City Of Raleigh v. Mech.S & Farmers Bank

Decision Date14 July 1943
Docket NumberNo. 449.,No. 451.,449.,451.
Citation223 N.C. 286,26 S.E.2d 573
CourtNorth Carolina Supreme Court
PartiesCITY OF RALEIGH. v. MECHANICS & FARMERS BANK. CITY OF RALEIGH. v. RALEIGH CITY ADMINISTRATIVE UNIT AND DIST. OF STATE PUBLIC SCHOOL SYSTEM.

WINBORNE, J., STACY, C. J., and BARNHILL, J., dissenting.

Appeal from Superior Court, Wake County; J. J. Burney, Judge.

Action by the City of Raleigh, against the Mechanics & Farmers Bank to foreclose street assessment liens. From the judgment, plaintiff appeals.

Affirmed.

This was a civil action for the foreclosure of street assessment liens, under C.S. § 7990, on eight lots in the City of Raleigh, described in the pleadings, now owned by the defendant.

It was admitted that the proceedings for the assessment on the described lots of the apportioned cost of the local improvements were sufficient to subject said lots to a lien in favor of the plaintiff therefor, in accordance with the statutes. The improvements were made in 1926 and 1927, and the cost chargeable to said lots was made payable, in each case, in ten equal annual installments thereafter. The installments were successively due the first Monday in October each year, with interest from the date of confirmation of the assessment. Certain of the earlier installments were paid when due, but the others remain unpaid. The number and amount of installments paid and those unpaid are set out in the pleadings and are undisputed. The summons in this action was issued October 3, 1942, and summons with copy of the complaint was delivered to the sheriff for service October 5, 1942. Thefirst Monday in October 1932 was the 3d day of that month. The defendant pleaded the statute of limitations as to each unpaid installment which became due more than ten years before the institution of the action.

Jury trial was waived, and the court, after finding the facts, concluded "that each and all unpaid annual installments and interest thereon which became due and payable on or before the 4th day of October 1932 are barred by the ten years' statute of limitations, being sec. 2717(a), N.C. Code, Chap. 331 Public Laws 1929, " and that the liens growing out of said installments are also barred and no part of the proceeds of sale can be applied to the payment of such installments. It was further concluded that the installments due in 1933, 1934, 1935, and 1936, together with interest thereon, were valid liens on the described lots.

It was thereupon adjudged that the payment in full of the installments not barred should constitute a discharge of all claims and demands of the plaintiff on account of the improvements referred to, and that upon failure to pay, the described lots should be sold by the commissioners appointed for that purpose.

To the conclusions of law and the judgment thereon the plaintiff duly excepted and appealed to this court.

P. H. Busbee and John G. Mills, Jr., both of Raleigh (William Henry Hoyt, of New York City, of counsel), for plaintiff City of Raleigh, appellant.

Briggs & West and Murray Allen, all of Raleigh, for defendant Mechanics & Farmers Bank, appellee.

Wellons & Wellons, of Smithfield, W. A. Dees, of Goldsboro, Edward B. Hope, of Fayetteville, William B. Campbell, of Wilmington, J. W. Ellis, of Salisbury, Folger & Folger, of Mount Airy, F. O. Carver, of Roxboro, R. B. Lee, of Greenville, P. V. Critcher, of Lexington, Waller D. Brown, of Concord, Thorp & Thorp, of Rocky Mount, Womble, Carlyle, Martin & Sand-ridge and Nat S. Crews, all of Winston-Salem, and G. H. Jones, of High Point, amici curiae.

DEVIN, Justice.

The plaintiff's appeal brings up for review the ruling of the court below that in a suit to foreclose the statutory lien on abutting property, given the city for street improvements, the installments of the amounts assessed therefor which are ten years past due are barred by the statute of limitations.

The particular question posed is whether Chapter 331, Public Laws 1929 (sec. 2717 (a), N.C.Code), should be construed to impose a limitation of ten years, in a foreclosure suit under C.S. § 7990, as to all installments of the amounts assessed for street improvements which are ten years over due when action brought.

It is admitted that several of the annual installments assessed against the lots now belonging to the defendant were more than ten years past due when this action was instituted. Hence if the Act of 1929 be construed to be a statute of limitation, this action as to such installments is barred. Thus, the determinative question for decision is clearly presented.

In Chapter 56 of the Consolidated Statutes are codified all the general laws relating to municipal corporations, and beginning with sec. 2703 and extending through sec. 2737 are found the particular statutes regulating assessments for public improvements. The subject matter embraced in each of these sections is indicated by the heading. Sec. 2717 relates to the enforcement of payment of assessments. At the Session of 1929 the Legislature by Chap. 331 amended sec. 2717 by adding thereto provisions for reinstating and extending assessments in arrears, and then added an entirely new section to the Consolidated Statutes, to appear next after 2717, as follows: "2717(a). Sale of Foreclosure for Unpaid Assessments Barred in Ten Years: No Penalties. No statute of limitation, whether fixed by law especially referred to in this chapter or otherwise, shall bar the right of the municipality to enforce any remedy provided by law for the collection of unpaid assessments, whether for paving or other benefits, and whether such assessment is made under this chapter or under other general or specific acts, save from and after ten years from default in the payment thereof, or if payable in installments, ten years from the default in the payment of any installments. No penalties prescribed for failure to pay taxes shall apply to special assessments, but they shall bear interest at the rate-of six per cent per annum only. * * *"

While this act may be lacking in that degree of precision ordinarily to be found in restrictive statutes, we think the legis-lative intent to fix a time limit of ten years for the institution of a suit to foreclose a street assessment lien sufficiently appears.

In view of the decision of this Court in Morganton v. Avery, 179 N.C. 551, 103 S.E. 138, holding the three years' statute of limitations applicable to suits to enforce collections of street assessments, and the decision in Long Creek Drainage Dist. v. Huffstetler, 173 N.C. 523, 92 S.E. 368, holding the ten years' statute applicable to drainage assessments, and Schank v. Ashe-ville, 154 N.C. 40, 69 S.E. 681, holding the assessment had the effect of a judgment and lien, and Coble v. Dick, 194 N.C. 732, 140 S.E. 745, likening the assessment to a statutory mortgage, and in view of the local statutes prescribing for certain towns different limitations, as well as the provision of C.S. § 8037, as amended, then in force, prescribing a limitation of five years for tax foreclosure for municipal corporations, it is reasonably to be inferred that by the language in which this section was expressed the General Assembly intended to clarify the situation and to establish the uniform limitation of ten years, for the enforcement by municipalities of the remedies provided by law for the collection of unpaid assessments.

While the legislative intent is to be gathered from the language used, it is obvious that the Legislature in this instance understood it was providing such a limitation, for it enacted a new section to follow immediately after 2717, and gave the new section the caption "Sale of Foreclosure for Unpaid Assessments Barred in Ten Years." The significance of this heading is materially aided by the fact that it was enacted by the Legislature itself as a part of the Act. Also, on the margin of the original act, Chap. 331, Public Laws 1929, as indicating its context, appear the words "Foreclosure for unpaid installments barred after ten years", and in the recent revision of our statutes, enacted by the General Assembly of 1943, entitled North Carolina Code of 1943, section 2717(a), apears as section 160-93 with the heading "Sale or foreclosure for unpaid assessments barred in ten years."

As a rule in determining the proper construction to be given legislative enactments, the Courts are not controlled by what the Legislature itself apparently thought the proper interpretation should be, but the language employed, taken in connection with the context, the subject matter and the purpose in view must be considered in order to ascertain the legislative intent, which, after all, is the primary purpose of all judicial construction. State v. Humphries, 210 N.C. 406, 186 S.E. 473. As was said by Walker, J., in State v. Earnhardt, 170 N.C. 725, 86 S.E. 960, 961: "It is common learning that a statute must be so construed as to give effect to the presumed and reasonably probable intention of the Legislature and so as to effectuate that intention, and the object for which it was passed."

True, when the heading of a section is misleading or is not borne out by the explicit language of the statute itself, it may be disregarded, but when the meaning is not clear or there is ambiguity the heading which the Legislature has adopted in enacting the statute becomes important in determining the legislative intent. The heart of a statute is the intent of the lawmaking body. As was said by Chief Justice Marshall in United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304: "Where the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration." To the same effect is the statement of Justice White in Knowlton v. Moore, 178 U.S. 41, 65, 20 S.Ct. 747, 44 L.Ed. 969, and in Maguire v. Com'r of Int. Rev., 313 U. S. 1, 9, 61 S.Ct. 789, 794, 85 L.Ed. 1149, it was said: "While the title of...

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