City of Charlotte v. Kavanaugh

• Decision Date: 06 May 1942
• Docket Number: 524.
• Citation: 20 S.E.2d 97,221 N.C. 259
• Parties: CITY OF CHARLOTTE v. KAVANAUGH et al.
• Court: North Carolina Supreme Court

20 S.E.2d 97

221 N.C. 259

CITY OF CHARLOTTE v. KAVANAUGH et al.

No. 524.

Supreme Court of North Carolina

May 6, 1942

Judgment reversed on plaintiff's appeal, and, on defendants' appeal, judgment held erroneous, and cause remanded for entry of judgment in conformity with opinion.

1. Civil action instituted under Section 7990 of the Consolidated Statutes of North Carolina, for the purpose of foreclosing a lien of the City of Charlotte on defendants' land for a special assessment on account of local improvements to said land.

2. Pursuant to the provisions of Chapter 56 of the Public Laws of 1915, the City of Charlotte opened a street, known as the Plaza, from Central Avenue to Commonwealth Avenue, and in accordance with the petition of the property owners assessed 100% of the cost of the improvements, exclusive of so much of the cost thereof as was incurred at street intersections etc., against the lots and parcels of land abutting directly on said improved street, at an equal rate per foot of such frontage. The defendants did not sign the petition for said improvements, neither did their predecessors in title. Under said proceeding, which was regular in form, the lot now owned by these defendants was assessed a total of $874.38, as of December 18, 1929. The first installment in the sum of $87.52, together with interest in the sum of $52.46, or a total of $139.98, was paid on October 5, 1931. The remaining nine installments in the sum of $87.43 each, or a total of $786.87, together with interest thereon, have not been paid.

3. The second installment of $87.43, with interest thereon became due and payable more than ten years prior to the institution of this action, and the three and ten year statutes of limitations were duly pleaded by the defendants.

4. In the year 1929, the assessed taxable value of the land which is involved in this action was $605.

5. Chapter 394 of the Private Laws of 1909 provided for an amendment to the charter of the City of Charlotte when same should be ratified by a majority of the voters of the City of Charlotte at a special election to be held for that purpose; Section 85 of said act applied to special assessments on real estate in the same language as Section 7 of Chapter 251 of Private Laws of 1911, and contained the following language "Provided further, that no assessment against any piece of property improved as in this act provided shall in any case exceed the amount of special benefit to or enhancement in value of said property by reason of said improvements, or twenty per cent of the assessed taxable value thereof; and where permanent street improvements shall be made, the property bearing such assessments shall not be so assessed again until after the expiration of ten years from the date of the last preceding assessment." The above amendment to the charter of the City of Charlotte was not ratified at the special election, and therefore said act never became a part of the charter of the City of Charlotte.

6. Chapter 251 of the Private Laws of 1911 amended the charter of the City of Charlotte, and Section 7 thereof contains the identical provisions as to assessments on real estate contained in the proposed charter, which was submitted to the voters of the City of Charlotte and rejected by them.

7. Chapter 135 of the Private Laws of 1923 is as follows: "Section 1. That section eighty-five of chapter three hundred and ninety-four of the Private Laws of one thousand nine hundred and nine, be amended by striking out in lines forty- four and forty-five the following: 'or twenty per cent of the assessed taxable value thereof.' Sec. 2. That all laws and clauses of laws in conflict with this act are hereby repealed. Sec. 3. That this act shall be in force from and after its ratification. Ratified this the 1st day of March, A.D. 1923."

Upon the foregoing facts His Honor concluded as a matter of law that the City of Charlotte had the right to proceed under Chapter 56 of the Public Laws of 1915, in making local improvements and levying assessments therefor, but that said act was subject to the provisions in the Charter of the City of Charlotte, limiting any assessment to an amount not in excess of 20% of the assessed taxable value of the defendants' property; that said provision in the Charter of the City of Charlotte had not been repealed. That since the assessed value of the property of defendants in 1929 was $605 and 20% thereof was $121, and since on October 5, 1931, there was paid $139.98 on the assessment, and said amount exceeds 20% of the assessed taxable value of the property, plus interest thereon to the date of payment, there is no further assessment lien against the property of the defendants; and that since this action was instituted under the provisions of Section 7990 of the Consolidated Statutes of North Carolina, there is no statute of limitations barring the collection of any installment of an assessment, even though installment No. 2 became due and payable more than 10 years prior to the institution of this action.

From judgment entered on the foregoing conclusions of law, the plaintiff and defendants appeal and assign error.

Tillett & Campbell, of Charlotte, for plaintiff.

H. L. Taylor, of Charlotte, for defendants.

Chase Brenizer, of Charlotte, for Mutual B. & L. Ass'n of Charlotte, N. C., amicus curiae.

DENNY Justice.

Plaintiff's Appeal.

The exceptions of the plaintiff relate to the conclusion of law holding that the City of Charlotte did not have the right to proceed under Chapter 56 of the Public Laws of 1915, in making local improvements and levying assessments without regard to Chapter 251 of the Private Laws of 1911, which was an Act to amend the Charter of the City of Charlotte, and in Section 7 thereof, there appears the following provision: "Provided, further, that no assessment against any piece of property improved as in this act provided, shall in any case exceed the amount of special benefit to or enhancement in value of said property by reason of said improvements, or twenty per cent of the assessed taxable value thereof."

We are of the opinion that neither the general act, Chapter 56 of the Public Laws of 1915, nor the Private Act, Chapter 135 of the Private Laws of 1923, repealed the Charter provision under consideration. The Private Act was a nullity, since it purported to repeal a provision in a proposed charter for the City of Charlotte, which charter was never adopted, but, on the contrary, was rejected by the voters of the City of Charlotte in a special election for the adoption or rejection thereof.

The rule as to the effect of a subsequent general statute on a local statute is stated in Felmet v. Commissioners, 186 N.C. 251, 119 S.E. 353: "A local statute enacted for a particular municipality is intended to be exceptional, and for the benefit of such municipality, and is not repealed by the enactment of a subsequent general law. Rodgers v. United States, 185 U.S. 83, 22 S.Ct. 582, 46 L.Ed. 816; Wilson v. [Board of] Com'rs, 183 N.C. 638, 112 S.E. 418; Alexander v. Lowrance, 182 N.C. 642, 109 S.E. 639; Bramham v. Durham, 171 N.C. 196, 88 S.E. 347; State v. Johnson, 170 N.C. [685], 688, 86 S.E. 788; Cecil v. High Point, 165 N.C. 431, 81 S.E. 616; School Com'rs v. [Board of] Aldermen, 158 N.C. [191], 197, 73 S.E. 905."

In State v. Johnson, supra [170 N.C. 685, 86 S.E. 790], the Court said: "A general law will not be so construed as to repeal an existing particular or special law, unless it is plainly manifest from the terms of the general law that such was the intention of the lawmaking body. A general later affirmative law does not abrogate an earlier special one by mere implication. Having already given its attention to the particular subject, and provided for it, the Legislature is reasonably presumed not to intend to alter the special provision by a subsequent general enactment, unless that intention is manifested in explicit language, or there be something which shows that the attention of the Legislature had been turned to the special act, and that the general one was intended to embrace the special cases within the previous one, or something in the nature of the general one making it unlikely that an exception was intended as regards the special act. The general statute is read as silently excluding from its operation the cases which have been provided for by the special one. The fact that the general act contains a clause repealing acts inconsistent with it does not diminish the force of this rule of construction. Endlich, Int.Stat. 223, et seq., Montford v. Allen, 111 Ga. 18, 36 S.E. 305."

In the above case, as in the instant one, special reference is made to special and local laws, and Section 2, Chapter 56, Public Laws of 1915 states that the act shall not repeal any special or local law or affect any proceedings under any special or local law, for the making of street, sidewalk or other improvements, etc., but that the act shall apply to all municipalities and "shall be deemed to be additional and independent legislation for such purposes and to provide an alternative method of procedure for such purposes, and to be a complete act, not subject to any limitation or restriction contained in any other public or private law or laws, except as herein otherwise provided."

The question then arises as to whether or not they can be construed in pari materia. If they cannot, and the provisions are contradictory and repugnant, the provisions of the Charter must prevail.

An examination of Chapter 251 of the Private Laws of 1911 disclose that said Act amends the charter of the City of Charlotte by adopting a complete method for public improvements, and of the procedure to be followed in connection therewith. It will be noted that in...