City of Sanford v. SOUTHERN OIL COMPANY , 244 N.C. 388 ( 1956 )

93 S.E.2d 560 (1956) 244 N.C. 388

CITY OF SANFORD
v.
SOUTHERN OIL COMPANY.

No. 521.

Supreme Court of North Carolina.

June 26, 1956.

Dixon & Dark, Siler City, and J. W. Hoyle, Hoyle & Hoyle, Sanford, for defendant appellant.

Gavin, Jackson & Gavin, Sanford, for plaintiff appellee.

BARNHILL, Chief Justice.

The statute, G.S. § 160-89, grants abutting property owners in a street improvement project such as the one here involved the right of appeal to the Superior Court. The defendant failed to perfect his appeal from the final order of the Board of Aldermen of plaintiff affirming the assessment roll. The judge below so found, and there is no exception to the finding made. The appeal was properly dismissed.

When the applicable statute provides an appeal from an administrative agency or an inferior court to the Superior Court, the procedure provided in the Act must be followed. A writ of certiorari cannot be used as a substitute for an appeal either before or after the time for appeal has expired. In proper cases an appellant may apply for a writ of certiorari when it is impossible for him to perfect his appeal during the time allowed by the statute. But the writ should not be allowed until or unless the application therefor makes it appear that (1) the aggrieved party cannot perfect the appeal within the time provided by the statute, (2) his inability to perfect his appeal within the time allowed is not due to any fault on his part, and (3) there is merit in his exceptions to the action of the administrative agency or inferior court, as the case may be. In re Stokely, 240 N.C. 658, 83 S.E.2d 703; Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66; State v. Moore, 210 N.C. 686, 188 S.E. 421; Taylor v. Johnson, 171 N.C. 84, 87 S.E. 981; Todd v. Mackie, 160 N.C. 352, 76 S.E. 245.

The writ of certiorari may likewise be used as an ancillary writ to require a lower court or administrative agency to send up the Superior Court records, papers, documents, and other matter necessary to dispose of the appeal. Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90; Russ v. Board of Education, 232 N.C. 128, 59 S.E.2d 589; Belk's Department Store, Inc., v. Guilford County, 222 N.C. 441, 23 S.E.2d 897.

Here the judgment recites that the cause was heard on application for a writ of certiorari for which the defendant did not apply until more than eight months after his time for appeal had expired. The court below advisedly denied the application and dismissed the action.

There is further reason why the judgment entered in the court below must be affirmed. The General Assembly, by the adoption of c. 582, Session Laws 1955, "in all respects approved, legalized and validated" all proceedings had in the street improvement project here involved, including the final assessment roll. We have heretofore held that such validating legislation is permissible and serves to cure any defect in the proceedings and to validate the assessments made. Gallimore v. Thomasville, 191 N.C. 648, 132 S.E. 657, and cases cited; High Point v. Clark, 211 N.C. 607, 191 S.E. 318; Crutchfield v. Thomasville, 205 N.C. 709, 172 S.E. 366.

For the reasons stated the judgment entered in the court below must be

Affirmed.

JOHNSON, J., not sitting.