City of Durham v. Manson

204 S.E.2d 41 (1974)

21 N.C. App. 161

CITY OF DURHAM v. W. Y. MANSON et al.

No. 7414SC73.

Court of Appeals of North Carolina.

April 3, 1974.

Certiorari Allowed June 4, 1974.

*43 Atty. Gen. Robert Morgan and Associate Atty. C. Diederich Heidgerd, Raleigh, amicus curiae for the State.

City Atty. W. I. Thornton, Jr., and Asst. City Atty. Rufus C. Boutwell, Jr., Durham, for plaintiff appellant.

Paul, Keenan & Rowan by James V. Rowan, Durham, for defendant appellees, W. Y. Manson and wife, Patricia S. Manson.

Certiorari Allowed by Supreme Court June 4, 1974.

HEDRICK, Judge.

The primary question presented by this appeal is whether the local act (Chapter 506, Session Laws 1967, as it amended G.S. § 160-205) under which plaintiff seeks to condemn defendants' land was repealed by Chapter 698, Session Laws 1971 (Chapter 160A of the General Statutes). Defendants contend that the 1971 rewriting and streamlining of former Chapter 160 resulted in the repeal of the local act upon which plaintiffs bottom their "quick take" condemnation authority, while plaintiff maintains that the local act remains in full force and effect.

It is a general rule of statutory construction that a subsequent legislative enactment will not repeal a former local act unless the intent do to so is expressly stated, Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971); Felmet v. *44 Commissioners, 186 N.C. 251, 119 S.E. 353 (1923); State v. Johnson, 170 N.C. 685, 86 S.E. 788 (1915); therefore, we must carefully scrutinize the relevant sections of Chapter 160A in order to ascertain the legislative intent. G.S. § 160A-2, which is entitled "Effect upon prior laws" manifests the legislative concern that certain prior laws should be preserved. This section reads in relevant part as follows:

"Nothing in this Chapter shall repeal or amend any city charter in effect as of January 1, 1972, or any portion thereof, unless this Chapter or a subsequent enactment of the General Assembly shall clearly show a legislative intent to repeal or supersede all local acts. The provisions of this Chapter, insofar as they are the same in substance as laws in effect as of December 31, 1971, are intended to continue such laws in effect and not to be new enactments . . . ." (Emphasis added)

G.S. § 160A-2 is made more meaningful by reference to G.S. § 160A-1 wherein the definitions of "charter" and "local act" are contained. G.S. § 160A-1(1) provides that "`Charter' means the entire body of local acts currently in force applicable to a particular city . . .", and "Local Act" is defined in G.S. § 160A-1(5) as a legislative act applying to one or more specific cities by name. Chapter 506, Session Laws 1967, is a legislative act which applies specifically to Durham by name, and is, therefore a "local act" as that term is defined in G.S. § 160A-1(5) and as such it is subject to the applicable provisions of Chapter 160A.

Having determined that it was the express intent of the legislature in Chapter 160A to retain local acts unless otherwise specifically indicated, we must next consider whether those local acts preserved include the act which is the focal point of this appeal. Defendants submit that the repeal in 1971 of G.S. § 160-205 the statute to which the local act in question was appended also resulted in the repeal of the local act; however, this approach overlooks G.S. § 160A-241 which describes the methods of acquiring property which may be employed by a municipality. G.S. § 160A-241 reads in pertinent part as follows:

"In addition to powers conferred by any other general law, charter, or local act, each city shall possess the power of eminent domain and may acquire by purchase or condemnation any property necessary or useful for the following purposes: * * * * * * In exercising the power of eminent domain, a city may in its discretion use the procedures of Article 2 of Chapter 40 of the General Statutes, or the procedures of this Article, or the procedures of any other general law, charter or local act applicable to the city." (Emphasis added)

Clearly, G.S. § 160A-241 exemplifies the express legislative intent to provide alternative condemnation procedures for cities and, in close conjunction with this concept, to continue the existence of the "quick take" condemnation proceeding authorized by Chapter 506, Session Laws 1967. Furthermore, if as defendants contend, it is necessary for the local act to attach to one of the sections of Chapter 160A in order to perpetuate the existence of the local act, we are of the opinion that this is accomplished by attaching the local act to G.S. § 160A-241.

We fail to see how the local act in question can be considered to have been repealed and we conclude that the trial court erred in dismissing plaintiff's condemnation proceeding which was instituted pursuant to such act.

Having determined that it was the intent of the legislature to preserve the local act sub judice, we must next consider the constitutionality of the "quick take" procedure authorized by this act. Such an investigation of the constitutionality of the local act *45 requires careful reflection upon two important questions: (1) Does this local act afford procedural due process? (2) Does this local act encompass a subject matter which is expressly prohibited by Article II, Section 24, of the North Carolina Constitution?

The sole aspect of procedural due process which merits discussion is the element of notice. In an Annotation entitled "Notice In Condemnation Proceedings" which appears in 1 L. Ed. 2d 1635, we find the following:

"As to the necessity of notice, as a matter of due process, in proceedings for the condemnation of real property, a distinction has been made between the taking of the property and the determination of just compensation. Where the taking of property is for a public use, the due process clause of the Fourteenth Amendment does not require that the necessity and expediency of the taking be determined upon notice and hearing. However, with respect to the compensation for the taking, due process requires that the owner be given reasonable notice of, and opportunity to be heard in, the pending proceedings . . . ."

Similar statements are to be found in several decisions of the N.C. Supreme Court. Redevelopment Comm. v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1970); State v. Jones, 139 N.C. 613, 52 S.E. 240 (1905). These cases indicate that notice is not a prerequisite to the determination of questions of a political nature (e. g. the necessity and expediency of a taking) but that notice is only necessary prior to the determination of the issue of just compensation. Thus, in the instant case the city council of Durham acting pursuant to the authority vested in it by the local act, properly determined, without giving notice to the defendants-landowners, that the best interest of the people would be served by condemning the land in question for public use as a park and "neither the landowner affected nor the court can interfere with the exercise of the power until the question of compensation is reached." City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972). As for the notice which is required to be given to the landowner prior to the determination of the question of just compensation, we find that the procedure under attack fully satisfies this condition. The "notice of deposit" which must be given in a "quick take" proceeding is nothing more than its title would imply and certainly does not displace future determination of the compensation issue. In fact, if the condemnee is dissatisfied with amount deposited, he is provided by statute express methods of having the value of the condemned property reconsidered; and in this regard the "notice of deposit" in effect serves the vital function of giving the requisite notice. See G.S. § 136-105 et seq.

The other constitutional question to be discussed is whether the local act under discussion is prohibited by Article II, Section 24, of the North Carolina Constitution. This portion of our State Constitution prohibits the General Assembly from enacting any local, private, or special legislation which deals with the subject matters therein enumerated. There is no question that the act in question is a local act; hence, the only matter left for our consideration is whether this local legislation involves one of the forbidden subjects listed in Article II, Section 24, of the Constitution of North Carolina. It is our view that no part of Section 24 prohibits the enactment of local legislation of the character such as that which is now before us.

For the reasons stated herein the order of the trial court dismissing this action is

Reversed.

CAMPBELL and BALEY, JJ., concur.