Reed v. State Highway & Public Works Commission
184 S.E. 513
N.C.
1936
Check Treatment
Clarkson, J.

It is well settled that public funds cannot be taken for private purposes, and private property can only be taken for public purposes upon the payment of “just compensation” to the owner.

In Stratford v. Greensboro, 124 N. C., 127 (132-133), we find: “In cases where the municipal authorities are empowered by the general law, or by their charters, as in this case, to open up, grade, and pave streets, the expediency or necessity of doing so, and the power of exercising the right of eminent domain, condemning the private property of the citizen for that purpose, are entirely within the determination of the corporate body, and their action is conclusively against judicial interference, since such a question is not judicial; it is political. 2 Dillon Mun. Corp., sec. 600. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. Lewis on Em. Domain, sec. 238; Boom v. Patterson, 98 U. S., 403; Broadnax v. Groom, 64 N. C., 244; Vaughan v. Commissioners, 117 N. C., 434. It is also true that municipal authority, when lawfully exercising the power of condemning private lands for the public use, do and must determine, in the first instance, that the use to which they intend the land is public use. But that decision is not conclusive. But whether the use of the property which the delegated legislative authority has declared to be a public use be such a use as would sustain the authorities in taking, against the will of the owner, his property, is a judicial question. If the taking be in fact for the purposes of private use, if the basis of condemnation be the benefit of an individual and not the public interest and convenience, the courts cannot be concluded by the action of legislative authority from exercising jurisdiction in determining whether the use is a public use or one for private gain and advantage. 2 Dillon, supra, sec. 600; Call v. Wilkesboro, 115 N. C., 337. 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, supra, sec. 158; Cooley on Taxation, 110, 120; Clark v. Sanders, 74 Mich., 692. . . . (Pp. 134-5.) In the case before us, the main question raised by the pleadings was whether the use, to which the new street and improvements were to be devoted, was a public use. It was not necessary on the part of the plaintiff to allege or prove actual fraud in the transaction. If the substantial benefit was for the defendant Cone as an individual, and the benefit to the city only incidental and purely prospective, then the proceedings of the board were ultra vires and void. An issue should therefore have been submitted as to whether the action of the board, in making the *653 orders and carrying them out, was for the public benefit, and whether the lands condemned were for the public use; and upon that issue the court should have instructed the jury in the law as to what constitutes a public use.” Cobb v. R. R., 172 N. C., 58.

In Hartsfield v. New Bern, 186 N. C., 136 (142-3), we find: “The plaintiffs rely upon Stratford v. Greensboro, 124 N. C., 127, but as to that case it was said by Hoke, J., in Edwards v. Comrs., 170 N. C., 451, cited in Allen v. Reidsville, 178 N. C., 532: ‘In that case there was specific allegation, with evidence tending to show that the action of the city authorities was in pursuance to a contract admittedly entered into with the individual defendant and making it according to plaintiff’s evidence, not at all improbable that the measure complained of was in promotion of a personal and private scheme in favor of the individual defendant, and not in furtherance of the public interest.’ In Lee v. Waynesville, 184 N. C., 565 (568), Hoke, J., speaking for a unanimous court, and citing numerous cases expressly in point says: ‘It is the accepted principle, declared and upheld in numerous decisions with us, that courts may not interfere in a given case with the exercise of discretionary powers, conferred on these local administrative boards for the public welfare, unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of their discretion.’ ” Yarborough v. Park Com., 196 N. C., 284 (292).

In Public Laws of 1931, ch. 145, sec. 13, is the following: “The board of county commissioners of any county may, when in the opinion of said board the best interests of the people of said county or of any particular community thereof will be subserved thereby, petition the State Highway Commission to change or abandon any road in the county road system or to add thereto any new road. Said petition shall be filed with the chairman of the State Highway Commission, who shall personally or by his duly constituted deputy, after conference with the board of county commissioners of said county, make diligent inquiry into and study of the proposed change, abandonment, or addition, and if in his opinion the public interest demands the same, such change, abandonment, or addition shall be made.” In the construction of the section above, see limitations set out in Davis v. Alexander, 202 N. C., 130. In re Petition of Edwards, 206 N. C., 549 (551) ; Grady et al. v. Grady, post, 749.

The question as to what is a public purpose is not always clear or well defined. On the present record we see no sufficient evidence to base an issue of fact that the present road taken over is for private purposes. The road in controversy, known as the “Reed Road,” will furnish a public outlet for five homes from the top of the mountain to the county seat of Columbus; then again, it will be a part of a through scenic high *654 way. In the petition of the Board of Commissioners of Polk County is the following: “In the opinion of this board the best interests of the people of Polk County and of the particular communities which include the towns of Tryon and Columbus, and that portion of White Oak Township situated upon the upper levels of White Oak and Tryon Mountains and the broad plateau which crowns said mountains, and the connecting ridges, will be subserved by the addition to the County Road System of Polk County heretofore established and defined by the State Highway Commission conformably to the provisions of chapter 145 of the Public Laws of 1931, of another and new road, namely, to be composed of the following separate but connecting roads, to wit: That certain road commonly known as the Reed Road,” etc.

It is a matter of common knowledge, shall we term it, “the tourist industry” is now in the mountain sections of this State one of its most valuable assets to the people of that section. These scenic roads do much to encourage tourists to come into this “land of the sky,” locate and spend the summer, and put into circulation money which is of great benefit to the people. In taking over a road to be a part of the highway system, this purpose can be considered on the aspect of the road being taken over for a public and not a private purpose. These beautiful mountain views ought not to be shut off from the public by selfish persons or interests. It goes without saying that private property cannot be taken for public purposes without just compensation.

In Shute v. Monroe, 187 N. C., 676 (683), is the following: “The Anglo-Saxon holds no material thing dearer than the ownership of land; his home is termed his ‘castle.’ Although there is nothing in the Constitution of North Carolina that expressly prohibits the taking of private property for public use without compensation (the clause in the United States Constitution to that effect applies only to act by the United States and not to government of the State), yet the principle is so grounded in natural equity and justice that it is a part of the fundamental law of this State that private property cannot be taken for public use without just compensation. Johnston v. Rankin, 70 N. C., 555.” MacRae v. Fayetteville, 198 N. C., 51 (54).

N. O. Code, 1935 • (Michie), sec. 3846 (bb), provides a remedy for plaintiff against defendant for damages, “just compensation,” for taking plaintiff’s land: "Provided, that all actions for damages for rights of way or other causes shall be commenced within six months from the completion of each particular project.”

In McKinney v. N. C. Highway Com., 192 N. C., 670 (671), we find: “In Latham v. Highway Commission, 191 N. C., 141, speaking to the question, it was said that ‘where a State agency, like the State Highway Commission, is created for certain designated purposes, and a statutory *655 method of procedure provided for adjusting or litigating claims against such agency, the remedy set out in the statute is exclusive and may alone be pursued,’ citing a number of authorities for the position. The only remedy afforded the plaintiff, and others similarly situated, hy express provisions of the statute (3 C. S., 3846 [bb], and G. S., 1716) is a special proceeding in condemnation under chapter 33 of the Consolidated Statutes. This remedy is equally available to the owner of the land and the State Highway Commission.”

N. C. Code, 1935 (Michie), sec. 1715, proceedings when parties cannot agree. Section 1716, in part: “Eor the purpose of acquiring such title the corporation, or the owner, of the land sought to be condemned, may present a petition to the clerk of the Superior Court of the county in which the real estate described in the petition is situated, praying for the appointment of commissioners of appraisal,” etc. Long v. City of Randleman, 199 N. C., 344.

Wisdom or impolicy of legislation is not judicial question, Sidney Spitzer & Co. v. Comrs. of Franklin County, 188 N. C., 30. Policy of legislation for the people, not courts. Bond v. Town of Tarboro, 193 N. C., 248. Courts do not say what law ought to be, but only declare what it is. S. v. Revis, 193 N. C., 192.

In the judgment of the court below is the following: “That the incorporation of the said road into the public road system of the State is in furtherance of the public interest, and that there has been no abuse of the discretion on the part of the said Commission.”

On the record, we think the above finding of the court below correct. Eor the reasons given, the judgment of the court below is

Affirmed.