City of Burlington v. Town of Elon College , 310 N.C. 723 ( 1984 )

314 S.E.2d 534 (1984) 310 N.C. 723

CITY OF BURLINGTON, North Carolina
v.
The TOWN OF ELON COLLEGE, North Carolina.

No. 449PA83.

Supreme Court of North Carolina.

April 30, 1984.

Robert M. Ward, City Atty., Burlington, for plaintiff-appellant/appellee.

Bateman & Stedman by Charles L. Bateman, Burlington, for defendant-appellant/appellee.

BRANCH, Chief Justice.

The sole issue presented in this case is whether the trial court erred in concluding that the Town of Elon College prevailed in its annexation of the areas which had been included in the City of Burlington's proposed annexation plan. This issue relies, in turn, on the applicability of the "prior jurisdiction" rule to this dispute.

The doctrine of prior jurisdiction is discussed in 2 McQuillin, Municipal Corporations § 7.22a (3d ed. 1966), which reads, in pertinent part, as follows:

The rule that among separate equivalent proceedings relating to the same subject matter, that one which is prior in time is prior in jurisdiction to the exclusion of those subsequently instituted, applies, generally speaking, to and among proceedings for the municipal incorporation, annexation, or consolidation of a particular territory, i.e., in proceedings of this character, while the one first commenced is pending, jurisdiction to consider and determine others concerning the same territory is excluded. Thus, where two or more bodies or tribunals have concurrent jurisdiction over a subject matter, the one first acquiring jurisdiction may proceed, and subsequent purported assumptions of jurisdiction in the premises are a nullity.

We note at the outset that the prior jurisdiction rule is the majority rule and is applied "universally" in "conflicts between two municipalities attempting to assert jurisdiction over the same territory." ^[1] Comment, Municipal Corporations: Prior Jurisdiction Rule, 7 W.F.L.Rev. 77, 79 (1970). See e.g., People v. Town of Corte Madera, 115 Cal.App.2d 32, 251 P.2d 988 (1952); City of Daytona Beach v. City of Port Orange, 165 So.2d 768 (Fla.App.1964); Town of Clive v. Colby, 255 Iowa 483, 123 N.W.2d 331 (1963); City of Lincolnshire v. Highbaugh Realty Co., 278 S.W.2d 636 (Ky.1955). Additionally, we recognize that the prior jurisdiction rule is based upon priority in time and "ordinarily is determined by the time of the commencement or initiation of the proceedings, and not by the time of completion thereof." 2 McQuillin, supra at 378. The time of commencement of proceedings, for purposes of the rule, is the "taking of the first mandatory public procedural step in the statutory process for... annexation of territory." Id.

Applying the foregoing principles to the facts of the instant case leads inevitably and indisputably to the conclusion that the plaintiff City of Burlington, by adopting its Resolution of Intent to Annex on 19 April 1983 took the "first mandatory public procedural step in the statutory process" and thereby acquired prior jurisdiction of the disputed areas. Consequently, any subsequent attempts by defendant Town of Elon College to acquire jurisdiction were null and void.

Even so, defendant Town of Elon College contends that the doctrine of prior jurisdiction does not apply to the facts of this case. Defendant contends that, for purposes of the prior jurisdiction rule, voluntary and involuntary annexation proceedings are not "equivalent proceedings," and hence the rule does not apply. 2 McQuillin, supra. Defendant relies for its contention upon the case of Town of Hudson v. City of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971). That case involved an annexation dispute over an area located between two towns. Hudson sought to annex the area by the involuntary annexation method. Lenoir had received petitions for voluntary annexation from owners of real property in the area. Both proceedings were instituted on the same day, 17 June 1969. The City of Lenoir's voluntary annexation proceeding was completed first. The trial court entered judgment for the City of Lenoir. Upon appeal to this Court, Justice Huskins, writing for the Court, explicitly recognized the majority "prior jurisdiction" rule, but held that the rule was not applicable to the facts of that case. The Court stated:

The record shows that upon dissolution of the restraining order both Hudson and Lenoir began annexation proceedings anew on the same day, June 17, 1969. Therefore, neither municipality could have gained exclusive jurisdiction under the "first to start" rule.

Id. at 160-61, 181 S.E.2d at 446.

However, the Court went on to give a second reason for the inapplicability of the prior jurisdiction rule, and it is that basis of inapplicability which defendant Town of Elon College urges us to adopt in the instant case. In Hudson, the Court buttressed its holding with the following statement:

Aside from the fact that neither municipality was prior to the other in initiating annexation proceedings, the two proceedings were not "equivalent." The voluntary procedure initiated by the landowners and future municipal taxpayers has understandably been made simpler and quicker than the involuntary annexation procedures available to and followed by Hudson. The variations in procedural requirements with respect to voluntary and involuntary annexation make it possible for property owners in the affected area to inject an element of choice as to which municipality will govern them.... It is significant here that the landowners affected preferred to be in Lenoir rather than Hudson.

Id. at 161, 181 S.E.2d at 447.

In our opinion, the above language is an incorrect statement of the law. For purposes of the prior jurisdiction rule, annexation proceedings, regardless of their nature, are "equivalent proceedings," and it is of no consequence which town or city the landowners prefer. In fact, it appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes. G.S. 160A-33 et seq. and G.S. 160A-45 et seq. As stated by the Municipal Government Study Commission in 1959:

We believe in protection of the essential rights of every person, but we believe that the rights and privileges of residents of urban fringe areas must be interpreted in the context of the rights and privileges of every person in the urban area. We do not believe that an individual who chooses to buy a lot and build a home in the vicinity of a city thereby acquires the right to stand in the way of action which is deemed necessary for the good of the entire urban area. By his very choice to build and live in the vicinity of the city, he has chosen to identify himself with an urban population, to assume the responsibilities of urban living, and to reap the benefits of such location. Therefore, sooner or later his property must become subject to the regulations and services that have been found necessary and indispensable to the health, welfare, safety, convenience and general prosperity of the entire urban area. Thus we believe that individuals who choose to live on urban-type land adjacent to a city must anticipate annexation sooner or later. And once annexed, they receive the rights and privileges of every other resident of the city, to participate in city elections, and to make their point of view felt in the development of the city. This is the proper arena for the exercise of political rights, as this General Assembly has evidenced time and again in passing annexation legislation without recourse to an election.

Report of the Municipal Government Study Commission 10 (1950) (emphasis in original).

To the extent, therefore, that our holding in Town of Hudson v. City of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971), conflicts with our holding here, that case is overruled.

Thus, in cases where one municipality institutes valid annexation proceedings first, that municipality should be given priority under the prior jurisdiction rule, and subsequent annexation proceedings, of whatever nature, are of no force and effect. We believe adherence to the prior jurisdiction doctrine is not only consistent with the majority rule, but is in keeping with the spirit and intent of our annexation statutes.

In the instant case, plaintiff City of Burlington instituted its procedures first and thus is entitled to the benefit of the prior jurisdiction rule. We therefore hold that the trial court erred in entering summary judgment for defendant. The judgment and restraining order against plaintiff are vacated and the case is remanded to the Alamance County Superior Court for entry of judgment in accordance with this opinion.

VACATED and REMANDED.

NOTES

[1] Our research discloses no cases in which the rule has not been followed by the courts. We note in passing, however, that Virginia has statutorily abrogated the longstanding rule by providing for a judicial determination of such disputes, "taking into consideration the interests of all parties to the case." Va.Code Annot. § 15.1-1037 (1981).