Jones v. Commissioners of Franklin County, 130 N.C. 451 (N.C. 1902)

Montgomery, J.

The plaintiff, for his first cause of action, complains that the defendants, the Board of Commissioners of Franklin County, through the Superintendent of Public Roads for the county, under the provisions of Chapter

581, of the Acts of 1899, against tb© protest of tbe plaintiff and without condemnation proceedings, negligently, wrongfully and tortiously cut and blasted away a strip of his land 12 or 15 feet in width, by which the plaintiff’s pathway, around the end of his house was destroyed, to his great injury, and his warehouse endangered; and also that the defendants, through their agent, carried away and removed large quanti? ties of the stone and granite thus blasted, to his further injury. That cause of action is clearly laid in tort, and his Honor properly sustained the defendants’ demurrer thereto.

This Court has repeatedly held that counties are instru-mentalities1 of government, and are given corporate powers to execute their purposes, and are not liable for damages in the absence of statutory provisions giving, a right of action against them. White v. Commissioners, 90 N. C., 437; Manuel v. Commissioners, 98 N. C., 9 ; Prichard v. Commissioners, 126 N. C., 908, 78 Am. St. Rep., 679; Moody v. State’s Prison, 128 N. C., 12. In the last-mentioned case ix was further decided that even if such authority was given, it could cover only actions ordinarily incidental to its operations, and would not extend to causes of action in tort. The same doctrine had been announced in Prichard v. Commissioners, supra, and in other cases also:

In Gibbons v. U. S., 75 U. S., 269, the Court said: i‘No government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers or agents”; and in Story on Agency, Sec. 319, it is said: “The government does not undertake to guarantee to any person the fidelity of any of its officers or agents whom it employs, since that would involve it in all its operations in endless embarrassment and difficulties and losses, which would be subversive of the public interests.”

For his second cause of action, the plaintiff complains that the defendants, through the same agent, without the plaintiff’s

consent and without condemnation proceedings, took, for the use of the county and for the convenience of the travelling public, a strip of land 10 or 12 feet in width off one end of his land of great value,- and, in addition, cut and blasted away and removed a large quantity of building granite off the property of considerable value. The defendants demurred also to that cause of action, the first specification being, that the Court has no jurisdiction of the subject-matter of the action. As to that part of the plaintiff’s demand for the value of the strip of land alleged to have been taken by the defendants for the public use, the defendants were compelled to order a jury to assess the value of the same under Section 12, of Chapter 581, Acts 1899. Upon their declining to do this upon demand made upon them for that purpose, an appeal lay to the Superior Court on the part of the plaintiff.

In reference to the plaintiff’s demand in his second cause of action for the value of the rock or granite blasted and carried away by the defendants, the defendants were not required to order a jury to assess the value. They could have made the assessment and allowance themselves. Upon their refusing to make any allowance for the value of the granite taken, an appeal lay from their ruling to the Superior Court, the appeal “to be governed by the law regulating appeals from the Courts of Justices of the Peace.” The- County Commissioners, by the Act of 1899, were given original jurisdiction of 'the matter embraced in the plaintiff’s complaint, and the Superior Courts could exercise only appellate jurisdiction.

It has been often held by this Court that in cases involving the right of eminent domain, the common law remedy is superseded by the statutory remedy, and that aggrieved parties must therefore seek redress under the statutory remedy. McIntyre v. Railroad, 67 N. C., 278 ; Gilliam v. Canady, 33 N. C., 106; Gillett v. Jones, 18 N. C., 339; Dargan v. Railroad,

at tbis term. In. McIntyre v. Railroad, tbe action was in trespass for tbe recovery of damages for an injury sustained by tbe building of defendant’s railroad on plaintiff’s land. Tbe Court affirmed tbe judgment below tbat tbe plaintiff could not bring tbe action as at common law, but should bave proceeded under tbe provisions of tbe charter of tbe company, which contained a method and manner of tbe assessment of damages. The Sourt said, in part: “But tbe decisions (Gillett v. Jones, 18 N. C., 339; Gilliam v. Canady, 33 N. C., 106) do not go so much on tbe words of tbe act as upon its evident policy. If tbe owner of land overflowed by a mill-dám could bring bis action on tbe case for damages every day, no public mill could be established. In like manner, if tbe owner of land taken by a railroad for its track could bring bis action for trespass every day, no1 railroad could be built. In such case, tbe law considers tbe property, though taken for an individual, or for a private corporation, for tbe public use. Raleigh and Gaston Railroad Co. v. Davis, 19 N. C., 451. It is not forbidden by tbe Constitution if compensation be made, and compensation is provided for. Tbe mode of obtaining it may not be so easy or satisfactory to tbe owner, but it is not illusory; a substantial and just compensation may be obtained. There can be no- doubt but tbat tbe Legislature bad tbe right to take away tbe common law remedy; tbe only question possible is as to their intention.”

We can see no difference between tbe points discussed and 'involved in those cases, and tbe point involved in tbe present case, in so far as tbe remedy of tbe plaintiff is concerned. Tbe County of Franklin appropriated for tbe public use tbe property of tbe plaintiff, under Chapter 581 of tbe Acts of 1899, and tbe manner of compensation was fixed in precise terms by tbe act. Tbe common law remedy was superseded by tbat of tbe statute.

It appears in tbis case tbat tbe plaintiff made bis demand

for compensation before the proper tribunal, and upon his application having been refused, he should have appealed under the provisions of the act. If it had been that the plaintiff had not, at the time prescribed in the act, presented his claim because of the impossibility of his having received notice of the taking of the property before the time when demand had to be made under the statute, we would have no hesitancy, while upholding the main features of the statute, in deciding-that a reasonable time, within which to make the application ' for compensation after the property was taken, should have been allowed, because under the terms of the act it is apparent that there might be a taking of property by the county authorities for public purposes, under the act, at á time which would not admit of an interval of thirty days intervening between the taking and the next regular meeting of the Board. Darby v. Wilmington, 76 N. C., 133; Broadfoot v. Fayetteville, 128 N. C., 529. The language of the statute is as follows:

No Error.

Cook, J.,

dissenting.

I think there was error in 'sustaining the demurrer as to the second cause of action. ' The sacred regard which the law has for the rights of private property is such that it will not permit it to be taken for public use-without just compensation and an adequate remedy for that purpose must be provided. The remedy provided in this act

(Chapter 581, Laws 1899) is to be found in Sections 11 and 13: “If the owner of any land from, wbicb timber, stone, gravel, sand or clay were taken shall present an account of the same through the County Road Superintendent at any regular meeting of the County Commissioners, within thirty days after the taking and carrying away of such, it shall be the duty of the said Commissioners to pay for the same a fair price; and before deciding upon this, they may cause h> be appointed an impartial jury, which jury shall report in writing to the Board of Commissioners their decision for revision or confirmation: Provided, said landowner shall have the right of appeal,” (Section 13) to the Superior Court if the landowner shall be dissatisfied with the finding of the jury and decision of the County Commissioners, which shall be governed “by the law regulating appeals from the Courts of Justices of the Peace, and the same shall be heard de novo.” The landowner is not only entitled to just compensation for the property taken from him, but he -is also entitled to an adequate remedy by which he can establish and recover the value of his property. By this act he is only allowed thirty days after the “taking and carrying away” to present his account, which must be done “at a regular meeting of the County Commissioners,” and “through the County Road Superintendent.” So his opportunities for asserting his rights may be dependent upon the caprice or favoritism of the Superintendent to perform the act within the time limited, or his good fortune to learn of the completion of the taking and carrying away in time to make and present his account, or upon both. Should he be so situated that he could not find the Superintendent, or should the Superintendent refuse to present the account, or should the time be so short that he could not prepare and present it, or should he be prevented from doing so by sickness or other unavoidable cause,

then his property would become confiscated — if this be the only remedy. The “taking” by the Superintendent raises an adverse relationship between the landowner and the Superintendent, and the landowner might object to acting through an agent not appointed or selected by him, and whose interest in the subject-matter might be hostile. I think the remedy is inadequate for general practice, and that the Superior Court had jurisdiction to administer the rights of the parties, and that the demurrer should have been overruled. I do not think that this act was intended expressly, or by necessary implication, to repeal the common law remedy. And while it does not require this remedy to be pursued, yet should the convenience of the claimant justify him in resorting to it, he is at liberty to do so. Its machinery is ample, and a determination can be speedily obtained. The act gives the landowner the right to' have his claim adjusted under its remedy, if he should desire to select that method. I can not believe that the Legislature intended by this act to repeal the remedy already in force, and subject a private right to the hazard of uncontrollable circumstances. Compensation is not required to be paid in advance, nor is there any great haste required in making the appropriation by the county officer. Then why should the unoffending, law-abiding citizen be required to “run the chances” of getting his own, when no harm could happen to either party by resorting to the usual remedy. I therefore think that the remedy provided in the act is only 'an additional and not the sole one intended by the Legislature.

Douglas, J.,

dissenting.

I can not concur in the opinion of the Court, either in its theory or its result, because it seems to me that a substantial injury is being done to the plaintiff by a construction of a statute purely technical in its nature, and justified neither by public policy nor common right. I agree with the opinion in so far as it holds that a county is not responsible for a pure tort committed by one

of its officers or employees; but we must remember that a tort can never confer a right upon tbe wrongdoer. If tbe county ratifies the act and keeps tbe property thus wrongfully taken, i: becomes responsible to tbe owner for its value. If it repudiates tbe act, it must relinquish tbe property, of which tbe owner may at once take possession without let or hindrance. When, therefore, the Board of Commissioners took wrongful possession of the plaintiff’s land, they became personally responsible to' him for the injury, without acquiring any right thereto, either for themselves, the county or the public. This latter proposition, I understand, is not disputed by the Court. While it does not say so in so many words, I presume that the. Court intended to hold that the Board of County Commissioners has exclusive original jurisdiction of all claims arising from the taking of private property for the use of the county. Where is such exclusive jurisdiction conferred upon the Board ? Not by the act of 1899, as stated by the Court, which nowhere says so-. If the act does not say so, why should we say so, especially when the only result of siich interpolation is to' deprive the plaintiff of his lawful remedy for an admitted wrong ? The act does not profess to make the remedy exclusive, and, in fact, provides that it shall apply only when the plaintiff sees fit to' resort to such a tribunal.

In the case at bar, the plaintiff did present to the County Commissioners his claim for damages within thirty days, as provided by the act, but the Board refused to entertain the claim because it was not presented through the Superintendent of Roads. This would seem to me to be purely directory, and could not affect the merits of the claim. But perhaps I am mistaken. Perhaps the Road Superintendent is a court, having exclusive oxfiginal jurisdiction of all such claims, no matter how great they may be in amount. If so, and he should refuse to act, I presume the injured party would be compelled to bring an action for a mandamus, which

would probably com© to tbis Court on appeal. Suppose the Board of Commissioners should then refuse to entertain the claim, another action for another mandamus would be necessary, and another long and expensive litigation through all the Courts. Perhaps then the Board might pass upon his claim, and allow nominal damages, which would force him to appeal. Thus, after perhaps four or five years of litigation, and necessary expenses greater than the value of his claim, the plaintiff would succeed in getting into- the Superior Court, where his claim could be tried upon its merits. He is there now. Why put him out, and make him take this long and roundabout journey with the simple result of getting back to where he started ?

It will be said that this is an extreme case; but it would be entirely possible under the opinion of the Court, which puts it in the power of the county authorities to wear out any unwelcome claimant, even if they did not succeed in putting him out on some technicality during the progress of the trial. In the present case, when the plaintiff goes back to the County Commissioners or the Road Superintendent, whichever has exclusive original jurisdiction, he will be met with the objection that more than thirty days have elapsed since the injury.

Can we suppose that the Legislature intended any such hardship and injustice? Then why not give the act the reasonable construction of saying that the remedy therein provided is simply cumulative ? We so hold in criminal actions; why not in civil actions ? We are constantly told that while a man may not be guilty under the statute, he is guilty at common law. Why should we not also say that while an injured party has not an adequate remedy under .the statute, he retains his right to appeal to the Courts of general jurisdiction to redress his wrong.

In the further discussion of this case I shall cite but few authorities, as my time is short; but I shall revert to this sub

ject, and. incidentally to this opinion, when thé .principle conies again before ns.

My objection to this decision is that its ultimate tendency is to undermine the foundations of private right. It is well settled that private property can not be taken, even for a public purpose, without compensation. The act under consideration provides that when an account is presented for material taken, “it shall be the duty of said Commissioners -to pay for the same a fair price.” This the defendants have refused to do. Even if the statutory remedy were intended to be exclusive, it would be totally inadequate, and therefore unconstitutional and void. The only provision for compensation is when the owner of any material so taken, or his agent, “shall present an account of the same, through the County 'Road Superintendent, at any regular meeting of the County Commissioners within thirty days after the talcing and carrying away of such timber,” etc. There is no provision for notifying the owner of the taking of such material. It may be taken during his absence, or from back part' of his plantation, and he may not know it until the thirty days have elapsed. Moreover, he is required to-present his claim at a regular meeting of the Commissioners. Suppose that only one regular meeting is held during the thirty days, as i's usually the case, and the material is taken the da.y before such meeting; under the statute the owner would have less than twenty-four hours in which to find out that his property had been taken, to find the Superintendent, to- get his claim into shape, and to- present it to' the Commissioners. If he failed to do this within the time limited, he wo-uld lose all remedy. Again, suppose the Commissioners should fail to hold a regular meeting within •the thirty days, the owner would have no1 opportunity whatever of presenting his claim under the statute. Surely this can not be'the law, and yet it will become the law if the statutory remedy is held to be exclusive.

Let us briefly examine tbe Constitution of tbis State and see wbat are some of tbe rights of tbe individual. Tbe Declaration of Rights declares: Section — “That we bold it to be self-evident that all men are created equal; they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and tbe pursuit of happiness.” Section 17 — ‘No person ought to be in any manner deprived of bis life, liberty or property but by tbe law of the land.” Section *35 — “All Courts shall be open; and every person for an injury done him in bis lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

In tbe case before us, tbe plaintiff has admittedly suffered an injury to bis land, and the Superior Courts are open and have general jurisdiction of all such subjects. If we take away such jurisdiction without leaving tbe plaintiff an adequate remedy, justice is denied to him, and be is deprived of bis property contrary to tbe law of tbe land. '

Tbis Court has said in Dargan v. Railroad, 113 N. C., 596, 598: “Tbe right of the State to take private property rests upon tbe ground that there is public necessity for such appropriation, and can be exercised only where tbe law provides tbe means of giving adequate compensation to1 tbe owner.”

In Railroad v. Commissioners, 127 Mass., 50, tbe Court says: “It has long been settled by tbe decisions of tbis Court that a statute which undertakes to appropriate private property for a public highway of any kind, without adequate provision for tbe payment of compensation, is unconstituional and void, and does not justify an entry on tbe land of tbe owner without bis consent.”

In Brickett v. Aqueduct Co., 142 Mass., 394, 396, tbe language of tbe Court was that “a statute which attempts to authorize tbe appropriation of private property for public uses^

without making adequate provision or compensation, is unconstitutional and void.”

Both these cases are cited with approval by the Supreme Court of the United States in Sweet v. Rechel, 159 U. S., 380, where the Court says, on page 399: “When, however, the Legislature provides for the actual taking and appropriation of private property for public uses, its authority to enact such a regulation rests upon its right of eminent domain — a right vital to the existence and safety of government. But it is a condition precedent to the exercise of such power that the statute make provision for reasonable compensation to the owner.” In Gamble v. McGrady, 75 N. C., 509, it was held, quoting the syllabus, that “Everyone is entitled to notice in any judicial or quasi judicial proceeding, by which his interest may be affected; hence, an order by County Commissioners appointing appraisers to assess the value of the benefits and damages which would accrue to-the owners of land on account of a certain canal sought to he cut through his land, upon the petition of other parties, filed under the provisions of the 39th chapter Battle’s Revisal, is void, unless said landowner be made a party to the petition. Sections 9 and 12, Chapter 39, Battle’s Revisal, are unconstitutional.”

In Sawyer v. Hamilton, 5 N. C., 253, concerning the laying out of a turnpike, the full opinion of this Court is as follows: “Let the report of the commissioners he set aside, on the ground that Enoch Sawyer, through whose lands the road is laid off, had not notice.”

In Railway Co. v. Railway Co., 29 Fed. Rep., 728, 731, Justice Brewer, then a Circuit Judge, referring to' condemnation of a right-of-way, says: “Though'a special, it is a judicial proceeding, and a vital element of judicial proceedings is notice to a party against whom a right is asserted before a final determination of that right.”

In Nield’s Road, 1 Pa. St., 353, the Court says: .“The law

abbors all ex parte proceedings without notice. Notice in this case to the owners of property was absolutely necessary. To take a man’s property and assess his damages without notice of it, is repugnant to every principle of justice, and such a proceeding is utterly void.”

Mills on Eminent Domain, Sec. 88, says: “Where the statutory remedy is not complete, the common law remedy remains. Eor an entry on land, or the taking or destruction of property, of another, the common law gave the injured party the remedies of trespass, trespass on the case, or ejectment. These remedies gave the owner complete compensation for the invasion of his rights of property. The statutory remedy which is provided must be complete in ascertaining the damages and securing their payment, or the common law remedy may be pursued. The provision of a specific mode of ascertaining damages confers no right which did not exist before. The omission of a specific mode leaves the party his common law right. If the statute only provides a partial remedy, there is a remedy for the remainder at common law. The payment of damages must he secured; and if, after condemnation, there is a refusal to pay, trespass or ejectment, with mesne profits, may be maintained.” For each of these propositions, the learned author cites authorities of the highest respectability. See also Randolph on Em. Domain, Secs. 227, 228, 229, 230, 231; Lewis on Em. Dom., Secs. 364, 365, 366, 456; Enc. PL and Prac., 481, 486, 528, 544, 545, 623, and especially pages 691, 694, 715, 716; Black’s Const. Law, See. 130; Cooley on Const. Lim., 449, 664, 665, 692; Thompson on Corp., Sec., 5590, 5621.

Among all the cases that I have examined, the one that perhaps more clearly represents my views is Stuart v. Palmer, 74 N. Y., 183, 30 Am. Rep., 289, where it is held, quoting the headnotes, that:

without notice to, and a bearing, or an opportunity to be beard, on tbe part of tbe owner of tbe property to be assessed, has tbe effect to deprive him of bis property without 'due process of law,’ and is unconstitutional.

Tbe ability and learning in this celebrated case prompt me to make a long quotation, which will take tbe place of anything I am capable of saying. Tbe Court says, beginning on page 189:

property for tbe public good, and fixing tbe compensation to be paid, could not be upheld. There would in such case be tbe absence of that ‘due process of law’ which both tbe Federal and tbe State Constitutions guarantee to every citizen. Can it be that when tbe public takes land for a public highway, tbe owners thereof are entitled to a bearing as to tbe compensation which they are to receive, and yet that tbe lands on both sides of tbe highway may be assessed to pay such compensation to their entire value, without any opportunity on tbe part of tbe owners to be beard ? Tbe Legislature can no more arbitrarily impose an assessment for which property may be taken and sold, than it can render judgment against tbe person without a bearing. It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of bis life, liberty and property without an opportunity to be beard in defense of bis rights, and tbe constitutional provision that no person shall be deprived of these ‘without due process of law’ has its foundation in this rule. This provision is tbe most important guarantee of, personal rights to be found in tbe Federal or State Constitution. It is a limitation upon arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of bis life, liberty or property. This tbe Legislature can not do nor authorize to be done. ‘Due process of law’ is not confined to judicial proceedings, but extends to- every case which may deprive a citizen of life, liberty or property, whether the proceeding be judicial, administrative or executive in its nature. This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights.

recently stated by Mr. Justice Miller, of tbe United States Supreme Court, to leave tbe meaning to be evolved 'by tbe gradual process of judicial inclusion and exclusión, as tbe cases presented for decision shall require, with tbe reasoning •on which such decisions may be founded.’ It may, however, be stated generally that due process of law requires an orderly proceeding adapted to the nature of the case in which the 'Citizen has an opportunity to be heard, and to defend, enforce and protect his rights. A hearing, or an opportunity to be heard, is absolutely essential. We can not conceive of due process of law without this. In his argument in the Dartmouth College case (4 Wheat., 519), Webster definéd ‘due process of law’ as a proceeding 'which proceeds upon inquiry and renders judgment only after trial.’ Mr. Justice Edwards, in Westervelt v. Gregg (12 N. Y., 209, 62 Am. Dec., 160), defines it as follows: 'Due process of law undoubtedly means in due course of legal proceedings according to those rules and forms which have been established for the protection of private rights.’ Judge Cooley, in his work on Constitutional Limitations, at page 355, after saying that 'due process of law’ is not confined to ordinary judicial proceedings, but extends to all cases where property is sought to be taken or interfered with, says that 'due process of law in ¡each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction,' .•and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to which the one in question belongs.’ ”

In this long extract I have omitted, for the sake of time and space, the cases which were merely cited and not quoted. As therein shown-, it makes no difference whether a man’s land is taken under the form of condemnation or assessment, or, as in the case at bar, without the pretence of either. In any event it can be taken only by “due process of law,” giv

ing to the owner just compensation, with an adequate remedy for obtaining it.

An examination of this act (Laws 1899, Chap. 581) discloses some singular features. It is by its terms operative in only seven counties and parts of three other counties. It further provides that it shall not apply to fifty counties therein named, but may be adopted by thirty-nine other counties, also named. It also contains the following most remarkable provisos: “Provided, that in any county or township not coming under the provisions of this act, but otherwise providing funds for road improvement, the Commissioners of such county may, at any regular meeting, at their discretion, adopt any of the sections (except Section i, levying a tax) of this act that in their judgment may be specifically adapted to the needs of their county, and incorporate the same in the road law of the said county.”

I can not remember ever having come across any such provision in any statute. I do not question the power of the Legislature to pass an act which may be ratified or rejected in its entirety by a vote of the people, and perhaps of the County Commissioners; but I am not aware of any principle or precedent authorizing .the Legislature to delegate its lawmaking power to a Board of Commissioners by empowering them to amend an existing statute by “incorporating” therein, at their pleasure, any one or more of twenty-seven different sections of a distinct act, which, by its very terms, does not apply to their county. I am glad this question has not been directly raised.

Some changes in the opinion of the Court, made since the above was written, may make certain parts of this opinion seem inapplicable, but I have no time to change them, and can add but little to what I have already said. The opinion of the Court seems to be based principally upon the case of McIntyre v. Railroad, 67 N. C., 278, and quotes therefrom as follows: “But the decisions do not go so much on the words of the act

as upon its evident policy. If tbe owner of land overflowed by a mill-dam could bring bis action on tbe case for damages every day, no public mill could be established. In like manner, if tbe owner of land taken by a railroad for its track, could bring bis action for trespass every day, no , railroad could be built.” This quotation seems singularly inappropriate to’ tbe conclusion of tbe Court.

In tbe case at bar there is no ground whatsoever for supposing that actions will be brought “every day,” when from its very nature this action would end tbe controversy. Therefore tbe “evident policy” referred to in McIntyre’s case has no application whatever to tbe one before us. If this case comes neither within tbe words of tbe act nor tbe policy of our decisions, why should this Court write into tbe statute provisions which are not there. Tbe only effect of such interpolation, required neither by tbe spirit of tbe act nor the policy of tbe law, is to* deprive tbe citizen of bis property without compensation. If tbe laws axe ever stretched, it should be for tbe fuller protection of personal liberty and private property. In tbe case at bar, tbe plaintiff is not seeking to recover anything tbe county has taken, but simply to get compensation one time and in one final action. Tbe. question is -not whether tbe county shall have what it needs, but whether it shall pay for what it takes. Hence, tbe dangers of interminable litigation, so strenuously relied upon by tbe Court, have no visible relevancy to tbe case at bar.

In Johnston v. Commissioners, 70 N. C., 550, 556, in an opinion written by tbe same learned Justice who wrote McIntyre’s case, tbe Court says: “Tbe proceedings were irregular and void, because tbe Sheriff did not proceed with the jury to view tbe lands and assess tbe damages on tbe day named in tbe notice to plaintiff, but on a subsequent day, of which tbe plaintiff bad no notice. If tbis objection bad not been waived by tbe plaintiff’s appeal from tbe assessment of

damages, it would have been good. The Sheriff had no jurisdiction to enter on the lands until the plaintiff was made a party to the proceedings by service of notice. The neglect to proceed on the day named, without notice of the postponement to the plaintiff, operated as a discontinuance as to' him, and put him out of Court. He might perhaps have regarded all after-proceedings as trespasses, being under a warrant which was void as to him for want of notice, or he might have brought up the proceedings to the Superior Court by recordari and had them quashed, and then, at least, have brought his action for the trespass.” This case shows that there are some cases at least in which an action for the trespass may be brought, even when the statute provides a special and summary proceeding. The same is held in the well-considered ease of White v. Railroad, 113 N. C., 610, 621, 37 Am. St. Rep., 639, 22 L. R. A., 627.

Another objection to such a construction of the statute is that it would be in violation of the Fourteenth Amendment to the Constitution of the United States, inasmuch as it does not provide for any notice to the plaintiff, nor any adequate cago, 166 U. S., 226. In Simon v. Craft, 182 U. S., 427, remedy for his compensation. *C., B. and Q. R. Co. v. Chi-*436, the Court says: ‘The essential elements of due process of law are notice and opportunity to defend. In determining whether such rights were denied, we are governed by the substance of things, and not by mere form.”

The last proposition of the opinion is startling to me. It is, in substance, that if it were impossible under the circumstances of a particular case for the landowner to receive notice of the appropriation of his property in time to present his demand, this Court would extend the time. It cites Darby v. Wilmington, 76 N. C., 138, and Broadfoot v. Fayetteville, 128 N. C., 529; but neither of these cases is any authority for the position. I am well aware of the principle

tbat part of an act may be constitutional and a part unconstitutional if they are capable of separation, but in this case no such principle arises. The opinion of the Court does not declare any part of the act unconstitutional. This it clearly has the power to do, but to declare an act constitutional, and then to claim the right to suspend its operation if, in the judgment of the Court, it should at any time work a hardship, is entirely a different matter.

Article I, Section 9, of the Constitution, says: “All power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”

I am also awai’6 of the line of decisions represented by Culbreth v. Downing, 121 N. C., 205, 61 Am. St. Rep., 661, to the effect that statutes of limitation can not be shortened so as to bar existing rights of action without allowing reasonable time thereafter for the bringing of the action. The statute under consideration has no retroactive operation whatever, but operates only in future, and solely upon rights of action which itself creates. A reasonable interpretation of the act to the effect that the imperfect remedy therein provided is merely cumulative, would avoid all these difficulties and meet the ends of justice without violating any established rule of construction.

I deeply regret feeling compelled so often to dissent from the opinion of the Court, but I must follow my convictions. We are not merely deciding isolated cases, but are establishing general principles, more far-reaching perhaps than we can foresee. I can not entirely ignore the dangers that are ahead of us, and which, in my opinion, can be met only by the equal enforcement of the law in its letter and spirit, and especially in the fullest protection of individual rights.

Corporate monopoly and' socialism are twin-children of despotism. Hating each other, they are of common parent

age, and equally demand tbe sacrifice of private right, on tbe one band on tbe claim of public convenience, and on tbe other on tbe plea of public service. So far as private property may be actually necessary for public use, it may be taken; but noi ground of public policy or of natural right will justify or excuse tbe refusal of just compensation, or, what is equivalent thereto, tbe refusal of an adequate remedy for obtaining such compensation. One of England’s greatest statesmen has said: “Tbe poorest man may in bis cottage give defiance to all tbe forces of tbe Grown — it may be frail, its roof may shake, tbe wind may blow through it, tbe storm may enter, tbe rain may enter, but tbe King, of England may not enter; all bis forces dare not cross tbe tbresbbold of tbe ruined tenement.” Of course be meant that tbe King could not enter except by tbe law of tbe land. Why should our ancestors have abolished tbe kingly office if more than kingly powers remain vested in a' County Road Superintendent ?