Days Inn of America, Inc. v. Board of Transp.

211 S.E.2d 864 (1975)

24 N.C. App. 636

DAYS INN OF AMERICA, INC., Petitioner, v. BOARD OF TRANSPORTATION and the Department of Transportation & Highway Safety, Respondents.

No. 7410SC917.

Court of Appeals of North Carolina.

February 19, 1975.

*866 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. C. Diederich Heidgerd, Raleigh, for respondents-appellants-appellees.

McLean, Stacy, Henry & McLean by William S. McLean, Lumberton, for petitioner-appellee-appellant.

Bailey, Dixon, Wooten, McDonald & Fountain by Kenneth Wooten, Jr., Raleigh, amicus curiae.

HEDRICK, Judge.

Respondents' appeal presents the question of whether the Outdoor Advertising Control Act, G.S. § 136-126 et seq., became effective on 17 July 1972.

By its terms, the Act provides that it is not to "have any force and effect until federal funds [have been] made available to the State for the purpose" of controlling outdoor advertising "and the Board of Transportation has entered into an agreement with the Secretary of Transportation" with respect to the control of outdoor advertising along the interstate and primary highway systems in North Carolina. G.S. § 136-140.

Respondents argue that all persons are charged with notice of public laws and the provisions thereof, 58 Am.Jur.2d, Notice § 21, and therefore petitioner is charged with notice that the Act became effective on 17 July 1972, when T. J. Morawski notified the State Highway Administrator that federal funds had been "made available" as required by G.S. § 136-140.

While it may not be an unlawful delegation of authority for the legislature to enact a statute complete in all respects which is to become operative upon the happening of a certain contingency or future event, 16 Am.Jur.2d, Constitutional Law, § 258, we think it would be absurd to hold that the statute in question took effect, and the general public, including the petitioner, was charged with notice of such statute simply because an employee of an agency of the federal government wrote a letter to an agency of the State stating that federal funds had become available for the purpose of carrying out the provisions of the Act. We are of the opinion that the law does not charge a party with knowledge of the happening of a statutory contingency which cannot be determined by the exercise of reasonable diligence. See McClure v. Township of Oxford, 94 U.S. 429, 24 L. Ed. 129 (1877).

It is very doubtful whether petitioner could have determined the existence of Morawski's letter at or prior to the time it purchased the billboards from Ever-Glo. Indeed, by contending that the petitioner in this case was charged with notice of the Outdoor Advertising Control Act and the provisions thereof as of the date of Morawski's letter, the respondents are arguing that the petitioner ought to have had notice of a fact of which the Board of Transportation itself was obviously unaware. It would have been a relatively simple matter for the Board of Transportation, the administrative agency charged with the responsibility of enforcing the Outdoor Advertising Control Act, upon receipt of notice from the agency of the federal government that federal funds were available, to have adopted a resolution or ordinance declaring that the contingency referred to in G.S. § 136-140 had occurred and that the Act was in effect.

*867 We, therefore, hold that G.S. § 136-126 et seq., did not become effective on 17 July 1972 and that the trial court did not err in enjoining the Board of Transportation from enforcing its order of 4 October 1973 as to the petitioner.

On 22 November 1974 respondents filed a motion in this court to dismiss petitioner's appeal on the ground that petitioner was not an aggrieved party under G.S. § 1-271. We agree. Since the superior court permanently enjoined the respondents from enforcing the order dated 4 October 1973 challenged by petitioner, we fail to perceive how petitioner could be considered an aggrieved party. Therefore, petitioner's appeal is dismissed.

The result is: as to respondents' appeal, the judgment permanently enjoining respondents from enforcing the order dated 4 October 1973 is affirmed; petitioner's appeal is dismissed.

Respondents' appealAffirmed.

Petitioner's appealDismissed.

BRITT and PARKER, JJ., concur.