Raleigh v. . Bank , 223 N.C. 286 ( 1943 )

WINBORNE, J., dissenting.

STACY, C. J., and BARNHILL, J., concur in dissenting opinion. This was a civil action for the foreclosure of street assessment liens, under C. S., 7990, on eight lots in the city of Raleigh, described in the pleadings, now owned by the defendant.

It was admitted that the proceedings for the assessment on the described lots of the apportioned cost of the local improvements were sufficient to subject said lots to a lien in favor of the plaintiff therefor, in accordance with the statutes. The improvements were made in 1926 and 1927, and the cost chargeable to said lots was made payable, in each case, in ten equal annual installments thereafter. The installments were successively due the first Monday in October each year, with interest from the date of confirmation of the assessment. Certain of the earlier installments were paid when due, but the others remain unpaid. The number and amount of installments paid and those unpaid are set out in the pleadings and are undisputed. The summons in this action was issued 3 October, 1942, and summons with copy of the complaint was delivered to the sheriff for service 5 October, 1942. The first Monday in October, 1932, was the 3rd day of that month. The defendant pleaded the statute of limitations as to each unpaid installment which became due more than ten years before the institution of the action.

Jury trial was waived, and the court, after finding the facts, concluded "that each and all unpaid annual installments and interest thereon which became due and payable on or before the 4th day of October, 1932, are barred by the ten years' statute of limitations, being sec. 2717 (a), N.C. Code, ch. 331, Public Laws 1929," and that the liens growing out of said installments are also barred and no part of the proceeds of sale can be applied to the payment of such installments. It was further concluded that the installments due in 1933, 1934, 1935, and 1936, together with interest thereon, were valid liens on the described lots.

It was thereupon adjudged that the payment in full of the installments not barred should constitute a discharge of all claims and demands of the plaintiff on account of the improvements referred to, and that upon failure to pay, the described lots should be sold by the commissioners appointed for that purpose.

To the conclusions of law and the judgment thereon the plaintiff duly excepted and appealed to this Court. The plaintiff's appeal brings up for review the ruling of the court below that in a suit to foreclose the statutory lien on abutting property, given the city for street improvements, the installments of the amounts assessed therefor which are ten years past due are barred by the statute of limitations.

The particular question posed is whether chapter 331, Public Laws 1929 (sec. 2717 [a], N.C. Code), should be construed to impose a limitation of ten years, in a foreclosure suit under C. S., 7990, as to all installments of the amounts assessed for street improvements which are ten years overdue when action brought.

It is admitted that several of the annual installments assessed against the lots now belonging to the defendant were more than ten years past due when this action was instituted. Hence, if the Act of 1929 be construed to be a statute of limitation, this action as to such installments is barred. Thus, the determinative question for decision is clearly presented.

In chapter 56 of the Consolidated Statutes are codified all the general laws relating to municipal corporations, and beginning with sec. 2703 and extending through sec. 2737 are found the particular statutes regulating assessments for public improvements. The subject matter embraced in each of these sections is indicated by the heading. Sec. 2717 relates to the enforcement of payment of assessments. At the Session of 1929 the Legislature, by ch. 331, amended sec. 2717 by adding thereto provisions for reinstating and extending assessments in arrears, and then added an entirely new section to the Consolidated Statutes, to appear next after 2717, as follows: "2717 (a). Sale of Foreclosure for Unpaid Assessments Barred in Ten Years: No Penalties. No statute of limitation, whether fixed by law especially referred to in this chapter or otherwise, shall bar the right of the municipality to enforce any remedy provided by law for the collection of unpaid assessments, whether for paving or other benefits, and whether such assessment is made under this chapter or under other general or specific acts, save from and after ten years from default in the payment thereof, or if payable in installments, ten years from the default in the payments of any installment. No penalties prescribed for failure to pay taxes shall apply to special assessments, but they shall bear interest at the rate of six percent per annum only . . ."

While this act may be lacking in that degree of precision ordinarily to be found in restrictive statutes, we think the legislative intent to fix a time limit of ten years for the institution of a suit to foreclose a street assessment lien sufficiently appears.

In view of the decision of this Court in Morganton v. Avery,179 N.C. 551, 103 S.E. 138, holding the three years' statute of limitations applicable to suits to enforce collections of street assessments, and the decision in Drainage District v. Huffstetler,173 N.C. 523, 92 S.E. 368, holding the ten years' statute applicable to drainage assessments, and Schank v. Asheville, 154 N.C. 40, 40 S.E. 687, holding the assessment had the effect of a judgment and lien, and Coble v.Dick, 194 N.C. 732, 140 S.E. 745, likening the assessment to a statutory mortgage, and in view of the local statutes prescribing for certain towns different limitations, as well as the provision of C. S., 8037, then in force, prescribing a limitation of five years for tax foreclosure for municipal corporations, it is reasonably to be inferred that by the language in which this section was expressed the General Assembly intended to clarify the situation and to establish the uniform limitation of ten years for the enforcement by municipalities of the remedies provided by law for the collection of unpaid assessments.

While the legislative intent is to be gathered from the language used, it is obvious that the Legislature in this instance understood it was providing such a limitation, for it enacted a new section to follow immediately after 2717, and gave the new section the caption "Sale of Foreclosure for Unpaid Assessments Barred in Ten Years." The significance of this heading is materially aided by the fact that it was enacted by the Legislature itself as a part of the Act. Also, on the margin of the original act, ch. 331, Public Laws, 1929, as indicating its context, appear the words "Foreclosure for unpaid installments barred after ten years," and in the recent revision of our statutes, enacted by the General Assembly of 1943, entitled General Statutes of 1943, section 2717 (a), appears as section 160-93 with the heading "Sale or foreclosure for unpaid assessments barred in ten years."

As a rule in determining the proper construction to be given legislative enactments, the courts are not controlled by what the Legislature itself apparently thought the proper interpretation should be, but the language employed, taken in connection with the context, the subject matter and the purpose in view must be considered in order to ascertain the legislative intent, which, after all, is the primary purpose of all judicial construction. S. v. Humphries, 210 N.C. 406, 186 S.E. 473. As was said by Walker, J., in S. v. Earnhardt, 170 N.C. 725, 86 S.E. 960: "It is common learning that a statute must be so construed as to give effect to the presumed and reasonably probable intentions of the Legislature and so as to effectuate that intention and the object for which it was passed."

True, when the heading of a section is misleading or is not borne out by the explicit language of the statute itself, it may be disregarded, but when the meaning is not clear or there is ambiguity the heading which the Legislature has adopted in enacting the statute becomes important in determining the legislative intent. The heart of a statute is the intent of the lawmaking body. As was said by Chief Justice Marshall in U.S. v.Fisher, 2 Cranch (U.S.), 358 (356): "Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration." To the same effect is the statement of Chief Justice White in Knowlton v. Moore, 178 U.S. 41 (65), and inMcGuire v. Comr. of Int. Rev., 313 U.S. 1 (9), it was said: "While the title of an act will not limit the plain meaning of the text, it may aid in resolving an ambiguity." While the caption may not control the text when it is clear, it may be called in aid of construction.In re Will of Chisholm, 176 N.C. 211, 189 S.E. 498.

Thus, the clear implication that the Act of 1929 was intended to establish ten years as the period of limitation for the foreclosure of the lien is fortified by the definite expression by the Legislature itself in the caption that foreclosure should be barred in ten years.

It would seem also that succeeding Legislatures also considered that the Act barred foreclosure suits on assessment installments ten years past due, for in 1931, and again in 1933, and again in 1935, and again in 1937, and again in 1939, and again in 1941, and again in 1943, municipal corporations were given the right by resolution to extend the time of payment of installments, which would enable them to avoid the bar of the statute, if they desired to do so.

From an examination of these statutory provisions we think it may fairly be gathered that it was the legislative purpose to provide the purchaser or owner of real property in a city with some period of relief against an ancient assessment, and that those more than ten years past due should not be brought forward in a suit for the foreclosure and sale of his property. Statutes of repose are in the interest of the security of titles. The suggestion that to hold a suit to enforce collection of unpaid installments barred after ten years would add to the burden of other taxpayers is equally true of every kind of unpaid tax, whether due to the insolvency of the taxpayer or the negligence of the tax collector, but that was a matter for the consideration of the Legislature and not the courts.

In the exercise of its undoubted power to construe and give authoritative interpretation to the acts of the General Assembly, this Court has several times considered the Act of 1929 and construed it as prescribing a limitation of ten years to a suit to foreclose the lien of an assessment for local improvements.

In Statesville v. Jenkins, 199 N.C. 159, 154 S.E. 15, decided in 1930, where the city sought foreclosure of lien on defendant's lot for street paving assessment, payable in ten annual installments, the defendant pleaded the ten years' statute of limitations. The local act contained no limitation. The case was heard in the Superior Court at November Term, 1929, and the court below held the action barred. On appeal this was reversed, and the Act of 1929 held inapplicable for the reason that this Act did not give a reasonable time within which to bring the action before the bar became effective. It was said in the opinion: "The statute we are considering fixed no time limit for the commencement of action, but barred all assessments ten years from the default in the payment of any installment." In the two dissenting opinions in that case it was thought the three years' statute applied (Morganton v. Avery, supra), and hence the plaintiff city "was in no position to complain at the holding that seven installments are barred under the 1929 statute."

In High Point v. Clinard, 204 N.C. 149, 167 S.E. 690, decided in 1933, an action to recover delinquent street assessments, the three years' statute of limitations was pleaded (Morganton v. Avery, supra), and it was contended that the Act of 1929, passed after the bar was complete, could not extend the right of action. It was held, however, that the ten years' statute of limitations, as decided in Drainage District v. Huffstetler,supra, applied. Statesville v. Jenkins, supra, was cited.

In Farmville v. Paylor, 208 N.C. 106, 179 S.E. 459, decided in 1935, the ten years' statute of limitations was pleaded to an action to collect street paving assessments. While the case turned upon the construction of the accelerating clause in C. S., 2716, the decision proceeded upon the view that each installment was subject to the bar of ten years after default, citing High Point v. Clinard, supra.

In Charlotte v. Kavanaugh, 221 N.C. 259, 20 S.E.2d 97, the applicability of the Act of 1929 to civil actions to foreclose liens for street assessments was directly involved and carefully considered, and definitely decided by a unanimous Court. After quoting the statute in full, the Court said, Denny, J., delivering the opinion: "Here the municipalities, the sovereigns, are expressly named in the statute of limitations, and we think the General Assembly intended to bar all assessments for local improvements after ten years from default in the payment thereof, or, if payable in installments, in ten years from default of any installments, and we hold that the ten-year statute of limitations is applicable to assessments for local improvements and that the same are barred from and after ten years from default in the payment thereof, or, if payable in installments, ten years from default in the payment of each installment, unless the time for payment has been extended as provided by law." There was no petition to rehear.

The last cited decision was rendered Spring Term, 1942. The Legislature which convened subsequent thereto made no change in this statute except to extend the limitation from ten years to fifteen years, as applicable to the city of Charlotte. Ch. 181, Public Laws 1943. Obviously the law on this point was regarded as settled.

The appellant, however, calls attention to the statement in Asheboro v.Morris, 212 N.C. 331, 193 S.E. 424, that "Where the sovereign elects or chooses to proceed under C. S., 7990, no statute of limitations is applicable." In that case the action was to foreclose the lien of a street assessment confirmed in 1925. The first installment was due 1 October, 1926, and the suit was brought 31 May, 1932. Only the three years' statute was pleaded. The ten years' statute was not involved. In Charlotte v. Kavanaugh, supra, referring to this case, it was said: "In that case, however, not having been pleaded, the applicability of the ten-year statute was not directly involved and the provisions of sec. 1, ch. 331, Public Laws of 1929, were not called to the attention of the Court. The effect of this statute on former decisions of this Court was not decided."

It is contended by the plaintiff that the maxim nullum tempus occurritregi should be applied here, and that the city of Raleigh, exercising the power of sovereignty, should not be barred by the lapse of time in the effort to enforce the lien of a special assessment imposed for a public improvement.

While this ancient maxim has lost much of its vigor by the erosions of time, and by legislative enactment, it is still regarded as the expression of a sound principle of government applicable to actions to enforce the sovereign rights of the State. Notwithstanding the inclusive provisions of sec. 420, of the consolidated Statutes that "the limitations prescribed by law apply to civil actions brought in the name of the State, or for its benefit, in the same manner as to actions by or for the benefit of private parties" (Threadgill v. Wadesboro, 170 N.C. 641, 87 S.E. 521), it has been uniformly held that no statute of limitations runs against the State, unless it is expressly named therein. Wilmington v. Cronly, 122 N.C. 388,30 S.E. 9; Asheboro v. Morris, supra. However, where in the statutes affording a remedy by a municipal corporation for enforcing the statutory lien of an assessment for public improvement a limitation of time is imposed upon the exercise of that power, manifestly the principle expressed in the quoted maxim is not controlling.

It is contended by appellant that the power to assess property for local improvement, granted to a municipal corporation as a political subdivision of the State, is an exercise of the State's sovereign power to tax and the power to collect taxes should not be restricted. In Kinston v. R. R.,183 N.C. 14, 110 S.E. 645, Justice Hoke, speaking for the Court, used this language: "While local assessments of this kind are not regarded as a tax in the sense of a general revenue measure, we have several times held that the right to enforce them is referred to the power of taxation possessed and exercised by government." In Tarboro v. Forbes, 185 N.C. 59,116 S.E. 87, Adams, J., writing the opinion of the court, states the law as follows: "But there is a distinction between local assessments for public improvements and taxes levied for purposes of general revenue. It is true that local assessments may be a species of tax, and that the authority to levy them is generally referred to the taxing power, but they are not taxes within the meaning of the term as generally understood in constitutional restrictions and exemptions. They are not levied and collected as a contribution to the maintenance of the general government, but are made a charge upon property on which are conferred benefits entirely different from those received by the general public." The distinction between the general power to tax and proceedings for enforcement of special assessments was pointed out in Charlotte v.Kavanaugh, supra; Saluda v. Polk County, 207 N.C. 180, 176 S.E. 298; and Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24. But the statute here invoked is applicable not so much to the right as to the remedy, not so much to the power as to its particular exercise. It affects the right "to enforce any remedy provided by law for the collection of unpaid assessments." It deals only with actions by municipalities to enforce local assessments. In Raleigh v. Jordan, 218 N.C. 55, 9 S.E.2d 507, a suit to enforce a lien on property for the unpaid taxes of 1925 and 1926, barred by the Act of 1933, it was said: "In some states the Constitution directly forbids the Legislature to pass any law releasing or remitting taxes. There is no such provision in our Constitution. If other parts of the Constitution should be considered as preventing the direct release of taxes, there would seem to be no question that the Legislature may deal with the lien of taxes as it sees fit, may determine when there should be a lien, when it should attach, and when it should cease." And in Charlotte v.Kavanaugh, supra, it was said: "Unquestionably the General Assembly has the right to fix the procedure and prescribe the limitations under which specifically granted powers shall be exercised."

In New Hanover County v. Whiteman, 190 N.C. 332, 129 S.E. 808, cited by appellant, it was said there was no statutory bar to an action to foreclose the tax lien, but this case, decided in 1925, as also didWilmington v. Cronly, supra, decided in 1898, referred to the general lien for ad valorem taxes and did not relate to special assessments for local improvements.

Logan v. Griffith, 205 N.C. 580, 172 S.E. 348, was the case of an individual suing on a tax sale certificate. This was held barred by C. S., 8037, which was then in force. While it was said in that case "the sovereign may proceed under C. S., 7990, to foreclose the lien, in which event no statute of limitations is applicable," the reference was to advalorem taxes for general purposes. New Hanover v. Whiteman, supra, was cited in support. The Act of 1929 was not involved and was not referred to. Its effect upon actions by municipal corporations to enforce payment of special assessments was not considered or decided. However, the power of the Legislature to set a time clock even for the sovereign, as was done by C. S., 8037, with respect to municipalities, was distinctly affirmed.

The appellant excepted to the ruling of the court below that in the event of foreclosure sale the proceeds would be available only for the discharge of the installments not barred. This is based upon the view that even if installments more than ten years past due be held barred by the statute of limitations, the funds derived from the sale, if consummated, should be applied to the payment of all unpaid installments, including those more than ten years past due, and the case of Demai v. Tart,221 N.C. 106, 19 S.E.2d 130, is cited in support.

While the determination of this question may not become necessary, since the payment of the installments not barred would discharge the liens and avoid a sale, we think the principle enunciated in the Demai case, supra, is not applicable to the facts in this case. It was held in that case that where a deed of trust on land secured a debt evidenced by two notes, one barred by the statute of limitations and the other not, the trustee following foreclosure sale had the right to apply the proceeds to the payment of the entire unpaid debt, represented by the balance due on both notes. But this was upon the view that the language of C. S., 437 (3), barring an action for the foreclosure of a mortgage unless begun "within ten years of the last payment on the same," referred to the debt secured by the mortgage, without regard to its subdivision into separate notes. The decision was based on the sound principle that the deed of trust created a lien upon the lands and set them apart in trust for the payment of the debt, with suitable provision for sale and application of the proceeds, as a separable specific agreement, and raised "an obligation with respect to both the debt and the lands not comprehended in the promissory notes given with respect to the same debt but in addition thereto."

This principle, so aptly stated in the opinion written for the Court byJustice Seawell, was an outgrowth of the relationship of debtor and creditor, of the primary personal obligation of the mortgagor to pay the debt. Here the ordinary relationship of debtor and creditor did not exist. There was no personal obligation to pay. The statute creating the lien operated only in rem, and subjected the particular parcel of land to a statutory foreclosure and sale for nonpayment of a sum apportioned as representing the benefits accruing to that lot, and without regard to successive transfers of title.

It will be noted also that the Act of 1929 prescribes the time limit of ten years "from the default in the payment of any installment." This was interpreted in Charlotte v. Kavanaugh, supra, to mean "ten years from default in the payment of each installment," p. 269.

If it be thought that effect should be given to the provisions relative to ad valorem taxes in C. S., 2815, that the lien for taxes levied shall attach to all the real estate of the taxpayer and shall continue until such taxes shall be paid, it may be noted that C. S., 2713, relating to local assessments provides only that the assessment when confirmed shall be a lien on the real property against which it is assessed, superior to all other liens.

Whether there ought to be a statute of limitations limiting the time for the enforcement of liens for street assessments is a matter for the Legislature. "Wisdom or impolicy of legislation is not a judicial question.Sidney Spitzer Co. v. Comrs. of Franklin County, 188 N.C. 30. Policy of legislation (is) for the people, not courts. Bond v. Town of Tarboro,193 N.C. 248. Courts do not say what the law ought to be, but only declare what it is. State v. Revis, 193 N.C. 192." Reed v. Highway Com.,209 N.C. 648 (655), 184 S.E. 1. The province of this Court ends when it interprets the legal effect of legislative enactments and determines "with cold neutrality" the questions of law properly presented for decision.

The finding by the court below, to which no exception was noted, that summons in this case was delivered to the sheriff for service 5 October, 1942, fixed the beginning of the action as of that date. C. S., 475;Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912; Morrison v. Lewis,197 N.C. 79, 147 S.E. 729; Cherry v. Whitehurst, 216 N.C. 340,4 S.E.2d 900. Hence, the ruling that the installment which became due and payable 3 October, 1932, was barred before the summons was delivered to the sheriff for service, must be upheld.

The amounts of the installments of the assessments on defendant's lots constituting valid liens thereon at the time of the institution of this action, together with interest thereon, sufficiently appear from the admissions in the pleadings and the judgment. No question was raised here as to the correctness of the amounts properly to be ascertained under the court's rulings.

After careful consideration we reach the conclusion that the judgment below must be

Affirmed.