Deese v. Town of Lumberton
188 S.E. 857
N.C.
1936
Check Treatment
OlaeksoN, J.

(1) Is Private Laws of 1925, chapter 216, which amends chapter 343, Private Laws 1907, invalid under Article II, section 29, Constitution of North Carolina? We cannot so hold.

Chapter 216, Private Laws of 1925, amends chapter 343, Private Laws of 1907 (charter of the town of Lumberton), by adding the words “side walks, alley” between the word “new” and the word “street” in line two of section 48 of said chapter 343, Private Laws of 1907. This act merely increases the jurisdiction and authority already granted the commissioners of the town of Lumberton under its charter. (Chapter 343, Private Acts of 1907.) All the machinery for laying out, opening, altering, and maintaining streets is set out in the charter of the town of Lumberton, and the Act of 1925 only enlarges the jurisdiction of the commissioners of the town so as to include sidewalks and alleys. Chapter 216, Private Laws of 1925, does not attempt to prescribe the method by which the town of Lumberton may condemn lands for alleys, but merely increases the authority already conferred by the charter of the town of Lumberton in the way, manner, and means prescribed by the Act of 1907. Before chapter 216, Private Laws of 1925, could be in violation of Article II, section 29, of the Constitution, it would have to relate to laying out, opening, altering, or discontinuing of a given particular and designated highway, street, or alley.

We think the contentions of defendants are sustained by a long line of decisions in this jurisdiction, since the passage of the constitutional amendment, section 29, Article II, which was ratified 28 February, 1917, and became effective 10 January, 1917. Brown v. Comrs., 173 N. C., 598; Hill v. Comrs., 190 N. C., 123; S. v. Horne, 191 N. C., 375. See concurring opinion and cases cited in Webb v. Port Commission, 205 N. C., 663, p. 678, et seq. See, also, Glenn v. Board of Education, 210 *35 N. C., 525. Under the above authorities, plaintiffs lose on this aspect and by the Holton case, below cited.

In Holton v. Mocksville, 189 N. C., 144 (149), we find: “Section 4 of Article YIII of the Constitution imposes upon the General Assembly the duty to provide by general law for the improvement of cities, towns, and incorporated villages. It does not, however, forbid altering or amending charters of cities, towns, and incorporated villages or conferring upon municipal corporations additional powers or restricting the powers theretofore vested in them. We find nothing in section 4, Article YIII of the Constitution rendering this act unconstitutional, nor does the act relate to any of the matters upon which the General Assembly is forbidden by section 29, Article II, to legislate. Kornegay v. Goldsboro, 180 N. C., 441.” Webb v. Commission, 205 N. C., 663 (613).

(2) The court below found that the whole matter was done in the discretion of the town of Lumberton and in good faith. Durham v. Rigsbee, 141 N. C., 128.

In Stratford v. Greensboro, 124 N. C., 127 (131), it is said: “There can be no objection to the contributing of an individual to the expense of laying out or altering a street, nor will such an act prove that the property was taken for the accommodation of private individuals and not for public use. If in point of fact the public necessity and convenience require the improvement of a street or the opening of one, it can make no difference who pays the damages of condemnation. It might be that a party contributing a part or the whole of the assessed damages in the condemnation of land for a public street when the public necessity requires such street, might have lands adjacent which might be improved by the opening of the street, and surely if nothing else appeared it would not be either immoral or illegal for him to pay the damages growing out of the condemnation proceedings,” citing authorities. At p. 133: “All the courts, we believe, concur in holding that whether a particular use is public or not within the meaning of the Constitution, is a question for the judiciary. Lewis on Em. Domain, sec. 158; Cooley on Taxation, 110, 120; Clark v. Sanders, 74 Mich., 692.” Reed v. Highway Com., 209 N. C., 648.

The findings of fact by the court below were supported by the evidence in the case. For the reasons given, the judgment is

Affirmed.