Matter of Ordinance of Annexation No. 1977-4

Annotate this Case

249 S.E.2d 698 (1978)

295 N.C. 1

In the Matter of the ORDINANCE OF ANNEXATION NO. 1977-4.

No. 7.

Supreme Court of North Carolina.

November 28, 1978.

*703 Bernard A. Harrell, Raleigh, for petitioner-appellant.

Smith, Everett & Womble by W. Harrell Everett, Jr., Goldsboro, for respondent-appellee.

BRITT, Justice.

Under G.S. 160A-50(f), the person challenging an annexation ordinance must show (1) that the statutory procedure was not followed, or (2) that the provisions of G.S. 160A-47 were not met, or (3) that the provisions of G.S. 160A-48 have not been met. The party challenging the annexation has the burden of showing error. In In re Annexation Ordinance, 284 N.C. 442, 452, 202 S.E.2d 143, 149 (1974), this court, speaking through Huskins, J., said:

"As a general rule it is presumed that a public official in the performance of his official duties `acts fairly, impartially, and in good faith, and in the exercise of sound judgment or discretion, for the purpose of promoting the public good and protecting the public interest. [Citation omitted.] The presumption of regularity of official acts is rebuttable by affirmative evidence of irregularity or failure to perform duty, but the burden of producing such evidence rests on him who asserts unlawful or irregular conduct. The presumption, however, prevails until it is overcome by . . . evidence to the contrary . . . . Every reasonable intendment will be made in support of the presumption . . . .' Huntley v. Potter, *704 255 N.C. 619, 122 S.E.2d 681, 687 (1961); accord, Styers v. Phillips, 277 N.C. 460, 178 S.E.2d 583 (1971). Hence the burden is on the petitioner to overcome the presumption by competent and substantial evidence. 6 N.C. Index 2d, Public Officers, § 8 (1968)."

Petitioner concedes that respondent followed the statutory procedures "within the meaning of G.S. 160A-50(f)(1)". That being true, our inquiry is whether petitioner has met his burden of showing by competent and substantial evidence that respondent did not comply with the provisions of G.S. 160A-47 or G.S. 160A-48. We hold that petitioner has not met that burden.

By his assignments of error 1, 2, 3 and 4, petitioner argues that the trial court erred in finding as facts that respondent city could provide police protection, fire protection, garbage collection service and street maintenance for the annexed areas in the event the federal government ceased to provide said services to the air base, and that respondent had sufficient monies to do so. His primary argument on these assignments is that the findings of fact are not supported by the evidence.

Petitioner does not seriously argue that respondent cannot provide said services to the 59.25 acre tract in which his premises are located. In attacking respondent's ability to provide services to the air base, petitioner relies in large part on the testimony of certain of respondent's department heads which he presented as witnesses.

These include the chief of police who testified that if he were required to provide full police protection to the newly-annexed area, he could not do it "with my present budget and department"; the chief of the fire department who stated that if the air base were to disband its fire department, respondent city could not provide adequate fire protection for the area; and the city manager who stated that the current budget of respondent did not show any funds for providing police protection, fire protection and refuse collection for the newly annexed area.

Off-setting testimony was provided by the city manager on redirect examination when he testified that if the federal government ceased providing police protection for the air base, he thought respondent could provide that service from several sources of revenue; and that the city could also provide fire protection to the air base although it would mean a diminished level of services throughout the city. Further off-setting testimony was provided by the city finance officer who stated that in his opinion the city could provide all municipal services to the air base should the federal government terminate those services; and that the city was in relatively sound financial condition, having some fifty sources of revenue which it could use for all city purposes.

The record further reveals that for the first year following annexation the increased cost to the city would be only $2,053 while the increased revenues to the city from property taxes, Powell Bill funds, water revenue, public utility franchise taxes, and wine and beer excise taxeswould be $230,624. It was also shown that the city had previously extended major trunk water mains and sewage lines to the boundaries of the air base property.

While there is evidence to support some of petitioner's contentions, there is evidence to support the court's findings of fact. Those findings are conclusive if supported by any competent evidence, and judgment supported by such findings will be affirmed even though there is evidence contra. 1 Strong's N.C. Index 3d, Appeal and Error § 57.2.

Assignments of error 1, 2, 3 and 4 are overruled.

By his fifth and sixth assignments of error, petitioner contends the trial court erred in finding as facts (1) that on 7 February 1977 there existed a water distribution system in the area to be annexed which provided fire protection "on substantially the same basis and in the same manner as that provided within the rest of the municipality prior to annexation", and (2) that the residents of the air base were receiving public water and sewer services at the time *705 of the trial. These assignments have no merit.

There was plenary evidence that the federal government was providing adequate fire protection, water and sewer services on the air base with water provided partly by respondent and partly by deep wells on the base, and with sewer facilities provided by respondent and the federal government. There was also evidence that respondent had a sound plan to provide fire protection to homes and other structures on the 59.25 acre tract; also water for those on said tract who wanted it. "[T]here is no requirement that a municipality duplicate services, in an area to be annexed, which are already available in the area." Huntley v. Potter, 255 N.C. 619, 632, 122 S.E.2d 681, 689 (1961). Furthermore, it would appear from a reading of G.S. 160A-49(h) that a city annexing territory has one yearpossibly 15 monthsto implement its plan for extending services to an annexed area.

By his seventh assignment of error, petitioner contends the trial court erred in finding that respondent had sufficient revenues or plans for financing the extension of municipal services to the area annexed; and that respondent had "sufficient revenues to provide all services required under the annexation laws on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation". This assignment has no merit.

While there was some evidence that would support this contention, there was other evidence contradicting it and the trial court was the trier of the facts. Clearly, the evidence showed that respondent was able to provide comparable services to the 59.25 acre area. We think the evidence was also clear that the federal government was rendering, and would continue to render, police and fire protection and water, sewer and street maintenance service on the air base that were comparable to that rendered by respondent in other parts of the city. This evidence, together with that of the city finance officer that respondent was financially able to render the services on the air base in the event the federal government should cease doing so, was sufficient to support the findings of fact.

In his eighth assignment petitioner asserts error in the court's finding that the area annexed was developed for urban purposes within the meaning of G.S. 160A-48.

G.S. 160A-48(c)(1) reads in pertinent part as follows: "(c) Part or all of the area to be annexed must be developed for urban purposes. An area developed for urban purposes is defined as any area which . . . (1) Has a total resident population equal to at least two persons for each acre of land included within its boundaries . . . ." G.S. 160A-54 provides: ". . . In determining whether the standards set forth in G.S. 160A-48 have been met on appeal to the superior court under G.S. 160A-50, the reviewing court shall accept the estimates of the municipality: (1) As to population, if the estimate is based on the number of dwelling units in the area multiplied by the average family size in such area, or in the township or townships of which such area is a part, as determined by the last preceding federal decennial census . . . provided, that the court shall not accept such estimates if the petitioners demonstrate that such estimates are in error in the amount of ten percent (10%) or more." In construing this portion of the annexation statute this Court, speaking through Justice Huskins, has said that ". . . the tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole." In re Annexation Ordinance, supra, 284 N.C. at 456, 202 S.E.2d at 152.

In the present case the City of Goldsboro annexed 3216.25 acres. The parties stipulated prior to trial that "an estimated 8,827 persons resided in the 3,157 acre area known as the Seymour Johnson Air Force Base" and that "an estimated twenty-five persons resided" in the remaining 59.25 acres of the annexed area. At trial petitioner's evidence tended to show that 7930 persons lived on the base and twenty-five persons lived in the remainder of the annexed area. Both the figure stipulated to *706 prior to trial and the figure actually shown by the evidence provide a sufficient estimate of the population of the entire 3216.25 acres to obtain the ratio of two persons per acre of annexed land which G.S. 160A-48 requires.

On appeal, however, petitioner contends that the military personnel stationed on the base should not have been counted in determining the population estimate. He argues that these persons are not subject to taxation by the annexing unit and are not ipso facto eligible to vote therein. He insists, therefore, that they are not bona fide "residents" of the annexed area. We disagree.

At the outset, we note the stipulation entered into between the parties prior to trial. Ordinarily, such stipulations constitute judicial admissions binding on the parties and dispense with the necessity of proving the stipulated fact. Such stipulations continue in force for the duration of the controversy and preclude the later assertion of a position inconsistent therewith. Hargus v. Select Foods, Inc., 271 N.C. 369, 156 S.E.2d 737 (1967); Plumbing Co. v. Construction Co., 268 N.C. 23, 149 S.E.2d 625 (1966). It is also true, however, that intent of the parties and their circumstances at the time the stipulation was signed must be examined to ensure that the language of the stipulation will not be construed to effect an admission of a fact which was intended to be controverted. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972). Our examination of the petition in this case reveals that petitioner asserted that the base personnel were not within the meaning of "resident" under G.S. 160A-48. It would be anomalous to find that he conceded this point at trial only to reassert it on appeal when the language of the stipulation is susceptible of being construed as conceding the number of persons on the base and precluding proof of that issue only. We adopt this latter construction of the stipulation and address ourselves to the argument raised by the petitioner.

Acceptance of petitioner's contention with regard to the military personnel on Seymour Johnson Air Force Base would compel us to require that the annexing unit make a finding that a person is actually domiciled within the proposed area of annexation before counting that person for the purpose of making the population estimate required by the statute. This would impose an unnecessary administrative burden not contemplated by the statute, and we refuse to impose such a requirement.

"Precisely speaking, residence and domicile are not convertible terms. A person may have his residence in one place and his domicile in another. Residence simply indicates a person's actual place of abode, whether permanent or temporary. Domicile denotes one's permanent, established home as distinguished from a temporary, although actual, place of residence. Hall v. Board of Education, 280 N.C. 600, 605, 187 S.E.2d 52, 55 (1972)."

We hold that a person is properly counted as a member of the "total resident population" under G.S. 160A-48 if such person would have been counted as an inhabitant of the proposed area of annexation under rules governing the last preceding decennial census. This method of enumerating population is consistent with the manner in which average family size is determined under G.S. 160A-54. It is also employed in apportioning congressional districts. G.S. 163-201. See also: Drum v. Seawell, 249 F. Supp. 877 (M.D.N.C., 1965), affirmed, 383 U.S. 831, 86 S. Ct. 1237, 16 L. Ed. 2d 298 (1966), (presence of large numbers of military personnel does not justify underrepresentation of an area).

The military personnel on Seymour Johnson Air Force Base were properly counted in determining the population estimate required by G.S. 160A-48. In accordance with census practice dating back to 1790 persons enumerated in the 1970 census who lived on military bases as members of the armed forces were counted as residents of the states, counties, and minor civil divisions in which their installations were located. U.S. Dept. of Commerce, Bureau of the Census, 1970 Census of Population, Number *707 of Inhabitants, United States Summary, p. IV (1971). We hold that the court did not err in finding that the annexed area was developed for urban purposes within the meaning of G.S. 160A-48(c).

While petitioner recognizes the rule of presumptive regularity of official acts as well as the burden of proof imposed on him thereby, he contends (1) that the annexation is void as being beyond the delegation of legislative authority granted by Part III, Article 4A of Chapter 160A, and (2) that the report or Plan of Annexation in this case is insufficient to raise the prima facie rule of regularity. With these two contentions we cannot agree.

Petitioner appears to contend that for the annexation to be legal, respondent, at the time of the trial (October 17, 1977), had to have funds budgeted to provide municipal services to the air base in the event the federal government ceased providing those services. We find nothing in applicable statutes to support this contention.

G.S. 160A-47(3) requires the annexing city to file a statement showing how it will provide and finance municipal services to the annexed area. As we have already said, there is no requirement that available services be duplicated. Huntley v. Potter, supra. This Plan of Annexation is not based upon a doubtful contingency but upon sound estimates of anticipated expenditures and revenue. Cf.: In Re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961) (city relied on developers and landowners to provide service rather than formulating its own plan). This is sufficient to raise the presumption of regularity.

The action taken by the City of Goldsboro is also within the power delegated to it by the legislature. Municipalities have no inherent powers; they have only such powers as are delegated to them by legislative enactment. Koontz v. Winston-Salem, 280 N.C. 513, 186 S.E.2d 897, rehearing den., 281 N.C. 516, 189 S.E.2d 35 (1972); Moody v. Transylvania County, 271 N.C. 384, 156 S.E.2d 716 (1967). "A municipal corporation or its corporate authorities have no power to extend its boundaries otherwise than provided by legislative enactment or constitutional provision. Such power may be validly delegated to municipal corporations by the legislature, and when so conferred must be exercised in strict accord with the statute conferring it." Huntley, supra, 255 N.C. at 627, 122 S.E.2d at 686.

G.S. 160A, Article 4A, Part III, establishes annexation powers for municipalities larger than 5000 persons. Prima facie complete and substantial compliance therewith is a condition precedent to annexation of territory by a municipality. In Re Annexation Ordinance, 278 N.C. 641, 180 S.E.2d 851 (1971); In Re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961). The record in this case reveals such compliance. The parties stipulate procedural compliance. The character of the annexed area is such as is prescribed by G.S. 160A-48, and Goldsboro's Plan of Annexation complies with G.S. 160A-47.

Because we find that Goldsboro has complied with G.S. 160A-47 and G.S. 160A-48, we need not examine petitioner's ninth assignment of error. By it he contends the court erred in finding as fact and concluding as a matter of law that he had shown no material injury to himself resulting from non-compliance with the annexation statute. Inquiry into the injury suffered by the petitioner is necessary only where it is shown that the annexation statute has not been complied with. In Re Annexation Ordinance, 278 N.C. 641, 180 S.E.2d 851 (1971).

In his tenth and eleventh assignments of error petitioner contends that the court erred in concluding as a matter of law that Seymour Johnson Air Force Base meets all the requirements of G.S. 160A-47 and G.S. 160A-48, in concluding as a matter of law that the base owned by the United States was subject to annexation under the statute, and in entering judgment in accord with these conclusions.

We have already examined G.S. 160A-47 and G.S. 160A-48 and have determined for reasons previously stated that Seymour Johnson Air Force Base is property which *708 complies with the requirements of those statutes. There is no need to repeat that discussion.

Petitioner argues finally that allowing Goldsboro to annex Seymour Johnson Air Force Base violates the express purposes of the annexation statute and allows the imposition of an unconstitutionally unequal tax on citizens of the same class.

Annexation by a city or town is viewed as a political matter to be regulated solely by the state legislature. 2 McQuillin, Municipal Corporations § 7.10, p. 309. While this court has not considered heretofore the question of municipal annexation of federal property, the courts of our sister states which have done so have been nearly unanimous in their approval of such action when it is taken in accordance with the states' statutes. See, e. g.: Howard v. Commissioners of Louisville, 344 U.S. 624, 73 S. Ct. 465, 97 L. Ed. 617 (1953); Flynn v. Stevenson, 4 Ill.App.3d 458, 281 N.E.2d 438 (1972); Kansas City v. Querry, 511 S.W.2d 790 (Mo., 1974); Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695 (1944); Norfolk County v. City of Portsmouth, 186 Va. 1032, 45 S.E.2d 136 (1947), contra, United States v. Bellevue, 334 F. Supp. 881 (D.Neb., 1971), affirmed, 474 F.2d 473, cert. denied, 414 U.S. 827, 94 S. Ct. 46, 38 L. Ed. 2d 60 (1973). In Bellevue, the only decision we have found overturning an annexation of federal property, the court held that federal property could be annexed under the statute but that the statute did not allow annexation of property solely for purpose of obtaining greater revenue, the avowed purpose of the city in that case.

In the present case the proposed area of annexation possesses every characteristic which the legislature deemed essential for "sound urban development." The City of Goldsboro has meticulously complied with the annexation statutes. We cannot substitute our judgment for that of the legislature on this question and are compelled to hold that Seymour Johnson Air Force Base is subject to annexation under the existing statutes.

Furthermore, we can find no constitutional impediment to this annexation. Absent interference with asserted federal jurisdiction, the "fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries." Howard v. Commissioners of Louisville, supra. The power to annex federal property is generally unrestricted if it is annexed in accord with the state's statutes; such an exercise of the annexation power cannot be approved, however, where it is for the sole purpose of generating revenue. See: 11 Military Law Review 99 (1961). Federal consent to the annexation is unnecessary. Agua Caliente Band, Etc. v. Palm Springs, 347 F. Supp. 42 (Cal., 1972). This annexation has not been objected to by the federal government and does not interfere with federal jurisdiction.

Nor will this annexation create unconstitutional tax classes. Taxes must be uniformly imposed throughout a taxing jurisdiction. Dyer v. City of Leaksville, 275 N.C. 41, 165 S.E.2d 201 (1969); Leonard v. Maxwell, 216 N.C. 89, 3 S.E.2d 316, appeal dismissed, 308 U.S. 516, 84 L. Ed. 439, 60 S. Ct. 175 (1939). However, the legislature is given the widest latitude in making distinctions which are bases for tax classifications; such classifications will not be disturbed unless they are capricious, arbitrary and unjust. Rigby v. Clayton, 274 N.C. 465, 164 S.E.2d 7 (1968). The petitioner in this case will be taxed in the same manner as every other citizen of Goldsboro. He cannot complain because Congress has exempted military personnel from local taxation. Soldiers and Sailors Civil Relief Act, 50 U.S.C.App. § 574.

For the reasons stated, the judgment appealed from is

Affirmed.