Burlington City Bd. of Educ. v. Allen
| Decision Date | 03 February 1956 |
| Docket Number | No. 739,739 |
| Citation | 91 S.E.2d 180,243 N.C. 520 |
| Court | North Carolina Supreme Court |
| Parties | The BURLINGTON CITY BOARD OF EDUCATION v. Harvey M. ALLEN and Mrs. Sampson Allen. |
W. L. Shoffner and Young, Young & Gordon, Burlington, for petitioner.
P. W. Glidewell, Sr., Reidsville, and Long, Ridge, Harris & Walker, Burlington, for respondents.
In the beginning it is necessary for us to note that General Statutes Ch. 115 was revised and re-enacted by the 1955 session of the General Assembly. The new Act is Ch. 1372, Session Laws 1955, and is entitled 'An Act Rewriting, Rearranging, Renumbering And Amending Chapter 115 Of The General Statutes, And Repealing Certain Obsolete Sections Thereof.'
This new Act has been codified as a part of the 1955 cumulative supplement to recomplied volume 3A of our General Statutes. It is designated as Ch. 115 of the 1955 supplement as it is in the bound volume. But the subject matter of the several sections as contained in the bound volume has been completely changed. For instance, the pertinent part of the General Statutes which prescribes the procedure for condemning land for public school use is G.S. § 115-85, Ch. 1335, S.L. 1955, whereas in the 1955 cumulative supplement it is G.S. § 115-125. Hence it must be understood that references to any section or sections of General Statutes Ch. 115 hereafter made are to such section or sections as it or they appear in the 1955 cumulative supplement which is the law now in force and controlling here.
It is the exclusive prerogative of the Legislature--limited only by our organic law which requires that just compensation shall be paid for the land so appropriated--to prescribe the method of taking land for the public use. Durham v. Rigsbee, 141 N.C. 128, 53 S.E. 531, 532.
In discharging this function in respect to schools, the General Assembly has delegated to the respective local school administrative units the authority to take land for school sites and other school facilities and has prescribed the procedure therefor. G.S. § 115-125.
In prescribing the procedure for condemning land for public school use, it designated the clerk of the Superior Court of the county in which the property is situate as the one to select or appoint the appraisers and before whom all proceedings should be had up until the question of just compensation arises. This, no doubt, was done for three reasons: (1) it provides a disinterested person to select the appraisers; (2) the proceeding will, in any event, in all probability reach the courts as such; and (3) it affords a ready means of providing a permanent record of the title acquired by the condemning governmental agency.
Therefore, as presently constituted, this is not a judicial proceeding. The petitioner is an administrative agency of the government. In selecting a site for a new building and other school facilities, it acts in its administrative capacity. If it cannot acquire the site selected 'by gift or purchase,' it may proceed to condemn the property selected as provided by G.S. § 115-125.
Thus it is that this proceeding is not instituted before the clerk as a judicial officer but as an agent designated by the General Assembly to perform certain specific duties in connection with the condemnation of land for public school use. Consequently, it is not required that the proceeding be instituted by the issuance of a summons as in case of special proceedings or civil actions. G.S. § 1-394; G.S. § 1-88. Likewise, for the same reason the procedure is not the same.
The advisability of taking the property for public school use is a matter committed to the sound discretion of the petitioner with the exercise of which neither the respondents nor the courts can interfere. 'It is a political and administrative measure of which the defendants are not even entitled to notice or to be heard [authorities cited]', except as provided by statute. Durham v. Rigsbee, supra; Selma v. Nobles, 183 N.C. 322, 111 S.E. 543; State v. Jones, 139 N.C. 613, 52 S.E. 240, 2 L.R. A.,N.S., 313.
The action of the petitioner in selecting the site (not to exceed thirty acres) and in condemning the land so selected is not even subject to review by the courts except for arbitrary abuse of discretion or disregard of law. Selma v. Nobles, supra; Pue v. Hood, 222 N.C. 310, 22 S.E. 2d 896.
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