S.L. 1967-12

NORTH CAROLINA GENERAL ASSEMBLY

1967 SESSION

CHAPTER 12

HOUSE BILL 40

AN ACT TO INCORPORATE THE TOWN OF ERWIN IN HARNETT COUNTY SUBJECT TO AN ELECTION.

The General Assembly of North Carolina do enact:

Section 1. (a) The Board of Elections of Harnett County shall conduct a special election on Tuesday, April 4, 1967 for the purpose of submitting to the qualified voters of the area hereinafter described as the proposed corporate limits of the Town of Erwin the question whether or not such area shall be incorporated as the Town of Erwin, as provided in this Act. On such day, the polls shall be open from 6:30 A. M. until 6:30 P. M. Except as otherwise provided in this Section, such special election shall be conducted in accordance with the provisions of law applicable to county elections.

(b) A new registration of all qualified voters in the described area shall be conducted for the purpose of registering the names of those who desire to vote in such special election, and in the first election of Town officials in the event the special election results in incorporation. The registration book for such new registration shall be open from Friday, March 17, 1967 through Friday, March 24, 1967, excluding Sunday, and shall remain open on each day from 9:00 A. M. until 5:00 P. M. On Saturday, March 18, 1967, the book shall be kept at the polling place. On other days during the registration period, it may be kept at the registrar's home or place of business, or at the polling place, as designated in the notice hereinafter required. Saturday, March 25, 1967 shall be challenge day.

(c) The Harnett County Board of Elections shall, not later than Wednesday, March 1, 1967, appoint a registrar and two judges of election, and designate a polling place for the special election.

(d) Not later than Friday, March 3, 1967, the Harnett County Board of Elections shall cause to be posted at the Erwin Post Office, at the Erwin Fire Station, and at such other public places as the Board may choose, a notice stating the time, the polling place, and the purpose of the special election; the names of the registrar and judges of election; the dates, hours, and place or places of registration; the date, time, and place for challenges; that the registration is a complete new registration for the special election and for election of Town officers if the special election results in incorporation; that, subject to a favorable vote upon the question of incorporation, the election of Town officers will be conducted on Tuesday, May 2, 1967; and that, subject to a favorable vote upon the question of incorporation, candidates for election to Town offices on May 2, 1967, must file with the Board notice of candidacy not earlier than Wednesday, April 5, 1967, and not later than 5:00 P. M. on Friday, April 14, 1967. The Board of Elections may, in its discretion, also cause such notice to be published one or more times in a newspaper having general circulation in the Erwin community.

(e) In the special election, those voters who favor the incorporation of the Town of Erwin as provided in this Act shall vote a ballot upon which shall be printed the words: "FOR Incorporation of Town of Erwin", and those voters who are opposed to the incorporation of the Town of Erwin as provided in this Act shall vote a ballot upon which shall be printed the words "AGAINST Incorporation of Town of Erwin".

Sec. 2. If a majority of the votes cast in such special election shall be cast "AGAINST Incorporation of Town of Erwin", then Sections 3 through 8 of this Act shall have no force and effect.

Sec. 3. If a majority of the votes cast in such special election shall be cast "FOR Incorporation of Town of Erwin", then Section 4 of this Act shall be in full force and effect from and after April 4, 1967, and Sections 5 through 8 of this Act shall be in full force and effect from and after May 2, 1967.

Sec. 4. (a) The Board of Elections of Harnett County shall, on Tuesday, May 2, 1967, conduct an election for the purpose of electing a Mayor and five Commissioners for the Town of Erwin. Such election shall be conducted within the area hereinafter described as the corporate limits of the Town of Erwin. On election day, the polls shall be open from 6:30 A. M. until 6:30 P. M. except as otherwise provided in this Section, such election shall be conducted in accordance with the provisions of law applicable to county elections.

(b) The registration book used for the special election on the question of incorporation shall be used for the election of officers for the Town, and no new registration shall be necessary; provided, however, that the registration book shall be open between the hours of 9:00 A. M. and 5:00 P. M. from Friday, April 14, 1967 through Friday, April 21, 1967, excluding Sunday, for the purpose of registering any qualified voters who are not then registered. On Saturday, April 15, 1967, the book shall be kept at the polling place. On other days during the registration period, it may be kept at the registrar's home or place of business, or at the polling place, as designated in the notice hereinafter required. Saturday, April 22, 1967, shall be challenge day.

(c) The registrar and judges of election, the polling place, and the place or places of registration for the election of Town officers shall be the same as those for the special election on the question of incorporation.

(d) Any qualified voter who would offer himself as a candidate for Mayor or Commissioner in such election shall file with the Chairman or Clerk of the Board of Elections of Harnett County a written statement giving notice of his candidacy. Such notice shall be filed not earlier than Wednesday, April 5, 1967 and not later than 5:00 P. M. on Friday, April 14, 1967, and shall be substantially in the following form: 'I, ______________do hereby give notice that I am a candidate for election to the office of ___________________________ Town of Erwin, to be voted on at the election to be held on May 2, 1967, and I hereby request that my name be placed on the official ballot for such office. I certify that I am a resident and qualified voter of the Town of Erwin, residing at ______________________________.

(Signature)

(Date)

Witness: ________________________ .'

(e) Not later than Friday, April 7, 1967, the Harnett County Board of Elections shall cause to be posted at the Erwin Post Office, at the Erwin Fire Station, and at such other public places as the Board may choose, a notice stating the time, the polling place, and the purpose of said election; the names of the registrar and judges of election; the dates, hours, and place or places of registration; the date and time for challenges; that electors who registered for the special election on the question of incorporation of the Town of Erwin need not register again for the election of Town officers; and that candidates for election to Town offices in said election must file with the Board notice of candidacy not later than 5:00 P. M. on Friday, April 14, 1967. The Board of Elections may, in its discretion, also cause such notice to be published one or more times in a newspaper having general circulation in the Erwin community.

(f) In such election, each qualified registered voter shall be entitled to vote for one candidate for Mayor and for five candidates for Commissioner. The candidate for Mayor who receives the largest number of votes cast for Mayor shall be declared elected for a term of four years or until his successor is elected and qualifies. The three candidates for Commissioner who receive the largest numbers of votes cast for Commissioner shall be declared elected for terms of four years or until their successors are elected and qualify, and the two candidates for Commissioner who receive the next largest numbers of votes cast for Commissioner shall be declared elected for terms of two years or until their successors are elected and qualify. In case of a tie between opposing candidates, the Board of Elections shall determine the result by lot.

(g) The Chairman of the Board of Elections shall notify the persons elected as Mayor and Commissioners, and shall designate some qualified officer to administer to them the oath of office, which shall be done as soon as practicable following their election.

Sec. 5. The following provisions of law shall constitute the Charter of the Town of Erwin, in Harnett County:

"THE CHARTER OF THE TOWN OF ERWIN

"ARTICLE 1. INCORPORATION AND CORPORATE POWERS

"Section 1.1. Incorporation and General Powers. The inhabitants of the area described in Section 2.1 of this Charter shall be and constitute a body politic and corporate under the name of the 'Town of Erwin', and shall be vested with all property which may be acquired by the Town, and all rights herein delegated to it; shall have perpetual succession; may have a common seal and alter and renew the same at pleasure; may sue and be sued; may contract; may acquire and hold all such property, real and personal, as may be devised, bequeathed, sold or in any manner conveyed or dedicated to it, or otherwise acquired by it, and may from time to time hold or invest, sell, or dispose of the same; and shall have and may exercise in conformity with this Charter all municipal powers, functions, rights, privileges, and immunities of every name and nature.

"Section 1.2. Exercise of Powers. All powers, functions, rights, privileges, and immunities of the Town, its officers, agencies, or employees, shall be carried into execution as provided by this Charter, or, if this Charter makes no provision, as provided by ordinance or resolution of the Board of Commissioners and as provided by the general laws of North Carolina pertaining to municipal corporations.

"Section 1.3. Enumerated Powers Not Exclusive. The enumeration of particular powers by this Charter shall not be held or deemed to be exclusive but, in addition to the powers enumerated herein or implied hereby, or those appropriate to the exercise of such powers, the Town of Erwin shall have and may exercise all powers which are granted to municipal corporations by the general laws of North Carolina and all powers which, under the Constitution of North Carolina, it would be competent for this Charter specifically to enumerate.

"ARTICLE II. CORPORATE BOUNDARIES

"Section 2.1. Corporate Boundaries.

(a) For the purposes of conducting the special election on the question of incorporation and for conducting the first election of Town officers should the special election result in incorporation, the corporate boundaries of the Town of Erwin shall be as follows until changed in accordance with subsection (b) of this Section or in accordance with other law:

Beginning at a point on the South margin of West "E" Street as shown on plat of Erwin subdivision said point being 400 feet West of the western margin of S-18th Street and runs in a northerly direction crossing West "E" Street 60 feet to a property line corner between Lots "E" and "F" as shown on Map 3 of Erwin Mills Property; thence along the line between said lots North 3 degrees 04 minutes East to West "F" Street extended a distance of 299.60 feet; then crossing said street on the same course 60 feet to a corner between lot "B" and tract No. 23 shown on Map No. 3; thence along a line between Lots "A" and "B" and tract No. 23 South 3 degrees 04 minutes West about 320 feet plus minus to the corner of lot "B", and tract 22, 23, 24, shown on Map No. 3; thence North 0 degrees 41 minutes West 791.4 feet to a corner of tract No. 21 in the line of tract No. 24; thence the same course North 0 degrees 41 minutes West, 639.10 feet to a corner between tracts 20, 21, as shown on Map No. 3; thence as the line between tracts 20 and 21 North 49 degrees 17 minutes East 509.40 feet to a stone in the West margin of the Old Dunn and Lillington Road; thence crossing said road 60 feet to a corner on the East margin of said road and then along the property line of tract No. 18 as shown on subdivision Map No. 2 of the Erwin Mills Property North 51 degrees 09 minutes East 400.28 feet to a corner; thence along another line of tract No. 18 South 86 degrees 59 minutes East 683.25 feet to a corner; thence along another line of tract No. 18 North 3 degrees 01 minutes East 1165.00 feet to a corner in a farm road; thence along said farm road a line between tracts Nos. 16 and 17, North 74 degrees 14 minutes East 825.50 feet to a corner in said road, the corner between tracts Nos. 16 and 17, Map No. 2; thence a straight line following the old farm road as near as possible running in an easterly direction to US 421 and NC 55 Highways and crossing said highways on same course to a point 300 feet at right angle to the dual lane US 421 and NC 55 Highways right of way on the northeast side to a corner; thence a line parallel to said highway and 300 feet northeast from said right of way to a corner in the East side of the Carolina Power and Light Company steel tower transmission power line right of way, said point being 300 feet northeast at right angle to the right of the dual lane highway US 421 and NC 55 and this point is also southeast of the Old Field Church Road near Zola's Barbecue; thence a line along the East margin of said power line and recrossing the dual lane highway US 421 and NC 55 and following its various courses to a point where said power line crosses the southern margin of McKay Street shown on Map "D" of the subdivision of Erwin Mills property; thence along the southern margin of said McKay Street to a point 300 feet East of SR No. 1741; thence parallel with said road southwest to a point that is 1320 feet southwest of the southern margin of the Old Post Road SR No. 1746; thence along a line 1320 feet southeast of the southern margin of Old Post Road SR No. 1746 and parallel to same to a corner that is located in line with a ditch at a distance of 3500 feet plus minus the corner; thence a line along said ditch in a northwestern direction to the center line of the intersection of Old Post Road SR No. 1746 and Highway No. 217; thence along the center line of Old Post Road and SR No. 1746 extended to and around the Cates Property and intersecting a line parallel and 300 feet South of the southern margin of "A" Street; thence 300 feet South and parallel to said "A" Street's southern margin to a point that intersects with the western margin of S-18th Street; thence along the western margin of South 18th Street to the southern margin of West "E" Street; thence along the southern margin of West "E" Street 400 feet to the beginning.

(b) As soon as practicable following their election, the Board of Commissioners of the Town of Erwin shall cause to be made an accurate survey of the corporate boundaries and shall cause to be made an accurate map based upon such survey. Such survey may vary from the description in subsection (a) of this Section by using, wherever practical, natural or man-made topographic features such as ridge lines, streams, creeks, or streets as boundaries or as references to boundaries. After such survey and map is completed, and after the Board of Commissioners of the Town of Erwin finds and declares upon its minutes that the boundaries shown on such map do not vary to an unreasonable degree from the description in subsection (a) of this Section, they shall cause accurate copies of such map to be filed in the office of the register of deeds of Harnett County and in the office of the Secretary of State of North Carolina. From and after the time a copy of such map is filed in the office of the register of deeds of Harnett County, the corporate boundaries as shown thereon shall be the corporate boundaries of the Town of Erwin until changed in accordance with law. An accurate copy of such map shall also be maintained in the Town offices.

"ARTICLE III. MAYOR AND BOARD OF COMMISSIONERS

"Section 3.1. Mayor and Mayor Pro Tempore. The Mayor shall be elected by and from the qualified voters of the Town voting at large in the manner provided in Article IV. The Mayor shall be the official head of the Town government and shall preside at all meetings of the Board of Commissioners. When there is an equal division upon any question, or in the appointment of officers, by the Board, the Mayor shall determine the matter by his vote, and shall vote in no other case. The Mayor shall exercise such powers and perform such duties as are or may be conferred upon him by the general laws of North Carolina, by this Charter, and by the ordinances of the Town. The Board of Commissioners shall choose one of its number to act as Mayor Pro Tempore, and he shall perform the duties of the Mayor in the Mayor's absence or disability. The Mayor Pro Tempore as such shall have no fixed term of office, but shall serve in such capacity at the pleasure of the remaining members of the Board.

"Section 3.2. Composition of Board of Commissioners. The Board of Commissioners shall consist of five members to be elected by and from the qualified voters of the Town voting at large in the manner provided by Article IV.

"Section 3.3. Terms; Qualifications; Vacancies.

"(a) Except for the initial terms of office hereinbefore specified, the Mayor and the members of the Board of Commissioners shall serve for terms of four years, beginning the day and hour of the organizational meeting following their election, as established by ordinance in accordance with this Charter; provided, they shall serve until their successors are elected and qualify.

"(b) No person shall be eligible to be a candidate or be elected as Mayor or as a member of the Board of Commissioners, or to serve in such capacity, unless he is a resident and a qualified voter of the Town.

"(c) If any elected Mayor or commissioner shall refuse to qualify, or if there shall be any vacancy in the office of Mayor or commissioner after election and qualification, the remaining members of the Board shall by majority vote appoint some qualified person to serve for the unexpired term. Any Mayor or commissioner so appointed shall have the same authority and powers as if regularly elected.

"Section 3.4. Compensation of Mayor and Commissioners. The Mayor shall receive for his services such salary as the Board of Commissioners shall determine, but not less than three hundred dollars ($300.00) per annum, and no reduction in his salary shall be made to take effect during the term in which it is voted. The Board of Commissioners may establish a salary of not less than one hundred twenty dollars ($120.00) per annum for its members. Such salary may be increased or reduced, but no reduction shall be made to take effect as to any commissioner during the respective term of office which he is serving at the time the increase is voted.

"Section 3.5. Organization of Board; Oaths of Office. The Board of Commissioners shall meet and organize for the transaction of business at a time established by ordinance, following each biennial election and prior to July 1. Before entering upon their offices, the Mayor and each commissioner shall take, subscribe, and have entered upon the minutes of the Board the following oath of office: 'I ____________________do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution and laws of North Carolina not inconsistent therewith and that I will faithfully perform the duties of the office of _______________________, on which I am about to enter, according to my best skill and ability; so help me, God.'

"Section 3.6. Meetings of Board.

"(a) The Board of Commissioners shall fix suitable times for its regular meetings, which shall be as often as once monthly. Special meetings may be held on the call of the Mayor or a majority of the commissioners, and those not joining in the call shall be notified in writing. Any business may be transacted at a special meeting that might be transacted at a regular meeting.

"(b) All meetings of the Board of Commissioners shall be open to the public. The Board shall not by executive session or otherwise formally consider or vote upon any question in private session.

"Section 3.7. Quorum; Votes.

"(a) A majority of the members elected to the Board of Commissioners shall constitute a quorum for the conduct of business, but a less number may adjourn from time to time and compel the attendance of absent members in such manner as may be prescribed by ordinance.

"(b) The affirmative vote of a majority of the members of the Board of Commissioners shall be necessary to adopt any ordinance, or any resolution or motion having the effect of an ordinance. All other matters to be voted upon shall be decided by a majority vote of the members present and voting.

"Section 3.8. Ordinances and Resolutions. The adoption, amendment, repeal, pleading, or proving of ordinances shall be in accordance with the applicable provisions of the general laws of North Carolina not inconsistent with this Charter. The ayes and noes shall be taken upon all ordinances and resolutions and entered upon the minutes of the Board. The enacting clause of all ordinances shall be: 'Be it ordained by the Board of Commissioners of the Town of Erwin.' All ordinances and resolutions shall take effect upon adoption unless otherwise provided therein, or unless some provision of the General Statutes provides otherwise.

"ARTICLE IV. ELECTION PROCEDURE

"Section 4.1. Regular Municipal Elections. Following the initial election hereinbefore provided for, regular municipal elections shall be held on the Tuesday after the first Monday in May of each odd-numbered year, beginning in 1969. In the regular 1969 election and quadrennially thereafter, there shall be elected by the qualified voters of the Town voting at large two commissioners to serve for terms of four years, or until their successors are elected and qualify. In the regular 1971 election and quadrennially thereafter, there shall be elected by the qualified voters of the Town voting at large a Mayor and three commissioners to serve for terms of four years, or until their successors are elected and qualify.

"Section 4.2. Voting. In the regular 1969 election and quadrennially thereafter, each voter shall be entitled to vote for two candidates for commissioner, and the two candidates for commissioner who receive the largest numbers of votes cast for commissioner shall be declared elected. In the regular 1971 election and quadrennially thereafter, each voter shall be entitled to vote for one candidate for Mayor and for three candidates for commissioner, and the candidate for Mayor who receives the largest number of votes cast for Mayor shall be declared elected and the three candidates who receive the largest numbers of votes cast for commissioner all be declared elected. In case of a tie between opposing candidates, the election officials shall determine the result by lot.

"Section 4.3. Marking of Ballots. In all regular municipal elections, each voter shall cast his vote for as many candidates as there are offices to be filled, and where an elector marks a ballot for any number of candidates less than the number of offices to be filled, such ballot shall not be counted for any of the candidates. There shall be printed on all ballots for commissioner the number of candidates to be voted for.

"Section 4.4. Filing of Candidates. Each qualified person who would offer himself as a candidate for the office of Mayor or commissioner shall file with the Town Clerk a statement giving notice of his candidacy. Such notice shall be filed not earlier than the eighth Friday nor later than five o'clock p. m. on the third Friday prior to the election at which he offers his candidacy, shall be accompanied by payment of a filing fee of five dollars ($5.00), and shall be substantially in the following form: 'I, ________________ do hereby give notice that I am a candidate for election to the office of _______________, Town of Erwin, to be voted on at the election to be held on _______________________, and I hereby request that my name be placed on the official ballot for such office. I certify that I am a resident and qualified voter of the Town of Erwin, residing at ________________________.

(Signature)

____________________________________

(Date)

____________________________________

Witness: __________________

"Section 4.5. Regulation of Elections. All municipal elections shall be conducted in accordance with Article 3, Chapter 160, of the General Statutes of North Carolina, except as otherwise herein provided.

"ARTICLE V. TOWN ATTORNEY

"Section 5.1. Appointment; Qualifications; Term; Compensation. The Board of Commissioners shall appoint a Town Attorney who shall be an attorney at law licensed to engaged in the practice of law in North Carolina and who need not be a resident of the Town during his tenure. The Town Attorney shall serve at the pleasure of the Board of Commissioners and shall receive such compensation as the Board shall determine.

"Section 5.2. Duties of Town Attorney. It shall be the duty of the Town Attorney to prosecute and defend suits for and against the Town; to advise the Mayor, Board of Commissioners, and other Town officials with respect to the affairs of the Town; to draw all legal documents relating to the affairs of the Town; to draw proposed ordinances when requested to do so; to inspect and pass upon all agreements, contracts, franchises and other instruments which with the Town may be concerned; to attend all meetings of the Board of Commissioners; and to perform such other duties as may be required of him by virtue of his position as Town Attorney.

"ARTICLE VI. ADMINISTRATIVE OFFICERS AND EMPLOYEES

"Section 6.1. Town Clerk. The Board of Commissioners shall appoint a Town Clerk to keep a journal of the proceedings of the Board and to maintain in a safe place all records and documents pertaining to the affairs of the Town, and to perform such other duties as may be required by law or as the Board may direct.

"Section 6.2. Town Tax Collector. The Board of Commissioners may appoint a Tax Collector to collect all taxes, licenses, fees and other moneys belonging to the Town, subject to the provisions of this Charter and the ordinances of the Town, and he shall diligently comply with and enforce all the general laws of North Carolina relating to the collection, sale, and foreclosure of taxes by municipalities.

"Section 6.3. Town Accountant. The Board of Commissioners may appoint a Town Accountant to perform the duties of the accountant as required by the Municipal Fiscal Control Act.

"Section 6.4. Consolidation of Functions. The Board of Commissioners may, in its discretion, consolidate the functions of any two or more of the positions of Town Clerk, Town Tax Collector, and Town Accountant, or may assign the functions of any one or more of these positions to the holder or holders of any other of these positions. The Board may also, in its discretion, designate a single employee to perform all or any part of the functions of any of the named positions, in lieu of appointing several persons to perform the same.

"Section 6.5. Other Employees. The Board of Commissioners may create and fill by appointment such other positions as it deems advisable to insure the efficient administration of the Town's affairs, and may, in its discretion, appoint a person to supervise all Town departments and may delegate to such person the power of appointment and removal of department heads and employees, other than the Town Attorney.

"ARTICLE VII. FINANCE

"Section 7.1. Custody of Town Money. All moneys received by the Town for or in connection with the business of the Town government shall be paid promptly into the Town depository. Such institution shall be designated by the Board of Commissioners in accordance with such regulations and subject to such requirements as to security for deposits and interest thereon as may be established by the General Statutes of North Carolina. All interest on moneys belonging to the Town shall accrue to the benefit of the Town. All moneys belonging to the Town shall be disbursed only in accordance with the provisions of the Municipal Fiscal Control Act.

"Section 7.2. Issuance of Bonds. The Town may issue bonds for the purposes and in the manner prescribed by the General Statutes of North Carolina relating to the issuance of bonds by municipalities.

"Section 7.3. Purchases and Contracts. Purchases of apparatus, supplies, materials, and equipment, and contracts for construction or repair work, shall be made in accordance with the General Statutes of North Carolina relating thereto.

"Section 7.4. Independent Audit. As soon as practicable after the close of each fiscal year, an independent audit shall be made of all books and accounts of the Town government by a certified public accountant or a qualified public accountant registered under Chapter 93 of the General Statutes of North Carolina, who shall have no personal interest directly or indirectly in the affairs of the Town or of any of its officers. The Board of Commissioners shall select the public accountant, and the results of such audit shall be made available for inspection by any interested citizen of the Town, and may be published if so ordered by the Board of Commissioners.

"Section 7.5. Taxation. The territory within the corporate limits, and its citizens and property, shall be subject to municipal taxes levied by the Town for the fiscal year 1967-1968 and subsequent years. The Town may obtain from Harnett County, and the County shall provide upon request, a record of property within the corporate limits which was listed for taxation as of January 1, 1967.

"ARTICLE VIII. CLAIMS AGAINST THE TOWN

"Section 8.1. Tort Claims. All claims or demands against the Town arising in tort shall be presented to the Board of Commissioners in writing, signed by the claimant or his attorney or agent, within 90 days after such claim or demand is due or the cause of action accrues. No suit or action shall be brought on such a claim or demand within 30 days or after the expiration of 12 months from the time such claim or demand is presented. Unless the said claim or demand is so presented within 90 days, and unless suit is brought within 12 months thereafter, any action thereon shall be barred."

Sec. 6. If any provision of this Act or the application thereof to any person or circumstances is held invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Sec. 7. All laws and clauses of laws in conflict with the provisions of this Act are hereby repealed.

Sec. 8. This Act shall be in full force and effect from and after its ratification, subject to the provisions of Sections 1 through 3 hereof.

In the General Assembly read three times and ratified, this the 2nd day of March, 1967.