In Re the Resolutions Passed by the City Council of the City of Durham , 243 N.C. 494 ( 1956 )

91 S.E.2d 171 (1956) 243 N.C. 494

In the Matter of the RESOLUTIONS PASSED BY THE CITY COUNCIL OF THE CITY OF DURHAM on March 3, 1952, and March 17, 1952, relating to proposed street paving, water, sanitary sewer and storm sewer improvements on Liberty Street from Dillard Street to Hyde Park Avenue and the resolutions passed by the City Council of the City of Durham on October 19, 1953, and on November 16, 1953, confirming or purporting to confirm the assessment rolls assessing or purporting to assess the lands abutting on Liberty Street with the costs of said improvements.

No. 677.

Supreme Court of North Carolina.

February 3, 1956.

Spears & Spears, Durham, for petitioner.

Claude V. Jones, Durham, for appellee City of Durham.

DENNY, Justice.

It would seem that this appeal may be disposed of on its merits by a consideration of the three contentions urged in the lower court without a seriatim discussion of the numerous exceptions and assignments of error set out in the record.

We shall consider the grounds upon which these contentions are based in the order posed.

Are the acts, pursuant to which the City Council of the City of Durham acted in making these local improvements and assessing the cost thereof, repugnant to Section 29, Article II, of our Constitution?

In our opinion, the acts complained of do not come within the purview of Section 29, Article II, of our Constitution which precludes the General Assembly from passing any local, private or special act "authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys." It will be noted that this section of the Constitution takes away from the General Assembly the power to pass any local, private or special act "relating to the establishment of courts inferior to the Superior Court; relating to the appointment of justices of the peace; relating to health, sanitation, and the abatement of nuisances; changing the names of cities, towns, and townships," etc. But, we have held that local acts relating to the improvement of streets and alleys generally in a city or town and authorizing the assessment of the cost thereof against the abutting property, do not conflict with Section 29, Article II, of our State Constitution. Holton v. Mocksville, 189 N.C. 144, 126 S.E. 326; Gallimore v. Thomasville, 191 N.C. 648, 132 S.E. 657. Unquestionably, an act purporting to authorize the laying out of particular streets or highways, or to authorize the maintenance of a designated street or streets, or the discontinuance thereof, would be repugnant to the above section of our Constitution. Deese v. Lumberton, 211 N.C. 31, 188 S.E. 857, 858.

In the last cited case, this Court said: "Before chapter 216, Private Laws of 1925, could be in violation of article II, § 29, of the Constitution it would have to relate to laying out, opening, altering, or discontinuing of a given particular and designated highway, street, or alley." Cf. Matthews v. Blowing Rock, 207 N.C. 450, 177 S.E. 429.

It would seem that the acts challenged are only declaratory of, or supplementary to, the powers given the City of Durham under the general law. Hill v. Board of Commissioners, 190 N.C. 123, 129 S.E. 154.

In the case of Holton v. Mocksville, supra [189 N.C. 144, 126 S.E. 328], the constitutionality of Chapter 86, of the Private Laws of 1923, entitled, "``An act relating to the financing of street and sidewalk improvements in the Town of Mocksville,'" was attacked. This Court speaking through Connor, J., said: "Section 4 of article 8 of the Constitution imposes upon the General Assembly the duty to provide by general laws for the improvement of cities, towns, and incorporated villages. It does not, however, forbid altering or amending the charters of cities, towns, and incorporated villages or conferring upon municipal corporations additional powers or restricting the powers theretofore vested in them. We find nothing in section 4, article 8 of the Constitution rendering this act unconstitutional, nor does the act relate to any of the matters upon which the General Assembly is forbidden by section 29 of article 2 to legislate. Kornegay v. Goldsboro, 180 N.C. 441, 105 S.E. 187."

Likewise, in Gallimore v. Thomasville, supra [191 N.C. 648, 132 S.E. 660], Chapter 217 of the Private Laws of 1925 provided: "``that any and all acts heretofore done and steps taken by the City of Thomasville in the paving of the streets * * * and the assessments levied therefor are hereby in all respects approved and validated.'" The plaintiff there, like the petitioner here, contended that the act was unconstitutional. The Court, against speaking through Connor, J., said: "Plaintiff's contentions that said act is invalid, because the General Assembly was prohibited by the Constitution of the state from passing it, cannot be sustained. It is not in violation of section 29, art. 2, of the Constitution; it does not authorize the laying out, opening, altering, maintaining or constructing of highways, streets or alleys."

It is true that in Holton v. Mocksville, supra, and in Gallimore v. Thomasville, supra, the Private Acts were passed to validate the proceedings pursuant to which these respective towns had made local improvements and purported to assess certain portions of the cost thereof against abutting property. This does not make these cases any less authoritative on the question posed, since the General Assembly cannot validate by a public-local, private or special act that which it could not have authorized by a similar act in advance. Edwards v. Nash County Board of Commissioners, 183 N.C. 58, 110 S.E. 600; Charlotte Consol. Construction Co. v. Brockenbrough, 187 N.C. 65, 121 S.E. 7; Storm v. Wrightsville Beach, 189 N.C. 679, 128 S.E. 17; Board of Commissioners of McDowell v. Assell, 194 N.C. 412, 140 S.E. 34; Barbour v. Wake County, 197 N.C. 314, 148 S.E. 470; Greene County v. Snow Hill R. R. Co., 197 N.C. 419, 149 S.E. 397; Efird v. Winston-Salem, 199 N.C. 33, 153 S.E. 632; Crutchfield v. Thomasville, 205 N.C. 709, 172 S.E. 366.

This Court, in Brown v. Road Commissioners, 173 N.C. 598, 92 S.E. 502, held that, "``An act to authorize the board of commissioners of MacDowell county to issue bonds for road purposes in North Cove Township in said county'", was a valid law and not in conflict with Section 29, Article II, of our Constitution.

In Mills v. Board of Commissioners, 175 N.C. 215, 95 S.E. 481, Chapter 575 of the Public-Local Laws of 1917, was upheld. The act provided for the issuance of bonds by Iredell County "``for the purpose of building bridges across the Catawba river jointly with the county of Catawba.'"

Furthermore in State v. Kelly, 186 N.C. 365, 119 S.E. 755, 760, we held that a publiclocal act providing for the maintenance of highways in Pender County by the levy of taxes or the issuance of bonds for such purpose, was not in conflict with Section 29, Article II, of the Constitution, where it does not affect the "laying out, opening, altering, maintaining, or discontinuing" the then existing highways.

In light of our decisions, we hold that the acts involved on this appeal are valid and not repugnant to the above section of our Constitution.

Did the failure to state in the preliminary resolutions passed on the 3rd day of March, 1952, the reasons proposed for making the improvements as provided in Section 2(b) of Chapter 924 of the Session Laws of 1949, invalidate the proceedings?

There is no contention that the petitioner did not have notice of the proposal to improve Liberty Street and of the intention to assess his property with its pro rata share of the cost. There is no contention that the proposed improvements were not adequately described in the published notices, or that such improvements were not necessary in the public interest, or that the petitioner's property has not been enhanced in value by such improvements in an amount equal to the assessments against the property. Nothing by which the petitioner could possibly have been prejudiced was omitted from the published notices. Moreover, the petitioner filed no written objection to the legality of the proceedings on or before the hearing of the proposal to make such improvements, as required by Section 2(f) of the act; and the act further provides that any objection not so made will be waived. Furthermore, the reasons for making the improvements were given and incorporated in the minutes of the City Council at a later date. Even so, the act only requires a substantial compliance with Section 2 thereof and not a strict or literal compliance.

The finding of the court below to the effect that the City Council of the City of Durham substantially complied with the requirements of Section 2 of Chapter 924 of the Session Laws of 1949 is supported by the evidence and must be upheld. Schank v. Asheville, 154 N.C. 40, 69 S.E. 681; Gallimore v. Thomasville, supra; Vester v. Nashville, 190 N.C. 265, 129 S.E. 593; Asheboro v. Miller, 220 N.C. 298, 17 S.E.2d 105.

This Court said in Gallimore v. Thomasville, supra,

"There is a presumption in favor of the regularity of a proceeding under which public improvements authorized by the General Assembly, have been made. An attack upon the validity of such proceeding, for mere irregularities, first made after the improvements have been completed, by those who seek, by such attack, to have their property, which has received the benefit of such improvements, relieved of assessments made for the purpose of paying for the improvements, will not be sustained, when it appears that notices required by statute have been given and ample opportunity afforded for all interested persons to be heard before the improvements were ordered and made."

The assignments of error relating to this contention are overruled.

Is the assessment on the south side of Liberty Street for twenty feet more frontage than actually abuts directly on the improvement, illegal and void?

We interpret the factual situation with respect to this property to be as follows: It abuts directly for 113.62 feet on the south side of Liberty Street. The confluence of Liberty and Taylor Streets begins at the northwest corner of the petitioner's property forming an arc, beginning and ending in the western line of the petitioner's property. All the land within the arc is the unused portion of the triangular lot condemned for street purposes. But the paving is outside the arc and the area within the arc is unimproved, and we can find no evidence in the record tending to show that the City of Durham actually dedicated this remaining portion of the triangular lot for street purposes.

The petitioner's property abuts directly on this small area at the base of the arc, it being twenty feet from the petitioner's property line to the western tip of the arc. The twenty feet against which the assessment is levied being arrived at by drawing a perpendicular line at the western tip of the arc to Liberty Street, parallel with the western line of the petitioner's property.

Counsel for the appellee did not argue to this Court that the area in controversy has been dedicated for street purposes. He merely said in his brief, "The record contains no evidence or agreement that this triangular-shaped area has not been dedicated and set apart as a part of the public street and sidewalk." Winborne, J., in speaking for the Court in Winston-Salem v. Smith, 216 N.C. 1, 3 S.E.2d 328, 330, said: "* * * in the absence of a finding that the street lines as fixed by the city include the strip, it is apparent that there is intervening land between defendant's property and the improvement. * * * Nor do we think that the acquisition of the whole lot for street purposes and the construction of a street and a sidewalk on a part thereof amounts to a dedication of the whole lot by the city for street purposes. * * * Therefore, the fact that the city purchased a lot in fee simple and constructed a street thereon, without more, does not show that the entire lot is dedicated as a street. Plaintiff contends that defendant's property is subject to the assessment for that defendant has the right in ingress and egress over the intervening land to the improvement, but in the light of the agreed fact that the fee simple title thereto is in the city and there being no evidence of a dedication to public purposes, we do not think the position tenable." (Italics ours.) Annotation 166 A.L.R. 1092.

We think the assessment against the property of the petitioner of the cost of the paving, curb and gutter along the additional twenty feet in controversy, in the absence of evidence that the area in question has been dedicated for street and sidewalk purposes by the City of Durham, is without legal authority and is null and void, and we so hold. We do not think the twenty feet abuts directly on the property as contemplated by our statutes. G.S. §§ 160-78 and 160-85. Neither do we think the fact that the City of Durham obtained the triangular lot for street purposes by condemnation rather than by deed distinguishes this case from the case of Winston-Salem v. Smith, supra.

The judgment of the court below will be modified to the above extent and the assessment roll amended accordingly.

Modified and affirmed.