Appeal
from Superior Court, Mitchell County; H. Hoyle Sink, Judge.
Action
by D. M. Glenn, Jr., and his wife, against the Board of
Education of Mitchell County, and the Town of Spruce Pine
wherein second-named defendant filed a demurrer. From a
judgment dismissing the action, plaintiffs appeal.
Reversed.
This was an action brought by plaintiffs against defendants
in which they allege that defendants have closed up certain
streets in the town of Spruce Pine, N. C., used by the public
and over which they have a right of ingress and egress to
certain property owned by them. Plaintiffs further allege
"That by reason of said wrongful obstruction of said
streets by the defendants, as hereinbefore alleged, the
plaintiffs have been put to great inconvenience in passing to
and from their home and property in going and returning from
the business section of Spruce Pine and other sections of
said town, and thereby hindered (and to a great extent,
denied) the full and usual enjoyment of their home and
property, and thereby greatly damaged, to-wit: in the sum of
$500.00. Wherefore plaintiffs pray judgment against the
defendants in the said sum of $500.00 as damages for the
injury caused plaintiffs as above alleged; that said
defendants be required to open said streets for public use,
and to put same in as good condition for travel as when
obstructed, as hereinbefore alleged; that said defendants be
perpetually enjoined from further obstructing said streets,
or any other streets in said 'South Spruce Pine', and
for such other and further relief as to the Court the
plaintiffs may seem entitled, together with the cost in this
behalf expended."
The
defendant town of Spruce Pine demurred to the complaint. The
defendant the board of education of Mitchell county denied
the material allegations of the complaint: "And as a
further defense to this action, this answering defendant says
and alleges, that the Riverside Drive and extensions of
Tappan and Peterson streets coming within the boundary of the
Harris High School property, were closed by Act of the
Legislature of North Carolina, chapter 72, Public-Local Laws
of 1933 [Priv. Laws 1933] which act is hereby pleaded in bar
of plaintiffs' right of action."
The act
in question, chapter 72, Priv. Laws 1933, is as follows:
"Whereas, a large portion of the school grounds of
Harris High School, comprising the northwestern section of
the campus and including the present athletic field and
adjacent play-grounds, was originally a portion of a
sub-division and as such was composed of certain lots,
streets and an extension of a road known as Riverside Drive;
and Whereas, later this portion was added by purchase to the
original campus of Harris High School, for the purpose of
enlarging play facilities for the children attending said
school; and Whereas, the sections of the street extending
from Peterson Street and Tappan Street to the original campus
road and line are no longer needed for public purposes, a new
roadway having been constructed from the school buildings to
the State Highway on the southwestern side of the campus; and
Whereas, Riverside Drive after a period of more than ten
years has not been officially laid off and opened up to the
public; and Whereas, only one property holder could have any
personal interest in the opening up of this road, and an
adequate roadway can be secured for him on the southern side
of the campus: Therefore, The General Assembly of North
Carolina do enact: Section 1. That Riverside Drive and
extensions of Peterson and Tappan Streets on the campus of
said school are hereby declared closed and the area which
would be occupied by them is hereby reserved for play-ground
space for the children attending said school. Sec. 2. That
all laws and clauses of laws in conflict with this act are
hereby repealed. Ratified this the 20th day of March, A. D.
1933."
The
judgment of the court below is as follows: "The above
entitled action coming on for hearing and being heard before
His Honor, H. Hoyle Sink, Judge presiding, on a demurrer
filed by the defendant, town of Spruce Pine, and on a motion
to dismiss the action, filed by the defendant, The Board of
Education of Mitchell County, by virtue of the Special Act of
The General Assembly set up in the answer of the defendant,
to-wit: chapter 72, Public-Local Laws of 1933 [Priv.Laws
1933] and it having been admitted in the argument on the
hearing of said demurrer and motion that if said act is valid
that same constitutes a bar to plaintiffs' cause of
action,
as alleged in the complaint, and the Court being of the
opinion that said act is valid, and a bar to plaintiffs'
cause of action, It is therefore, considered, ordered and
adjudged by the Court that the demurrer of the defendant,
town of Spruce Pine, and the motion of the defendant, Board
of Education of Mitchell County, be, and the same is hereby,
sustained, and this action dismissed. It is further ordered
that the cost of this action be taxed against the plaintiffs.
[Signed] H. Hoyle Sink, Judge Presiding."
To the
foregoing judgment the plaintiffs in apt time excepted,
assigned error, and appealed to the Supreme Court.
CLARKSON
Justice.
The
court below held the act in controversy valid and sustained
the contentions of defendants, and dismissed the action. We
cannot so hold.
Article
2, § 29, of the Constitution of North Carolina, in part, is
as follows: "The General Assembly shall not pass any
local, private, or special act or resolution * * * changing
the names of cities, towns, and townships; authorizing the
laying out, opening, altering, maintaining, or discontinuing
of highways, streets, or alleys; relating to ferries or
bridges," etc.
In
Day v. Com'rs, 191 N.C. 780, 783, 784, 133 S.E
164, 166, it is said: "The first section of the act
before us commands the commissioners of Surry and Yadkin
counties to construct one bridge across the Yadkin river at a
place which is pointed out and particularly defined; it is
direct legislation addressed to the accomplishment of a
single designated purpose at a 'specific spot'; it is
therefore a local and special act, and as such is expressly
prohibited by article 2, § 29, of the Constitution. In
further elucidation of this provision, the following...
