Safrit v. Costlow

155 S.E.2d 252 (1967)

270 N.C. 680

Leonard Y. SAFRIT et al. v. John D. COSTLOW, Mayor, Earl Mades, David C. Farrior, Frank Langdale, Osborne G. Davis and Glenn B. Willis, Jr., Commissioners of the Town of Beaufort, and the Town of Beaufort, a Municipal Corporation of the State of North Carolina.

No. 121.

Supreme Court of North Carolina.

June 20, 1967.

*253 Harvey Hamilton, Jr., Morehead City, and Ward & Tucker, New Bern, for plaintiff appellants.

Wheatly & Bennett, Beaufort, for defendant appellees.

*254 BOBBITT, Justice.

Judge Latham ruled in the separate action (No. 110 on our docket) that the 1963 statute, to wit, Chapter 1189, Session Laws of 1963, referred to in the quoted paragraph of the plan, was unconstitutional and void as violative of Article II, Section 29, of the Constitution of North Carolina. As to this, as set forth in the opinion in the separate action, this Court is in accord. Defendants may not predicate rights upon said 1963 statute.

The court ruled correctly that this action was timely and properly brought pursuant to G.S. § 160-453.5(h). The court's further rulings appear to be in accord with defendants' contention that the plan contains no provision for a sewerage system in the annexed areas and therefore affords no basis for the issuance of a writ of mandamus. And to this, we take a different view.

The plan contemplates the construction of a new sewerage system from which property owners in the annexed area will receive the same benefits as property owners in the then existing portions of the municipality. We cannot accept the view that this reference to a new sewerage system should be treated as a mere will-o'-the-wisp, so lacking in substance that plaintiffs had no right to rely thereon.

Independent of references to said 1963 statute, we think the proposal set forth in said plan was in substance as follows: The existing municipal sewerage system, having been declared obsolete and a source of unlawful pollution to adjacent streams or waters, could not be extended into the annexed areas. The Town of Beaufort planned to construct a new sewerage system from which all areas within the municipal limits, including the annexed areas, would receive the same benefits. Studies to accomplish this result were in progress. Temporarily, the Town of Beaufort would upon request pump or clean privately owned septic tanks located in the annexed areas.

In G.S. § 160-453.1, it is declared as a matter of State policy, inter alia: "* * * (3) That municipal boundaries should be extended, in accordance with legislative standards applicable throughout the State, to include such areas and to provide the high quality of governmental services needed therein for the public health, safety and welfare; and * * * (5) That areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality as soon as possible following annexation."

G.S. § 160-453.3(3)b requires, in respect of a plan for extension of services to areas proposed to be annexed, the following: "Provide for extension of water mains and sewer lines into the area to be annexed so that property owners in the area to be annexed will be able to secure public water and sewer services according to the policies in effect in such municipality for extending water and sewer lines to individual lots or subdivisions. If the municipality must, at its own expense, extend water and/or sewer mains into the area to be annexed before property owners in the area can, according to municipal policies, make such connection to such lines, then the plans must call for contracts to be let and construction to begin on such lines within one year following the effective date of annexation."

In the separate action (No. 110 on our docket), we have held that plaintiffs are precluded by G.S. § 160-453.6(a) from attacking the validity of the annexation by reason of their failure, within thirty days following the passage of the Annexation Ordinance, to file a petition in the Superior Court of Carteret County seeking a review of the action of the Board of Commissioners of the Town of Beaufort.

Plaintiffs' property is now located within the municipality. They are entitled "to secure public * * * sewer services according to the policies in effect in such municipality for extending * * * sewer *255 lines to individual lots or subdivisions." G.S. § 160-453.3(3)b. The plan of the Town of Beaufort for extending sewer lines necessitates the construction of a new sewerage system, and in the "Report Setting Forth Plans as to Services to Areas to be Annexed" it is stated that "said (new) system will service the two (newly annexed) areas as hereinabove described. * * *"

The statutory remedy for owners of property in the annexed territory where "the municipality has not followed through on its service plans adopted under the provisions of §§ 160-453.3(3) and 160-453.5 (e)" is by writ of mandamus. G.S. § 160-453.5(h). Plaintiffs have no other legal remedy.

The nature and function of a writ of mandamus have been fully discussed in prior decisions. Board of Managers of James Walker Memorial Hospital, etc. v. City of Wilmington, 235 N.C. 597, 70 S.E.2d 833, and cases cited; St. George v. Hanson, 239 N.C. 259, 78 S.E.2d 885, and cases cited; Young v. Roberts, 252 N.C. 9, 112 S.E.2d 758.

The function of a writ of mandamus, "when issued to compel a board or public official to perform a duty imposed by law," is identical with that of a mandatory injunction. Board of Managers of James Walker Memorial Hospital, etc. v. City of Wilmington, supra. Its function is to enforce, not to establish, legal rights. St. George v. Hanson, supra. Ordinarily, mandamus "does not lie to control the exercise of a discretionary power." 3 Strong, N.C.Index, Mandamus § 2.

Although plaintiffs have no right to require that any particular type of sewerage system be installed, they do have a clear legal right to require that defendants provide a new sewerage system which will offer to them the same benefits offered to other property owners throughout the municipality. The tax burden imposed on plaintiffs' property is the same as that imposed on property throughout the municipality. The statutes contemplate, and elemental fairness requires, that plaintiffs receive the same benefits.

Absent a specific provision in the plan for the construction of the new sewerage system, the law allowed defendants a reasonable time within which to discharge their obligations. G.S. § 160-453.5(h) provides that application for writ of mandamus as authorized thereby shall be made not earlier than one year nor later than fifteen months from the effective date of annexation. The effective date of annexation was May 1, 1964. This action was instituted July 29, 1965. The hearing before Judge Latham was at November 28, 1966 Civil Session. Notwithstanding this lapse of time, defendants offer no evidence that a new sewerage system is in process of construction or that contract for the construction of such sewerage system has been let.

The foregoing leads to this conclusion: The court was in error in dismissing the action. Hence, the judgment is vacated and the cause remanded for further proceedings. Upon the basis of such evidence as may be offered upon further hearing in the superior court, the judge thereof will make such order as may be appropriate to require that defendants proceed promptly with the construction of a new sewerage system.

Error and remanded.