The General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by this Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.
The General Assembly shall not incorporate as a city or town, nor shall it authorize to be incorporated as a city or town, any territory lying within one mile of the corporate limits of any other city or town having a population of 5,000 or more according to the most recent decennial census of population taken by order of Congress, or lying within three miles of the corporate limits of any other city or town having a population of 10,000 or more according to the most recent decennial census of population taken by order of Congress, or lying within four miles of the corporate limits of any other city or town having a population of 25,000 or more according to the most recent decennial census of population taken by order of Congress, or lying within five miles of the corporate limits of any other city or town having a population of 50,000 or more according to the most recent decennial census of population taken by order of Congress. Notwithstanding the foregoing limitations, the General Assembly may incorporate a city or town by an act adopted by vote of three-fifths of all the members of each house.
(1971, c. 857, s. 1.)
History Note. - The provisions of the first paragraph of this section are similar to those of Art. VIII, § 4, Const. 1868, as amended in 1916.
Legal Periodicals. - For article on local legislation in the General Assembly, discussing this section, see 45 N.C.L. Rev. 340 (1967).
For note on the expansion of standing in North Carolina taxpayers' actions, see 15 Wake Forest L. Rev. 126 (1979).
For comment discussing North Carolina's unilateral annexation statutes, see 19 Wake Forest L. Rev. 215 (1983).
For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).
For article, "Bargain Basement Annexation: How Municipalities Subvert the Intent of North Carolina Annexation Laws," see 29 N.C. Cent. L.J. 77 (2006).
CASE NOTES
Editor's Note. - Some of the cases cited below were decided under former Art. VIII, § 4, Const. 1868, as amended.
Counties, cities and towns are governmental agencies of the State, created by the legislature for administrative purposes, and the legislature retains control and supervision over both classes of municipal corporations, limited only by this section. Town of Saluda v. County of Polk, 207 N.C. 180, 176 S.E. 298 (1934).
Municipal corporations are instrumentalities of the State for the administration of local government. They are created by the General Assembly under the general authority conferred by this section. They have such powers as are expressly conferred by statute and those necessarily implied therefrom. Town of Grimesland v. City of Wash., 234 N.C. 117, 66 S.E.2d 794 (1951).
A municipal corporation, city or town, is an agency created by the State to assist in the civil government of a designated territory. Its charter is the legislative description of the power to be exercised. In re Indian Hills, 280 N.C. 659, 186 S.E.2d 909 (1972).
The counties of North Carolina were created by the General Assembly as governmental agencies of the State. In re Martin, 286 N.C. 66, 209 S.E.2d 766 (1974).
This section gives the General Assembly the authority to provide for the organization and government of counties, including the granting of such powers and duties to the counties as it deems advisable. As an agent of the State, a county has no inherent power, but may exercise only those powers prescribed by statute and those necessarily implied by law. In re Easement of Right of Way, 90 N.C. App. 303, 368 S.E.2d 639 (1988).
And Derive their Powers Almost Solely from Legislative Enactment. - Municipal corporations derive their powers almost solely from legislative enactment under this section, and are subject to statutory restrictions and regulations of their taxing power. Purser v. Ledbetter, 227 N.C. 1, 40 S.E.2d 702 (1946).
Including Power to Tax. - A sovereign state, as one of its inherent attributes, has the power of taxation, which must be exercised by its legislative branch. The county is not a sovereign and hence does not have the inherent power to levy taxes. A county must derive its taxing power from the State Constitution or from the State's legislative enactments. Hajoca Corp. v. Clayton, 277 N.C. 560, 178 S.E.2d 481 (1971).
The counties have no inherent taxing power. A county derives its power to tax from the legislature and cannot complain that the enabling legislation is lacking in breadth. In re Martin, 286 N.C. 66, 209 S.E.2d 766 (1974).
This section seems to give a general control to the legislature on the subject of municipal corporations, and the legislature may, under it, restrict the power of taxation by corporations as it may think proper, due regard being had to other parts of the Constitution. Pullen v. Board of Comm'rs, 68 N.C. 451 (1873).
And Control of Finances. - The legislature has plenary power to control the finances of the municipal corporations which it creates, and to direct how their revenues shall be applied. Hence it can direct that revenues derived from municipal enterprises shall be applied on outstanding bonds as well as upon bonds to be issued thereafter. George v. City of Asheville, 80 F.2d 50, 103 A.L.R. 568 (4th Cir. 1935).
Powers of Municipal Corporation. - A municipal corporation possesses, and may exercise, the following powers, and no others: (1) those granted in express words; (2) those necessarily or fairly implied; and (3) those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. In re Indian Hills, 280 N.C. 659, 186 S.E.2d 909 (1972).
When the state department of transportation filed a condemnation suit against a county, the trial court properly denied the county's motion to dismiss based on sovereign immunity; because under N.C. Const., Art. VII, § 1, a county derives all of its sovereign immunity from the state, its sovereign immunity cannot be superior to that of the state. N.C. DOT v. County of Durham, 181 N.C. App. 346, 638 S.E.2d 577 (2007).
Doubt as to Power Resolved Against Corporation. - Any fair, reasonable doubt concerning the existence of power is resolved by the courts against a municipal corporation, and the power is denied. In re Indian Hills, 280 N.C. 659, 186 S.E.2d 909 (1972).
Authority of Cities, etc., May Be Enlarged, Abridged or Withdrawn. - The authority of cities and towns as instrumentalities for the administration of local government may be enlarged, abridged or withdrawn entirely at the will or pleasure of the legislature. Town of Murphy v. C.A. Webb & Co., 156 N.C. 402, 72 S.E. 460 (1911); Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371, petition for rehearing denied, 230 N.C. 759, 53 S.E.2d 313 (1949).
Alteration of Charter Not Forbidden. - This section does not forbid altering or amending charters of cities, towns and incorporated villages or conferring upon municipal corporations additional powers or restricting the powers theretofore vested in them. Holton v. Town of Mocksville, 189 N.C. 144, 126 S.E. 326 (1924). See also, Deese v. Town of Lumberton, 211 N.C. 31, 188 S.E. 857 (1936); Candler v. City of Asheville, 247 N.C. 398, 101 S.E.2d 470 (1958).
General Assembly was acting within its authority when it amended city's charter and extended city council term of office to four years. Crump v. Snead, 134 N.C. App. 353, 517 S.E.2d 384 (1999), cert. denied, 351 N.C. 101, 541 S.E.2d 143 (1999).
It is for the legislature to decide when it is necessary to pass a restrictive statute. State v. Irvin, 126 N.C. 989, 35 S.E. 430 (1900).
Restrictions on Bond Issue. - The legislature may restrict or limit the power of incorporated towns or cities to tax or contract debts for purposes which fall within the class of necessary expenses, for they are but the State's instrumentalities for the administration of local government; and when this restriction is thus placed upon them, or it is required of them to submit the question of a bond issue to popular vote, and an issue of bonds is made without compliance therewith, the issue is invalid. Town of Murphy v. C.A. Webb & Co., 156 N.C. 402, 72 S.E. 460 (1911).
Restrictions on Levy of Tax. - A municipality may not levy a tax without submitting the question to the qualified voters where the legislature by statute requires the consent of such voters. Wadsworth v. City of Concord, 133 N.C. 587, 45 S.E. 948 (1903); Robinson v. City of Goldsboro, 135 N.C. 382, 47 S.E. 462 (1904); Ellison v. Town of Williamston, 152 N.C. 147, 67 S.E. 255 (1910).
Council Could Not Be Estopped From Terminating Unauthorized Payments Without Notice. - Where a town's resolution appropriating a certain percentage of its alcoholic beverage control revenue to county school board was outside the authority of the town council, the town council could not be estopped from terminating the unauthorized payments without notice. Watauga County Bd. of Educ. v. Town of Boone, 106 N.C. App. 270, 416 S.E.2d 411 (1992).
The fixing of boundaries of municipal corporations is a permissible legislative function. Jones v. Jeanette, 34 N.C. App. 526, 239 S.E.2d 293 (1977).
The setting up of a municipal corporation by the legislature at any place is left to legislative discretion. Starmount Co. v. Ohio Sav. Bank & Trust Co., 55 F.2d 649 (4th Cir. 1932).
Motives of Legislature in Incorporation of Political Subdivisions. - Ordinarily, the courts have no authority to inquire into the motives of the legislature in the incorporation of political subdivisions. Jones v. Jeanette, 34 N.C. App. 526, 239 S.E.2d 293 (1977).
Legislative Power to Amend Charter of Municipal Corporation. - When there is no constitutional limitation to the contrary, the legislature has full power to amend the charter of a municipal corporation at its pleasure, and the amendment takes effect without any acceptance on the part of the municipality. Bethania Town Lot Comm. v. City of Winston-Salem, 126 N.C. App. 783, 486 S.E.2d 729 (1997).
Annexation Is Within Legislature's Power. - Annexation by a municipal corporation is a political question which is within the power of the State legislature to regulate. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, appeal dismissed and cert. denied, 303 N.C. 710, 283 S.E.2d 136 (1981).
The enlargement of municipal boundaries by the annexation of new territory, and the consequent extension of corporate jurisdiction, including that of levying taxes, are legitimate subjects of legislation. In the absence of constitutional restriction, the extent to which such legislation shall be enacted, both with respect to the terms and circumstances under which the annexation may be had, and the manner in which it may be made, rests entirely in the discretion of the legislature. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, appeal dismissed and cert. denied, 303 N.C. 710, 283 S.E.2d 136 (1981).
But Its Power Is Not Unlimited. - The power of the legislature to expand the boundaries of cities, towns, or other local units, though great, is not unlimited. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, appeal dismissed and cert. denied, 303 N.C. 710, 283 S.E.2d 136 (1981).
Review of Local Annexation Act. - A local annexation act is not insulated from judicial review when it is an instrument for circumventing a constitutionally protected right. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, appeal dismissed and cert. denied, 303 N.C. 710, 283 S.E.2d 136 (1981).
Notice of Annexation. - Notice by publication of a public hearing pursuant to former G.S. 160A-24 did not provide inadequate notice to the parties affected by the annexation in violation of their right to due process, since the General Assembly, under this section, may annex land without notice to anyone. Texfi Indus., Inc. v. City of Fayetteville, 44 N.C. App. 268, 261 S.E.2d 21 (1979), aff'd, 301 N.C. 1, 269 S.E.2d 142 (1980).
Annexation Provisions Not Invalid as Special Legislation. - Sections 160A-45 et seq. do not violate N.C. Const., Art. II, § 24, which prohibits the General Assembly from enacting "any local, private, or special act or resolution" in regard to certain enumerated subjects. This constitutional provision does not apply to annexation proceedings by municipalities, since this section authorizes the General Assembly "except as otherwise prohibited by this Constitution" to "give such powers and duties to counties, cities, and towns and other governmental subdivisions as it may deem advisable," and no other provision of the Constitution prohibits the General Assembly from enacting special legislation for the annexation of areas by municipalities. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).
Annexation of Land Without Annexing Similar Land. - It is not a denial of the equal protection of the law for a city to annex land without annexing other land similarly situated. Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989).
Section Does Not Prohibit Local or Special Acts. - This section contains no prohibition on the exercise of legislative power, and has in it no declaration that private, local, or special acts shall not be passed relating to the organization of cities and towns, and conferring particular powers, and this omission, when considered in connection with the history of amendments to the Constitution, is fatal to the claim that local or special acts may not be legally enacted, conferring special authority on municipal corporations. In re Annexation Ordinances, 253 N.C. 637, 117 S.E.2d 795 (1961).
Acts Determining Responsibility for Enforcement of Laws Affecting Health Unconstitutional. - Inspections pursuant to the State Building Code affect health and sanitation, thus acts that altered the legislative directive of G.S. 160A-411 that the city shall determine who will perform the inspections under the Code were local legislation that shifted responsibility for enforcement of laws affecting the health of the public and were barred under Art. II, § 24 of the Constitution. City of New Bern v. New Bern-Craven County Bd. of Educ., 338 N.C. 430, 450 S.E.2d 735 (1994).
A school district is not within the purview of this section, it being not a city, town or incorporated village. Felmet v. Commissioners of Buncombe, 186 N.C. 251, 119 S.E. 353 (1923); Waters v. Board of Comm'rs, 186 N.C. 719, 120 S.E. 450 (1923).
A county board of elections does not have taxing power. Hajoca Corp. v. Clayton, 277 N.C. 560, 178 S.E.2d 481 (1971).
Sheriff is Local Officer. - In the injured party's suit against a sheriff and individual detention officers arising out of a five-day episode in the county detention center where she alleged that they ignored her requests for medical treatment, the trial court properly concluded that the office of North Carolina sheriff was a "person" under 42 U.S.C.S. § 1983 because: (1) the state constitution created the office of sheriff, N.C. Const., Art. VII, § 2, but included that provision within the article governing local governments, along with provisions for counties, cities, towns, and other governmental subdivisions, N.C. Const., Art. VII, § 1; (2) state statutes, including G.S. 17E-1, 160A-288.2, 143-166.50, and 97-2, characterized a sheriff's department as a local governmental entity; (3) there was no contention that the State would be potentially liable for any monetary judgment entered against the sheriff and the detention officers; and (4) the State did not have, with respect to a sheriff, the minimum degree of control required for Eleventh Amendment immunity. Boyd v. Robeson County, - N.C. App. - , 615 S.E.2d 296 (2005), cert. denied, - N.C. - , 615 S.E.2d 866 (2005).
Trial court properly denied summary judgment to sheriff and two detention center officers with regard to a former inmate's suit asserting a violation of her state and federal constitutional rights with regard to allegedly having been denied medical treatment for appendicitis while incarcerated at a county detention center. The sheriff and the officers were "persons" amendable to suit under 42 U.S.C.S. § 1983 and were not immune since the indifference shown, despite the inmate's repeated complaints of pain, was not protected by qualified immunity. Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005).
In the State of North Carolina, a sheriff is a person amendable to suit under 42 U.S.C.S. § 1983. Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005).
Applied in Kegley v. City of Fayetteville, 170 N.C. App. 656, 613 S.E.2d 696 (2005), review denied, - N.C. - , 619 S.E.2d 508 (2005), cert. denied, - U.S. - , 126 S. Ct. 1147, 163 L. Ed. 2d 1001 (2006).
Cited in State v. Jones, 41 N.C. App. 189, 254 S.E.2d 234 (1979); In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649 (1984); Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988).