Opinion
(Filed 18 October, 1904.)
1. STATUTES — Counties — Municipal Corporations — Highways — Streets Laws 1903, ch. 375 — Laws (Private) 1885, ch. 127.
Laws 1903, ch. 375, does not repeal Laws (Private) ) 1885, ch. 127, sec. 16, or confer any power on the county commissioners to change or control the streets of the town of Waynesville.
2. STATUTES — Words and Phrases — Definitions.
The word "at," when used to designate a place, may and often must mean "near to."
ACTION by the town of Waynesville and others against S.C. Satterthwait and others, heard by Judge G.S. Ferguson, at chambers, in Waynesville, N.C. 2 August, 1904.
W. B. H. R. Ferguson and W. L. Norwood, for the plaintiffs.
George H. Smathers, for the defendants.
CLARK, C. J., and MONTGOMERY, J., dissenting.
Appeal by plaintiffs from an order of Ferguson, J., dissolving a restraining order and refusing an injunction to the hearing. The plaintiff, the town of Waynesville, is situated in Waynesville township, Haywood County. The courthouse is located in said town. By the provisions of sec. 16, chap. 127, Private Laws 1885, being the amended charter of said town, the board of aldermen are empowered to lay off, widen and straighten new streets in the town when in their opinion the same shall be required for the best interest of the town, to make sidewalks, etc. The general powers conferred upon town officers by chap. 62 of The Code are given to said aldermen. The plaintiffs, other than the town of Waynesville, are taxpayers, freeholders and residents of the town. By the provisions of chap. 375, Laws 1903, the commissioners of Haywood County are authorized, when the proposition so to do has been approved by the qualified voters of Waynesville township, to issue and sell bonds of said township to the amount of $50,000 "for the purpose of macadamizing, grading and improving the public roads of said township." By sec. 10 (227) of said act the defendants are appointed a board to be known as "Road Commissioners of Waynesville township," who, by sec. 12, are given "absolute control and management of the public roads of said township and of such as shall be macadamized, graded and improved under the provisions of this act." The defendants are empowered to expend the funds arising from the sale of the bonds so issued for the purpose of "macadamizing, grading and improving the public roads of said township, and to that end they may make contracts." * * * Section 15 provides that "It shall be the duty of said road commissioners to begin improvements at the courthouse on the four main roads in said township, to-wit: Pigeon river, Jonathan creek road, Clyde road and Balsam Gap road." The defendants are authorized to enter upon lands near to or adjoining roads improved * * * for the purpose of getting gravel, timber. * * * They are also authorized to condemn land as provided by the general road law of Haywood County.
An election was held pursuant to the provisions of the act and the proposition to issue bonds approved. The bonds were issued and sold, and the defendants have in hand a large sum of money for the purpose of executing the provisions of the statute. They made a contract with the defendant, D. L. Boyd, and employed a civil engineer to lay off and fix the grade of the roads.
The plaintiffs allege that the defendants have surveyed and located a road or street in the town of Waynesville about one-half mile in length, beginning at a point near the residence of Howell, on Main street, running thence across certain lots, * * * to the great damage of the owners of such lots; that the contemplated road is intended to change and does change the location of a portion of Main street in the town, (228) which change is about to be made by the defendants without the consent and over the protest of the board of aldermen of the town, as well as over the protest of the other plaintiffs and other citizens and taxpayers, and without authority of law. They ask that the defendants be enjoined from constructing said road as now located, and from making any substantial change of any portion of Main street in the town.
The defendants admit that they have changed the location of the road leading from the courthouse to the town of Clyde, within the corporate limits of the town of Waynesville, and that the change of location commences at the intersection of the two streets at the Presbyterian church. The defendants refer to a map prepared by the civil engineer employed by them. They say that the proposed road is to be twenty-two feet wide, of which ten feet is to be macadamized, and if a greater width is desired the same will be left to the aldermen of the town to be made. They say that the proposed change is to be made with as little damage as possible to property holders, at the same time having due regard to the interest of the public. They say further that the location of the new road will not change the present location, unless the board of aldermen shall see fit to discontinue the use of said street on account of the location of the new road. They admit that they have decided to grade, improve and macadamize the new road and not the old one. They deny that the work is being done against the protest of the board of aldermen, "and while the defendants do not recognize the authority of the board of aldermen to dictate to them the location of said road, they have sought the board of aldermen and endeavored to secure their co-operation in the location of said road." The board of aldermen declined to come to any agreement, and finally, through their attorney, notified the attorney of the defendants "that they had no authority over the matter and would assume no responsibility in the location or change of location (229) of said road." The defendants say that they are vested with the power to make the change in the location of the road, or at least to establish a new road for the purpose of improving and macadamizing the same, as road commissioners aforesaid, under the provisions of the Act of 1903. They admit that the property of the plaintiff taxpayers will not be so valuable as it would be if the defendants should grade, improve and macadamize the old road, and they express regret that the grade of the old road is such as to make the change necessary. They proceed to set forth the conditions, grade, etc., which in their opinion make it necessary to change the location. They set forth many other facts in justification of the proposed change. Judge Moore granted a restraining order, and upon the hearing before Judge Ferguson the order was vacated and an injunction to the hearing refused. The plaintiffs excepted and appealed.
His Honor, Judge Ferguson, in the judgment rendered by him finds that by the charter of the town of Waynesville the board of aldermen are "entrusted with the right and power of altering and improving the streets of said town and of laying out and establishing new streets. * * * And the exercise of this power is solely in the board of aldermen, and the town solely liable for damages resulting from its exercise, except as the same shall be modified by the act of the Legislature, Laws 1903, ch. 375." He says: "I am of the opinion that the Legislature had the power to grant to the defendants, the road commissioners of Waynesville township, the right and power to enter the corporate limits of the (230) town and make the improvements specified in said act." In the view which we take of the case, it is not necessary to express an opinion upon the power of the Legislature to confer upon a board of commissioners, or other agency, composed of persons not required to be residents of the town, the power to enter its corporate limits and re-locate streets or open public roads therein. This is a delicate question, and we should be slow to find, unless clearly expressed, an intention on the part of the Legislature to confer such power. While this Court has recognized and enforced the power of town commissioners to control, widen and straighten streets as in their judgment the public good and convenience may require, it has also recognized the limitations upon such power when the vested rights of the citizen and property owner were affected. Hughes v. Clark, 134 N.C. 457. Next to the public health there are few, if any, matters of municipal control which affect more seriously the welfare of cities and towns, or when interfered with, create more friction than the streets and sidewalks. Any divided control or authority in regard to them must necessarily result in conflict and confusion. The courts will always endeavor to ascertain the intention of the Legislature by a careful examination of the statute and its several parts, taking into consideration the purpose and scope of the legislation, the present status of the subject matter, and the rights and interests affected. They will also endeavor to so construe the act that no conflict with existing statutes occur further than is expressly or by necessary implication made necessary. The courts will never bring into question the power of the Legislature until they find no other reasonable way of deciding the question presented. Mardre v. Felton, 61 N.C. 279.
The question presented by this record to be first considered is whether the Legislature has by the Act of 1903 conferred (231) upon the defendant commissioners the "absolute control" of any of the streets in the town of Waynesville. If such is the effect of the statute, it must, in respect to such streets, repeal by implication section 16 of the charter. Certainly the board of aldermen and the defendant commissioners cannot at the same time have and exercise "absolute control" of the same street. It is manifest that there is no express repeal of the charter or any of its provisions. The Act of 1903 makes no reference to the charter or to the town or its officers. If repealed, it must be by implication. While it is well settled that the Court will construe later acts to repeal former ones by implication in well-defined cases, it is equally true that the law does not favor the implied repeal of statutes. Nash, J., in S. v. Woodside, 31 N.C. 497, says: "The law does not favor these implied revocations, nor is it to be allowed unless the repugnancy be plain, and where in the latter act there is no clause of non obstante it shall, if possible, have such construction that it shall not operate a repeal." Endlich on Int. Stats., sec. 280; Sutherland on Const. Stats., sees. 126, 127. There is a further rule stated by Judge Dillon: "It is a principle of extensive operation that affirmative statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities." Dillon Mun. Corp., 143. In Comrs. v. R. R., 81 Va. 355, it is said: "The principles applicable to the repeal of statutes by implication are few and simple. The general rule laid down in Gregory's case, 6 Coke, 19b, and so far as known universally accepted as correct, is that a 'later statute in the affirmative shall not take away a former act and eo potius if the former be particular and the latter general.'" And it is said that rule is enforced more rigidly when the attempt is made by a later general law to repeal the provisions of a prior special charter than in any other cases. Brown v. Comrs., 21 (232) Pa., 43.
Guided by these well-settled principles, we proceed to inquire whether an act which by its title and terms prescribes a scheme for improving the public roads of a township, should be construed to apply to the public streets of an incorporated town, and by implication take the power from the constituted authorities of one and confer it upon the former. It is also a well-settled rule of statutory construction that "the courts approach the interpretation of a statute with the presumption that words and phrases therein are used in their familiar and popular sense and without any forced, subtle or technical construction to limit or extend their meaning." 26 Am. Eng., Ency., 635.
There is a marked distinction, both in common use and in statutory enactment, between a public road and a public street. We have at every session of the General Assembly acts providing for the improvement of the public roads, while invariably the charters of towns and cities confer the power upon commissioners or aldermen to open and control streets. Judge Elliott says that "Rural highways may, we think, be appropriately and conveniently denominated roads, and the public ways of a town or city may be properly and conveniently called streets." Elliott on Streets, sec. 7. "A street is a road or public way in a city, town or village." He says that while all streets are highways, all highways are not streets; that the rights of the public are much greater in streets than in roads in the rural districts, and the methods of regulating their use, improvement and repair are materially different. This Court, in Osborn v. Comrs., 82 N.C. 400, has clearly recognized the distinction between public roads and streets. The General Assembly passed an act providing a system for working the public roads of Mecklenburg and other counties. The commissioners were empowered to divide the county into road districts. (233) The commissioners of Mecklenburg under this power laid off as one district the city of Charlotte, and undertook to take control of the streets, declaring them to be public roads. Upon an application to enjoin them this Court said: "In our opinion incorporated cities and towns whose charters make provision for the repair of streets are not included, nor intended to be included, in an act to regulate roads and highways, and they are still left in possession of their chartered rights and privileges in this regard." The learned Chief Justice notes the language of the city charter and proceeds to say: "The conflict between them is avoided by a construction of the act which confines its operation to parts of the county in which roads, as distinguished from streets, are to be found." The defendant commissioners were enjoined from interfering with the streets. The same construction was given a similar statute by the Court in Illinois. In Ottawa v. Walker, 21 Ill. 605, 71 Am. Dec., 121, speaking of the power to control the streets vested in the town authorities, it is said: "The power in its very nature would seem to be inconsistent with its joint or concurrent exercise by the two bodies, and even if the city charter was not subsequent in date, unless it plainly appeared from the language employed that it was intended to be joint or concurrent, it would be held that the power was exclusive in the commissioners beyond the city limits, and exclusive in the common council within their jurisdictional limits, and neither have any power to perform any acts in reference to this subject beyond their respective limits. * * * The exercise of such a power by each of these bodies would necessarily lead to endless strife and confusion which the Legislature never could have intended to produce by those provisions." People v. R. R., 118 Ill. 520. In S. v. Jones, 18 Tex. 874[ 18 Tex. 874], it is said: "Both cannot exercise it at the same time without producing a conflict which would be (234) irreconcilable, and which might be extremely detrimental to the interests of the town." S. v. Frazier, 98 Mo., 426. In Cross v. Mayor, 18 N.J. Eq., 305, the Chancellor says: "But it has never seemed to me a matter susceptible of doubt that in case a city charter contains a special provision putting the streets in charge of the officers of the corporation, such provision excludes the common scheme for constructing and keeping up highways in the townships and all its concomitant regulations. In conformity with the well-known rule of law, the general legislation on the subject gives way to the special legislation on the same subject." The question has been expressly passed upon in S. v. Mayor, 33 N.J. Law, 57. Referring to the argument made by the prosecution the Court says: "The argument is entitled to much force as applicable to incorporated places, when the charter is silent on the subject of the power of municipal authorities to regulate the streets. But when the charter of a city or town expressly vests the regulation and control of the streets and highways in the corporation the argument is entitled to no weight. The question is not whether the Legislature may legislate within the limits of a municipal corporation, but whether general laws shall have controlling effect when the Legislature has expressly delegated to the corporation special authority to legislate on the subject by the adoption of municipal ordinances."
In the light of these authorities and the reason of the thing, we conclude that the Act of 1903 should not be so construed as to repeal section 16 of the charter or to confer any power on the defendant commissioners to change, alter or otherwise control any of the streets in the town of Waynesville.
It is urged that section 18, chapter 375, Laws 1903, expressly provides that the defendant board shall "begin improvements at the courthouse on the four main roads in said township," and that the language confers express (235) power to take absolute control of the roads. It is said that this language is incapable of any other meaning or construction than that contended for by the defendants. The map which has been filed as a part of the record shows that the courthouse is located on Main street, and that the highways within the corporate limits are streets, laid off and designated by name; that no such roads as those named in the act converge at the courthouse. It is true that the roads named come into the streets at the boundary of the town, and, by following the streets they make into Main street, reach the courthouse. It would be impossible to begin the work on the four roads named, "at the courthouse." The language of the statute may be sustained and given effect by beginning work on the roads at the boundary of the corporation leading to the courthouse, and in this way repugnancy and conflict avoided. The argument that the language is to be given a literal construction proves too much, because if they cannot begin at the court-house it would show a want of power to work the roads named at all, which would destroy the evident purpose of the Act of 1903. The word "at," when used to designate a place, may, and often must mean, "near to." It is less definite than "in" or "on"; at the house may be in or near the house. Web. Inter. Dic., 95; Cent. Dic., Vol. I.
Read in the light of the existing conditions and the context and giving effect to the act without conflicting with the charter, a reasonable construction of the language would empower the defendants to begin work on the roads named at the point where they reached the town boundary and where they merge into the street. In this way the apparent repugnancy of the charter and the act of 1903 is reconciled. It is by no means clear from the language of the act of 1903 that the defendants (236) are empowered to change the location of the road, and certainly not to change the location of a street; but we do not wish to decide any more than is fairly presented by the record.
The injunction prayed for and granted by Judge Moore is that the defendants be "restrained from constructing the said road as now surveyed and from making any substantial change in Main street in said town of Waynesville." We decide nothing more than that the plaintiff, the town of Waynesville, by its aldermen having control of its streets is entitled to this relief.
We do not undertake to say or suggest that the proposed change is not advisable or that it is an abuse of power. We simply decide that under the statute no such power is given to the defendants.
It is said that the bonds issued were voted by the people of the township, including the citizens of the town, who pay a large part of the tax, and that the town should receive some of the benefits therefrom. We appreciate the force of this view. Whether this can be secured by cooperation by the board of aldermen and the defendant commissioners is not before us, nor do we intimate any opinion thereon.
We are of the opinion that the restraining order granted by Judge Moore should have been continued and the injunction granted as prayed for.
To the suggestion that the town of Waynesville is not one of the real plaintiffs, and that the question discussed and cited is not presented, it is sufficient to say that we are compelled to decide this, as we do all other cases which come before us, upon the record. The case was argued before us by counsel representing the plaintiffs, and many of the authorities cited in this opinion were cited and relied upon in his brief. His contention was, as we have decided, that the Act of 1903 did not by implication repeal the town charter and that the aldermen had absolute control of the streets of Waynesville. The map of the town shows that the highways therein are streets, (237) laid off and named. It may be that all parties will find it conducive to the best interest of the township and the town to cooperate in carrying out the purpose of the Act of 1903. This is not for us to determine or direct.
Let this be certified.
Error.