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Wood v. City of Fayetteville

Filed: November 6, 1979.

C. THOMAS WOOD, J. P. RIDDLE, AS OWNERS AND LESSEES UNDER LONG-TERM LEASE, AND DONALD CRAIG HARRIS, TENANT, ON BEHALF OF THEMSELVES AND ALL OTHER PROPERTY OWNERS AND TENANTS OF THE CAMBRIDGE ARMS APARTMENTS, COUNTY OF CUMBERLAND, STATE OF NORTH CAROLINA, SIMILARLY SITUATED, PLAINTIFFS
v.
CITY OF FAYETTEVILLE, NORTH CAROLINA, AND THE CITY COUNCIL OF SAID CITY, SAID COUNCIL CONSISTING OF BETH D. FINCH, MAYOR, AND J. L. DAWKINS, VINCENT H. SHIELDS, STEVEN R. SATISKY, L. EUGENE PLUMMER, MARION C. GEORGE, JR., AND MARIE W. BEARD, COUNCIL, DEFENDANTS JOHN M. MONAGHAN, JR., AND THOMAS M. MCCOY, INDIVIDUALLY AND JOHN M. MONAGHAN, JR. AND THOMAS M. MCCOY ON BEHALF OF THEMSELVES AND ALL OTHER CITIZENS, RESIDENTS, AND TAXPAYERS OF THE CITY OF FAYETTEVILLE, CUMBERLAND COUNTY AND STATE OF NORTH CAROLINA, SIMILARLY SITUATED, INTERVENORS, DEFENDANTS



Appeals by original defendants and Intervenor-Defendants from Herring, Judge. Judgment entered 23 August 1978 in Superior Court, Cumberland County. Heard in the Court of Appeals 18 September 1979.

Parker, Judge. Chief Judge Morris and Judge Martin (Robert M.) concur.

Parker

Intervenor-Defendants' Appeal

On this appeal the intervening defendants have sought to raise several questions concerning the trial court's rulings which resulted in its refusal to hear argument on or to pass on the constitutionality

of Section 2 of Chapter 1058 of the 1969 Session Laws. Because we find that the intervenors lack standing to challenge the constitutionality of that statute, we do not consider the merits of these contentions.

A court of this State has no inherent power to review acts of our General Assembly and to declare invalid those which the court disapproves or, upon its own initiative, finds to be in conflict with the Constitution. In re Partin, 37 N.C. App. 302, 246 S.E.2d 519 (1978); Green v. Eure, 27 N.C. App. 605, 220 S.E.2d 102 (1975) cert denied, appeal dismissed, 289 N.C. 297, 222 S.E.2d 696 (1976). "Only those persons may call into question the validity of a statute who have been injuriously affected thereby in their persons, property or constitutional rights." Canteen Service v. Johnson, Com'r of Revenue, 256 N.C. 155, 166, 123 S.E.2d 582, 589 (1962); See Nicholson v. Education Assistance Authority, 275 N.C. 439, 168 S.E.2d 401 (1969); Carringer v. Alverson, 254 N.C. 204, 118 S.E.2d 408 (1961). "The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentations of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" Stanley, Edwards, Henderson v. Dept. Conservation & Development, 284 N.C. 15, 28, 199 S.E.2d 641, 650 (1973) [quoting from Flast v. Cohen, 392 U.S. 83, 99, 20 L. Ed. 2d 947, 961, 88 S. Ct. 1942, 1952 (1968).]

In their verified motion to intervene the individual intervenors alleged that they either owned real property on which city taxes were paid or that they were city residents who paid city taxes on personal property. They further alleged in general terms that "any purported limitation [on the city's right to annex] would adversely affect the Intervenors' economic interest," and that the question of constitutionality involved a "question of concern and general interest to all citizens, residents, and taxpayers of the City of Fayetteville." At the hearing on the motion to intervene, one of the intervenors testified only that he was a property owner in Fayetteville. He further stated:

I have no other interests, other than those of a citizen and taxpayer, that might be directly related to or harmed by the resolution of the lawsuit between the Plaintiffs and Defendant City of Fayetteville.

John M. Monaghan, Jr., the other individual intervenor, testified:

I feel that my interests as a resident, citizen and taxpayer are affected by the annexation provision. As a taxpayer I feel I am called upon to bear the burden of extraordinary levels of service to serve people who live outside the boundaries of Fayetteville, but who use the various services that are provided by the city. One example of this is police protection for nonresidents who enter the city to do business, and any number of other things, such as use of recreational facilities, city streets, and health care facilities, by county residents. (Emphasis added)

On the basis of the evidence offered by the intervenors and the verified motion to intervene, they were made parties to this suit. Assuming that the evidence offered provided a sufficient basis for intervention, the fact that a party has a right or is permitted to intervene does not establish his standing to raise a constitutional challenge. A taxpayer, as such, has no standing to assert the invalidity of a statute unless he can allege and show that he has been injuriously affected. Nicholson v. Education Assistance Authority, supra; Wynn v. Trustees, 255 N.C. 594, 122 S.E.2d 404 (1961). Taking the record as a whole, we conclude that the defendant-intervenors have failed to allege specific injury or to offer proof of any such injury. The broad reference to "economic injury" in the intervenors' motion to intervene is not a concrete allegation of direct injury. Further, the one reference in the record to such injury consists of the subjective opinion of an individual intervenor that "[a]s a taxpayer I feel I am called upon to bear the burden of extraordinary levels of ...


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