City of Goldsboro v. Atlantic Coast Line Railroad Co.

85 S.E.2d 125 (1954) 241 N.C. 216

CITY OF GOLDSBORO
v.
ATLANTIC COAST LINE RAILROAD COMPANY and Goldsboro Union Station Company.

No. 235.

Supreme Court of North Carolina.

December 15, 1954.

Edwin C. Ipock, Goldsboro, for plaintiff appellee.

W. B. R. Guion, New Bern, W. Powell Bland, Goldsboro, for defendants appellants.

WINBORNE, Justice.

The defendants, appellants, assign as error the matters to which their Exceptions 1, 2 and 3 relate,—specifying under the 2nd, error in the conclusion that Chapter 215 of the Private Acts of 1925 is valid and controlling in this action. And while in brief filed in this Court there is no reference to any particular exception, or assignment of error, appellants arrange their argument under the general heading "The court erred in ruling that defendants are liable for assessments on the right of way", and treat the subject in three sub-divisions:

"A. The authority of a municipality to make improvements on the right of way is limited by the North Carolina General Statutes 160-104";

"B. The parties assessed received no benefit from the improvements are not liable for such assessments";

"C. Chapter 215 of the Private Laws of 1925 is void under the Constitution of North Carolina."

Also appellants in their brief say that in respect to "the power and machinery of Chapter 215 of the Private Acts of 1925 * * * No question is raised on this appeal as to action of the Board in complying with that Act".

Hence the Court considers each of the three subdivisions of the subject.

(C) It is contended by appellant that Chapter 215 of Private Laws 1925 is violative of art. II, § 29, an amendment to the Constitution of North Carolina, which declares, among other things, that "The General Assembly shall not pass any local, private, or special act or resolution * * * authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys", and that "Any local, private or special act or resolution passed in violation of the provisions of this section shall be void * * *."

In this connection, it is noted that the amendment, art. II, § 29 to the Constitution, was submitted to and adopted by the electorate and became effective on the second Wednesday after the first Monday in January 1917, all pursuant to the provisions of Chapter 99 of Public Laws 1915.

And it is further noted that the General Assembly at the 1915 session passed "An Act Relating to Local Improvements in Municipalities", Chapter 56 of Public Laws 1915, which was incorporated in the Consolidated Statutes of 1919, as art. 9 of Chapter 56, and later embodied in the General Statutes as art. 9 of Chapter 160, beginning with G.S. § 160-78.

This act provided that every municipality shall have the power, by resolution of its governing body, upon petition signed by at least a majority in number of the owners, who represent at least a majority of all the lineal feet of frontage of land abutting upon the street proposed to be improved, to cause local improvements to be made and to defray the expense of such improvements by local assessment, in manner specified. Sections 4 and 5, later C.S. §§ 2706, 2707, and now G.S. § 160-81 and G.S. § 160-82. And in Section 2, later C.S. § 2704, and now G.S. § 160-79, it is provided that this act shall apply to all municipalities, and that it shall not repeal any special or local law for the making of streets, sidewalks or other improvements thereby authorized, but shall be deemed to be additional and independent legislation for such purposes and to provide an alternative method of procedure for such purposes.

Therefore this act, Chapter 56 of P.L. 1915, did not affect Chapter 397 of Private Laws of 1901 relating to the city of Goldsboro, and the power given to the city for paving streets remained unimpaired.

This latter act, Chapter 397 Private Laws of 1901, provided in section 61 "that the city of Goldsboro * * * may pave its streets and sidewalks * * *", and, in section 74, "that the city of Goldsboro shall have power, in its discretion, to assess owners of land abutting on streets paved by said city with an amount not to exceed one-third of the actual cost of such paving in front of such abutting land * * *". And the act provided that all laws or clauses of laws or parts of laws in conflict with this act are hereby repealed, and that it shall take effect and be in force from and after its ratification—13 March, 1901.

And it is further noted that the General Assembly later passed an act, Chapter 215, Private Laws 1925, entitled "An Act for Street and Sidewalk Paving in the City of Goldsboro", in section 1 of which it is provided in pertinent part: "The board of aldermen of the city of Goldsboro shall have the power and it is hereby authorized, without any petition so to do, to pave from time to time such streets and such sidewalks in the city of Goldsboro as, in its discretion, it may deem necessary, and assess the total cost (except the cost of street intersections) of such paving against the abutting land in proportion to the respective frontage of such abutting land. * * * `Frontage means that side or limit of the lot or parcel of land which abuts directly on the street or sidewalk pavement'." And it is also provided therein "that all laws and clauses of laws in conflict with this act are hereby repealed", and that the act shall be in full force and effect from and after its ratification—10 March, 1925.

Thus it is seen that Chapter 215 of Private Laws of 1925 merely increases the jurisdiction and authority granted to the city of Goldsboro under its amended charter, Chapter 397 of Private Laws 1901, hereinabove recited. This Court has held that such an act is not violative of art. II, § 29. Deese v. Town of Lumberton, 1936, 211 N.C. 31, 188 S.E. 857. See also State v. Horne, 191 N.C. 375, 131 S.E. 753; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484; Board of Managers of the James Walker Memorial Hospital of Wilmington v. City of Wilmington, 237 N.C. 179, 74 S.E.2d 749; State v. Norman, 237 N.C. 205, 74 S.E.2d 602. Compare Durham Provision Co. v. Daves, 190 N.C. 7, 128 S.E. 593; State v. Williams, 209 N.C. 57, 182 S.E. 711.

Now, then, does Chapter 222 of Public Laws 1931 repeal the provisions of Chapter 397 of Private Laws 1901, and Chapter 215 Private Laws of 1925, relating to paving of streets? The caption of Chapter 222, P.L.1931 reads as follows: "An Act to Amend Chapter Fifty-Six, Article nine thereof, of the Consolidated Statutes, so as to authorize municipalities to make local improvements on streets on rights of way of railroads, and to specially assess a part of the cost of such improvement against property abutting directly on the work, other than property belonging to railroads."

And the preamble reads: "Whereas, in some of the municipalities of the State, certain streets have been laid out, used and occupied on rights of way owned by and/or occupied by railroads, upon which street or streets it may be found desirable to make improvements as defined by section two thousand seven hundred and three of the Consolidated Statutes, and

"Whereas, it appears that it is impossible to obtain petitions as contemplated and required by the provisions of article nine, chapter fifty-six, of the Consolidated Statutes, for the making of such local improvements", etc.

Then section 1 of the act in pertinent part reads: "That article nine of chapter fifty-six, of the Consolidated Statutes, be amended by adding at the end thereof the following paragraph:

"`Municipalities desiring to make street and sidewalk improvements on property owned and/or leased by railroad companies, are hereby authorized to make such improvements on any such street used as a public street, subject to the rights of any such railroad company to use and occupy the same for railroad purposes: Provided, however, that the petition or petitions contemplated and required by the provisions of this article, need not be signed by such railroad company or companies, nor shall any part of the railroad right of way be considered as abutting property, but the said petition shall be signed by at least a majority in number of the owners of property other than the railroad right of way, who must represent at least a majority of all the lineal feet frontage of the lands, other than said railroad right of way * * *'", etc.

Indeed the 1931 act does not attempt to amend the provisions of Section 2 of the Local Improvement Act, Chapter 56 of P.L.1915, later C.S. § 2704, now G.S. § 160-79. This indicates that the General Assembly intended that the act of 1931 should become a part of, and be merged into the framework of the Local Improvement Act of 1915, in application and effect as therein set forth.

Moreover, this Court in Bramham v. City of Durham, 171 N.C. 196, 88 S.E. 347, 348, quoting from Black on Interpretation of Laws, p. 117, says: `"A local statute enacted for a particular municipality for reasons satisfactory to the Legislature is intended to be exceptional and for the benefit of such municipality.'" And, continuing, "`It has been said that it is against reason to suppose that the Legislature, in framing a general system for the state, intended to repeal a special act which local circumstances made necessary.'"

Hence this Court holds that neither Chapter 397, Private Laws 1901, nor Chapter 215 of Private Laws of 1925 is affected by the repealing clause in the 1931 act.

(A) Now reverting to the provisions of Chapter 397, Private Laws 1901 and Chapter 215 of Private Laws 1925, is the Board of Aldermen of the city of Goldsboro, as a part of a street paving program, empowered to assess a part of the cost upon the property of defendants as abutting property?

The answer is "Yes".

Decisions of this Court indicate that the term "abutting land," as used in these acts, is sufficiently broad in meaning to cover land owned and used for railroad purposes. An affirmative answer is supported by the case of City of Kinston v. Atlantic & N. C. R. Co., 1921, 183 N.C. 14, 110 S.E. 645. There the city, acting under statutory authority for assessing part of cost of street paving against abutting property, made assessment against right of way, owned by the railroad company, crossed by the streets so paved. And this Court in opinion by Hoke, J., approved.

(B) Lastly appellants contend that the court erred in ruling that the defendants are liable for assessment on Georgia Avenue abutting on the right of way of the Atlantic Coast Line Railroad Company,—since the eastern edge of Georgia Avenue is contiguous with the western edge of the right of way of the Railroad Company.

As to this, we find in Gunter v. Town of Sanford, 186 N.C. 452, 120 S.E. 41, 43, opinion by Adams, J., it is said: "It is also established that the Legislature has the power to determine by the statute imposing the tax what property is benefited by the improvements; and when it does so, its determination is conclusive upon the owners and the courts, and the owners have no right to be heard upon the question whether their lands are benefited or not, but only upon the validity of the assessment and its proper apportionment", citing Spencer v. Merchant, 125 U.S. 345, 8 S. Ct. 921, 31 L. Ed. 763.

And this Court continued by saying: "Our own decisions are in accord with this principle", citing and quoting from decided cases.

Hence for reasons stated, the judgment below is in accord with settled principles of law, and is, therefore,

Affirmed.