Crutchfield v. City of Thomasville

ClaeksoN, J. Tbe plaintiff relies on Sechriest v. Thomasville, 202 N. C., 108, to sustain tbe judgment of tbe court below, but on tbe facts appearing in tbe present ease, we cannot so bold. In that case tbe protesting property holders appeared before tbe governing body and a decision was rendered against them. Pursuant to C. S., 2714, they appealed. “To tbe making of tbe above assessments each of tbe parties above named assessed excepted and appealed to tbe Superior Court of Davidson County.” In tbe Superior Court in tbe Sechriest case, supra, a judgment was rendered for plaintiffs, which, in part, is as follows: “It is admitted that tbe pavement of the State highway outside of tbe city limits is only thirty feet, exclusive of dirt shoulders, and that tbe pavement of that portion inside tbe city limits *714 involved in this controversy is 40 feet. . . . That chapter 301, section 49, Private Laws, 1915, is in full force and effect as a part of charter of city of Thomasville. That said assessment and improvement is made under and by virtue of section 3846(ff) of N. C. Code (Michie). Now, therefore, his Honor being of the opinion that upon the admissions in the pleadings and the foregoing statement of facts the assessment levied by the city of Thomasville, is invalid, the same is set aside, and declared null and void, and said city of Thomasville is perpetually enjoined and restrained from collecting said assessments.” The city of Thomasville appealed to this Court and the judgment of the court below was affirmed. The main contention of plaintiffs in that case is that there was no petition. This Court said in the Sechriest case, supra, at p. 112 and 113: “The sole question involved in this action: Is an assessment by a city against the abutting property owners on each side of the street widened, improved or surfaced to extent of five feet extra under a contract with the State Highway Commission, by virtue of N. C. Code, 1931 (Michie), sec. 3846(ff), invalid on account of the five feet on each side of such street widened, improved or surfaced, within the corporate limits, not being uniform in width with the improved or surfaced portion of the State highway outside of the corporate limits; no petition for the extra five feet to be improved or surfaced having been obtained from the majority in number of the abutting property owners, in accordance with C. S., chap. 56, Art. IX, sec. 2707? Under the facts of this case, we think the assessment invalid.” Plaintiffs, in the present action, were given notice, some did and some did not appear and appeal, as was done in the Sechriest case, supra, but bring this separate action, instituted 24 March, 1932. In the Sechriest case, supra, at p. 114, we said: “Plaintiffs, in contesting this matter, pursued the statutory remedy. Jones v. Durham, 197 N. C., at p. 133.” This Court said in that case “We think the assessment invalid.” In the present case, can that invalidity be cured? We think so. In Holton v. Mocksville, 189 N. C., 144 (p. 149), we find: “Defendant offered in evidence chapter 86, Private Laws, 1923, entitled ‘An act relating to the financing of street and sidewalk improvements in the town of Mocksville.’ This act provides that ‘the said board of commissioners (of the town of Mocksville) shall have power to levy special assessments as herein provided (i. e., without petition as required by C. S., 2706), for or on account of street and sidewalk improvements now in progress or completed within two years prior to the ratification of this act. All proceedings heretofore taken by the board of commissioners of said town for the levying of special assessments are hereby *715 legalized and validated.’ This act was ratified on 23 February, 1923. Tbe improvements for tbe payment of wbicb tbe assessments involved in tbis action were made, were completed in February, 1922. This act is sufficient in its terms to cure tbe defect in tbe j>roceeding and to legalize and validate tbe assessment. . . . (p. 150.) Nor can tbe act be successfully attacked because it is retroactive or retrospective. Tbe General Assembly having tbe power in tbe first instance to confer upon tbe authorities of a municipal corporation power to improve its streets and sidewalks and to assess tbe owners of abutting property with a part of tbe cost of such improvements without a petition, lias the power to validate proceedings for tbe improvement of streets and sidewalks wbicb were begun and wbicb have been concluded without an initial petition. Tbis power has been recognized and its exercise approved as within tbe constitutional authority of tbe General Assembly by tbis Court,” citing a wealth of authorities. In Gallimore v. Thomasville, 191 N. C., 648 (652-3), we find: “Between tbe date on which plaintiffs appealed from tbe assessments made on their lands, and tbe trial of tbis appeal in tbe Superior Court, chapter 217, Private Laws, 1925, was enacted by tbe General Assembly. Tbis act provides ‘that any and all acts heretofore done and steps taken by tbe city of Thomasville in tbe paving of tbe streets of tbe city of Thomasville and tbe assessments levied therefor are hereby in all respects approved and validated.’ Defendant was permitted by tbe court to amend its answer to tbe protest of plaintiffs, and to plead tbis act in support of tbe validity of tbe assessments. Conceding that there were defects and irregularities in tbe proceedings under wbicb tbe assessments were levied, sufficient to render said assessments invalid, as contended by plaintiffs, it must be beld, under tbe authority of Holton v. Mocksville, 189 N. C., 144, that said assessments are now valid, by virtue of said act, provided tbe act itself is valid. . . . Tbe power of tbe General Assembly to enact such statutes has been repeatedly and uniformly upheld. Holton v. Mocksville, 189 N. C., 144; Brown v. Hillsboro, 185 N. C., 375. .The principle that when there are defects and irregularities in a proceeding duly authorized by tbe General Assembly, due to an inadvertent violation or nonobservance of statutory provisions, for tbe conduct of such proceedings, tbe General Assembly may correct tbe defects and cure tbe irregularities, and thus validate tbe proceeding, by proper legislative action, provided no vested rights have supervened, has been very generally recognized. Kinston v. Trust Co., 169 N. C., 207; Reid v. R. R., 162 N. C., 355.” Comrs. v. Assel, 194 N. C., 412 (418); Barbour v. Wake County, 197 N. C., 314 (318); Greene County v. R. R., 197 N. C., 419 (423); Efird v. Winston-Salem, 199 N. C., 33 (37). *716 In the present ease, the facts agreed upon (13) is as follows: “That since the entering into said contract, the passage of the ordinance creating the assessment district and assessing the property owners with the cost of the assessment, the construction of the said pavement and the payments made on the amounts assessed against the property of the plaintiff, chapter 196 of the Private Laws of the State of North Carolina of the Session of 1929 has been enacted. Section 58, paragraph A thereof being as follows: ‘That any and all proceedings heretofore taken by the city of Thomas-ville in the paving or repairing of its streets and sidewalks and for the levying of special assessments thereof are hereby approved, legalized and validated. . . .’ ” (See Private Laws, 1933, chap. 128, sec. 2.) The act, although a little broad, yet it approves, legalizes and validates the levying of special assessments and comes within the Holton and Gallimore cases, supra. Houck v. Hickory, 202 N. C., 712, is easily distinguishable. Perhaps confusion arose as in the latter part of the opinion in the Sechriest case the language used “is invalid, null, and void.” In the prior part of the opinion it was distinctly said “under the facts in this case, we think the assessment invalid.” This invalidity was cured by the special act which said: “special assessments thereof are hereby approved, legalized, and validated.” This case is distinguishable from Charlotte v. Brown, 165 N. C., 435, Flowers v. Charlotte, 195 N. C., 599. In those cases the assessment was “void,” in the present case “invalid” and could be resuscitated by legislative enactment. Reversed.