Gunter v. Town of Sanford

• Decision Date: 14 November 1923
• Docket Number: 115.
• Parties: GUNTER ET AL. v. TOWN OF SANFORD ET AL.
• Court: North Carolina Supreme Court

120 S.E. 41

186 N.C. 452

GUNTER ET AL. v. TOWN OF SANFORD ET AL.

No. 115.

Supreme Court of North Carolina

November 14, 1923

Appeal from Superior Court, Lee County; Horton, Judge.

Action by T. B. Gunter and others against the Town of Sanford and others. From an order continuing an injunction till final hearing, defendants appeal. Reversed.

In 1915 the General Assembly passed an act to amend, revise, and consolidate the charter of the town of Sanford, and this act was amended at the regular session of 1921 and again at the extra session of the same year. Private Laws 1915, c. 380; Private Laws 1921, c. 69; Private Laws, Extra Session, 1921 c. 15.

Under the act last cited the board of aldermen proceeded to improve and pave the streets and sidewalks of the town of Sanford and prepared assessments against the property of various abutting owners and caused to be served on the plaintiffs a notice to show cause why the assessments should not be made final; and the plaintiffs thereupon obtained a restraining order which his honor continued until the final hearing of the cause with leave to the defendants to assess the cost of the improvements and to apportion the same. Meanwhile the rights of the plaintiffs were preserved by a provision that the assessments should not be enforced until the final determination of the cause.

The following are the material sections of the act:

Section 1 authorizes the board of aldermen to pave the streets and sidewalks and to make other permanent improvements; to assess and to equalize the assessments of all costs and charges of such improvements; to provide for assessing the entire cost of paving, curbing, repaving, draining, etc.; and apportions the costs of the improvements made, one-third against the property abutting on each side of the street and one-third against the municipality.

Section 2 authorizes the board of aldermen before beginning the work to estimate the total cost of the improvement in each district and to apportion the cost on the abutting property.

Section 3 makes the assessments of the estimated costs a lien on the abutting property.

Section 4. That immediately upon the completion of the work in any district created, or section laid out, for permanent street improvement by said board of aldermen, as herein provided the town engineer, or other person or committee of the board of aldermen, in charge of such work, shall make a report in writing to said board of aldermen showing the total actual cost of such improvement throughout the entire length of said district, or section, created or laid out, with the number and description of the lots abutting on said streets or portion thereof, so improved, together with the number of feet frontage of each of said lots and the owners thereof, and said board of aldermen shall ascertain, determine and declare the actual cost of such permanent improvements in such district or section, and in order to equalize the assessments on real estate for the purpose of paying therefor, shall take the total cost of such improvement throughout the entire district or section, and shall then prorate the cost thereof and assess the same against the real estate abutting on the street therein, in proportion to the frontage on the street, or portion thereof, so improved, and charge to and assess against the real estate and each lot upon each side of the street upon which said work is done, its pro rata share of the cost of such improvement: Provided, however, that the total cost of such street improvement in such district or section, as determined and declared by said board of aldermen, shall be final and conclusive, subject only to impeachment for fraud or collusion, with the right of appeal as herein provided. And the charge or assessment made against the abutting property under the estimated cost of such street improvement work as herein provided, shall be corrected by the addition of the difference between it and the actual cost thereof, or the deduction of such difference, accordingly as the estimated cost thereof may be less or greater than such ascertained actual cost, and as thus corrected shall constitute a lien upon abutting property as herein provided.

Section 5. That the board of aldermen shall cause a written notice to be served on all owners of abutting property affected by improvements as provided by this act, at least 10 days before the final assessments provided for in this act are made, which notice shall command the property owner to appear before the board of aldermen at a time and place stated therein and show cause, if any, why such assessment should not be made, which notice may be served by any policeman or constable of the town of Sanford, or other proper officer, and proved by the return of such officer thereon indorsed. In the event the owner or owners of any such lot or lots herein referred to, be an infant, idiot, lunatic or incompetent, then his general guardian, if he has such, shall act for him; if he has none, it shall be the duty of the clerk of the superior court of Lee county, N. C., to appoint a guardian ad litem to act for him. Any person who shall feel aggrieved by the findings or assessments of said board of aldermen with reference to such permanent improvements shall have the right within 10 days after the findings and assessments by said board of aldermen have been filed with the clerk of the town of Sanford, and not thereafter, to file with said clerk his objections to such findings, and appeal from the decision of said board to the next term of the superior court.

Section 6 provides that as soon as the amount assessed against the abutting property is determined in the estimated costs, notice thereof shall be published once a week for two weeks in a newspaper, etc.

Section 15. That the costs of installation of storm sewer, proper drainage facilities, and curbing, in any such district shall constitute a portion of the costs of such street improvement to be assessed under the provisions of this act.

Section 16. That any benefits accruing from the location or construction of the state highways, or from the disbursements of funds therefor by the state highway commission, within the corporate limits of the town of Sanford shall be paid and inure to the benefit of said town of Sanford and be applied to its portion of cost of any street improvement made hereunder.

Section 20 provides that the powers enumerated in the several acts shall be concurrent with those of the Municipal Finance Act.

From the order continuing the injunction, the defendants appealed.

Williams & Williams, of Sanford, for appellants.

Gavin & Jackson, of Sanford, Hoyle & Hoyle, of Carthage, and Seawell & Pittman and Teague & Teague, all of Sanford, for appellees.

ADAMS J.

The plaintiffs contest the validity of the acts purporting to authorize the assessments complained of, assigning for their objection several grounds which require examination.

They contend particularly that the act of 1921, extra session, is unenforceable because obnoxious to the due process clause of the state and federal Constitutions.

The right of the courts to declare a statute unconstitutional is regarded as a right prerogative which should be exercised with caution and careful attention to probable results. The Legislature is presumed to have observed the limitation of its powers; and if a statute is reasonably open to more than one construction, all doubts will be resolved in favor of sustaining it and reconciling its terms with the fundamental law. Hence a legislative enactment will not be construed as repugnant to the Constitution unless its invalidity is "clear, complete, and unmistakable," or shown beyond a reasonable doubt. King v. R. R., 66 N.C. 277; Hilliard v. Asheville, 118 N.C. 845, 24 S.E. 738; Coble v. Com'rs, 184 N.C. 342, 114 S.E. 487.

The federal Constitution (Amendment 14, § 1), provides:

"No state shall * * * deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

And the state Constitution (article 1, § 17):

"No person ought to be * * * deprived of his life, liberty or property, but by the law of the land."

It is not inaccurate to say that the courts have not attempted to define with exactness and precision the term "due process of law"; but the words are generally understood to refer to the law of the land, and, as expressed by Mr. Justice Johnson, to be "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice." Bank of Columbia v. Okely, 4 Wheat. 235, 4 L.Ed. 561. See, also, Twining v. New Jersey, 211 U.S. 101, 29 S.Ct. 14, 53 L.Ed. 107; Caldwell v. Wilson, 121 N.C. 425, 28 S.E. 554; Parish v. Cedar Co., 133 N.C. 484, 45 S.E. 768, 98 Am. St. Rep. 718, which is not affected on this point by Board v. Remick, 160 N.C. 568, 76 S.E. 627. Recognizing both the risk of a failure to give a definition which would be at once perspicuous, comprehensive, and satisfactory, and the wisdom of ascertaining the intent of the phrase by the gradual process of judicial inclusion and exclusion, Mr. Justice Miller said:

"Whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings

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