Rheinhardt v. Yancey

Bobbitt, J. In tbe exercise of its power to regulate tbe extension of tbe boundaries of a municipality, McQuillin on Municipal Corporations, 3rd Ed., Yol. 2, see. 7.10 et seq., tbe General Assembly in 1947 enacted “An Act to Provide for tbe Orderly Growth and Extension of Municipalities "Within tbe State of North Carolina,” cb. 725,1947 Session Laws, which, now codified as G.S. 160-445 et seq., bears directly upon tbe question presented for decision. Tbe procedure requires tbat tbe municipal governing body give public notice in manner prescribed, “thus notifying tbe owner or owners of tbe property located in such territory,” tbat such governing body will meet to consider passage of an ordinance extending tbe 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 tbe signatures of 15% or more of tbe qualified voters resident in tbe area proposed to be annexed, requesting a referendum, “tbe governing body shall, before passing said ordinance, annexing tbe territory, submit tbe question as to whether said territory shall be annexed to a vote of tbe qualified voters of the area proposed to be annexed,” G.S. 160-446. Tbe procedure for tbe call and conduct of tbe election is prescribed. G.S. 160-448. Tbe annexation becomes effective only if and when tbe majority of tbe qualified voters in tbe area proposed for annexation who vote in such election east 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 tbat tbe municipality pays tbe costs of such election. G.S. 160-448. Thus, in tbe event tbe votes “For Extension” do not constitute a majority of the votes cast in such election, taxpayers within tbe present corporate limits bear tbe entire expense of such election. Taxpayers within tbe present corporate limits are not parties to this action. No question arises here as to their rights. Tbe statutory requirements relevant here are mandatory. Therefore, there can be no annexation of tbe area described in Exhibit B, under tbe *188 facts alleged, unless and until a majority of tbe 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 ease 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 of 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 that must be enjoined. 43 C.J.S., Injunctions sec. 118; 28 Am. Jur., Injunctions secs. 177 and 178; 14 R.O.L., Injunctions sec. 139; 19 R.O.L., Municipal Corporations sec. 204; 32 C.J., Injunctions sec. 412; Anno.: 140 A.L.R. 439 et seq. Upon the facts alleged, we are unable to perceive how the mere passage of the ordinance, if it should take place as plaintiffs anticipate, would, of itself, cause irreparable injury to plaintiffs. Indeed, the plaintiffs do not so allege, nor do they allege that they have no adequate remedy at law. Irrespective of the availability of an adequate remedy at law, it would seem appropriate, upon the facts alleged, that a court of equity withhold its writ of injunction, “the right arm of a court of equity,” until such time as the City of Gastonia, its officials, agents, employees, etc., act or threaten to act in an attempt to effectuate annexation under color of such void ordinance. Ordinarily, equity deals with conduct, actual or threatened, not with how the members of legislative bodies vote. In reaching the conclusion stated, we are mindful of the importance of keeping in proper relation and in careful balance the power and authority vested in *189 our distinct, coordinate departments of government, legislative, executive and judicial; for, whatever may be tbe merits of plaintiffs’ cause, a contrary rule would open tbe door to suits to restrain tbe adoption of ordinances to sucb extent as to interfere seriously witb tbe proper functioning of tbe legislative body. Too, a contrary rule, if carried to its logical conclusion, would warrant, if sufficient facts were alleged, judicial restraint of members of tbe General Assembly from tbe passage of legislation alleged to be in conflict witb provisions of our organic law. Tbis cannot be done. Tbe complaint, failing to allege that tbe passage of tbe void ordinance will cause irreparable injury or facts from wbicb sucb irreparable injury may be implied, was insufficient to entitle tbe plaintiffs to tbe injunctive relief sought, even though it is alleged that tbe present purpose of tbe defendants, acting as tbe City Council of Gastonia, is to pass an ordinance beyond tbe scope of its legislative powers. Should such void ordinance be passed, and should tbe City of Gastonia, its officials, agents, employees, etc., undertake or threaten action thereunder sucb as would cause irreparable injury to plaintiffs, tbe plaintiffs will not be without adequate remedy. It would seem that plaintiffs’ action is premature. Greenville v. Highway Com., 196 N.C. 226, 145 S.E. 31; Ponder v. Board of Elections, 233 N.C. 707, 65 S.E. 2d 377. Statutes providing for tbe annexation of adjacent territory vary greatly in tbe several states, McQuillin, op. cit., sec. ,7.28, and decisions in other jurisdictions must be considered against tbe background of tbe particular statutes. Thus, under certain of these statutes, tbe annexation proceeding is initiated by a petition signed by a designated number of interested parties, followed by an election, etc., and thereafter, as tbe final step, tbe ordinance is adopted. Tbis variance in statutory provisions may account in part for tbe conflict in other jurisdictions as to whether tbe validity of an annexation proceeding may be challenged in an action by citizens and taxpayers to obtain injunctive relief or whether challenge thereof can be made only by tbe state in quo warranto proceedings. McQuillin, op. cit., sec. 7.43. Tbe acts of tbe defendants, as members of tbe City Council, would have significance only to tbe extent they are deemed to be tbe acts of tbe City of Gastonia. Should tbe plaintiffs’ apprehension as to the passage by defendants of a void ordinance prove well-founded, it would seem that tbe City of Gastonia would be a necessary party to any action wherein tbe relief sought is to restrain its officials, agents, employees, etc. For tbe reasons stated, tbe judgment overruling tbe demurrer must be reversed. Tbis necessitates reversal of tbe order denying defendants’ motion to dissolve tbe temporary restraining order. Temple v. Watson, 227 N.C. 242, 41 S.E. 2d 738. It is so ordered. Reversed.