Atlantic Coast Line Railroad v. Town of Sanford

Clarkson, J. The statute under which these assessments are made has been construed by this Court in Gunter v. Sanford, 186 N. C., p. 452. The town of Sanford issued notices to the Atlantic Coast Line Railroad Company to show cause on 15 May, 1923, if any it had, why the assessments against the property for paving improvements should not be made final. Action at this time was stopped at the instance of plaintiff, by an injunction issued by Horton, J., and the assessments were not made. On appeal to this Court (R. R. v. Sanford, 186 N. C., p. 466), the injunction was dissolved. The decision reversing the court below was filed in this Court 14 November, 1923. The town of Sanford, without any notice or hearing, on 20 November, 1923, and before the case was certified to the Superior Court (R. R. v. Sanford, 188 N. C., 218), attempted to make the assessment final, and thereunder advertised the railroad company’s property for sale. The railroad applied to and obtained from Midyette, J., a restraining order preventing a sale of its property and requiring that the town of Sanford give the notices and hearing required by chapter 15, Private Laws, Extra Session, 1921, sec. 5. From the judgment the town of Sanford appealed to this Court and the contention of the railroad was sustained. See R. R. v. Sanford, supra. The notices were then given, on 5 August, 1925, for a hearing on 15 August, and continued to 22 August, 1925, and on that date the assessments were made against plaintiff’s property, totaling $10,795.07. A synopsis of the pertinent portions of chapter 15, Private Laws, 1921, Extra Session, for a decision in the case, are as follows: “Sec. 2. Provides that the board of aldermen shall before commencing the street work or improvement estimate the total cost. “Sec. 3. Provides that such estimated cost shall become a lien on abutting property from the date of filing with the street committee. [343] “Sec. 4. Provides that when the work is completed the town engineer or other person or committee of the board of aldermen in charge of such work, shall make a report of the total actual cost of such improvement, and that the estimated cost shall be adjusted in accordance therewith, and this sum shall be and remain a lien on abutting property. “Sec. 5. Provides for serving a written notice ‘at least ten days before the final assessments provided for in this act are made,’ with provisions as to the contents of such notice requiring all property owners to show cause, if any they have, why said assessments should not be made, and providing machinery for an appeal therefrom. “See. 10. Provides that the assessments when made and determined shall bear interest at a specified rate ‘from the date of final findings’ by said board of aldermen as herein provided.” The only question involved in this appeal is whether or not the town of Sanford can recover interest on certain paving assessments from the date of findings on 22 August, 1925, as final pursuant to section 10, eh. 15, Private Laws, Extra Session, 1921,'which provides that such assessment shall bear interest “from the date of final findings by said board of aldermen as herein provided,” or can it recover interest from 15 May, 1923, when such assessments would have been made final pursuant to proper notice except for the intervention of plaintiff by injunction restraining such action, which upon appeal to the Supreme Court was dissolved ? We think the clear language of the act means what it says, that the assessment shall bear interest “from the date of final findings,” 22 August, 1925. It may be noted the record says: “Thereafter, on 22 August, 1925, the board of aldermen adopted the following ordinances, to wit: ‘Order making final paving assessment.’ ” There is nothing in the statute giving a retroactive effect. In injunctive proceedings, an undertaking with sufficient sureties must be given for damages to the party enjoined that may be sustained by reason of the injunction being wrongfully issued. C. S., 854. McAden v. Watkins, 191 N. C., p. 105. It appears in the record' that “the defendant, town of Sanford, tendered the motion as appeared of record, to submit an issue as to what damage, if any, is the town of Sanford entitled to recover from the Atlantic Coast Line Railroad by reason of the restraining order issued in this cause by Horton, I., dated 14 May, 1923, before the actual signing' of the final judgment in the cause. Motion continued to be heard at the next term of this court, to which plaintiff excepts.” This matter' is interlocutory and not before us. In the judgment below there is No error.