CITY OF DURHAM
v.
Thurston BATES and wife, Dora Bates.
No. 770.
Supreme Court of North Carolina.
March 20, 1968.*61 Claude V. Jones and S. F. Gantt, Durham, for plaintiff appellee.
Nathaniel L. Belcher, George L. Bumpass, E. R. Avant, Durham, and Franklin M. Moore, Laurinburg, for defendant appellants.
Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, and Asst. Atty. Gen. Andrew H. McDaniel, for amici curiae on Behalf of The State Highway Commission.
BRANCH, Justice.
Defendants attack the constitutionality of Chapter 136, Article 9, and contend that the trial court was without jurisdiction to enter the order putting plaintiff in possession of the property. They also contend that there was error in that plaintiff failed to comply with the requirements of a portion of Chapter 136, Article 9, to wit, G.S. § 136-104.
Defendants petitioned to withdraw the sum of $8,500.00 from the sum of $8,650.00 which plaintiff deposited with the clerk of superior court of Durham County as estimated compensation due defendants for the taking of their property. By order dated 26 May 1967 Judge Leo Carr ordered "that the Clerk of Superior Court, Durham County pay to the defendants, Thurston Bates and wife, Dora Bates the sum of EIGHT THOUSAND FIVE HUNDRED ($8,500.00) DOLLARS of the sum on deposit with said Clerk, as a credit against just compensation without prejudice to further proceedings in the cause to determine just compensation as permitted under G. S. Chapter 136, Article 9, Section 105."
In the case of Convent of Sisters of Saint Joseph of Chestnut Hill v. City of Winston-Salem, 243 N.C. 316, 90 S.E.2d 879, Winborne, J. (later C. J.), speaking for the Court, stated:
"The acceptance of benefits under a statute generally precludes an attack upon it. See 11 Am.Jur., pp. 765 to 767; Cameron v. McDonald, 216 N.C. 712, 6 S.E.2d 497; Wall v. Parrott, 244 U.S. 407, 37 S.Ct. 609, 61 L.Ed. 1229.
"In the Wall case the U. S. Supreme Court had this to say: `They cannot claim the benefit of statutes and afterwards assail their validity. There is no sanctity in such a claim of constitutional right as prevents it being waived as any other claim of right may be.'
"And in 11 Am.Jur., p. 766, the text writer states: `Estoppel to question the constitutionality of laws applies not only to acts of the Legislature, but to ordinances and proceedings of municipal corporations, and may be extended to cases where proceedings of a municipal corporation are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as to cases where they are attacked on other grounds.'
*62 "The writer continues: `Estoppel is most frequently applied in cases involving constitutional law where persons, in some manner, partake of advantages under statutes. The rule is well settled that one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens. Certainly such a person will not be allowed to retain his advantage or keep his consideration and then repudiate the act as unconstitutional. This principle applies also to questioning the rules or actions of state commissions.'
"Moreover, in Cameron v. McDonald, supra, this Court said: `It is the general rule, subject to certain exceptions, that a defendant may waive a constitutional as well as a statutory provision made for his benefit * * * and this may be done by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it,' citing State v. Hartsfield, 188 N.C. 357, 124 S.E. 629."
The constitutionality of G.S. § 116-149 (b) was attacked by a petitioner who was seeking scholarship benefits provided by said statute in the case of Ramsey v. North Carolina Veterans Commission, 261 N.C. 645, 135 S.E.2d 659. The superior court denied relief to the petitioner, and in affirming the action of the superior court, this Court stated: "* * * she may not question the constitutionality of the Act upon which she bases her claim."
6 Nichols on Eminent Domain, Third Edition, § 28.321(2), p. 682, states:
"It is undoubtedly the law that an owner of land taken by virtue of eminent domain proceedings who has accepted and been paid the award of damages cannot afterwards contest the validity of the taking, either directly or collaterally, or seek to recover or retain possession of his land, no matter how fundamental the defect in the proceeding may be."
Upon accepting the benefits under the statute, defendants are precluded from attacking the statute, the jurisdiction of the court to enter the order putting plaintiff in possession of the property, or the failure of the plaintiff to strictly comply with the provisions of the statute which defendants attack.
Defendants may proceed in the cause to determine just compensation under G. S. Chapter 136, Article 9.
This cause is remanded to the superior court of Durham County for a determination of just compensation under provisions of G. S. Chapter 136, Article 9.
Remanded.
HUSKINS, J., took no part in the consideration or decision of this case.