Leak v. Town of Wadesboro

Adams, J. According to the verdict, Depot Road, which extends from Washington Street to the track of the Atlantic Coast Line Railroad, is a public street in Wadesboro. The plaintiff owns property abutting each side of Depot Road and brings this action to vacate and nullify an Ordinance adopted by the defendant authorizing municipal bonds in the sum of $275,000 for the improvement of certain streets, and urges various objections to the sufficiency of the ordinance. The plaintiff first contends that Depot Road makes no physical connection with the other streets to which the ordinance relates, and that the improvement of streets which are not contiguous involves the unlawful consolidation of disconnected improvements. Several years before the ordinance in question was adopted the defendant, pursuant to the provisions of chapter 265 of the Private Laws of 1909, improved a part of six streets near the center of the town, and its present purpose is to pave other streets so as to combine all the improvements, past and prospective, into a- constituent whole. To this end the pavement of Depot Road is to be connected at the intersection of Washington and Martin streets with the improvement made there under the act of 1909. When an improvement of streets by a municipal corporation constitutes a single scheme, the ordinance may provide for the pavement of several streets, a single street, or a portion of a street; and when streets are practically similar and are to be paved in the same manner and with the same material, and are grouped as a unit, in the absence of provision to the contrary, they may generally be treated as a single improvement-. McQuillin says that to constitute a single improvement, *687 physical connection between the different portions is not absolutely essential. 5 Mun. Corp., sec. 2084. In 25 R. C. L., 155 (69), it is said: “It is a general rule applicable in most jurisdictions that only one improvement shall be embraced in a single ordinance. In applying this rule it has been held that an ordinance providing for the paving of several streets and alleys, and parts of streets, with the same material, and in the same way, is'not obnoxious to the objection that it embraces more than one improvement, although there may be a difference in the width of the streets proposed to be paved, and the cost of paving certain railway tracks is excluded from the assessment in respect of some of the streets.” And in Elliott on Roads and Streets, sec. 694: “It is also held that the legislative decision, whether by the Legislature itself or the municipality to which it has delegated the authority, as to what territory shall compose the district and what improvements shall be included in one general assessment, is conclusive upon the judiciary. Where the statute forbids, either expressly or by implication, the local officers from including more than one improvement in a single order of assessment, they have no authority to provide for more than one improvement. It would seem to be in harmony with the general rule that prevails in cases where the authority exercised is purely statutory, that two distinct and radically different improvements cannot be included in one general order of assessment unless by express words or clear implication it is authorized by statute. Improvements are not, however, necessarily distinct and different because different roads or different streets are included, for it may well be that the system is a single and uniform one, although it embraces more than one street. If, in fact, the improvement is a unity, an assessment may be valid, although it embraces in its line more than one street or road. It may often happen that in order to secure a complete and effective system it is necessary to construct a main line with branches, or to improve two or more streets at once so as to secure a uniformity of grade, and in these, or similar instances, there is no reason why the system may not be considered as a single improvement, except, of course, where the statute supplies a reason for a different rule.” In Springfield v. Green, 11 N. E. (Ill.), 261, the city adopted an ordinance providing for the pavement of a large number of its streets and alleys, and the ordinance was assailed on the ground that it embraced more than one improvement. The Court said: “We do not think this is true in point of fact. While many streets and parts of streets are embraced in the scheme of improvement adopted by the city, yet we regard them all as but parts of the same improvement. The city authorities, in adopting the ordinance, must have found, as a matter of *688 fact, tbat those streets and parts of streets were so similarly situated with respect to the improvement proposed to be made as to justify treating them as parts of a common enterprise and single improvement, and from the record before us we think they were justified in doing so. They were all to be paved with the same material, and in the same way; and the fact that there was a difference of a few feet in the width of some of them, and that the cost of paving the 'railway tracks in others was to be excluded from the estimate, should, in our opinion, make no difference in this respect. The similarity of the improvement proposed to be made, and the situation of the property to be assessed, with respect to it, afford a more satisfactory test as to whether they might all be embraced in a common scheme, as one improvement, than their actual connection or physical contact with one another. It is true, expressions are to be found in one or two cases looking in a contrary direction, but these expressions were made in arguendo merely, and not for the purpose of laying down any rule on the subject. So far as the actual decisions of this Court go, they support the contrary view, and are in perfect harmony with what is here said. Prout v. People, 83 Ill., 155; People v. Sherman, id., 167; Ricketts v. Hyde Park, 85 Ill., 110.” See, also, 4 McQuillin’s Mun. Corp., sec. 1879; Adams County v. Quincy, 6 L. R. A., 155; Mayor v. Weed, 23 S. E. (Ga.), 900; Lewis v. Seattle, 69 Pac. (Wash.), 393; Wilder v. Cincinnati, 26 Ohio St., 284. In the statutes under which the defendant is proceeding there is nothing to contravene the foregoing principles. In analogy to taxing districts, the area in which these improvements are to be made may be designated by the Legislature or by the local authorities to whom may be delegated the power to say what territory shall be included in each improvement; and when such delegated power is exercised in good faith and is free from abuse the courts will generally be slow to interfere. C. S., ch. 56; Public Laws Ex. Sess. 1921, ch. 106; Asheville v. Trust Co., 143 N. C., 360; Justice v. Asheville, 161 N. C., 62; Felmet v. Canton, 177 N. C., 52; Durham v. Pub. Ser. Co., 182 N. C., 333; Gunter v. Sanford, ante, 452. Upon consideration of our statutes and the principles of law applicable to the facts disclosed by the record, we are unable to uphold the plaintiffs’ contention that the defendants are attempting to consolidate several unrelated improvements in violation of law, or that there is a fatal want of physical connection between Depot Road and the other streets or, taking all the territory, a deficiency in the requisite number of lineal feet of frontage. The plaintiffs insist also that the ordinance is invalid because it does not state definitely the proportion of the cost of the proposed *689 improvements which has been or is to be assessed against the property abutting on the improvements and the terms and method of making-payment. The Municipal Finance Act provides that a municipality may issue its bonds for specified purposes when properly authorized by an ordinance passed by the governing body. C. S., secs. 2937, 2938. If the bonds are to be issued for local improvements, one-fourth the cost of which at least (exclusive of the cost of paving at street intersections) has been or is to be specially assessed, the ordinance shall take effect upon its passage without being submitted to the qualified voters. O. S., sec. 2938. It need not set forth the location of the improvement except as prescribed by section 2942. 0. S., sec. 2938 (4). Section 2141 is as follows: “In cases where a petition of property owners is required by law for the making of local improvements, a bond ordinance authorizing bonds for such local improvements may be passed before any such petition is made, but no bonds for the local improvements in respect of which such petitions are required shall be issued under the ordinance, nor shall any temporary loan be contracted in anticipation of the issuance óf such bonds, unless and until such petitions are made, and then only up to the actual or estimated amount of the cost of the work petitioned for. The determination of the governing body as to the actual or estimated cost of work so petitioned for shall be conclusive in any action involving the validity of bonds or notes or other indebtedness: The bond ordinance may be made to take effect upon its passage, notwithstanding that the necessary petitions for the local improvements have not been filed: Provided, that it appears upon the face of the ordinance that one-fourth or some greater proportion of the cost, exclusive of the cost of work at street intersections, has been or is to be assessed.” The substance of the proviso is embodied in the ordinance. The cost'to be borne by the owners of property is to be determined as provided elsewhere. A preliminary resolution shall designate by a general description the improvement to be made and the street or streets or part or parts thereof whereon the work is to be done, and shall specify the proportion of the cost to be assessed upon the abutting property and the terms and manner of payment. C. S., sec. 2708. Other sections provide for ascertaining the amount of and levying assessments, with the right of appeal to the Superior Court in case of dissatisfaction by any person against whom an assessment is made. Section 2714. In Gunter v. Sanford, supra, the subject is discussed and some of the controlling authorities are cited. The reasoning on which the decision is based need not be repeated here. Ve think it clear that omission of the proposed cost does not invalidate the ordinance under consideration. *690 What we have said with respect to the right o£ appeal disposes of the additional objection that the plaintiff’s property may be taken without due process of law. Brown v. Hillsboro, 185 N. C., 370; Gunter v. Sanford, supra. Several of the remaining exceptions were abandoned on the argument. We have examined those relied on and find them untenable. The trial judge had the right to allow an amended answer to be filed, and the question of the clerk’s authority need not be considered. Brown v. Hillsboro, supra. We find no error which entitles the plaintiff to a new trial. No error.