City of Goldsboro v. Atlantic Coast Line Railroad Co.

Winborne, J. 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 *222 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 subdivisions : “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, Sec. 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, Sec. 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,” Chap. 56 of Public Laws 1915, which was incorporated in the Consolidated Statutes of 1919, as Art. 9 of Chap. 56, and later embodied in the General Statutes as Art. 9 of Chap. 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 Sec. 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 *223 repeal any special or local law for tbe 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, Chap. 56 of P.L. 1915, did not affect Chap. 397 of Private LaAvs of 1901 relating to the city of Goldsboro, and the power given to the city for paving streets remained unimpaired. This latter act, Chap. 397 Private Laws of 1901, provided in Sec. 61 “that the city of Goldsboro . . . may pave its streets and sidewalks . . .,” and) in Sec. 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, Chap. 215 Private Laws 1925, entitled “An Act for Street and Sidewalk Paving in the City of Goldsboro,” in Sec. 1 of which it is provided in pertinent part: “The board of aldermen of the city of Goldsboro shall have 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 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 Chap. 215 of Private Laws of 1925 merely increases the jurisdiction and authority granted to the city of Goldsboro under its amended charter, Chap. 397 of Private Laws 1901, hereinabove recited. This Court has held that such an act is not violative of Art. II, Sec. 29. Deese v. Town of Lumberton (1936), 211 N.C. 31, 188 S.E. 857. See also S. v. Horne, 191 N.C. 375, 131 S.E. 753; Williams v. Cooper, 222 N.C. 589, 24 S.E. 2d 484; Bd. of Managers v. Wilmington, 237 N.C. 179, 74 S.E. 2d 749; S. v. Norman, 237 N.C. 205, 74 S.E. 2d 602. Compare Provision Co. v. Daves, 190 N.C. 7, 128 S.E. 593; S. v. Williams, 209 N.C. 57, 182 S.E. 711. Now, then, does Chap. 222 of Public Laws 1931 repeal the provisions of Chap. 397 of Private Laws 1901, and Chap. 215 Private Laws of 1925, relating to paving of streets ? The caption of Chap. 222, P.L. 1931, reads *224 as follows: “An Act to Amend Chapter 56 Article 9 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 the 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. Chap. 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. Durham, 171 N.C. 196, 88 S.E. 347, 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.’ ” *225 Henee tbis Court bolds tbat neither Obap. 397 Private Laws 1901, nor Chap. 215 of Private Laws of 1925 is affected by tbe repealing clause in tbe 1931 act. (A) Now reverting to tbe provisions of Obap. 397 Private Laws 1901 and Chap. 215 of Private Laws 1925, is tbe Board of Aldermen of tbe city of Goldsboro, as a part of a street paving program, empowered to assess a part of tbe cost upon tbe property of defendants as abutting property? Tbe answer is “Yes.” Decisions of tbis Court indicate tbat tbe 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 tbe case of Kinston v. R. R. (1921), 183 N.C. 14, 110 S.E. 645. There tbe city, acting under statutory authority for assessing part of cost of street paving against abutting property, made assessment against right of way, owned by tbe railroad company, crossed by tbe streets so paved. And tbis Court in opinion by Hoke, J., approved. (B) Lastly appellants contend tbat tbe court erred in ruling tbat tbe defendants are liable for assessment on Georgia Avenue abutting on tbe right of way of the Atlantic Coast Line Eailroad Company, — since tbe eastern edge of Georgia Avenue is contiguous with tbe western edge of tbe right of way of tbe Eailroad Company. As to tbis, we find in Gunter v. Sanford, 186 N.C. 452, 120 S.E. 41, opinion by Adams, J., it is said: “It is also established tbat tbe Legislature has tbe power to determine by tbe statute imposing tbe tax what property is benefited by the improvement; and when it does so its determination is conclusive upon tbe owners and tbe courts, and tbe owners have no right to be beard upon tbe question whether their lands are benefited or not, but only upon tbe validity of tbe assessment and its proper apportionment,” citing Spence v. Merchant, 125 U.S. 345, 31 L. Ed. 763. And tbis Court continued by saying: “Our own decisions are in accord with tbis principle,” citing and quoting from decided cases. Hence for reasons stated, tbe judgment below is in accord with settled principles of law, and is, therefore, Affirmed.