Town of Emerald Isle ex rel. Smith v. State
338 S.E.2d 581
N.C. Ct. App.
1986
Check Treatment

Lead Opinion

WEBB, Judge.

Defendants first contend the individual plaintiffs lack standing to challenge Chapter 539, and therefore the trial court erred in denying defendants’ motion to dismiss. This contention does not raise a question which would constitute reversible error since the constitutionality of Chapter 539 was also challenged by plaintiff Town. Defendants do not contest the standing of the Town on this issue, and we hold that the legal rights of plaintiff Town were threatened with direct and immediate injury from Chapter 539 so as to give the Town standing to challenge the Act. Thus the issue was properly before the trial court regardless of whether the individual plaintiffs have standing, and we need not decide this question.

*739The Constitution of North Carolina, Article II § 24 provides in part:

(1) The General Assembly shall not enact any local, private, or special act or resolution:
(c) Authorizing the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys;

In Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781 (1936) the General Assembly had adopted a law which closed a street in the Town of Spruce Pine. Our Supreme Court held that this act violated the section of the constitution then in effect which corresponds to the above section. We believe we are bound by Glenn to hold that Chapter 539 of the 1983 Session Laws violates Article II § 24 of the Constitution of North Carolina. Chapter 539 provides among other things that “vehicular access” with the exception of “public service, police, fire, rescue or other emergency vehicles” is excluded from the Inlet Drive right-of-way. Inlet Drive is a public street within the Town of Emerald Isle. We hold that Chapter 539 is a local act which discontinues a street.

The appellants contend, relying on Adams v. Dept. of N.E.R., 295 N.C. 683, 249 S.E. 2d 402 (1978); McIntyre v. Clarkson, 254 N.C. 510, 119 S.E. 2d 888 (1961) and Ferrell, Local Legislation in the North Carolina General Assembly, 45 N.C. L. Rev. 340 (1967), that Chapter 539 is not a local act. They argue that an act is not necessarily a local act because it applies to only one unit of the state government. They argue that the test is whether “any rational basis reasonably related to the objective of the legislation can be identified which justifies the separation of units of local government into included and excluded categories.” If this be the test we believe Chapter 539 is a local act. It does not create a class at all. It directs that vehicular travel be discontinued on a certain street in Emerald Isle. There is no classification which would require other streets to be so restricted in similar circumstances.

The appellants also contend that Chapter 539 does not discontinue a street because pedestrian traffic and public service and *740emergency vehicles will be allowed to use it. We believe the ordinary understanding of the word “street” is that it is a place for the passage of motor vehicles used by the public. When the public is deprived of the use of such an area its use as a street is discontinued. The appellants also argue that the power of municipalities to regulate their streets is derived from and is subject to control by the General Assembly and the General Assembly has done no more than it had the power to do in this case, that is it has regulated a street. We agree with this principle. The General Assembly must exercise its power to regulate streets, however, within the limits of the Constitution which it has not done in this case.

Since we have held that Chapter 539 of the 1983 North Carolina Session Laws violates Article II, Section 24(l)(c) of the Constitution of North Carolina, we do not pass on that portion of the judgment of the superior court which holds it violates other parts of the Constitution.

The superior court held that the parts of the section which it held unconstitutional could be severed. It ordered the defendants to comply with the remainder of the act. We hold that this was error. If the parts of a statute are interrelated and mutually dependent and one part is unconstitutional the whole statute must fail. See Flippin v. Jarrell, 301 N.C. 108, 270 S.E. 2d 482 (1980), rehearing denied, 301 N.C. 727, 274 S.E. 2d 228 (1981) and Hobbs v. Moore County, 267 N.C. 665, 149 S.E. 2d 1 (1966). Chapter 539 provides that its purpose is “for the provision of public pedestrian beach access.” We believe from reading Chapter 539 that the legislative intent is that there shall be pedestrian access only to the acquired property. We do not believe the General Assembly would have adopted Chapter 539 unless vehicular traffic could be excluded. Now that we have held this part of the Chapter unconstitutional the entire Chapter must fail.

We affirm in part, reverse in part, and remand for a judgment consistent with this opinion.

Affirmed in part; reversed in part.

Judge Johnson concurs. Judge Phillips dissents.



Dissenting Opinion

Judge Phillips

dissenting.

In my opinion Chapter 539 does not violate the North Carolina Constitution, Art. II, Sec. 24, because it would merely restrict the use of the street, not close it. When a street is “closed,” the public is deprived of its use and title to the land comprising the right of way usually reverts to the abutting owners. G.S. 160A-299(c); 39 Am. Jur. 2d Highways, Streets, and Bridges Sec. 184 (1968). But instead of closing the street involved, Chapter 539 expressly permits its continued use as a way by the public, albeit in a restricted manner. Whether a way is a street is not determined by the unrestricted passage of motor vehicles over it, as the majority indicates. A street is but a public way or road in a city, town or village, Black’s Law Dictionary 1274 (5th ed. 1979), and streets for public use were established long before motor vehicles existed. The use of vehicles upon streets may be regulated, controlled and restricted, if done in a reasonable manner, 60 C.J.S. Motor Vehicles Sec. 31 (1969), and Chapter 539 is such a regulation, in my opinion. Glenn v. The Board of Education of Mitchell County, 210 N.C. 525, 187 S.E. 781 (1936) has no application, because the special act tested there did undertake to close the street by transferring the land involved to the school board; which, of course, would have prevented the public from using it as a way.