Sechriest v. City of Thomasville

ClauksoN, I. The sole question involved in this action: Is an assessment by a city against the abutting property owners on each side of the *113 street widened, improved or surfaced to extent of five feet extra under a contract with, tbe State Highway Commission, by virtue of N. C. Code, 1931 (Micbie), sec. 3846(£f), invalid on account of tbe five feet on each side of such street widened, improved or surfaced, witbin tbe corporate limits, not being uniform in width witb tbe improved or surfaced portion of tbe State Highway outside of tbe corporate limits; no petition for tbe extra five feet to be improved or surfaced having-been obtained from tbe majority in number of tbe abutting property owners, in accordance witb 0. S., chap. 56, Art. 9, sec. 2707? Under tbe facts of this case, we think tbe assessment invalid. Section 3846(ff), supra, is as follows: “When any portion of tbe State Highway System shall run through any city or town and it shall be found necessary to connect tbe State Highway System witb improved streets of such city or town as may be designated as part of such system, the State Highway Commission shall build, such connecting Units, the same to be uniform, in dimensions and materials with such State highway: Provided, however, that whenever any city or town may desire to widen its streets which may be traversed by tbe State Highway, the State Highway Commission may malee such arrangements with said city or town in con/nection with the construction of said road as, in its discretion, may seem wise and just under all tbe facts and circumstances in connection therewith: Provided further, that such city or town shall save tbe State Highway Commission harmless from any claims for damage arising from the construction of said road through such city or town and including claims for right of way, change of grade line, and interference with public-service structures. And the State Highway Commission may require such city or town to cause to be laid out water, sewer, gas or other pipe lines or conduits together with all necessary house or lot connections or services to the curb line of such road or street to be constructed: Provided further, that whenever by agreement with the road-governing body of any city or town any street designated as a part of the State Highway System shall be surfaced by order of the State Highway Commission at the expense, in whole or in pari, of a city or town it shall be lawful for the governing body of such city or town to declare am assessment district as to the street to be improved, without petition by the owners of property abutting thereon, and the cost thereof, exclusive of so much of the cost as 'is incurred at street intersections and the share of railroads or street railways whose tracks are laid in said street which shall be assessed under their franchise, shall be specially assessed upon the lots or parcels of lands abutting directly on the improvements, according to the extent of their respective frontage thereon by an equal rate per foot of such frontage.” (Italics ours.) *114 In Shute v. Monroe, 187 N. C., at p. 686, we said: “We tbink C. S., 56, Art. 9, and tlie State Highway Act are in pan materia, and are to he construed together.” In analyzing the statute:' We think it means that the street which is the connecting link through the city or town, that is to be improved or surfaced, shall he uniform in dimensions and materials with the paved portion of the highway outside of the city or town. That if thecity or town desires to widen the street, that is the highway link, running through the city or town, the State Highway Commission and the city or town can agree as to the construction, in its discretion, as what may seem Avise and just. It can he readily seen that it tvould he for the best interest of both city or town and the State Highway Commission, that when it is improving or surfacing the connecting link, of uniform dimensions and materials, that it should do the entire construction, the additional five feet on each side, as Avas done in the ' present case. That the link or street to he so improved or surfaced, the governing body of the city or town can declare it an assessment district Avithout petition by the owners of the property abutting thereon, hut this applies.only to the width of the improved or surfaced portion of the State highway going through the city or tOAvn of the same Avidth as the State highway, outside of the corporate limits. The extra feet, as in this case, five feet on each side of the highway through the city or town to be improAred or surfaced, would require a petition from the majority in number of the abutting owners in accordance with C. S., chap. 56, Art. 9, sec. 2707. The State Highway Act, chap. 2, Public Laws 1921, sec. .16, Avas fully considered in Shute v. Monroe, supra. The question presented in this case, was not presented in that one. The above section 16 was changed— Public Laws 1923, chap. 160, sec. 4: “That section sixteen be amended by striking out all of said section and inserting in lieu thereof the following.” The new section is the same as that quoted in this opinion, supra, 3846 (if). Plaintiffs, in contesting this matter, pursued the statutory remedy. Jones v. Durham, 197 N. C., at p. 133. In Charlotte v. Brown, 165 N. C., 435, it is held: Where a municipality levies a special tax for street improvements upon the land of an abutting owner in.excess of that allowed by a statute applicable, the excess is a nullity and may be enjoined; and where the limitation prescribed is a certain per cent of the taxable value of the property, that A'aluation must control, Avhether the property lies upon one or several streets. Winston-Salem v. Coble, 192 N. C., 776; Winston-Salem, v. Ashby, 194 N. C., 388; Flowers v. Charlotte, 195 N. C., 599. In the *115 above eases the matter was jurisdictional and the proceeding void and the remedy by injunction permissible. Jones v. Durham, supra, at p. 132. N. 0. Code, 1931 (Michie), sec.' 3671, is as follows': “The highways in any county, township, or road district constructed or improved under this article shall have a right of way of not less than forty feet, except where the road authorities or State Highway Commission deem it im-Xiracticable to acquire such width, and in such cases the width shall be as determined by said authorities. The alignment of the road shall be as straight as practicable and with no grade over four and one-half per cent, except as such grade is considered impracticable.” See Highway Commission v. Young, 200 N. C., 603. We do not think this section cited by defendant applicable to this case. We are not concerned with the width of the street, forty feet, but with the payment for the improvement and surfacing of the extra five feet on each side of the thirty feet improved or surfaced highway, through defendant city, that is uniform in width and material with the improved or surfaced portion of the highway outside of the corporate limits. There is no trouble about the State Highway Commission’s right to condemn the land. N. 0. Code, 1931 (Michie), 3846(bb); Long v. Randleman, 199 N. C., 344. It is not a question that “North Carolina Main Street” No. 10, of 500 miles, from Beaufort to Murphy, and the Tennessee line, cannot be widened to forty feet, within the corporate limits of any city or town the highway traverses. See Highway Commission v. Young, supra. This can be done, and the statute gives the authority, but who shall pay for the hardsurfacing of same is the controlling question. In the present case it was paved the entire forty feet, but without statutory authority as to the extra five feet on either side — therefore, the paving of- the extra five feet, on either side, is invalid, null and void. The statutes giving the road-governing bodies and others the right and authority to take private land, or burden it for public purpose, should be carefully followed. Such acts are strictly construed. “Remove not the ancient landmark, 'which thy. fathers have set.” Prov. 22:28. For the reasons given, the judgment of the court below is Affirmed.