Bethania Town Lot Committee v. City of Winston-Salem

WEBB, Justice. The plaintiffs contend that the General Assembly in 1839 created the Town of Bethania comprising 2,500 acres. They say the General Assembly could not by local act in 1995 create a new Bethania, reduced in size to 400 acres. We do not believe a town exists because of the 1839 Act. The Act provided the Town would not be effective until the inhabitants of the Town approved it. There are no town records showing approval. Indeed, there are no town records at all. There is a reference in a historical journal to a meeting for the purpose of ratifying the Act. There was no evidence as to whether the Act was ratified. There were references from historical journals to a constable, a tax collector, and a sheriff who were elected, at various times, and there were references [668] to two elections. The last of these events occurred in 1856, which was 139 years prior to the enactment of chapter 74 of the 1995 Session Laws (the 1995 Act). This is not sufficient evidence to show the 1839 Act created a town which was extant in 1995. The General Assembly may, by special or local act, create municipalities and change the boundaries of municipalities. Plemmer v. Matthewson, 281 N.C. 722, 725, 190 S.E.2d 204, 207 (1972); Matthews v. Town of Blowing Rock, 207 N.C. 450, 452, 177 S.E. 429, 430 (1934); Lutterloh v. City of Fayetteville, 149 N.C. 65, 69, 62 S.E. 758, 760 (1908). This causes plaintiffs’ argument that the 1995 Act violates certain parts of the North Carolina Constitution to fail. The plaintiffs contend that the 1995 Act violates Article XIV, Section 3 of our Constitution. This section provides that when the General Assembly is directed or authorized by the Constitution to enact general laws, no local act may be adopted concerning the subject matter directed to be accomplished by general laws. This section has no application to this case. The Constitution does not direct the General Assembly to create municipalities by general laws. The plaintiffs also contend that the 1995 Act violates Article II, Section 24(2) of the North Carolina Constitution. This section provides that the General Assembly may not enact a prohibited local act by the partial repeal of a general law. The 1995 Act is not a prohibited local act. The plaintiffs contend further that the 1995 Act violates Article II, Section 1 of the Constitution by delegating legislative power to the City of Winston-Salem. This argument was answered by former Chief Justice Sharp in Plemmer v. Matthewson, in which she said: In delegating to the town commissioners the discretionary right to decide whether to enlarge the corporate limits as specified in the Act, the General Assembly did not delegate legislative authority in violation of N.C. Const, art. II, § 1, or art. I, § 6. Except for approval by the town’s board of commissioners, the Act was complete in every respect at the time of its ratification. The only discretion given the commissioners was to decide whether or not to annex the territory specified in the Act.... In authorizing the annexation, the General Assembly determined that the annexation was suitable and proper. Plemmer, 281 N.C. at 726, 190 S.E.2d at 207. [669] The plaintiffs next argue that the 1995 Act is a nullity because it attempts to revive the charter of a town whose charter had not been repealed. This argument is answered by our holding that there was not a Town of Bethania at the time the 1995 Act was adopted. The plaintiffs next contend that the 1995 Act is a local act which changes a township line in violation of Article II, Section 24(1) (h) of the North Carolina Constitution. They argue that the southern boundary of the original Bethania is coterminous with the southern boundary of Bethania Township. When the General Assembly created a new Bethania, say the plaintiffs, it was obvious the land excluded from the original Bethania was intended to be part of the City of Winston-Salem. The plaintiffs argue that this had the effect of changing the township line because there cannot be a city in a township. Cities axe within townships. The fact that Winston-Salem may extend its boundary should have no effect on the Bethania Township line. The plaintiffs next contend that the 1995 Act is in violation of the Fifteenth Amendment to the Constitution of the United States because it deprives them of their right to vote in elections in the Town of Bethania. They rely on Gomillion v. Lightfoot, 364 U.S. 339, 5 L. Ed. 2d 110 (1960), in which the United States Supreme Court held the Alabama legislature could not change the boundaries of the City of Tuskegee to exclude African-Americans from the City and deprive those persons of the right to vote in city elections. This case is distinguishable from Gomillion in that the plaintiffs have never voted in Bethania. They have not been denied a right which they previously possessed. The plaintiffs have not cited a case and we cannot find one that deals with the effect of the Fifteenth Amendment on the incorporation of a town by a legislature. We do not believe that when such a situation occurs, the Amendment requires that any particular area must be included in the newly created town in order that the residents of that area may vote in municipal elections. Finally, the plaintiffs contend that they sufficiently pled a constitutional violation so that the case should not have been dismissed on the pleadings. The case was not dismissed on the pleadings. Evidence was adduced at the hearing, and the facts were not in dispute. The court could, as it did, enter a final judgment. [670] For the reasons stated in this opinion, we affirm the decision of the Court of Appeals. AFFIRMED.