Spaugh v. City of Charlotte

79 S.E.2d 748 (1954) 239 N.C. 149

SPAUGH et al.
v.
CITY OF CHARLOTTE.

No. 535.

Supreme Court of North Carolina.

January 15, 1954.

Brock Barkley, Charlotte, for plaintiffs appellees.

John D. Shaw, Charlotte, for defendant appellant.

WINBORNE, Justice.

While the parties to this controversy without action have not formally presented it, this Court is confronted with a question of jurisdiction suggested on the oral argument on this appeal, which must be determined before proceeding to consideration of the assignments of error.

The question is whether or not a special judge of the Superior Court has jurisdiction to hear and determine in Chambers a controversy without action in the county of his residence, when he has not been assigned by the Chief Justice to hold a term of court in such county? If a special judge of Superior Court does have such jurisdiction, this case is properly before the Supreme Court. But if he does not have such jurisdiction, the case is not before the Court. For the jurisdiction of the Supreme Court is derivative. Shepard v. Leonard, 223 N.C. 110, 25 S.E.2d 445.

The jurisdiction of a special judge of the Superior Court over the subject matter of an action, or of a controversy without action, depends upon the authority granted to him by the Constitution and laws of the sovereignty, and is fundamental. McIntosh's N.C. P&P 7. Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265. And objection to such jurisdiction may be made at any time during the progress of the action, or controversy without action. This principle is enunciated and applied in a long line of decisions in this State. See Henderson County v. Smyth, 206 N.C. 421, 5 S.E.2d 136, where prior cases are listed, including Burroughs v. McNeill, 22 N.C. 297, and Branch v. Houston, 44 N.C. 85. See also Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715.

In Burroughs v. McNeill, supra, it is stated by Gaston, J., that: "The instant that the court perceives that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought to stay its action, and, if it does not, such action is, in law, a nullity."

And to like effect is Branch v. Houston, supra, where Pearson, J., wrote: "If there be a defect, e. g., a total want of jurisdiction apparent upon the face of the proceedings, the court will of its own motion, ``stay, quash, or dismiss' the suit. This is necessary to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment * * *. So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceedings."

Moreover, in Greene v. Stadiem, 197 N.C. 472, 149 S.E. 685, opinion by Stacy, C. J., filed 2 October, 1929, interpreting Art. IV, Sec. 11 of the N. C. Constitution, as it was then written, and pertinent statute as it then existed, P.L. 1929, Chap. 137, this Court held that a special judge to whom the controversy without action was submitted, by agreement of the parties, had not been commissioned by the Governor to hold a court in Lenoir County at the time of the signing the judgment, was without authority to determine the matter, and, hence, the proceeding was a nullity, being coram non judice, and the judgment void.

And in Shepard v. Leonard, supra, in opinion by Barnhill, J., filed 28 April, 1943, likewise interpreting Art. IV, Sec. 11 of the N. C. Constitution, and pertinent statute, Chap. 41 of P.L. 1941, then in effect, it was held that Art. IV of Sec. 11 of the Constitution did not confer, or authorize the Legislature to confer any "in Chambers" or vacation jurisdiction upon a special judge assigned to hold a designated term of court, and the jurisdiction of a special judge was then limited to matters arising in the courts which he was duly appointed to hold.

But since these decisions were rendered both Art. IV, Sec. 11, and the statute in respect to special judges have been altered. Therefore, it seems appropriate that the Court here and now determine what jurisdiction is granted to a special judge in matters wholly in Chambers, and in vacation, that is, when he is not assigned to hold a particular term of court.

Art. IV, Sec. 11 of the Constitution of North Carolina, as amended, pursuant to proposal submitted under Chap. 775 of 1949 Session Laws of North Carolina, and adopted at the general election on 7 November, 1950, declares in pertment part, that "The General Assembly may provide by general laws for the selection or appointment of Special or Emergency Superior Court Judges not assigned to any judicial district, who may be designated from time to time by the Chief Justice to hold court in any district or districts within the State; and the General Assembly shall define their jurisdiction * * *."

And in the Act, Chap. 775 of 1949 Session Laws, Sec. 5, it is provided that "all laws and clauses of laws in conflict with the provisions of this Act are hereby repealed."

Thereafter the General Assembly, at the 1951 session, implementing the authority conferred upon it by Art. IV, Sec. 11 of the Constitution, as so amended, passed two acts, Chap. 78 of 1951 Session Laws of North Carolina, relating to the jurisdiction of special judges of the Superior Court, ratified 20 February, 1951, and Chap. 88 of 1951 Session Laws of North Carolina, relating to the jurisdiction of emergency judges of the Superior Court, ratified 22 February, 1951. In the first Act, Chap. 78, the statute, G.S. § 7-58, was rewritten and the statute, G.S. § 7-65, was amended.

Sec. 1 of the Act reads as follows: "Special Superior Court Judges are hereby vested with the same power and authority in all matters whatsoever, in the courts in which they are assigned to hold, that regular judges holding the same courts would have. A special judge duly assigned to hold the courts of a county or judicial district shall have the same powers in the district in open court and in chambers as the resident judge or any judge regularly assigned to hold the courts of the district would have, which jurisdiction in chambers shall extend until the term is adjourned or the term expires by operation of law, whichever is later"

Sec. 2 reads: (a) G.S. § 7-65 is hereby amended by inserting in line seven immediately following the word "and" the words "any special Superior Court Judge residing in the district and".

And Sec. 2 reads (b) G.S. § 7-65 is hereby further amended by inserting in line 14 after the word "district" and in line 16 after the word "judge" the words "and any Special Superior Court Judge residing in the district."

Thus G.S. § 7-65 as so amended was made to read in pertinent part (Italics ours) as follows: "In all cases where the superior court in vacation has jurisdiction, and all of the parties unite in the proceedings, they may apply for relief to the superior court in vacation, or in term time, at their election. The resident judge of the judicial district and any special superior court judge residing in the district and the judge regularly presiding over the courts of the district, shall have concurrent jurisdiction in all matters and proceedings where the superior court has jurisdiction out of term: Provided, that in all matters and proceedings not requiring the intervention of a jury or in which trial by jury has been waived, the resident judge of the judicial district and any special superior court judge residing in the district shall have concurrent jurisdiction with the judge holding the courts of the district and the resident judge and any special superior court judge residing in the district in the exercise of such concurrent jurisdiction may hear and pass upon such matters and proceedings in vacation, out of term or in term time * * *."

And Sec. 3 of Chap. 78 of 1951 Session Laws, supra, declares that "All laws and clauses of laws in conflict with this Act are hereby repealed", and Sec. 4 makes the Act effective on ratification, and the Act was ratified 20 February, 1951.

Manifestly, the amendments to G.S. § 7-65 vested a special judge of the Superior Court, resident of a particular district, with concurrent jurisdiction with the resident judge and the judge regularly presiding over the courts of the district in all matters and proceedings where the Superior Court has jurisdiction out of term, and with authority in the exercise of such concurrent jurisdiction, to hear and pass upon all such matters and proceedings in vacation, out of term or in term time.

But the General Assembly when it came later to make provision for the appointment of special judges, enacted Chap. 1119 of 1951 Session Laws, effective from ratification, and ratified 14 April, 1951, in substance the same as previous acts providing biennially for appointment of special judges of the Superior Court, beginning in the year 1941.

Sec. 5 of this Act as in previous biennial acts reads as follows: "To the end that such special judges shall have the fullest power and authority sanctioned by Article IV, Section 11, of the Constitution of North Carolina, such judges are hereby vested, in the courts which they are duly appointed to hold, with the same power and authority in all matters whatsoever that regular judges holding the same courts would have. A special judge duly assigned to hold the court of a particular county shall have during said term of court, in open court and in chambers, the same power and authority of a regular judge in all matters whatsoever arising in that judicial district that could properly be heard or determined by a regular judge holding the same term of court."

And Sec. 8 declares that "All laws and clauses of laws which may be in conflict with this Act, to the extent of such conflict, are hereby repealed: Provided, that nothing herein shall in any manner affect Sections 7-50 and 7-51 of the General Statutes of North Carolina."

Therefore this question arises: Are the provisions of Chap. 78 of the 1951 Session Laws of North Carolina repealed by Sec. 8 of Chap. 1119 of the 1951 Session Laws? This Court is of opinion, and holds that the question merits a negative answer.

When the provisions of Sec. 1 of Chap. 78 of the 1951 Session Laws are compared with the provisions of Sec. 5 of Chap. 1119 of the 1951 Session Laws it is seen that the jurisdiction vested in special judges of the Superior Court in these two acts is substantially the same, and the two are not in conflict. Does then the authority of concurrent jurisdiction granted by the amendments to the statute G.S. § 7-65 amount to a conflict with the provisions of Sec. 5 of Chap. 1119 of 1951 Session Laws? It is not considered that it is. Rather, it appears to be supplemental to the jurisdiction conferred by the provisions of Sec. 5. The latter relates to matters arising in the courts which the special judges of the Superior Court are assigned to hold, and the former to in Chambers matters arising in the district of which the special judge of the Superior Court is a resident.

Indeed, repeal of statutes by implication is not favored in this State. As stated by Adams, J., in Story v. Board of Com'rs, 184 N.C. 336, 114 S.E. 493, 496, "The presumption is against the intention to repeal where express terms are not used, and it will not be indulged if by any reasonable construction the statutes may be reconciled and declared to be operative without repugnance. ``To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed.'" See, among numerous others, the cases of Kelly v. Hunsucker, 211 N.C. 153, 189 S.E. 664; State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9; McLean v. Durham County Board of Elections, 222 N.C. 6, 21 S.E.2d 842.

And it may be noted the purpose and intent expressed in Sec. 5 were appropriate when the section was first incorporated in Chap. 51 of P.L.1941, and when subsequent acts were biennially enacted, prior to the 1950 amendment to Art. IV, Sec. 11 of North Carolina Constitution. But by this amendment the previous limitation was removed and the General Assembly was given unlimited authority to define the jurisdiction of special judges of the Superior Court. Hence, it is apparent that the General Assembly in enacting Chap. 1119 of 1951 Session Laws was concerned with perpetuation of authority for the appointment of special judges of the Superior Court, rather than in defining their jurisdiction,—a thing already accomplished at the same session.

Moreover, it is observed that the statute, Chap. 1322 of 1953 Session Laws, providing for the appointment of special judges of the Superior Court for the biennium ending 30 June, 1955, is couched in almost identical language to that used in Chap. 1119 of 1951 Session Laws, above considered, except as to number of special judges authorized to be appointed. And, since the provisions of Chap. 78 of 1951 Session Laws are not found and held to be in conflict with the provisions of Chap. 1119 of 1951 Session Laws, they are not in conflict with the provisions of Chap. 1322 of 1953 Session Laws.

Therefore, this Court concludes that the Honorable Francis O. Clarkson, a special judge of Superior Court residing in the Fourteenth Judicial District of North Carolina, had jurisdiction in Chambers to hear and determine this controversy without action, which arose in the district of his residence.

Now, we come to the challenge to the ruling and judgment from which the appeal is taken. These are the questions presented:

(1) Where the board of aldermen of the city of Charlotte, acting in its capacity as the governing body of the city, did in the year 1883, with funds in the treasury of the city and accumulated from sources other than school taxes, purchase a boundary of land on which was located a threestory brick structure, suitable for permanent use, and indispensable to the success of the system of public graded schools inaugurated pursuant to authority of the electorate of the city, and took title thereto in the name of the city, and, thereafter, set aside the building and a certain part of the land so purchased, as a graded school lot, and delivered possession of same to the school commissioners of the city of Charlotte,—a body politic and corporate, empowered and authorized to purchase sites and build school houses in the city, and to regulate and operate within the city a system of graded public schools, who went into possession of the building and lot, and operated therein and thereon a public graded school for approximately fifty-four years, and continued to occupy same for public school purposes for approximately sixteen more years, do these facts constitute a dedication by the city of Charlotte, and an acceptance by the school commissioners of the city of Charlotte, of the property, building and lot, for a special public purpose?

(2) If so, is such dedication revocable by the city of Charlotte?

Principles generally recognized and applied dictate an affirmative answer to the first question, and a negative answer to the second.

"Dedication is the intentional appropriation of land by the owner to some proper public use. More specifically, it has been defined as an appropriation of realty by the owner to the use of the public and the adoption thereof by the public,—having respect to the possession of the land and not the permanent estate." Dedication may be either in express terms or it may be implied from conduct on the part of the owner. And dedication applies not only to highways, but, among other purposes and uses, to school lots. See 16 Am.Jur. 348, Dedication 2, and Tise v. Whitaker-Harvey Co., 146 N.C. 374, 59 S.E. 1012, 1013.

In the Tise case, in opinion by Hoke, J., this Court declared: "It is also established that, if there is a dedication by the owner, completed by acceptance on the part of the public, or by persons in a position to act for them, the right at once arises, and the time of user is no longer material." And again (quoting from Elliott on Roads and Streets, 2d Ed.), "An implied dedication is one arising, by operation of law, from the acts of the owner. It may exist without any express grant, and need not be evidenced by any writing, nor, indeed, by any form of words, oral or written.' And further, on the question of intent, (again quoting): ``It is essential that the donor should intend to set the land apart for the benefit of the public, for it is held, without contrariety of opinion, that there can be no dedication unless there is present the intent to appropriate the land to public use. If the intent to dedicate is absent, then there is no valid dedication. The intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. The public * * * have a right to rely on the conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation. Regard is to be had to the character and effect of the open and known acts, and not to any latent or hidden purpose."

And in Sexton v. Corporation of Elizabeth City, 169 N.C. 385, 86 S.E. 344, 346, it is said: "The dedication, when once fully made, is held to be irrevocable."

Moreover, a political subdivision of the State may dedicate lands owned by it to a particular public use. 16 Am.Jur. 356.

In the light of these principles applied to the agreed statement of facts, it seems clear that the D. H. Hill School building and lot were acquired by the city, and delivered to the school committee with intent that it be dedicated to purpose of operating the city system of public graded schools, and that it was so accepted by the school committee in behalf of the public. Therefore, the city may not now revoke the dedication.

Indeed, the principle applies alike to the land re-acquired by the city, and added to the school site, for the purpose of enlarging the playground of the D. H. Hill School.

But there are no facts that indicate that there was a dedication of the remamder of the twenty-seven acre tract. Nor is there question of abandonment presented.

For reasons stated, the judgment below is

Affirmed.