Glenn v. . Board of Education, 187 S.E. 781

Glenn v. . Board of Education

187 S.E. 781

N.C.

1936

Check Treatment

*528 Clarkson, J.

The court below held the act in controversy valid and sustained the contentions of defendants, and dismissed the actiоn. We cannot so hold.

Article II, sec. 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 tоwnships; authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys; relating to ferries or bridges,” etc.

In Day v. Comrs., 191 N. C., 780 (783-4), 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 legislаtion addressed to the accomplishment of a single designated purpose at a 'specific spot’; it is thеrefore a local and special act, and as such is expressly prohibited by Art. II, sec. 29, of the Constitution. In further еlucidation of this provision the following additional cases may be consulted: Trustees v. Trust Co., 181 N. C., 306; Sechrist v. Comrs., ibid., 511; Robinson v. Comrs., 182 N. C., 590; Galloway v. Board of Education, 184 N. C., 245.” Scunitary Dist. v. Pruden, 195 N. C., 722 (727).

The town of Spruce Pine contends that “the said Riverside Drive and Tappan Street, authorized to be closed by chapter 72, had never been accepted by the town of Spruce Pine and had never been opened by anyone and existed only on the map of said subdivision, and was of no use to the plaintiffs in this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍action as a street, nor to the public, and for more than twenty years the ground now occupied by the Harris High School under and by virtue of said act as a playground has not bеen used by the plaintiffs nor the public as a street or passageway, but is necessary as a playground for said high sсhool.”

The town of Spruce Pine cannot “blow hot and cold in the same breath.” It relies on the private act which it and the board of Mitchell County contends is a good defense to this action. The act distinctly designates it as а street, as follows: "Whereas, the sections of the street extending from Peterson Street and Tappan Street to the оriginal campus road and line are no longer needed for public purposes,” etc.

It is important that the schools should have playgrounds, and this Court has recently decided that in thickly settled cities parks, playgrounds, etc., are a necessary expense. Atkins v. Durham, ante, 295. It was admitted on the argument that if the act was constitutional it “bottled up” plаintiffs. It is a fundamental principal that no man’s land can be taken for public purposes ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍without “just compensation.” If plaintiffs have an easement in this Riverside Drive, it cannot be taken except it be condemned, as provided by law, and “just compensation” *529 paid, or purchased from plaintiffs. Hiatt v. Greensboro, 201 N. C., 515. This law is recognized in all civilized lands and is imbedded in our jurisprudence as firm as the everlаsting hills and mountains which can be seen from the location in controversy.

In Robinson v. Barfield, 6 N. C., 392 (120), decided July Term, 1818, we find this strong language: “Had the Lеgislature any right or power to take the lands without the consent of the lessors of the plaintiff, in whom the fee simplе vested, and without compensation rendered, give them to General Thomas Brown and his heirs; or, in other words, is the act of the Assembly, passed in the year 1788, confirming ihe title of Gen. Brown, of any force or effect? I am of opinion the act is a nullity, and does not affect the rights of the lessors оf the plaintiff. The Constitution declares that the Legislative, Executive, and Supreme Judicial powers of government ought to be forever separate and distinct from each other. The transfer of property from one individual, who is the owner, to another individual, is a judicial and not a legislative act. "When the Legislature presumes to touch private property, for any other than public purposes, and then only in case of necеssity, and rendering-full compensation; it will behoove the judiciary to check its eccentric course, by refusing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to givе any effect to such acts: Yes, let them remain as dead letters on the statute book. Our oath forbids us to exeсute them, as they infringe upon the principles of the Constitution. Miserable would be the condition of the people if the judiciary was bound to carry into execution every act of the Legislature, without regarding the paramount rule of the Constitution.”

In Lowe v. Harris, 112 N. C., 472, at p. 480, citing a wealth of authorities, it is said: “Philosophical writers upon law generally in all countries, hоwever, deny the power of the Legislature to pass statutes that impair a right acquired under the law in force at the time of its enactment, and insist that the right to repeal existing laws does not carry with it the power to take away property, the title to which vested under and is protected by them. But the Legislature of North Carolina is restrained by Artiсle I, sec. 10, of the Constitution of the United States, and Article I, sec. 17, of the Constitution of North Carolina, not only from pаssing any law that will divest title to land out of one person and vest it in another (except where it is taken for public рurposes after giving just compensation to the owner), but from enforcing any statute which would enable one person to evade or avoid the binding force of his contracts with another, whether executed or executory.” Booth v. Hairston, 193 N. C., 278 (284).

It is well settled in this State that the courts have the power, and it is their duty in proper cases, to declare an act of the General Assembly unconstitutional — but it must be plainly and clearly the case. If there *530 is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people. It has ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍been frequently said that this State was the first in the United States to declare an act of the General Assembly unconstitutional (Bayard v. Singleton, 1 N. C., 42 [45]), but other states claim this distinction also. Virginia claims to be the first —Commonwealth v. Caton et al., reported in 4 Call, 5 (November, 1782). In Two Centuries’ Growth of American Lаw, 1701-1901 (Tale Law School), we find the following, at p. 24: “In the case of Holmes v. Walton (N. J.), was adjudged to be void, because contrary to the Constitution. The date of this judgment, although formerly put later, it seems now to be established was 1780. . . . (Note) Commonwealth v. Caton, in Virginia, 1782. See 4 Call’s Reports, 5; Thayer’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Cases on Constitutional Law, I. 55; The Symsbury Case, in Connecticut, 1784-5; Kirby’s Reports, 444, 447, 452. Trevett v. Weeden, in Rhode Island, 1786; Bayard v. Singleton, in North Carolina (1787). U. S. Supreme Court in Marbury v. Madison, 1 Cranch, 137 (Feby. Term, 1803).”

For the reasons given, the judgment of the court below is

Reversed.