Hunsucker v. . Winborne

"WiNBORNE, J. Plaintiffs present for decision on this appeal these two questions: I. Did the court below commit error in dismissing this action? 2. Are the plaintiffs entitled to a motion in the Supreme Court that this action be remanded to the Superior Court of Wake County to the end that a writ of certiorari to Municipal Board of Control be granted to bring up for review the proceeding relating to the change of the name of the town of Hemp to that of Robbins Each question must be answered in the negative. In regard to the first question: The Municipal Board of Control is a creature of the General Assembly within the provisions of Article II, section 29, of the Constitution of the State of North Carolina. While this section of the Constitution forbids the General Assembly to pass any local, private, or special act or resolution relating to changing the name of cities, towns and townships, it provides that the General Assembly shall have power to pass general laws regulating such matters. Pursuant thereto the General Assembly of 1917 passed an Act, Public Laws 1917, chapter 136, subchapter II, to provide for the organization of cities, towns and incorporated villages, in section 4 of which the Municipal Board of Control, composed of the Secretary of State, as secretary, the Attorney-General, as chairman, and the Chairman of the Corporation Commission, was created, C. S., 2779, with the power to hear and pass upon petitions for such purpose in accordance with procedure prescribed in sections 1 to 3, both inclusive, which became sections 2780, 2781 and 2782 of Article 13 of- chapter 56 of Consolidated Statutes. *656 And in 1935, section 1 of tbe 1911 Act, wbicb became section 2119 of Consolidated Statutes, was rewritten and re-enacted, substituting therein the Utilities Commissioner for the Chairman of the Corporation Commission as a member of the Municipal Board of Control, and giving to the Municipal Board of Control the power and privilege of changing the name of any said town or municipal corporation within the bounds of the State of North Carolina — prescribing therefor the procedure prescribed in sections 2781 and 2782 of Consolidated Statutes, Public Laws 1935, chapter 440. The procedure outlined in these statutes as read to conform to a proceeding for changing the name of a town, pertinent to this appeal, may be briefly stated as follows: (1) The petition, upon which the proceeding is initiated and based, must be signed by a majority of the resident qualified electors and a majority of the resident freeholders or homesteaders of the town. (2) Date and place of hearing shall be fixed and notice thereof given all as prescribed. (3) No formal answer to the petition is required, but any qualified voter or taxpayer of the town may appear at the hearing of such petition, and the matter shall be- tried as .an issue of fact by the Municipal Board of Control. (4) The Board shall file its findings of fact at the close of the hearing, and if it shall appear that the allegations of the petition are true, that all the requirements of the statute have been substantially complied with, and that the change of the name of the town will better subserve the interest of the town, the Board shall enter an order changing the name as proposed in the petition. (5) Upon the approval of the Board and the recording of the papers as prescribed the change of name is complete. In the present ease there is no allegation that the Municipal Board of Control has failed to observe and follow the requirements of the statute. And there is no allegation that the Board has acted capriciously or in bad faith. Pue v. Hood, Comr. of Banks, 222 N. C., 310, 22 S. E. (2d), 896; Warren v. Maxwell, ante, 604. The allegation upon which plaintiffs base this action is that the Board has no power to determine whether or not the petition has the iona fide signatures of a majority of the resident qualified electors and a majority of the resident freeholders or homesteaders of the town, when challenged by a charge of fraud practiced in obtaining such signatures. It is true that the statute requires the petition to be signed by a majority of such persons as a prerequisite to its sufficiency, but that is a question of fact to be determined by the Municipal Board of Control. The statute creating the Board expressly provides that “if it shall appear,” among other things, “that all' the requirements of this article have been substantially complied with” the Board shall'enter an order changing the name, etc. Manifestly, it could not appear to the Board that all the requirements of the statute had been *657 substantially complied with, unless when the signatures to petition are challenged, it could make investigation and find the facts. And in the present case the Board has investigated and found that the petition is signed in accordance with the requirements of the statute. If the Board erred in so finding, it was an error to be corrected upon review by the Superior Court upon a writ of certiorari obtained in apt time and upon proper showing — there being no provision in the statute for an appeal from the Municipal Board of Control to the Superior Court. And unless such review be obtained, the decision of the Board, based upon its findings in regard to the prerequisite sufficiency of the petition, is ordinarily conclusive, and cannot be collaterally attacked. See Schank v. Asheville, 154 N. C., 40, 69 S. E., 681; Asheboro v. Miller, 220 N. C., 298, 17 S. E. (2d), 105; Warren v. Maxwell, supra. We now come to the second question: This action instituted in the Superior Court is in effect a collateral attack upon the decision of the Municipal Board of Control in changing the name of the town of Hemp to Bobbins, with respect to a prerequisite to the petition upon which the Board acted, which may not be maintained. But conceding the complaint to be a petition for writ of certiorari, C. S., 630, to review the ruling of the Municipal Board of Control in respect to the sufficiency of the signatures to the petition, it fails to make proper showing of merit, upon which alone certiorari will issue. S. v. Tripp, 168 N. C., 150, 83 S. E., 630; Taylor v. Johnson, 171 N. C., 84, 87 S. E., 981. See also Pue v. Hood, Comr. of Banks, supra. The mere allegation in a pleading that an act was induced by fraud is insufficient. “A characterization of ‘fraud’ without any facts to support it is a mere Irutum fulmen/’— Stacy, C. J., in Cotton Mills v. Mfg. Co., 218 N. C., 560, 11 S. E. (2d), 550. “The law requires that if fraud be relied upon, all essential facts and elements constituting the fraud must affirmatively appear from the pleading,” — Brogden, J., in Weaver v. Hampton, 201 N. O., 798, 161 S. E., 480. “The facts constituting the fraud must be set out with such particularity as to show all the necessary elements of actionable fraud which would entitle the pleader to relief. The facts relied upon to constitute the fraud, as well as the fraudulent intent, must be clearly alleged,” — Devin, J., in Griggs v. Griggs, 213 N. C., 624, 177 S. E., 165. See also Petty v. Ins. Co., 210 N. C., 500, 160 S. E., 575. The same rule applies with respect to a charge of duress. In the present case the allegations of fraud in respect to the signatures to the petition are broadside generalities, which are insufficient in a pleading in court where particularity of facts is necessary. The judgment below is Affirmed.