27 July 1972, at a special meeting of the governing board, an ordinance was adopted annexing the areas and extending the town limits to include the areas. Effective date of the ordinance was 15 June 1973. Within 30 days of the adoption of the ordinance petitioners filed the petitions seeking review of the action taken by the governing board, and attacking the legality of and authority of the Town of Grifton to issue the bonds.

Petitioners contend that G.S. § 160--453.1 through and including G.S. § 160--453.12 is unconstitutional for that the statute undertakes to delegate supreme legislative power to a municipal governing body and deprive petitioners of their property without due process of law in that the annexation will result in imposition of taxes and assessments arising out of the issuance of bonds voted by the Town on 11 December 1971.

Nowhere in petitioners' brief do they refer to the exceptions or assignments of error to which their arguments refer. Rule 28, Rules of Practice in the Court of Appeals of North Carolina, specifically provides: that the brief of appellant 'shall contain, properly numbered, the several grounds of exception and assignment of error with reference to the pages of the record, and the authorities relied on classified under each assignment; and if statutes are material, the same shall be cited by the book, chapter and section. Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.' It is obvious that appellants have made no effort to comply with this rule. In particular, we find no discussion at all with respect to assignments of error Nos. 3 and 4. These are, therefore, deemed abandoned. Because of the importance of the case, we do not dismiss the appeal of petitioners. We find it necessary, however, to discuss the questions involved in the same general order as petitioners have in their brief.

The Supreme Court of North Carolina has held specifically that the legislature may without violating the State or Federal Constitution delegate to a municipality the authority to implement a plan of annexation. In re Annexation Ordinances, 253 N.C. 637, 117 S.E.2d 795 (1961). Although the statutes involved in this case were G.S. § 160--453.13 et seq., (dealing with municipalities of population of 5,000 or more) there is little doubt that the court would uphold G.S. § 160--453.1 through 160--453.12 (municipalities of population of less than 5,000) on the same basis. In that case, petitioners contended--as do petitioner appellants in the case under consideration--that the statute is in violation of Article VIII of the North Carolina Constitution, citing for that proposition Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E.2d 310, as do petitioners in the case Sub judice.

The Supreme Court rejected the argument on the grounds that there is a distinction between "delegation of the power to make a law, which necessarily includes a discretion as to what it shall be, And the conferring of authority or discretion as to its execution. The first may not be done, whereas the latter, If adequate guiding standards are laid down, is permissible under certain circumstances. 11 Am.Jur., Constitutional Law, Sec. 234. See Also Pue v. Hood, Comr. of Banks, 222 N.C. 310, 22 S.E.2d 896.' (Emphasis added.)' Id. 253 N.C. at 645, 117 S.E.2d at 801.

The only discretion given to the municipality under G.S. § 160--453.13 et seq., according to the Supreme Court is the 'permissive or discretionary right to use this new method of annexation 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.' Id. at 647, 117 S.E.2d at 802.

A careful reading of the annexation statute as a whole leads to the inescapable conclusion that the guidelines established by G.S. §§ 160--453.1 through 160--453.12 are as stringent as those in G.S. § 160--453.13 et seq., and the discretion conferred upon the municipalities of population less than 5,000 is no greater than that conferred upon municipalities of population of 5,000 or greater. Therefore, the contention that the annexation statute is unconstitutional is untenable.

In In re Annexation Ordinances, supra, the Supreme Court of North Carolina rejected a contention of an appellant identical to the contention in the present case, viz, that appellant was deprived of his property without due process of law as required by the 14th Amendment of the Constitution of the United States and Article I, Section 17 of the Constitution of North Carolina.

'. . . (W)here additional territory is annexed in accordance with the law, the fact that the property of the residents in such area will thereby become subject to city taxes levied in the future, does not constitute a violation of the due process clause of the State and Federal Constitutions.' Id. at 651--652, 117 S.E.2d at 805.

In accord is Matthews v. Blowing Rock, 207 N.C. 450, 177 S.E. 429 (1934), although this case was decided under a prior annexation statute. The case holds that an act of annexation is valid when it annexes a territory without the consent of its inhabitants and subjects their property to taxes to pay for a large, unprovided-for indebtedness.

Defendant appellant cites in support of its position Eakley v. City of Raleigh, 252 N.C. 683, 114 S.E.2d 777 (1960). This case is not directly on point, however, for the precise holding is that the issuance of water bonds is not invalidated by the fact that the City Council at the time of the election contemplated expenditure of the bond monies in territories to be annexed. Neither Eakley, nor its companion case--Upchurch v. City of Raleigh, 252 N.C. 676, 114 S.E.2d 772 (1960)--addresses the issue of annexation as a taking of property without due process of law. The validity of the bond issue--although petitioner appellant purports to appeal on the basis thereof--is not put in issue by the arguments contained in the briefs.

Petitioners further argue that the Town failed to comply with the spirit and intent of G.S. § 160--453.1 by arbitrarily selecting Tracts Nos. 1 and 2 for annexation and that the court erred in failing so to find. G.S. § 160--453.1 provides:

'Declaration of policy.--It is hereby declared as a matter of State policy:

(1) That sound urban development is essential to the continued economic development of North Carolina;

(2) That municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and government purposes or in areas undergoing such development;

(3) That municipal boundaries should be extended, in accordance with legislative standards applicable throughout the State, to include such areas and to provide the high quality of governmental services needed therein for the public health, safety and welfare; and

(4) That the urban development in and around municipalities having a population of less than 5,000 persons tends to be concentrated close to the municipal boundary rather than being scattered and dispersed as in the vicinity of larger municipalities, so that the legislative standards governing annexation by smaller municipalities can be simpler than those for large municipalities and still attain the objectives set forth in this section;

(5) That areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality as soon as possible following annexation.'

Petitioners contend that the spirit of the statute has been violated in that the Town 'has attempted to impose upon these petitioners an arbitrary annexation for the purpose of building a tax base against the wishes of the residents of the area . . .'

In Matthews v. Blowing Rock, supra, the...