Johnson v. North Carolina State Highway Commission, 527

• Decision Date: 01 May 1963
• Docket Number: No. 527,527
• Citation: 130 S.E.2d 544,259 N.C. 371
• Court: North Carolina Supreme Court
• Parties: Frank A. JOHNSON and wife, Margie B. Johnson, Farmers Mutual Fire Insurance Association, Randolph County Branch, and H. Wade Yates, Trustee for the Farmers Mutual Fire Insurance Association, Randolph County Branch, v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

Page 544

130 S.E.2d 544

259 N.C. 371

Frank A. JOHNSON and wife, Margie B. Johnson, Farmers Mutual

Fire Insurance Association, Randolph County Branch, and H.

Wade Yates, Trustee for the Farmers Mutual Fire Insurance

Association, Randolph County Branch, v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 527

Supreme Court of North Carolina.

May 1, 1963

Ottway Burton Asheboro, for plaintiffs-appellants.

T. W. Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., John C. Daniel, Jr., and Andrew McDaniel, Trial Attys., Raleigh, for the State.

DENNY, Chief Justice.

The appellants undertake to challenge for the first time in this Court, the constitutionality of G.S. § 136-108, which reads as follows: 'After the filing of the plat, the judge, upon motion and ten (10) days' notice by either the Highway Commission or the owner, shall, either in or out of term, hear and determine any issue raised by the pleadings, other than the issue of damages, including, if controverted, questions of necessary and proper parties, title to the land, interest taken, and area taken.'

It is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below.

In Phillips v. Shaw, Comr. of Revenue, 238 N.C. 518, 78 S.E.2d 314, this Court said: 'The question of constitutionality of the Act was not raised in the court below. It may not be raised for the first time in this Court. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888; State v. Lueders, 214 N.C. 558, 200 S. E. 22; State v. Cochran, 230 N.C. 523, 53 S.E.2d 663; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; 11 A.J. 720.' See also State v. Jones, 242 N.C. 563, 89 S.E.2d 129; State v. Grundler, 251 N.C. 177, 111 S.E.2d 1; Lane v. Iowa Mutual Insurance Co., 258 N.C. 318, 128 S.E.2d 398.

The only other question presented on this appeal is whether or not the exhibits alone, which constituted the only evidence introduced by the defendant with respect to the area of land taken in connection with Project 5.572 and the location of the previously granted right of way, were sufficient to sustain the findings of the court below in this respect.

As we construe the statutes governing this type of action, an answer not served on the opposing party (according to the record, defendant's answer was not served on the plaintiffs), is deemed denied as to all affirmative allegations therein. Exhibits 'A' and 'B' were incorporated in the defendant's...