City of Greensboro v. Wall

• Decision Date: 10 January 1958
• Docket Number: No. 606,606
• Citation: 247 N.C. 516,101 S.E.2d 413
• Parties: CITY OF GREENSBORO, George H. Roach, William B. Burke, Tom E. Brown, J. M. Denny, D. Newton Farnell, Jr., William Folk, Jr., Elbert F. Lewis, Albert F. Stevens, Jr., and E. R. Zane, Redevelopment Commission of Greensboro, Joseph T. Carruthers, Jr., M. A. Arnold, Mrs. Elizabeth Bridgers, Vance Chavis and Bynum Hines, v. Percy L. WALL.
• Court: North Carolina Supreme Court

Page 413

101 S.E.2d 413

247 N.C. 516

CITY OF GREENSBORO, George H. Roach, William B. Burke, Tom E. Brown, J. M. Denny, D. Newton Farnell, Jr., William Folk Jr., Elbert F. Lewis, Albert F. Stevens, Jr., and E. R Zane, Redevelopment Commission of Greensboro, Joseph T Carruthers, Jr., M. A. Arnold, Mrs. Elizabeth Bridgers Vance Chavis and Bynum Hines, v. Percy L. WALL.

No. 606

Supreme Court of North Carolina.

Jan. 10, 1958

Adam Younce, Greensboro, for defendant, appellant.

H. J. Elam, III, and King, Adams, Kleemeir & Hagan, Greensboro, for plaintiffs, appellees.

Weston P. Hatfield, Winston-Salem, and John T. Morrisey, amici curiae.

BOBBITT, Justice.

Jurisdiction under the Declaratory Judgment Act, G.S. § 1-253 et seq., may be invoked 'only in a case in which there is an actual or real existing controversy between parties having adverse interest in the matter in dispute.' Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404, 409, and cases cited. It must appear that 'a real controversy, arising out of their opposing contentions as to their respective legal rights and liabilities under a deed, will, or contract in writing, or under a statute, municipal ordinance, contract or franchise, exists between or among the parties, * * *' Carolina Power Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56, 61. The existence of such genuine controversy between parties having conflicting interests is a 'jurisdictional necessity.' Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450.

'It is no part of the function of the courts, in the exercise of the judicial power vested in them by the Constitution, to give advisory opinions, * * *' Stacy, C. J., in Poore v. Poore, 201 N.C. 791, 161 S.E. 532, 533. 'The statute (G.S. § 1-253 et seq.) does not require the court to give a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise.' [222 N.C. 200, 22 S.E.2d 453.] Seawell, J., in Town of Tryon v. Duke Power Co., supra. 'The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.' Ervin, J., in Lide v. Mears, supra. Also see Calcutt v. McGeachy, 213 N.C. 1, 195 S.E. 49; Branch Banking & Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E.2d 334, and Nascar, Inc., v. Blevins, 242 N.C. 282, 87 S.E.2d 490.

The validity of a statute when directly and necessarily involved, Person v. Board of State Tax Com'rs (Watts), 184 N.C. 499, 115 S.E. 336, may be determined in a properly constituted action under G.S. § 1-253 et seq., Calcutt v. McGeachy, supra; but this may be done only when some specific provision(s) thereof is challenged by a person who is directly and adversely affected thereby. Compare Fox v. Board of Com'rs for the County of Durham, 244 N.C. 497, 94 S.E.2d 482.

Connor, J., reminds us that confusion is caused 'by speaking of an act as unconstitutional in a general sense.' St. George v. Hardie, 147 N.C. 88, 97, 60 S.E. 920, 924. The validity or invalidity of a statute in whole or in part, is to be determined in respect of its adverse impact upon personal or property rights in a specific factual situation. As noted below, the General Assembly, when it enacted the 'Urban Redevelopment Law,' was well aware of the fact that 'a statute may be valid in part and invalid in part.' 82 C.J.S. Statutes § 92; Constantian v. Anson County, 244 N.C. 221, 228, 93 S.E.2d 163, and cases cited; Keith v. Lockhart, 171 N.C. 451, 457, 88 S.E. 640.

The judicial duty of passing upon the constitutionality of an Act of Congress or of an Act of the General Assembly is one 'of great gravity and delicacy.' Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 396, 67 L.Ed. 785; Person v. Doughton, 186 N.C. 723, 120 S.E. 481. Since 'every presumption is to be indulged in favor of' the validity of an Act of the General Assembly, State v. Lueders, 214 N.C. 558, 200 S.E. 22, 24, the established judicial policy is to refrain from deciding constitutional questions unless (1) the judicial power is properly invoked, and (2) it is necessary to do so in order to protect the constitutional rights of a party to the action. State v. Lueders, supra; Turner v. City of Reidsville, 224 N.C. 42, 46, 29 S. E.2d 211. 'A party who is not personally injured by a statute is not permitted to assail its validity; * * *'. Adams, J., in Yarborough v. North Carolina Park Comm., 196 N.C. 284, 288, 145 S.E. 563, 567.

Persons directly and adversely affected by the decision may be expected to analyze and bring to the attention of the court all facets of a legal problem. Clear and sound judicial decisions may be expected when specific legal problems are tested by fire in the crucible of actual controversy. Socalled friendly suits, where, regardless of form, all parties seek the same result, are 'quicksands of the law.' A fortiori, this is true when the Court is asked to pass upon a complicated and comprehensive statute and multiple actions thereunder when no particular provision thereof or action thereunder is drawn into focus and specifically challenged by a person directly and adversely affected thereby.

The 'Urban Redevelopment Law,' now codified as G.S. § 160-454 et seq., was enacted by our General Assembly in 1951. The original Act (ch. 1095, Session Laws of 1951) comprises fifteen and one-half pages, single space, 8-point type. Section 21 thereof, which was not codified, provided: 'Separability of Provisions. Notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provision of this Act, or the application thereof to any person or circumstances, is held invalid, the remainder of the Act and the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.'

Plaintiffs alleged that all of their actions and proposed actions are authorized by the 'Urban Redevelopment Law.'

Do the pleadings disclose a justiciable controversy? Defendant's answer does not challenge any of plaintiffs' alleged actions and proposed actions as violative of any particular constitutional or statutory provision. Defendant pleads no position whatever beyond his simple general denial of the legal conclusions alleged in plaintiffs' paragraph XIII. Indeed, it appears affirmatively that defendant suggested that this action be instituted, not because he challenged any of plaintiffs' actions and proposed actions but because he thought it advisable, in the phrase of Seawell, J., to obtain an advisory opinion, which 'the parties might, so to speak, put on ice to be used if and when occasion might arise.'

The primary impact of plaintiffs' actions and proposed actions will be upon persons who reside or have property interests in the 'redevelopment area,' the area found by the Commission to be a 'blighted area' as defined in G.S. § 160-456(q). The ground of alleged unconstitutionality stressed by defendant in his brief in this Court is that the 'Urban Redevelopment Law' purports to vest in the Commission the power of eminent domain. G.S. § 160-465. Yet defendant neither resides nor has property interests in the 'redevelopment area.' If...