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5                                                                          IN THE SUPREME COURT OF NORTH CAROLINA
No.  402PA97
FILED:  30 JULY  1998
BETHANIA TOWN LOT COMMITTEE, JOHN E. COLLINS, OTIS SELLERS,
HUBERT LASH, ERICSTEEN J. LASH, DIONNE BREWER KOGER JENKINS,
JOSEPH C. JONES, JR., J.C. COVINGTON, BEULAH G. MILLER,
CLARENCE G. HAUSER, JULIUS WALKER, TODD JORGENSEN, STEPHEN D.
PETREE, HANES G. CARTER, VICKI F. CARTER, WALTER HUNTER, CHAPPELL
HUNTER, BEVERLY L. HAMEL and WILLIAM M. COBB, JR.
v.
CITY OF WINSTON-SALEM, SETH B. BROWN, DEBORAH THOMPSON, B.A.
BYRD, G. WAYNE PURGASON and WILLA LASH
On discretionary review pursuant to N.C.G.S.  §  7A-31 and on
appeal of right of a constitutional question pursuant to N.C.G.S.
§  7A-30(1) to review a unanimous decision of the Court of
Appeals,  126 N.C. App.  783,  486 S.E.2d  729  (1997), vacating an
order granting a permanent injunction entered by Burke, J., at
the  10 June  1996 Civil Session of Superior Court, Forsyth County.
Heard in the Supreme Court  12 February  1998.
In this case, the plaintiffs challenge an act of the General
Assembly entitled  “An Act to Revive the Charter of the Town of
Bethania.”    Act of May  10,  1995, ch.  74,  1995 N.C. Sess. Laws  126
(the  1995 Act).    By this Act, the General Assembly purported to
create the Town of Bethania in Forsyth County.    It provided that
the Town would cover four hundred acres as set forth in a metes
and bounds description contained in the Act.    The Act provided
that the Town could not expand its corporate limits without an
agreement to do so with the City of Winston-Salem and that the
corporate limits of the Town of Bethania shall be considered the




primary corporate limits of the City of Winston-Salem for parts
1,  3, and  4 of article  4A of chapter  160A of the General
Statutes.
After the adoption by the General Assembly of the  1995 Act,
the City of Winston-Salem adopted an annexation ordinance in
which it proposed to annex land close to the town limits of
Bethania.    The plaintiffs brought this action to block the
annexation.    They alleged that they were residents of the true
Bethania, a town of  2,500 acres which preceded the town which was
purportedly created by the  1995 Act and that they resided on land
which the City of Winston-Salem proposed to annex.    They also
alleged that they were African-American citizens, as were most of
the residents of the area which the City of Winston-Salem
proposed to annex, and that they were deprived of the right to
vote in municipal elections in the revived Town of Bethania in
violation of Article II, Section  24 and Article XIV, Section  3 of
the Constitution of North Carolina as well as the Fifteenth
Amendment to the Constitution of the United States.
The plaintiffs prayed that the  1995 Act be declared
unconstitutional and that the City of Winston-Salem be
permanently enjoined from annexing any land in the city limits of
what the plaintiffs contend is the true Bethania, a town of  2,500
acres.
At a hearing on the plaintiffs’ motion for an injunction,
the plaintiffs showed that in  1839, the General Assembly enacted
“An Act to appoint Commissioners for the Town of Bethania in the
County of Stokes.”    Act of Jan.  3,  1839, ch. LXV,  1838-39 N.C.




Sess. Laws  178.    That Act provided for the appointment of
commissioners and authorized the carrying out of certain
governmental activity  “provided that the inhabitants of said Town
shall, in full Town meeting, approve of this Act of
Incorporation.”    Id. sec. I, at  179.    The only evidence that the
inhabitants approved the Act is a reference by author Louis
Bowles Kapp which said that a notice was posted which requested
“[a]ll inhabitants of Bethania  .  .  . to meet at the shop of Elias
Schaub  .  .  . at early candle light for the purpose of adopting or
rejecting the act of incorporation ratified on the  3rd of
January,  1839.”    Louise Bowles Kapp, Bethania:    The First
Industrial Town of Wachovia  27-28, Bethania Historical Ass’n
(1995).
The  1839 Act did not establish a boundary for the town.    The
plaintiffs produced a map of Bethania, made by Christian Gottlieb
Reuter in  1771, which shows Bethania contains  2,500 acres.    There
were also maps made in  1810 and  1822 which showed Bethania
contained  2,500 acres.    The plaintiffs also produced references
which show that a constable was elected for Bethania and a tax
collector appointed in  1852, Records of the Moravians in North
Carolina  (1852-1879), vol. XI, at  5750,  5762, N.C. Dep’t of
Archives & History, Raleigh, N.C.  (Kenneth G. Hamilton ed.,
1969); that there was a sheriff in  1850, Records of the Moravians
in North Carolina  (1841-1851), vol. X, at  5521, N.C. Dep’t of
Archives & History, Raleigh, N.C.  (Kenneth G. Hamilton ed.,
1966); and that elections were held in  1850, id. at  5526, and in
1856, vol. XI.    In another publication, it is said that in March




of  1848, sixteen  “Gentlemen Justices” appointed and commissioned
by the Governor met in a concert hall in Bethania and elected
William Flynt sheriff for the ensuing year.    Adelaide Fries et
al., Forsyth:    The History of a County on the March  156, Univ. of
N.C. Press, Chapel Hill, N.C.  (rev. ed.  1976).
The superior court held that the  1995 Act is
unconstitutional on its face in that it violates the Constitution
of North Carolina.    The court permanently enjoined the City of
Winston-Salem from annexing any part of the  2,500 acres known as
the Town of Bethania.
The Court of Appeals reversed the judgment of the superior
court and ordered that judgment be entered for the defendant
City.    This Court allowed discretionary review.
Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Annie
Brown Kennedy; Harold L. Kennedy, III; Harvey L. Kennedy;
and Harold L. Kennedy, Jr., for plaintiff-appellants.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Roddey M.
Ligon, Jr.; and Ronald G. Seeber, City Attorney, for
defendant-appellee City of Winston-Salem.
NAACP Legal Defense & Educational Fund, Inc., by Victor A.
Bolden, pro hac vice, amicus curiae.
WEBB, Justice.
The plaintiffs contend that the General Assembly in  1839
created the Town of Bethania comprising  2,500 acres.    They say
the General Assembly could not by local act in  1995 create a new
Bethania, reduced in size to  400 acres.
We do not believe a town exists because of the  1839 Act.
The Act provided the Town would not be effective until the
inhabitants of the Town approved it.    There are no town records




showing approval.    Indeed, there are no town records at all.
There is a reference in a historical journal to a meeting for the
purpose of ratifying the Act.    There was no evidence as to
whether the Act was ratified.    There were references from
historical journals to a constable, a tax collector, and a
sheriff who were elected at various times, and there were
references to two elections.    The last of these events occurred
in  1856, which was  139 years prior to the enactment of chapter  74
of the  1995 Session Laws  (the  1995 Act).    This is not sufficient
evidence to show the  1839 Act created a town which was extant in
1995.
The General Assembly may, by special or local act, create
municipalities and change the boundaries of municipalities.
Plemmer v. Matthewson,  281 N.C.  722,  725,  190 S.E.2d  204,  207
(1972); Matthews v. Town of Blowing Rock,  207 N.C.  450,  452,  177
S.E.  429,  430  (1934); Lutterloh v. City of Fayetteville,  149 N.C.
65,  69,  62 S.E.  758,  760  (1908).    This causes plaintiffs’
argument that the  1995 Act violates certain parts of the North
Carolina Constitution to fail.
The plaintiffs contend that the  1995 Act violates Article
XIV, Section  3 of our Constitution.    This section provides that
when the General Assembly is directed or authorized by the
Constitution to enact general laws, no local act may be adopted
concerning the subject matter directed to be accomplished by
general laws.    This section has no application to this case.    The
Constitution does not direct the General Assembly to create
municipalities by general laws.




The plaintiffs also contend that the  1995 Act violates
Article II, Section  24(2) of the North Carolina Constitution.
This section provides that the General Assembly may not enact a
prohibited local act by the partial repeal of a general law.    The
1995 Act is not a prohibited local act.
The plaintiffs contend further that the  1995 Act violates
Article II, Section  1 of the Constitution by delegating
legislative power to the City of Winston-Salem.    This argument
was answered by former Chief Justice Sharp in Plemmer v.
Matthewson, in which she said:
In delegating to the town commissioners the
discretionary right to decide whether to enlarge the
corporate limits as specified in the Act, the General
Assembly did not delegate legislative authority in
violation of N.C. Const. art. II,  §  1, or art. I,  §  6.
Except for approval by the town’s board of
commissioners, the Act was complete in every respect at
the time of its ratification.    The only discretion
given the commissioners was to decide whether or not to
annex the territory specified in the Act  .  .  .                     .    In
authorizing the annexation, the General Assembly
determined that the annexation was suitable and proper.
Plemmer,  281 N.C. at  726,  190 S.E.2d at  207.
The plaintiffs next argue that the  1995 Act is a nullity
because it attempts to revive the charter of a town whose charter
had not been repealed.    This argument is answered by our holding
that there was not a Town of Bethania at the time the  1995 Act
was adopted.
The plaintiffs next contend that the  1995 Act is a local act
which changes a township line in violation of Article II, Section
24(1)                                                                 (h) of the North Carolina Constitution.    They argue that the
southern boundary of the original Bethania is coterminous with
the southern boundary of Bethania Township.    When the General




Assembly created a new Bethania, say the plaintiffs, it was
obvious the land excluded from the original Bethania was intended
to be part of the City of Winston-Salem.    The plaintiffs argue
that this had the effect of changing the township line because
there cannot be a city in a township.
Cities are within townships.    The fact that Winston-Salem
may extend its boundary should have no effect on the Bethania
Township line.
The plaintiffs next contend that the  1995 Act is in
violation of the Fifteenth Amendment to the Constitution of the
United States because it deprives them of their right to vote in
elections in the Town of Bethania.    They rely on Gomillion v.
Lightfoot,  364 U.S.  339,  5 L. Ed.  2d  110  (1960), in which the
United States Supreme Court held the Alabama legislature could
not change the boundaries of the City of Tuskegee to exclude
African-Americans from the City and deprive those persons of the
right to vote in city elections.    This case is distinguishable
from Gomillion in that the plaintiffs have never voted in
Bethania.    They have not been denied a right which they
previously possessed.
The plaintiffs have not cited a case and we cannot find one
that deals with the effect of the Fifteenth Amendment on the
incorporation of a town by a legislature.    We do not believe that
when such a situation occurs, the Amendment requires that any
particular area must be included in the newly created town in
order that the residents of that area may vote in municipal
elections.




Finally, the plaintiffs contend that they sufficiently pled
a constitutional violation so that the case should not have been
dismissed on the pleadings.    The case was not dismissed on the
pleadings.    Evidence was adduced at the hearing, and the facts
were not in dispute.    The court could, as it did, enter a final
judgment.
For the reasons stated in this opinion, we affirm the
decision of the Court of Appeals.
AFFIRMED.
Justice ORR dissenting.
I dissent from the majority’s conclusion that the  1995  “Act
to Revive the Charter of the Town of Bethania” is constitutional.
This Act violates Article XIV, Section  3 of the North Carolina
Constitution, which provides:
Whenever the General Assembly is directed or
authorized by this Constitution to enact general laws,
or general laws uniformly applicable throughout the
State, or general laws uniformly applicable in every
county, city and town, and other unit of local
government, or in every local court district, no
special or local act shall be enacted concerning the
subject matter directed or authorized to be
accomplished by general or uniformly applicable laws,
and every amendment or repeal of any law relating to
such subject matter shall also be general and uniform
in its effect throughout the State.
N.C. Const. art. XIV,  §  3  (emphasis added).    The General Assembly
of North Carolina has developed specific procedures for
annexation, set out in N.C.G.S.  §§  160A-24 through  -58.28, which
apply to all North Carolina municipalities.    However, the Act in
question provides, in pertinent part, as follows:
(c)   Notwithstanding Parts  1 through  5 of Article




4A of Chapter  160A of the General Statutes, only areas
described as subject to annexation by the Town of
Bethania in an annexation agreement between the City of
Winston-Salem and the Town of Bethania under Part  6 of
that Article may be annexed by the Town of Bethania.
Annexation of any areas so designated, however, must be
done in accordance with Parts  1 through  5 of that
Article, as applicable.
(d)   The corporate limits of the Town of Bethania
shall also be considered the primary corporate limits
of the City of Winston-Salem for the purposes of Parts
1,  3 and  4 of Article  4A of Chapter  160A of the General
Statutes.
Act of May  10,  1995, ch.  74, sec. VII(c),  (d),  1995 N.C. Sess.
Laws  126,  129.    As reflected in the minutes of  20 February  1995,
the City Attorney explained to the Board of Aldermen of the City
of Winston-Salem the effect of this Act:
Another provision is that Bethania may not annex in the
future without first having an annexation agreement
with the City of Winston-Salem.    A third provision is
that the area of Bethania itself will be considered the
primary corporate limits of the City of Winston-Salem
for purposes of future City of Winston-Salem
annexations under G.S.  160A in order that Winston-Salem
can be contiguous to these areas as the City limits are
extended.
The obvious effect of this Act is to grant Winston-Salem
greater annexation authority than other municipalities and to
diminish annexation powers of the Town of Bethania in comparison
with other municipalities.    This is the exact type of
circumstance that our Constitution seeks to prevent.    To sanction
this Act is to allow powerful municipal interests to have other
special acts passed in the General Assembly giving them ever-
greater authority over annexation procedures and threatening the
rights of smaller, less-powerful municipalities in the process.
I would affirm the trial court’s decision that this Act is
unconstitutional on its face.

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