
    J. L. HARTSFIELD et al. v. CITY OF NEW BERN.
    (Filed 3 October, 1923.)
    1. Oities and Towns — Municipal Corporations — Railroads—Public Use— Statutes — Constitutional Law.
    The acquisition of land to be used to connect a railroad in wbicb the State and counties own an interest with the city’s public wharves and docks for water commerce, and necessary to continue or develop the industries of its citizens, is for a public use, and not subject to the exception that the city, in taking the right of way by condemnation from the owner, according to the provisions of its charter and the general statutes, were acting in violation of the Constitution in taking private property for a public use; and the private statutes specifically authorizing the proceedings is constitutional and valid. C. S., secs. 2791, 2792.
    2. Constitutional Ua.w — Statutes-—Presumptions.
    The legal presumption is in favor of the constitutionality of a statute, and the courts will not construe it otherwise unless the conflict with the fundamental law is manifest and without reasonable doubt.
    
      3. Cities and Towns — Municipal Corporations — Condemnation—Discretionary Powers — Courts.
    
      Held, the courts will not interfere with the exercise of the reasonable discretion of a city in determining upon the location and condemning lands for railroad purposes, when acting under the provision of constitutional acts of the Legislature.
    4. Statutes — Interpretation—Compilation.
    Whether a statute is private or public -depends upon its purport and not upon the judgment of the person who directs the compilation in which it shall be' published.
    Appeal by plaintiffs from Grady, J., at February Term, 1923, of CRAVEN.
    New Bern was founded by de Graffenreid and bis followers on tbe land at tbe junction of tbe Trent and Neuse rivers, tbe Trent River flowing eastwardly and Neuse River flowing southwardly. Tbe first streets laid out were East Front Street along tbe shore line of tbe Neuse, and Sorith Front Street along tbe shore of Trent River. These two streets intersect at right angles at what was then, and has ever since been, commonly known as Union Point.
    This place was tbe residence of tbe Indian king, Taylor, from whom de Graffenreid bought it, and erected thereon tbe first government bouse. In tbe angle of tbe two streets, extended, on tbe south and east, and between said streets and tbe channels of said rivers, lay some ten acres, more or less, of land covered by tbe waters of tbe-two rivers. From tbe beginning, this land was regarded as community property by tbe Indians, by tbe first settlers under tbe proprietary government, during tbe colonial period, and when tbe State government was organized. Tbe General Assembly, in 1779, vested tbe property in tbe commissioners of tbe town and their successors forever, “to and for tbe use of said town, and that tbe said commissioners, or their successors, forever, shall and may take and receive tbe rents, issues and profits of tbe same, for tbe use of the' said town, and to and for no other use, intent or purpose whatsoever.” As stated by Maj. J. R. D. Matheson, corps pf United States engineers, in bis report to tbe War Department, 31 January, 1921, “It is an ideal site for a public wharf with rail connection.” By an agreement of doubtful validity, 7 February, 1885, for tbe sum of $1 per year, Moore & Brady attempted to lease tbe property for tbe term of ninety-nine years, with tbe privilege of an additional term of ninety-nine years, and establishing there an oyster-canning plant. They filled in several acres with oyster shells, and then quit business and conveyed their right to tbe property to E. H. & J. A. Meadows Company, which erected a wall around tbe property to protect it from tbe wash of tbe rivers, and built bouses tbereon and occupied and used tbe same. More tban ten years ago tbe board of aldermen of tbe city required R. A. Nunn, city attorney, to investigate tbe validity of tbe lease, and be reported, 6 August, 1913, tbat in bis opinion tbe lease was voidable, because made contrary to law.
    From tbat time until 13 January, 1923, negotiations for cancellation of tbe lease and surrender of tbe property- to tbe city were pending. Tbe occupants of tbe property claimed tbat tbe property was worth over $100,000 and tbat tbe improvements made tbereon bad cost them about $75,000. Disinterested citizens, considering «all of' tbe circumstances, acting at tbe request of all concerned, estimated tbat tbe city should pay tbe occupants as much as $37,000, but tbe city finally acquired whatever interest tbe bolder of tbe lease bad for tbe sum of $22,500.
    Notwithstanding tbe well-known history of tbe property, tbe plaintiffs now contend tbat it was reacquired by tbe city without public necessity, at an exorbitant price, for tbe benefit of one or more individuals, and as a device illegally to take tbe plaintiffs’ property from them.
    Tbe city contends tbat, in fact, tbe property has always belonged to tbe community, and tbat for many years there has been an urgent demand upon tbe part of tbe citizens generally tbat it be devoted to public uses, for tbe benefit of tbe great number of industrial and manufacturing and shipping interests. As set out in tbe eighteenth allegation of tbe answer, and by resolution of tbe board of aldermen of said .city, it was duly determined tbat it is to tbe best interest of tbe city and, indeed, necessary for tbe city to acquire lands by purchase or condemnation proceedings for tbe public uses and purposes of extending a railroad from tbe main track of tbe Atlantic and North Carolina Railroad Company to Union Point. This railroad was built principally by tbe State and certain counties, and is still owned by them, Craven County owning 1,293 shares of its capital stock. Its physical connection with tbe waterways and wharves at New Bern will not only benefit all of tbe people in Craven County, but all of tbe people in tbe State living in tbe territory wherein freight rates are based upon rail and water competition at New-Bern.
    Tbe physical connection and combined use of tbe rail and water transportation facilities was tbe very idea and hope of Murphey, Graham, Morebead, and other men who promoted internal improvements before tbe Civil War. Tbe track of tbe Atlantic and North Carolina Railroad crosses Trent River at New Bern at an angle, and plaintiffs’ narrow strip of land adjoining is so situated tbat by extending their line to tbe channel of Trent River the railroad company may be deprived altogether of reasonable or adequate docking facilities, and tbe railroad company never Las bad anything more than a very narrow and inadequate dock and wharf until this track was constructed parallel with Trent and Neuse rivers and connecting with the Union Point property, which is to be developed as a municipal wharf, as Wilmington, Norfolk, Baltimore, New York, and many other cities and towns on the water have developed municipal wharves as public necessities.
    The entire work of laying tracks, building trestles and platforms has been fully completed, and the actual operation of trains over the right of way is an established fact, existing for about thirty days prior to the hearing of.this appeal, and the defendants asked that the same should be dismissed.
    A temporary restraining order had been granted on 5 February, 1923, upon the complaint of the plaintiffs, which was used as an affidavit to restrain the defendants, its officers and agents from entering upon any part of the lands described in the complaint for the purpose of laying out a railroad sidetrack or for any other purpose, but upon affidavits and after a full hearing, on 16 February the restraining order was dissolved by the judge, and the action was dismissed. Appeal by plaintiffs.
    
      A. JD. Ward and T. D. Warren for plaintiffs.
    
    
      Guión & Guión and B. A. Nunn for defendant, city of New Bern.
    
   Clabk:, O. J.

The record discloses that the land sought to be condemned for the purposes of railroad facilities is a portion of land lying wholly within the business district of the city and devoted entirely to the wholesale business of the city, large industrial enterprises, coal yards, bottling plants, fish houses, wharves, docks and warehouses of citizens, running through the mill yards, ship yards, cotton exchange, and the valuable property of the city, known as Union Point, at the confluence of the Neuse and Trent rivers, whereon wharves and warehouses are to be erected on deep water for the loading and unloading of ships and vessels in connection with the operation of the railroad cars over the tracks laid through the district on the right of way acquired and condemned for that purpose, from which condemnation out of all of the owners whose lands have been taken for the purpose these plaintiffs only appeal, and they alone charge for the right of way.

The plaintiffs contend that this track is a private enterprise and not for the public use, and base this claim upon the ground that a railroad is sometimes termed a private carrier, but it is apparent that the construction, of this track along the rivers through the business, shipping and manufacturing area of the city is one of the most valuable and beneficial undertakings that bas ever been entered upon in the city, and one from wbicb the entire public do and will receive more actual benefit than any other public enterprise ever entered upon by the city, government or the citizens of the community for the benefit of the public.

From the above it will be seen the great benefit which the defendants expect to be derived by the whole community, and not only by the whole community, but by all persons in the State interested in the freight rates at New Bern from the operation of trains from the main line of the Atlantic and North Carolina Bailroad, and other roads entering the city to deep-water terminus on Neuse and Trent rivers.

The railroad track, the laying of which the plaintiffs seek to enjoin in this proceeding, has been entirely laid and the work completed, and trains have been for some time operating over the track in carrying and receiving freight to and from the numerous warehouses and wharves and places of business along the right of way.

This is not like the ease where a tree has been cut down, or other irreparable act has been committed, and, therefore, we need not consider the suggestion made by1 the city that the completion of this work is irreparable and could not be cured if there had been error committed; for in this case, if there had been error, the tracks, though laid down, could be torn up and the status quo ante restored. .The court would not be deciding an abstract question.

We do not think, however, there has been any error committed. C. S., 2791, provides that when, in the opinion of the governing body of any city desiring to have and exercise the management and control of wharves or other public utilities which are or may by law be owned and operated or hereafter acquired by such city or by a separate association, corporation or other organization on behalf, and for the benefit, of such city, any land, right of way, water right, privilege, or easement, either within or outside the city, shall be necessary for the purpose of opening, establishing, building, widening, extending, enlarging, maintaining, or operating any such wharves, etc., or other public utility so owned, operated and maintained by or on behalf of any such city, such governing body may purchase such land, right of way, water right, privilege, or easement from the owner or owners thereof, and pay such compensation as may be agreed upon. And C. S., 2792, provides that, if such governing body is unable to agree with the owners for the purchase of such land, etc., condemnation of the same for such public use may be made in the same manner and under the same procedure as is provided in chapter Eminent Domain, Art. II; and the determination of the governing body, board, commission, or department of government of such city of the land necessary for such purposes shall be conclusive.

Section 53, Private Laws 1899 — i. e., tbe ¿barter of tbe city of New Bern — provides for tbe manner in wbicb tbe board of aldermen shall straighten, widen or establish new streets when in their opinion tbe same shall be necessary.

Tbe General Assembly of North Carolina, by an act ratified 19 December, 1921, chapter 128, Private Laws, Extra Session 1921, entitled “An Act to authorize the board of aldermen of the city of New Bern to open and, if necessary, to condemn land in said city for the use of a railroad side-track,” authorized the board of aldermen of the city of New Bern to “lay off, establish and open, in, over, through and across the territory in said city bounded by Hancock Street, South Front Street, Neuse Biver and Trent Biver, for the use of a railroad side-track and convenience of industries already established or to be established in said territory, a right of' way, not less than 20 feet in width, and extending from the main track of the Atlantic and North Carolina Bailroad Company in Hancock Street to Union Point on Neuse Biver, in the same manner as said board is authorized by section 53 of chapter 82 of the Private Laws of 1899 to lay off and establish new streets, and all the provisions of said section shall apply if condemnation be necessary to acquire such right of way.”

The plaintiffs contend that this act is void and unconstitutional, because they say that it is a private act, and thirty days notice was not given before its passage. This contention was made before the General xlssembly, it appears, from the time the bill was introduced until the close of the session, but the two committees, after fully hearing, decided that there was no constitutional prohibition; that the bill was not a private one, and that public necessity required its passage over the objections of the plaintiff and the gentlemen employed to prevent its passage.

The plaintiffs’ counsel, in his brief, says: “This is undoubtedly a private law. It is printed in the private laws.” Whether a statute is private or public depends upon its purport and not upon the judgment of the person who directs the compilation in which it shall be published. In Hancock v. R. R., 124 N. C., 222, where the Fellow-Servant Act had been printed as chapter 56, Private Laws 1897, the Court held it to be a public act, notwithstanding, and said: “The mere fact that the statute appears in, and as a section of, a private one, does not make it private. It is well settled that one part of a statute may be private, while another part -may be public and general, or local. It not infrequently happens that public statutes contain provisions of a private nature, and vice versa.” Ruffin, C. J., in Humphries v. Baxter, 28 N. C., 437. The same ruling has been made in S. v. Wallace, 94 N. C., 828; Hancock v. R. R., 124 N. C., 225; S. v. Patterson, 134 N. C., 615.

An act of tbe Legislature is presumed to be valid, and all doubts are resolved in its support, and it will not be beld unconstitutional unless tbe conflict between tbe fundamental law and tbe legislation is manifest and without reasonable doubt.

Tbe condemnation in tbis case is for a public purpose, and it was witbin tbe power of tbe eminent domain under tbe provision of tbe statute above cited to take sucb property for public use in tbe manner stated. Tbe operation of tbis side-track along tbe river fronts of tbe city of New Bern must bo of great benefit to all shippers, manufacturers, merchants, and industries along tbe right of way. It is essential that tbe municipal docks and wharves shall be physically connected with tbe railroads of tbe country, and tbis track is tbe only means by which tbis can be done in tbe city of New Bern.

Tbe local office of tbe United States engineer completed tbe compilation'of statistics for tbe commerce carried on Neuse River for tbe year 1922, tbe same being published in tbe public press of tbe State. Tbis compilation shows a total of 271,139 tons, valued at $6,382,364 in tbe 1922 record, as against a record of less than half that tonnage for 1921, and not more than two-thirds of that value in tbe preceding year.

Tbe lack of terminal facilities has doubtless prevented tbe public from enjoying tbe low freight rates prevailing where water transportation is obtained. To procure better freight rates has moved the people of that community to establish municipal wharves, but tbe wharves cannot be successfully maintained without railroad connection.

In Bragg v. Weaver, 251 U. S., 57, tbe Court beld: “Where tbe intended use is public, tbe necessity and expediency of tbe taking may be determined by sucb agency and in sucb mode as tbe State may designate. They are legislative questions, no' matter who may be charged with their decision, and a bearing thereon is not essential to due process in tbe sense of tbe Fourteenth Amendment. Mississippi & River Boom Co. v. Patterson, 98 U. S., 403; Backus v. Union Depot Co., 169 U. S., 557; R. R. v. N. Y., 176 U. S., 349; Sears v. Akron, 246 U. S., 251. Numerous cases have beld that “tbe necessity and expediency of taking property for public use is a legislative and not a judicial question, and is not open to discussion.” Neither is it any longer open to question that “tbe Legislature may confer upon a municipality tbe authority to determine sucb necessity for itself. Tbe question is purely political, does not require a bearing, and is not tbe subject of judicial inquiry.”

Tbe plaintiffs rely upon Stratford v. Greensboro, 124 N. C., 127, but as to that case it was said by Holce, 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 tbe action of tbe 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., 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 local administrative boards for the public welfare, unless their action is so grossly unreasonable as to amount to an oppressive and manifest use of their discretion.”

The act of the Legislature under which the city was empowered to act, and did act, in the condemnation of this right of way, was clearly within the power of the General Assembly, and there is nothing which indicates any defect, either in the motive or in the manner of the execution of the power conferred.

We cannot see that any injustice has been done to the plaintiffs in taking an easement for public purposes over a strip of land 20 feet in width and 129 feet long, the said lot being 113 feet deep. It appears that there is nothing put on the right of way taken except the rails of the railroad resting on cross-ties buried in the ground, and there is no obstruction whatever, except when trains are passing. No structure of any kind has been disturbed. Eailroad facilities have been supplied to portions of plaintiffs’ property which did not have such facilities before. No calculable damage has been done to plaintiffs, and to all appearances there has been liberality in the assessment of damages. The claim of plaintiffs for $50,000 damages for an easement over 20 feet of land across the-back end of a lot 129 feet long seems unreasonable. The plaintiffs charge that the city paid an exorbitant price in giving $22,500 for the release of several acres of land, for a lease extending 160 years to come, which land was more advantageously located and which is at the j’unction of two streets and bounded by the channels of two rivers, with the improvements thereon.

Upon the most careful survey and consideration of the claims made by the plaintiffs, we do not see that the right of eminent domain has been inj'uriously exercised to the detriment of the plaintiffs. It seems, upon the evidence, to have been called for by the geographical situation of the property in question and by the public and commercial needs of the city of New Bern and its citizens. All who had rights involved by the proposed extension of the railway to this point at the union of the two rivers have willingly, in the public interest, conceded the right of way without compensation, except these plaintiffs. They had a right to call for compensation, and that is a matter properly adjusted in condemnation proceedings, but there is no appearance or indication of any unconstitutionality in tbe act, or of oppression on tbe part of tbe qity.

Tbe enterprise thus undertaken was justified, and seems to bave been imperatively demanded, by public necessity.

The judgment dissolving tbe injunction is Affirmed.  