Call v. Town of Wilkesboro

Shepherd, C. J.: On the 6th of March, 1893, the General Assembly passed the following act: “Section 1. That the Board of Town Commissioners of the town of Wilkesboro are hereby authorized to lay off, locate and establish a public street in the town of Wilkesboro not less than sixteen feet wide, commencing at the southeast approach of the iron bridge across the Yadkin river between Wilkesboro and North Wilkesboro, thence down the bank of said river, the most practical way, to Garrett Vine’s saw and lumber mills. “ Section 2. That said street shall be located under the law providing for the location of streets and rights-of-way, as provided in the charter of said town. “ Section 3. All laws and clauses of laws in conflict with this act are hereby repealed. “ Section 4. This act shall be in force from and after its ratification.” The first section of the above act expressly authorizes the laying off the street which is the subject of this controversy, *343 and it is not open to the plaintiff to say that the said street is not necessary for public purposes. The Constitution provides that private property shall not be taken except for public use, and it is well settled “ that whether a particular use is public or not, within the meaning of the Constitution, is a question for the Judiciary.” Lewis on Em. Domain, 185; Mills on Em. Domain, 10, 11. It cannot be doubted that a public highway like the one under consideration is a public use; and this being determined, the question as to its necessity or expediency, is a matter which rests entirely with the legislative department. Lewis, supra, 238 ; Mills, suprar 10,11. According to these principles the plaintiff is, as we have-said, precluded from denying the necessity for the street, and the fact that previous to the passage of the act of Assembly the Superior Court had adjudged that no such necessity existed, cannot defeat the express grant of authority by the-Legislature. The act (section 1) in its terms substantially locates the street, and there is nothing in the plaintiff’s contention that section 2 has the effect of so qualifying the provisions of section 1 as to restrict the town authorities to the same powers only that existed under the charter of 1889. The act explicitly grants the authority to lay off the street,, and section 2 was intended simply to regulate the procedure-as to ascertain “ the most practical way ” and other incidents attending the exercise of the right of the power of eminent domain. The judgment of the Court below is affirmed. ' Judgment Affirmed.