#### T. B. RHEINHARDT and GLENN HEMPHILL, on Behalf of Themselves and Such Other Citizens of Gaston County as May Care to Join, v. W. HARRELSON YANCEY, Mayor, and ED C. ADAMS, R. A. FERGUSON, ED COFFEY, NATHANIEL BARGER, MARSHALL T. RAUCH and A. D. DAVIS, Members of the City Council of the City of Gastonia, North Carolina.

(Filed 1 December, 1954.)

1. Municipal Corporations § 3—

Where, at a meeting of tbe governing body of a municipality to consider tbe question of annexing adjacent territory, a petition, requesting a referendum, signed by more than 15% of tbe qualified voters resident in tbe area proposed to be annexed, is filed, there can be no annexation of the area unless and until a majority of the qualified voters therein vote in favor thereof in an election called and conducted as prescribed by statute, and in the absence of such election any attempted annexation by ordinance or otherwise would be void. G.S. 160-446. G.S. 160-448. G.S. 160-449.

2. Injunctions § 4g—

Ordinarily, equity has no jurisdiction to interfere with the enacting of an ordinance by the governing body of a municipality in the exercise of powers that are legislative in character.

3. Same—

Even when it appears that a proposed ordinance would be void or unconstitutional, equity will not enjoin the passage of the ordinance unless it appears that irreparable injury will result to plaintiff from its mere passage. If plaintiffs would be injured by the enforcement of such ordinance, the remedy is to enjoin such enforcement, in which action the municipality would be a necessary party.

4. Same: Municipal Corporations § 3—

This action was instituted to restrain the governing body of a municipality from passing an ordinance annexing certain territory without first *185holding an election, as required by G.S. 160-446. *Held:*Demurrer to the complaint should have been sustained, since equity will not enjoin the passage of the ordinance even though it would be void. If the municipality should undertake or threaten action under such ordinance which would cause irreparable injury to plaintiffs, they would not be without adequate remedy.

5. Injunctions § 8—

Where, in an action instituted solely for the purpose of obtaining an injunction, demurrer to the complaint is sustained, the temporary order issued in the cause must be dissolved.

Appeal by defendants from *Armstrong, Presiding Judge*of tbe Fourteenth Judicial District, beard 19 August, 1954, in Charlotte, N. 0., from GASTON.

Plaintiffs seek to restrain defendants from passing ordinance annexing to tbe City of Gastonia tbe territory described in Exhibit B of tbe complaint without first bolding an election as required by tbe provisions of G.S. 160-446.

Upon tbe verified complaint, treated as an affidavit, Eudisill, J., signed an order restraining tbe defendants, their agents, attorneys and representatives, until further orders of the court, from proceeding “with tbe passing of any ordinance annexing tbe territory described in Exhibit B attached hereto, or any part of same to tbe corporate territory or to tbe municipal territory of tbe City of Gastonia, and that tbe said defendants are hereby forbidden to do anything further toward tbe annexing of said territory described in said petition and in Exhibit B attached hereto until further orders of this Court”; and at tbe time and place designated tbe cause came on for bearing before Armstrong, J., on return of tbe order to show cause “why this injunction and restraining order should not be continued to tbe bearing of this cause in tbe Superior Court at term time.” Tbe defendants then filed a “Special Appearance and Motion to Vacate Injunction,” which was denied. Tbe defendants also filed a demurrer, tbe ground assigned being that tbe complaint fails to state facts sufficient to constitute a cause of action, which was overruled. Tbe defendants, in apt time, excepted to each of these rulings.

Tbe “Special Appearance and Motion to Vacate Injunction” is based on a contention that tbe restraining order was signed before tbe commencement of action by issuance of summons in accordance with legal requirements; but, in view of the conclusion reached, it is unnecessary to review tbe facts relevant to this phase of tbe appeal.

Tbe complaint, in substance, alleges :

1. Tbe named plaintiffs are residents, qualified voters and property owners in the area of Gaston County just outside tbe corporate limits of *186Gastonia described in Exbibit B; and tbe defendants are tbe Mayor and members of tbe City Council of Gastonia.

2. In an area adjacent to Gastonia, described in Exbibit A of tbe complaint, an election was beld 2 February, 1954, pursuant to G.S. 160-445 *et seq.,*in wbicb a majority of tbe participating qualified voters in tbe area cast tbeir ballots in opposition to tbe proposed annexation.

3. Thereafter, in June, 1954, tbe defendants, acting as tbe City Council of Gastonia, proposed tbat tbe area adjacent to Gastonia described in Exbibit B be annexed, “wbicb substantially includes tbe territory described in . . . Exbibit A,” and caused notice thereof to be published.

4. “Pursuant to tbe notice,” the City Council beld a meeting on 20 July, 1954, at wbicb a petition was filed signed by more than 15% (in fact, by more than 50%) of tbe qualified voters resident in tbe area described in Exhibit B requesting a referendum on tbe question.

5. No action was taken by tbe City Council at its meeting on 20 July, 1954, but plaintiffs “are informed and believe tbat on Tuesday night of August 3, 1954, tbe said City Council, including tbe defendants herein named, proposes to meet, and at said meeting proposes to annex tbe territory described in Exhibit B, attached hereto, without first bolding an election as required by tbe provisions of G.S. 160-446.”

6. “Tbe annexation of tbe territory therein proposed is unjust, unreasonable, oppressive, dictatorial and arbitrary, and would be for tbe purpose of unnecessarily subjecting tbe residents of said proposed area to taxation, not for tbe extension of tbe privileges of a City resident to tbe residents of tbat area, but solely for tbe purpose of justifying a bond issue to serve tbe interests of those residents within tbe territory of tbe City of Gastonia as tbe same now exists.”

Tbe prayer for relief is “tbat an order issue prohibiting and enjoining tbe City of Gastonia, and specifically tbe defendants named herein as members of tbe City Council of tbe City of Gastonia, from passing any ordinance whereby tbe territory described in tbe attached Exhibit B shall be annexed without first bolding an election in said territory as required by tbe provisions of G.S. 160-446, and for such other and further relief to wbicb tbe plaintiffs may be entitled.”

Tbe complaint contains other allegations, diverging somewhat from tbe central theme, such as general allegations tbat tbe defendants, acting as such City Council, have been extravagant and wasteful in tbeir management of tbe affairs of tbe municipality, and have failed to advertise for bids as required by G.S. 143-129 in connection with tbe letting of contracts for the installation of sewer lines and for street paving, on wbicb account they find it necessary to issue bonds for additional improvements but are unable to do so except upon augmenting tbe present valuation of tbe taxable property by annexing new territory. Too, there is *187tbe incongruous allegation tbat “tbe calling of a new election embracing substantially tbe same territory as tbat embraced by tbe proposal set out in Exhibit A attached hereto, so soon, is unreasonable, arbitrary, and is a waste of tbe taxpayers’ money.”

Defendants appeal from tbe judgment of the court overruling their demurrer.

*0. F. Mason, Jr., 0. A. Warren, and B. G. Cherry for plaintiffs, ap-pellees.*

*L. B. Hollowell for defendants, appellants.*

Bobbitt, J.

In tbe exercise of its power to regulate tbe extension of tbe boundaries of a municipality, McQuillin on Municipal Corporations, 3rd Ed., Yol. 2, see. 7.10 *et seq.,*tbe General Assembly in 1947 enacted “An Act to Provide for tbe Orderly Growth and Extension of Municipalities "Within tbe State of North Carolina,” cb. 725,1947 Session Laws, which, now codified as G.S. 160-445 *et seq.,*bears directly upon tbe question presented for decision.

Tbe procedure requires tbat tbe municipal governing body give public notice in manner prescribed, “thus notifying tbe owner or owners of tbe property located in such territory,” tbat such governing body will meet to consider passage of an ordinance extending tbe corporate limits to include adjacent territory described by metes and bounds in such notice. If, at such meeting, a petition is filed with such governing body, bearing tbe signatures of 15% or more of tbe qualified voters resident in tbe area proposed to be annexed, requesting a referendum, “tbe governing body shall, before passing said ordinance, annexing tbe territory, submit tbe question as to whether said territory shall be annexed to a vote of tbe qualified voters of the area proposed to be annexed,” G.S. 160-446. Tbe procedure for tbe call and conduct of tbe election is prescribed. G.S. 160-448. Tbe annexation becomes effective only if and when tbe majority of tbe qualified voters in tbe area proposed for annexation who vote in such election east their ballots “For Extension.” G.S. 160-449. There is no provision for any lapse of time between successive proposals for annexation or referenda. 25 N.C.L.R. 453-455.

*In limine,*we note tbat tbe municipality pays tbe costs of such election. G.S. 160-448. Thus, in tbe event tbe votes “For Extension” do not constitute a majority of the votes cast in such election, taxpayers within tbe present corporate limits bear tbe entire expense of such election. Taxpayers within tbe present corporate limits are not parties to this action. No question arises here as to their rights.

Tbe statutory requirements relevant here are mandatory. Therefore, there can be no annexation of tbe area described in Exhibit B, under tbe *188facts alleged, unless and until a majority of tbe qualified voters in the area proposed to be annexed cast their ballots “For Extension” in an election called and conducted as prescribed; and, in the absence thereof, any attempted annexation by ordinance or otherwise would be void. The gist of the complaint is that the defendants propose to pass at the meeting to be held 3 August, 1954, an annexation statute, which will be in disregard and in violation of the statutory mandate and therefore void.

The question for decision is this: Accepting as true the allegations of the complaint, are the plaintiffs entitled to an order restraining the defendants, as members of the City Council of Gastonia, from passing an ordinance, which, under the facts alleged, would be void? While the precise question seems to be one of first impression in this jurisdiction, the application of recognized general principles to the facts of this ease impels a negative answer.

Ordinarily, a court of equity, being vested with judicial, not legislative, powers, has no jurisdiction to interfere with the enactment of an ordinance by the governing body of a municipality in the exercise of powers that are legislative in character. And even when it appears that the proposed ordinance would transcend the legislative powers of the municipal governing body, and would be unconstitutional or otherwise void, a court of equity will intervene and grant injunctive relief only when it appears that irreparable injury will result to plaintiffs from the mere passage of the ordinance as distinguished from injury that may result from the carrying out of enforcement thereof. If the carrying out or enforcement of the ordinance, if and when passed, will cause the injury, it is such conduct on the part of the municipality and its agents that must be enjoined. 43 C.J.S., Injunctions sec. 118; 28 Am. Jur., Injunctions secs. 177 and 178; 14 R.O.L., Injunctions sec. 139; 19 R.O.L., Municipal Corporations sec. 204; 32 C.J., Injunctions sec. 412; Anno.: 140 A.L.R. 439*et seq.*

Upon the facts alleged, we are unable to perceive how the mere passage of the ordinance, if it should take place as plaintiffs anticipate, would, of itself, cause irreparable injury to plaintiffs. Indeed, the plaintiffs do not so allege, nor do they allege that they have no adequate remedy at law. Irrespective of the availability of an adequate remedy at law, it would seem appropriate, upon the facts alleged, that a court of equity withhold its writ of injunction, “the right arm of a court of equity,” until such time as the City of Gastonia, its officials, agents, employees, etc., act or threaten to act in an attempt to effectuate annexation under color of such void ordinance. Ordinarily, equity deals with conduct, actual or threatened, not with how the members of legislative bodies vote. In reaching the conclusion stated, we are mindful of the importance of keeping in proper relation and in careful balance the power and authority vested in *189our distinct, coordinate departments of government, legislative, executive and judicial; for, whatever may be tbe merits of plaintiffs’ cause, a contrary rule would open tbe door to suits to restrain tbe adoption of ordinances to sucb extent as to interfere seriously witb tbe proper functioning of tbe legislative body. Too, a contrary rule, if carried to its logical conclusion, would warrant, if sufficient facts were alleged, judicial restraint of members of tbe General Assembly from tbe passage of legislation alleged to be in conflict witb provisions of our organic law. Tbis cannot be done.

Tbe complaint, failing to allege that tbe *passage*of tbe void ordinance will cause irreparable injury or facts from wbicb sucb irreparable injury may be implied, was insufficient to entitle tbe plaintiffs to tbe injunctive relief sought, even though it is alleged that tbe present purpose of tbe defendants, acting as tbe City Council of Gastonia, is to pass an ordinance beyond tbe scope of its legislative powers. Should such void ordinance be passed, and should tbe City of Gastonia, its officials, agents, employees, etc., undertake or threaten action thereunder sucb as would cause irreparable injury to plaintiffs, tbe plaintiffs will not be without adequate remedy. It would seem that plaintiffs’ action is premature. *Greenville v. Highway Com.,*196 N.C. 226, 145 S.E. 31; *Ponder v. Board of Elections,*233 N.C. 707, 65 S.E. 2d 377.

Statutes providing for tbe annexation of adjacent territory vary greatly in tbe several states, McQuillin, op. cit., sec. ,7.28, and decisions in other jurisdictions must be considered against tbe background of tbe particular statutes. Thus, under certain of these statutes, tbe annexation proceeding is initiated by a petition signed by a designated number of interested parties, followed by an election, etc., and thereafter, as tbe final step, tbe ordinance is adopted. Tbis variance in statutory provisions may account in part for tbe conflict in other jurisdictions as to whether tbe validity of an annexation proceeding may be challenged in an action by citizens and taxpayers to obtain injunctive relief or whether challenge thereof can be made only by tbe state in *quo warranto*proceedings. McQuillin, op. cit., sec. 7.43.

Tbe acts of tbe defendants, as members of tbe City Council, would have significance only to tbe extent they are deemed to be tbe acts of tbe City of Gastonia. Should tbe plaintiffs’ apprehension as to the passage by defendants of a void ordinance prove well-founded, it would seem that tbe City of Gastonia would be a necessary party to any action wherein tbe relief sought is to restrain its officials, agents, employees, etc.

For tbe reasons stated, tbe judgment overruling tbe demurrer must be reversed. Tbis necessitates reversal of tbe order denying defendants’ motion to dissolve tbe temporary restraining order. *Temple v. Watson,*227 N.C. 242, 41 S.E. 2d 738. It is so ordered.

Reversed.