Yarbor. v. North Carolina Park Comm'n, (No. 360.)

Docket Nº(No. 360.)
Citation145 S.E. 563
Case DateNovember 21, 1928
CourtUnited States State Supreme Court of North Carolina

145 S.E. 563
(196 N.C. 284)

YARBOROUGH.
v.
NORTH CAROLINA PARK COMMISSION.

(No. 360.)

Supreme Court of North Carolina.

Nov. 21, 1928.


[145 S.E. 564]

[COPYRIGHT MATERIAL OMITTED]

[145 S.E. 565]

Appeal from Superior Court, Forsyth County; J. H. Clement, Judge.

Action by W. H. Yarborough, on behalf of himself and all citizens and taxpayers of the State, against the North Carolina Park Commission. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

[145 S.E. 566]

The defendant is a corporation organized and existing under and by virtue of the laws of North Carolina. The purpose of its incorporation and the scope of its powers are set forth in the act by which it was created. Public Laws 1927, c. 48. It is therein provided that, to enable the defendant to accomplish its purpose and the state to avail itself of the provisions of an act of Congress approved May 22, 1926 (44 Stat. 616 [16 USCA §§ 403-403e]), entitled, "An Act to provide for the establishment of the Shenandoah National Park in the State of Virginia and the Great Smoky Mountains National Park in the States of North Carolina and Tennessee, and for other purposes, " and to provide a national park with its attendant benefits to the entire state, the state treasurer is authorized, empowered, and directed to issue and sell bonds of the state in an amount not exceeding $2,000, 000. to be designated "State of North Carolina Park Bonds." Section 5

contains these provisions:

"Whenever the North Carolina Park Commission shall request the State Treasurer to make available a specified sum of money for the purposes for which bonds are herein authorized to be issued, it shall be the duty of the State Treasurer to issue bonds or bond anticipation notes pursuant to this Act in an amount sufficient to raise the sum so requested."

It is alleged in the complaint that the park commission and the Governor and council of state have made all findings and performed all conditions which are precedent to the issue and sale of the proposed bonds and bond anticipation notes, that the state treasurer is ready upon request of the park commission to pay for the lands to be appropriated, and the auditor is ready to issue his warrant; and that, unless restrained, the defendant will perform the duties imposed by the act of 1927 in order to acquire the necessary area and pay the necessary sums out of the funds provided for this purpose. It is further alleged that the defendant has adopted resolutions requesting the state treasurer to make available the funds for which provision is made in the act of 1927, but has not certified the resolutions to the treasurer who, though authorized thereto, has taken no action and will not act in the premises unless the resolutions are certified.

It is alleged that the act of 1927 is unconstitutional for several reasons, but only those given in the appellant's brief are considered in the opinion.

As ground of its demurrer the defendant says that paragraph 7 of the complaint eon-tains only conclusions of law and that paragraphs 1 to 6, both inclusive, do not state facts sufficient in law to constitute a cause of action.

The demurrer was sustained, and the plaintiff excepted and appealed.

Efird and Liipfert, of Winston-Salem, for appellant.

A. L. Brooks, Asst. Atty. Gen., and Carter & Carter, of Mt. Airy, Varser, Lawrence, Proctor & McIntyre, of Lumberton, Dennis G. Brummitt, Atty. Gen., and Frank Nash. Asst. Atty. Gen., for appellee.

L. R. Varser, Asst. Atty. Gen., and Thomas S. Rollins and Alfred S. Barnard, both of Asheville. amici curiæ.

ADAMS, J. [1, 2] The demurrer admits only such relevant facts as are set forth in the complaint and such relevant inferences of fact as are deducible therefrom. It raises an issue of law, but it does not admit conclusions of law or matters of evidence or facts controverting those of which the court must take judicial notice. Whitehead v. Telephone Co., 190 N. C. 197, 129 S. E. 602; Sexton v. Farrington, 185 N. C. 339, 117 S. E. 172. It may be seen by reference to the statement of facts that the complaint and the demurrer present the question whether the statutes under which the defendant is proceeding (Pub. Laws 1927, c. 48) are in conflict with the organic law of the state or nation. If they are not, the judgment sustaining the demurrer is free from error; if they are, the demurrer should have been overruled. The case, then, is to be decided on specific constitutional objections.

The appellant contends that the act of 1927 was enacted in breach of the following clauses:

"No person shall * * * be deprived of life, liberty, or property, without due process of law." U. S. Constitution, Fifth Amendment.

"Nor shall any State 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." Id. Fourteenth Amendment.

"No person ought * * * in any manner * * * to be * * * deprived of his life, liberty or property, but by the law of the land." Constitution of N. C, art. 1, § 17.

"Due process of law" and "the law of the land" are substantially identical terms. Parish v. Cedar Co., 133 N. C. 479, 484, 45 S. E. 768, 98 Am. St. Rep. 718.

There is a distinction between the cited clauses of the Fifth and the Fourteenth Amendments of the Federal Constitution. The former is obligatory only on the United States, a restriction only on the federal government; the latter, only on the several states. Hunter v. Pittsburg, 207 U. S. 161, 28 S. Ct. 40, 52 L. Ed. 151; Phillips v. Telegraph Co., 130 N. C. 513, 41 S. E. 1022, 89 Am. St. Rep. 868. So, the specific question is whether the act of 1927 conflicts with the provisions of the Fourteenth Amendment or with those of article 1, § 17, of the Constitution of North Carolina.

As a rule this objection can be urged

[145 S.E. 567]

only by a person whose legal right has been affected against the party or a representative of the party who commits or causes the injury. The plaintiff has no interest in any of the land alleged to be subject to condemnation; he has not suffered and is not threatened with loss of property. When a plaintiff is permitted to sue for the benefit of another he must show an interest personal to himself. A party who is not personally injured by a statute is not permitted to assail its validity; If he is not injured, he should not complain because another may be hurt. Tyler v. Judges, etc., 179 U. S. 405, 21 S. Ct. 20G, 45 L. Ed. 252; McCabe v. Atchison, etc., By. Co., 235 U. S. 162, 35 S. Ct. 69, 59 L. Ed. 169, 174; Coble v. Com'rs, 184 N. C. 342, 354, 114 S. E. 487. The issue which the appellant attempts to raise in this way is to be determined in such proceedings as may be instituted by the defendant against the owner for the condemnation of his property.

The assigned objection, even if the plaintiff could take advantage of it, is without merit because it does not rest on any strict legal rights. True, it is provided in section 27 that at any time after summons is issued a judge of the superior court, if of opinion that the defendant in a proceeding for condemnation is engaged, or is likely to be engaged, in an act which will change the existing condition or character of the land sought to be condemned, may issue a restraining order without bond, and that the state shall be under no obligation or liability for the payment of damages. No doubt the latter clause was inserted on the theory that the state cannot be sued without its consent; but section 27 further provides that the restraining order shall be issued upon such terms as may be just. The obvious purpose of this provision is to protect the owner of the land and to see that no injustice is done him. The means of protection is a matter for the judge to devise. It is subject to grave doubt whether damage is done in the sense of taking property by arresting the destruction of primitive forests until the defendant can decide whether it will undertake to appropriate the land covered by such forests for the purposes contemplated by the statutes under consideration; but we were informed on the argument here that the defendant has stated of record that it will provide for the protection of the landowners such security as the judge may deem adequate, such as will be sufficient amply to indemnify against loss.

The defendant is an agency of the state. It is vested with the power of eminent domain, but is not subject to the limitations...

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65 practice notes
  • Newman v. Watkins, No. 171.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 1, 1935
    ...131 S. E. 724, 727; Wood v. Braswell, 192 N. C. 588, 135 S. E. 529, 530; Yarborough v. North Carolina Park Commission, 196 N. C. 284, 145 S. E. 563. "Courts never pass upon the constitutionality of statutes, except in cases wherein the party raising the question alleges that he is deprived ......
  • State v. Ballance, No. 436.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 4, 1949
    ...Commission, 222 N.C. 106, 22 S.E.2d 256; Plott v. Ferguson, 202 N.C. 446, 163 S.E. 688; Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563; Gunter v. Town of Sanford, 186 N.C. 452, 120 S.E. 41; Parish v. East Coast Cedar Co., 133 N.C. 478, 45 S.E. 768, 98 Am.St. Rep. 718. These funda......
  • Madison Cablevision, Inc. v. City of Morganton, No. 624PA87
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 7, 1989
    ...were not a necessary expense for Wilmington, although they were a public purpose); Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563 (1928) (playgrounds and parks were "necessary expenses" within constitutional limitation on pledging credit without a vote of the people); Purchase of......
  • Davidson v. Henry L. Doherty & Co., No. 40451.
    • United States
    • Iowa Supreme Court
    • March 8, 1932
    ...v. Odlebak, 177 Minn. 90, 224 N. W. 694;Seitz v. Claybourne, 181 Minn. 4, 231 N. W. 714;Yarborough v. N. C. Park Com'n, 196 N. C. 284, 145 S. E. 563. The true rule in cases of the kind is laid down by the American Law Institute, in the Restatement of the Conflict of Laws, § 90, as follows: ......
  • Request a trial to view additional results
65 cases
  • Newman v. Watkins, No. 171.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 1, 1935
    ...131 S. E. 724, 727; Wood v. Braswell, 192 N. C. 588, 135 S. E. 529, 530; Yarborough v. North Carolina Park Commission, 196 N. C. 284, 145 S. E. 563. "Courts never pass upon the constitutionality of statutes, except in cases wherein the party raising the question alleges that he is deprived ......
  • State v. Ballance, No. 436.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 4, 1949
    ...Commission, 222 N.C. 106, 22 S.E.2d 256; Plott v. Ferguson, 202 N.C. 446, 163 S.E. 688; Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563; Gunter v. Town of Sanford, 186 N.C. 452, 120 S.E. 41; Parish v. East Coast Cedar Co., 133 N.C. 478, 45 S.E. 768, 98 Am.St. Rep. 718. These funda......
  • Madison Cablevision, Inc. v. City of Morganton, No. 624PA87
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 7, 1989
    ...were not a necessary expense for Wilmington, although they were a public purpose); Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563 (1928) (playgrounds and parks were "necessary expenses" within constitutional limitation on pledging credit without a vote of the people); Purchase of......
  • Davidson v. Henry L. Doherty & Co., No. 40451.
    • United States
    • Iowa Supreme Court
    • March 8, 1932
    ...v. Odlebak, 177 Minn. 90, 224 N. W. 694;Seitz v. Claybourne, 181 Minn. 4, 231 N. W. 714;Yarborough v. N. C. Park Com'n, 196 N. C. 284, 145 S. E. 563. The true rule in cases of the kind is laid down by the American Law Institute, in the Restatement of the Conflict of Laws, § 90, as follows: ......
  • Request a trial to view additional results

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