Wood v. City of Fayetteville

PARKER, Judge. INTERVENOR-DEFENDANTS’ APPEAL On this appeal the intervening defendants have sought to raise several questions concerning the trial court’s rulings which resulted in its refusal to hear argument on or to pass on the con — 415 — stitutionality of Section 2 of Chapter 1058 of the 1969 Session Laws. Because we find that the intervenors lack standing to challenge the constitutionality of that statute, we do not consider the merits of these contentions. A court of this State has no inherent power to review acts of our General Assembly and to declare invalid those which the court disapproves or, upon its own initiative, finds to be in conflict with the Constitution. In re Partin, 37 N.C. App. 302, 246 S.E. 2d 519 (1978); Green v. Eure, 27 N.C. App. 605, 220 S.E. 2d 102 (1975) cert denied, appeal dismissed, 289 N.C. 297, 222 S.E. 2d 696 (1976). “Only those persons may call into question the validity of a statute who have been injuriously affected thereby in their persons, property or constitutional rights.” Canteen Service v. Johnson, Com’r of Revenue, 256 N.C. 155, 166, 123 S.E. 2d 582, 589 (1962); See Nicholson v. Education Assistance Authority, 275 N.C. 439, 168 S.E. 2d 401 (1969); Carringer v. Alverson, 254 N.C. 204, 118 S.E. 2d 408 (1961). “The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentations of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ” Stanley, Edwards, Henderson v. Dept. Conservation & Development, 284 N.C. 15, 28, 199 S.E. 2d 641, 650 (1973) [quoting from Flast v. Cohen, 392 U.S. 83, 99, 20 L.Ed. 2d 947, 961, 88 S.Ct. 1942, 1952 (1968).] In their verified motion to intervene the individual in-tervenors alleged that they either owned real property on which city taxes were paid or that they were city residents who paid city taxes on personal property. They further alleged in general terms that “any purported limitation [on the city’s right to annex] would adversely affect the Intervenors’ economic interest,” and that the question of constitutionality involved a “question of concern and general interest to all citizens, residents, and taxpayers of the City of Fayetteville.” At the hearing on the motion to intervene, one of the intervenors testified only that he was a property owner in Fayetteville. He further stated: ... I do not own any property contiguous to the proposed area of annexation, nor do I own any property within three miles of the proposed area. — 416 — I have no other interests, other than those of a citizen and taxpayer, that might be directly related to or harmed by the resolution of the lawsuit between the Plaintiffs and Defendant City of Fayetteville. John M. Monaghan, Jr., the other individual intervenor, testified: I feel that my interests as a resident, citizen and taxpayer are affected by the annexation provision. As a taxpayer I feel I am called upon to bear the burden of extraordinary levels of service to serve people who live outside the boundaries of Fayetteville, but who use the various services that are provided by the city. One example of this is police protection for nonresidents who enter the city to do business, and any number of other things, such as use of recreational facilities, city streets, and health care facilities, by county residents. (Emphasis added) On the basis of the evidence offered by the intervenors and the verified motion to intervene, they were made parties to this suit. Assuming that the evidence offered provided a sufficient basis for intervention, the fact that a party has a right or is permitted to intervene does not establish his standing to raise a constitutional challenge. A taxpayer, as such, has no standing to assert the invalidity of a statute unless he can allege and show that he has been injuriously affected. Nicholson v. Education Assistance Authority, supra; Wynn v. Trustees, 255 N.C. 594, 122 S.E. 2d 404 (1961). Taking the record as a whole, we conclude that the defendant-intervenors have failed to allege specific injury or to offer proof of any such injury. The broad reference to “economic injury” in the intervenors’ motion to intervene is not a concrete allegation of direct injury. Further, the one reference in the record to such injury consists of the subjective opinion of an individual intervenor that “[a]s a taxpayer I feel I am called upon to bear the burden of extraordinary levels of service to people living outside of Fayetteville, but who use the various services that are provided by the city.” In the absence of any showing that their rights have been directly affected, intervenors, as taxpayers, may not now seek a resolution of the constitutional issues. In their position as citizens, the intervenors have also failed to meet the necessary requirements of standing. It was incum — 417 — bent upon them to allege and show some interest other than that “general interest as a citizen in good government in accordance with the provisions of the Constitution.” Nicholson v. Education Assistance Authority, supra at 448, 168 S.E. 2d at 406. Their interest in the City of Fayetteville’s purported “right to annex” is not such an interest as permits them to question the validity of a state statute. Intervenor defendants also assign error to the trial court’s finding of fact on which it based its conclusion that the petition in opposition to annexation was valid and that annexation ordinance number 173 of the City of Fayetteville was unlawful, invalid, void and of no effect. They contend that plaintiffs have failed to prove that a majority of the thirty-one registered voters were actually opposed to the annexation. This contention is without merit. It is significant that the defendants did not except to the court’s finding of fact that 25 of the 31 registered voters then residing in the area to be annexed did sign the petition in opposition to annexation. Although the intervenor-defendants did except to the court’s finding of fact that the signatures of the registered voters on the petition were voluntary, there was ample evidence to support this finding. It is, therefore, conclusive on this appeal. Harrelson v. Insurance Company, 272 N.C. 603, 158 S.E. 2d 812 (1968). Also, the court’s conclusion of law that the petition was valid and that the City Council adopted Annexation Ordinance Number 173 in violation of 1969 N.C. Session Laws, Ch. 1058, § 2 is fully supported by the findings of fact. The assignments of error made by the intervenor-defendants are overruled. Original Defendants’ Appeal Defendant-City’s only contention on this appeal is that the trial court erred in ruling that the City has no standing to contest the validity of 1969 N.C. Session Laws, Ch. 1058, § 2 and in striking its constitutional defenses. The City of Fayetteville contends that this question is controlled by the decision in Board of Managers v. Wilmington, 237 N.C. 179, 74 S.E. 2d 749 (1953). We do not agree. In that case, the City of Wilmington was permitted to challenge the constitutionality of several local laws which purported to grant it the power to enter into a contract with a — 418 — hospital for the hospitalization and medical care of the “indigent sick and afflicted poor” of the city. In its brief the hospital argued that the city was estopped to challenge the constitutionality of the local laws which had purported to give the City that power, and further had waived any right to do so. In answer to that argument, our Supreme Court stated: The City cannot be estopped from challenging the constitutionality of laws affecting it in its governmental capacity. “A municipality is not estopped to assert that its policy in a particular matter has been in violation of the Constitution and that it is prohibited from pursuing such course in the future.” (citation omitted). “The doctrine of ultra vires is applied with greater strictness to public than to private corporations, and the rule is that a municipality ... is not estopped by an act or contract which is beyond the scope of its corporate powers. . . .” 237 N.C. at 189, 74 S.E. 2d at 757. In the Wilmington case, the City was permitted to challenge as unconstitutional and to refuse to exercise a purported grant of power to it by the legislature. In the present case, the City of Fayetteville attempts to challenge a limitation placed on its power to annex. In a more recent case, In re Appeal of Martin, 286 N.C. 66, 209 S.E. 2d 766 (1974), our Supreme Court held that Mecklenburg County had no standing to challenge a state statute which limited its power to tax. The Court stated: The question whether a state subdivision has standing to contest the constitutionality of a State statute has produced conflicting decisions in other jurisdictions, (citations omitted). But the prevailing view is that a subdivision of the State does not have standing to raise such a constitutional question. (citation omitted) Likewise, a majority of jurisdictions which have considered whether a city or county may challenge a tax statute on constitutional grounds answer in the negative, (citations omitted). Although these decisions do not articulate a well defined rule of law, much of their reasoning in [sic] persuasive. 286 N.C. at 73-74, 209 S.E. 2d at 772. — 419 — In the case now before us, the City of Fayetteville, like Mecklenburg County in Martin, seeks to have an act declared void which limits its powers. As our Supreme Court noted in Martin, Mecklenburg County is a creature of the General Assembly and an agency of the state and has no inherent power to tax. Similarly, the City of Fayetteville, a municipality, is a creature of the legislature and an agency of the state, see State v. Furio, 267 N.C. 353, 148 S.E. 2d 275 (1966), and it has no inherent power to annex. Huntley v. Potter, 255 N.C. 619, 122 S.E. 2d 681 (1961). In light of Martin, we hold that the City cannot question the limitations placed by the legislature on its power to annex. Defendant-City’s assignment of error is overruled. The judgment appealed from is Affirmed. Chief Judge MORRIS and Judge MARTIN (Robert M.) concur.