Laughinghouse v. City of New Bern

61 S.E.2d 802 (1950)

232 N.C. 596

LAUGHINGHOUSE et al. v. CITY OF NEW BERN et al.

No. 319.

Supreme Court of North Carolina.

November 8, 1950.

*804 Charles L. Abernethy, New Bern, for plaintiffs.

Lee & Hancock, New Bern, for defendants.

WINBORNE, Justice.

On Plaintiffs' Appeal.

The only assignment of error presented here is based upon exception to the refusal of the trial court to grant a writ of mandamus as prayed by the plaintiffs. On the facts alleged and shown, the exception is not well taken.

"Mandamus lies only to compel a party to do that which it is his duty to do without it. It confers no new authority. The party seeking the writ must have a clear legal right to demand it, and the party to be coerced must be under a legal obligation to perform the act sought to be enforced." Person v. Doughton, 186 N.C. 723, 120 S.E. 481, 482; White v. Holding, 217 N.C. 329, 7 S.E.2d 825; Steele v. Locke Cotton Mills Co., 231 N.C. 636, 58 S.E.2d 620; Hancock v. Bulla, N.C., 61 S.E.2d 801.

It is provided by statute in this State that a city or town, as a body politic and corporate, "shall have the powers prescribed by statute, and those necessarily implied by law, and no other". C.S. § 2622. See Riddle v. Ledbetter, 216 N.C. 491, 5 S.E.2d 542, 543. In the Riddle case, Devin, J., for the Court, wrote: "A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the state applicable to all municipal corporations, and the powers granted in the charter will be construed together with those given under the general statutes", citing cases.

In the General Statutes of North Carolina 1943, Chapter 128 Article 3, provision is made for a retirement system for counties, cities and towns, or other eligible employers participating therein. The system is known as the "North Carolina Local Governmental Employees' Retirement System". It became operative 1 July, 1943. The statute also provides that the governing body of any incorporated city or town by resolution legally adopted and approved by the board of trustees of the system, may elect to have its employees become eligible to participate in the retirement system. G.S. 128-23(1).

The statute further provides that any eligible employer desiring to participate in the retirement system shall file with the board of trustees an application for participation under the conditions included in this article. In such application the employer shall agree to make the contributions required of participating employers, to deduct from the salaries of the employees who may become members of the contribution required of members under this article, and to transmit such contributions to the board of trustees. It is also provided that the employer shall also agree to make the employer's contribution for the participation in the retirement system of all employees entering the service of the employer after its participation begins, who shall become members. G.S. 128-23(3).

*805 And the statute provides that "The agreement of such employer to contribute on account of its employees shall be irrevocable * * *" G.S. 128-23(5).

Moreover, the General Assembly of 1945 repealed an original provision, G.S. 128-38, that "any county, city or town participating in the Retirement System may by action of its governing body later withdraw from the system, and all contributions of employees and employers shall be returned to them or their representatives". See 1945 Session Laws Chapter 526, Section 8.

Such was the statute in 1947 when the charter of the city of New Bern was amended by Subsection 5(a) and (b) of Section 1 of Chapter 30 of 1947 Session Laws of North Carolina,the amendment being approved by a majority of the votes cast in the election held on 2 April, 1947.

So, then, when the city of New Bern became a participating member of the State system, 1 June, 1948, it was authorized to do so both by the General Statute, available to all incorporated cities, and by the special amendment to its charter "that the city * * * shall participate in the State retirement system as provided in Section 128-121 through 128-138, inclusive, General Statutes, North Carolina". The correct Sections are 128-21 and 128-38.

What then is the effect of the provisions of Chapter 650 of 1949 Sessions Laws? Its sole provision is to repeal "Subsection 5(a) and (b) of Section 1 of Chapter 30 of the Session Laws of 1947",the repeal not to become effective "unless approved by a majority of the votes cast by the qualified voters of the City of New Bern in the primary to be held April 5, 1949". If it be conceded that the ballot voted in the election of 5 April, 1949, properly presented the question of the repeal to the electorate, and that the vote cast constitutes an approval of the repeal as provided in the act, the only effect would be to strike down the special authority given to the city, under the 1947 act, and to leave unimpaired and available to the city the provisions of the general statute, Article 3 of Chapter 128 of General Statutes. However, it may be fairly doubted that the form of ballot provided by the Board of Aldermen of the city of New Bern for the election on 5 April, 1949, presented the question for approval as required by the 1949 act. But be that as it may, it is clear that the General Assembly in the act of 1949, gave no authority to the city of New Bern to inaugurate its own retirement system. And so far as we have ascertained, the General Assembly has not otherwise granted such authority to the city of New Bern. Hence the Board of Aldermen of the city was without authority to insert in the ballot the clause "the city to inaugurate its own retirement system". Thus the majority vote for the proposal is without binding effect. It amounts to no more than an expression of popular opinion on a subject not legally presented.

The first and determinative assignment of error on this appeal challenges the correctness of the order overruling defendants' demurrer to the complaint, on the ground, in the main, that it fails to state facts sufficient to constitute a cause of action. The purpose of this action is to obtain a writ of mandamus to require the Board of Aldermen of the city of New Bern to effect a withdrawal of the city from the North Carolina Local Governmental Employees' Retirement System. The facts alleged in the complaint fail to make out a case for such relief. What is said on plaintiffs' appeal, as hereinabove set forth, is determinative of the assignment of error here under consideration. We hold, therefore, that the demurrer of defendants is well taken.

Moreover, for like reason the complaint fails to state a cause of action in support of the matters to which the injunction relates.

On Plaintiffs' appeal affirmed.

On Defendants' appeal reversed.