Ballard v. City of Charlotte , 235 N.C. 484 ( 1952 )

70 S.E.2d 575 (1952) 235 N.C. 484

BALLARD et al.
v.
CITY OF CHARLOTTE.

No. 527.

Supreme Court of North Carolina.

April 30, 1952.

W. C. Davis, Charlotte, for plaintiffs, appellants.

John D. Shaw, Charlotte, for defendant, appellee.

ERVIN, Justice.

The Charlotte City Council undertook to make the assessments in controversy under the statute resulting from the amendment of Section 52 of the Charter of the City of Charlotte, i. e., Chapter 366 of the Public-Local Laws of North Carolina for 1939, by Chapter 1033 of the 1947 Session Laws of North Carolina. Instead of setting forth this lengthy statute verbatim, we shall refer to such of its provisions as are relevant to the instant case. The plaintiffs failed to appeal to the superior court from the assessments as authorized by this statute. Despite their neglect in this respect, the plaintiffs are entitled to vacate the assessments or to enjoin their enforcement if they are void. Winston-Salem v. Smith, 216 N.C. 1, 3 S.E.2d 328; Charlotte v. Brown, 165 N.C. 435, 81 S.E. 611.

The plaintiffs insist that the assessments are void for this solitary reason: That the statutory authority of the board of appraisers came to an end with the death of E. B. Dudley, one of its members.

It thus appears that the question arising on the appeal hinges on the meaning of the statute under consideration. As a consequence, we must ascertain the intention of the legislature and carry such intention into effect to the fullest degree. Norman v. Ausbon, 193 N.C. 791, 138 S.E. 162; Hunt v. Eure, 188 N.C. 716, 125 S.E. 484. In performing this judicial task, we must avoid a construction which will operate to defeat or impair the object of the statute, if we can reasonably do so without violence to the legislative language. Manley v. Abernethy, 167 N.C. 220, 83 S.E. 343.

When it is read and interpreted as a whole, the statute evinces a paramount purpose on the part of the legislature to empower the Charlotte City Council to improve the public streets of the municipality without petitions by abutting property owners, and to assess against each abutting property the benefits conferred upon it by the improvement, or one-half the cost of its improvement, whichever is the lesser. The provisions, of the statute imposing upon boards of appraisers the duty to make appraisals of benefits are subsidiary in character. They are merely designed to aid in the consummation of the paramount legislative purpose.

These statutory provisions specify, in substance, that before work is begun the mayor is to nominate and the city council is to appoint "a board of appraisers, consisting of five competent persons," for each area to be improved under the provisions of the statute, and that the board so nominated and appointed is to do these several public acts in respect to its area: (1) To appraise the property bordering upon the area before it is improved; (2) to appraise the property bordering upon the area after the improvement is completed; and (3) to make written report of such appraisals to the city clerk.

Manifestly the first and second appraisals must be made by the board of appraisers at different times. When it enacted the statute, the legislature knew that "death tracketh everything living and catcheth it in the end" and that in consequence death might well overtake a member of the board of appraisers between the two appraisals. Notwithstanding its knowledge of this tragic truth, the legislature made no provision whatever to fill a vacancy occasioned by death in the membership of the board.

The plaintiffs argue that these statutory provisions confer a joint authority upon "a board of appraisers consisting of five * * persons," to appraise the abutting property on both occasions, and make the exercise of such joint authority by all five appraisers a jurisdictional prerequisite to any valid assessment; that the joint authority necessarily terminates with the death of any one of the appraisers prior to the second appraisal; and that consequently any assessment based in whole or in part upon the subsequent action of the surviving appraisers is void.

This construction of these statutory provisions nullifies or thwarts in a large measure the paramount purpose of the statute, and can not be accepted if the legislative language reasonably admits of a different interpretation.

The statutory provisions under scrutiny undoubtedly grant to the members of the board of appraisers a joint authority, and require them to exercise it as a board, i. e., by meeting and consulting together. But they do not compel the conclusion that the legislature intended the authority of the board to perish with the death of one of its members. Indeed, they justify the contrary view.

Where a statute confers a joint authority on several persons to do a public act and makes no provision for filling a vacancy occurring among them, the authority is not terminated by the death of one or more of them, if there are enough of them left legally to perform such act. Quayle v. Missouri, K. & T. Ry. Co., 63 Mo. 465; Bublitz v. Borough of Hillsdale, 150 A. 229, 8 N.J.Misc. 334; People v. City of Syracuse, 63 N.Y. 291; Welch v. Getzen, 85 S.C. 156, 67 S.E. 294; 29 C.J.S., Eminent Domain, § 297; 67 C.J.S., Officers, § 109(b). The rule of statutory construction embodied in G.S. § 12-3(2) provides that "all words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or other persons, unless it shall be otherwise expressly declared in the law giving the authority." Austin v. Helms, 65 N.C. 560.

For these reasons, we conclude that the authority granted by the statute to the board of five appraisers is not terminated by the death of any of its members as long as three of them remain, and that in such case the surviving appraisers can make a valid appraisal if all of them attend and take part in the transaction. This conclusion necessitates an affirmance of the judgment.

Affirmed.