Gamble v. McCrady

• Decision Date: 30 June 1876
• Citation: 75 N.C. 509
• Court: North Carolina Supreme Court
• Parties: A. G. GAMBLE v. WILLIAM MCCRADY and others.

75 N.C. 509

A. G. GAMBLE

v.WILLIAM MCCRADY and others.

Supreme Court of North Carolina.

June Term, 1876.

Every one is entitled to notice in any judicicial or quasi judicial proceeding, by which his interest may be affected: Hence, an order by County Commissioners appointing appraisers to assess the value of the benefits and damages which would accrue to the owners of land on account of a certain canal sought to be cut through his land, upon the petition of other parties, filed under the provisions of the 39th chapter Battle's Revisal, is void, unless said land owner be made a party to the petition.

Sections 9 and 12, chap. 39, Battle's Revisal, are unconstitutional.

While the general provisions of an Act may be unconstitutional, one or more clauses may be good; provided, they can be separated from the others, so as not to depend upon the existence of the others for their own:

Hence, under said Act, (chap. 39, Bat. Rev.,) a petition may be filed, appraisers appointed and appraisement made, which, if done according to law, may have a certain weight; but it may be appealed from when the whole matter is open in the Superior Court. And before the petitioner can obtain any judgment, he must, as the defendant may, at any time, take the whole case into the Superior Court, for review upon the law and the facts.

( Flat Swamp, &c. Canal Co. v. McAllister, 74 N. C. Rep., 158; Brown v. Keener, Ibid. 710; Johnson v. Winslow, 63 N. C. Rep., 552, cited and approved.)

CIVIL ACTION, heard before SCHENCK, J., at Fall Term, 1875, of the Superior Court of GASTON County.

The facts necessary to an understanding of the case are stated in the opinion of the Court.

There was judgment in favor of the plaintiff, and the defendants appealed.

Vance, Sandifer and Jones & Johnson, for the appellants .

Wilson & Son and M. A. Moore, contra .

RODMAN, J.

On the 1st of February, 1875, the defendant McCrady and several others presented their petition to the Commissioners of Gaston County, in which they set forth that they owned lands in said county, on Crowder's creek; that on account of the lowness of the banks and the sluggishness of said stream their lands were sobbed and frequently overflowed with water, and that to drain their lands properly it was necessary to cut a ditch through their own lands, and also through certain lands of the plaintiff, Gamble, and of one Carson, who were unwilling to allow it to be done, and refused also to contribute towards the expense of it. They described the ditch which they desired to cut as beginning at a certain point on the creek, and thence running, sometimes on one side of the present channel and sometimes on the other, to another point on the creek; and to be about three miles long, ten feet wide, six feet deep and with a fall of ten feet to the mile. They prayed the Commissioners to appoint three appraisers, to view the land and assess the benefits and damages to the owners of the lands to be affected by means of the proposed work.

The Commissioners thereupon, without any notice to Gamble or Carson, appointed appraisers, who, after having notified Gamble of the time and place, &c., assessed the benefit of the proposed work to fifteen acres of land owned by him, at seventy-five dollars. They also assessed the benefit to the lands of the other owners. The assessment was reported to the County Commissioners, who affirmed thesame. Gamble then filed his petition in the Superior Court, reciting the foregoing proceedings, and alleging that the proposed canal would be an injury to him, and praying for a recordari to bring the proceedings of the Commissioners before the Court, to the end that they might be re-reviewed and quashed as illegal. A recordari was accordingly issued, and upon its return the Judge quashed the proceedings, as being without the jurisdiction of the Commissioners, and enjoined any proceeding under them, from which order the defendants, McCrady and others, appealed to this Court.

In any view of the case, the assessment is void for want of notice of the petition to Gamble and Carson, before the appointment of appraisers. It is true that this is not directed to be given by the Act, chap. XXXIX, of Bat. Rev., under which the proceedings were had. But it is an inviolable principle of the common law that every one is entitled to notice in any judicial or quasi judicial proceedings by which his interests may be affected.

Our opinion on this point will not quite decide the case, because it still leaves open the question, what the judgment of the Superior Court should be-- whether it must quash the whole proceedings before the commissioners, as being unauthorized and void from the beginning and in every part, as they were if the Act is wholly and in all its parts unconstitutional; or must only quash the appointment of the appraisers, and their proceedings, retaining the petition as in the nature of a complaint, and as the ground of further legitimate action by the Court.

We think it cannot be denied that certain provisions of the act which are essential parts of its general scheme and policy, are unconstitutional, and opposed to common principles of right and justice.

Section 9 enacts that when the work is completed according to the specifications, the applicant may recover from each land owner the amount of the benefits assessed against his lands without any regard to the cost of the work.

This estimate of benefit is made before the work is done, and it may fail...