In Re Department of Archives & History for Certificate of Public Convenience & Necessity for Restoration of Tryon's Palace ( 1957 )

Higgins, J.

Chapter 791, Session Laws of 1945, authorized the Department of Conservation and Development to accept gifts, to acquire property, and to restore Tryon's Palace in New Bern. The Act gives to the Department of Conservation and Development authority to acquire by purchase or condemnation “such areas of land in New Bern ... as it may find necessary for the restoration of said Palace.” . . . And condemnation must be in accordance with Chapter 40, General Statutes of North Carolina, “including the provisions of the Public Works .Eminent Domain Law.” The original Act was amended by Chapter 233, Session Laws of 1949; by Chapter 649, Session Laws of 1951; by Chapter 1100, Session Laws of 1953.

Under the authority of the foregoing Acts, the Department of Conservation and Development, on 4 November, 1954, filed an application before the North Carolina Utilities Commission for a certificate of public convenience and necessity and the right to institute condemnation proceedings to acquire so much of the land described in the original Act of 1945 as the Department had been unable to acquire by purchase. Notice was served on the landowners who entered a special appearance and moved to dismiss the proceeding upon the grounds hereinbefore set forth.

While the application for the certificate was pending before the Utilities Commission, the General Assembly enacted Chapter 543, Session Laws of 1955, giving the State Department of Archives and History power to acquire real estate and personal property of statewide historical significance by gift, purchase, devise, or bequest, and when found to be important for State ownership the Department (Archives and History) after receiving the approval of the Governor and Council of State, shall have power to acquire by condemnation. (See Sec. 121-8.)

Chapter 791, Session Laws of 1945, was amended “by substituting the words ‘Department of Archives and History’ wherever the words ‘Department of Conservation and Development’ appear in the Act.” Authority to condemn is not being exercised under the Acts of 1955 but under the original Act of 1945 and amendments thereto. The result is the Department of Archives and History has the power specifically conferred on it by the terms of Chapter 543, Session Laws of 1955. The power to acquire by condemnation “historic and archaeological properties” under the Act of 1955 applies to such properties generally. The power can be exercised only with the approval of the Governor and the Council of State. It also has by substitution the powers originally given to the Department of Conservation and Development by the Act of 1945 and the amendments. The power to acquire by condemnation applies only “to such areas” as may be necessary to restore Tryon’s Palace and it must be exercised as provided in the Public Works Eminent Domain Law. A certificate of public convenience and necessity is required. Utilities Comm. v. Story, 241 N.C. 103, 84 S.E. 2d 386; In re Housing Authority, 233 N.C. 649, 65 S.E. 2d 761. Approval of the Governor and Council of State is not required.

At the time the Department of Archives and History applied for the certificate of public convenience and necessity, an application on behalf of its predecessor (Department of Conservation and Development) was then pending before the North Carolina Utilities Commission. Whether the application now before us be treated as a motion in the cause substituting Archives and History for Conservation and Development, or as a new application made necessary by withdrawal of authority from Conservation and Development, is immaterial. There was a full hearing on the present application in which the respondents fully participated and the proceeding appears to be regular in all aspects. It is the only one in which a judgment can be rendered against the respondents. “As a general rule, this right to plead the pendency of another action between the same parties, before judgment had, is regarded to a large extent as a rule of convenience, resting in the principle embodied in the maxim nemo debet bis vexare — no one should be twice harassed for the same cause.” Allen v. McDowell, 236 N.C. 373, 72 S.E. 2d 746; Reed v. Mortgage Co., 207 N.C. 27, 175 S.E. 834; Cook v. Cook, 159 N.C. 46, 74 S.E. 639. Abatement of the second action is based on the theory that all the issues can be settled in the first action. In this case the Act of 1955 withdraws authority to maintain the proceeding from the Department of Conservation and Development and gives it to the present petitioner. The present petition and notice may be treated as a motion in the cause substituting as the petitioner the Department of Archives and History in lieu of the Department of Conservation and Development. Beck v. Voncannon, 237 N.C. 707, 75 S.E. 2d 895; In re Cranford, 231 N.C. 91, 56 S.E. 2d 35; Simmons v. Simmons, 228 N.C. 233, 45 S.E. 2d 124; Craddock v. Brinkley, 177 N.C. 125, 98 S.E. 280.

The Legislature has declared the restoration of Tryon’s Palace a public purpose. The North Carolina Utilities Commission, upon a proper petition and after notice and hearing, has granted a certificate of public convenience and necessity. Upon appeal, Judge Morris has overruled all exceptions and confirmed the Commission’s order. The State has funds available to pay for the respondents’ property which by the proper authorities has been found necessary for the purpose of restoring the palace. It was the first fixed capital of the Colony of North Carolina, and its most notable and unusual architectural achievement. The power of the Legislature to provide for the restoration is beyond question. Greensboro v. Smith, 239 N.C. 138, 79 S.E. 2d 486; Jamison v. Charlotte, 239 N.C. 423, 79 S.E. 2d 797.

This cause came to the Superior Court and from that court here upon appeal from a determination of the Utilities Commission. The determination is presumed to be valid and is not to be disturbed unless it is made to appear that it is clearly unreasonable and unjust. Utilities Commission v. The Great Southern Trucking Co.; 223 N.C. 687, 28 S.E. 2d 201. The record fails to disclose any valid reason in law why the judgment of the Superior Court should be disturbed.

Affirmed.

RodmáN, J., took no part in the consideration or decision of this case.