O'Neal v. Jennette

• Decision Date: 16 September 1925
• Docket Number: 31.
• Citation: 129 S.E. 184,190 N.C. 96
• Parties: O'NEAL ET AL. v. JENNETTE ET AL.
• Court: North Carolina Supreme Court

129 S.E. 184

190 N.C. 96

O'NEAL ET AL. v. JENNETTE ET AL.

No. 31.

Supreme Court of North Carolina

September 16, 1925

Appeal from Superior Court, Hyde County; Bond, Judge.

Action by the State, on the relation of C. S. O'Neal and others against T. H. Jennette and others. From a judgment overruling demurrer to complaint, defendants appeal. Reversed.

Substitution of board of managers for county commissioners not imposition of tax requiring three readings.

Statute authorizing tax must conform to requirements of Constitution.

The plaintiffs allege that in the general election of 1924 they and the defendant Watson had been elected commissioners of Hyde county, and, having duly qualified as such, were performing their official duties at the institution of the action; that the General Assembly at the session of 1925 attempted to abolish the board of county commissioners of Hyde county, and to provide in lieu thereof a board of managers for the county; that said act, among other things attempted to vest in the board of managers all authority responsibilities, and liabilities which had been held and assumed by the board of county commissioners of Hyde county among which were the levying of taxes and the pledging of the credit of the county for the necessary expenses thereof; that the said law had not been read three separate times, on separate days, in each house of the General Assembly, and the said board of county managers, even though it be lawfully constituted in other respects, is without authority to levy taxes for county purposes, or to pledge the credit of the county, if the same should be necessary in the management and control of the county government; that the act is contrary to the Constitution of North Carolina, in that it attempts to abolish the office of county commissioners, which is a constitutional office, and to establish in place thereof a board of managers for the county; that the defendants have attempted to qualify as such board of managers and to usurp the rights and responsibilities of the plaintiffs, and have assumed to conduct the public business of the county; that they intend also to levy taxes for the fiscal year 1925-26 at the time fixed by law for such purpose, and, if necessary or expedient, to pledge the credit of the county for the government thereof, which, being contrary to law and in breach of plaintiffs' rights, will result in confusion; and, finally, that the action is prosecuted with the consent of the Attorney General. The plaintiffs pray that they be declared the duly constituted board of commissioners and entitled to perform the duties of their office; that the defendants be declared not to be the board of managers; and that they be enjoined from acting as such and from interfering with the plaintiffs control of the affairs of the county.

The defendants demurred to the complaint on the following grounds:

(1) The act referred to in section 2 of the complaint was duly and regularly passed in accordance with the Constitution of the state of North Carolina, and that it is not such an act as comes within the provision of article 2, section 14, of the Constitution of North Carolina.

(2) That the control and management of the county officers, the number of members of the governing board, and their duties with respect to county management, are within the control of the Legislature, and that the Legislature is at liberty to abolish, create, modify, or enlarge their duties at any time, and that it is within the province of the Legislature to determine whether a county shall be managed by a board of managers, or a board of commissioners; that it is within the province of the Legislature to determine what duties shall be performed by each member of said board or commission, and the term of office that each shall serve.

(3) That at the time of the institution of this action no taxes had been levied, nor any indebtedness created, and that the state of North Carolina, acting through its Legislature, has full power and authority to determine the manner of government of its political subdivisions.

(4) That there is now no such office as county commissioners in the county of Hyde, and no office to which the plaintiffs could be inducted.

The demurrer was overruled and the defendants excepted and appealed.

Sections 1 and 2 of the act in question (H. B. 1668; S. B. 1005) are as follows:

"Section 1. That the board of commissioners of Hyde county is hereby abolished, effective March 15, 1925, and the term of office of each member of said board as it is now constituted shall expire on said date.

Sec. 2. There is hereby created a board of managers for the county of Hyde to be composed of three members, hereinafter named, who shall qualify in the same manner that members of the board of commissioners are by law required to qualify, who are hereby invested with all the rights, powers, authorities and duties conferred by law upon the boards of county commissioners of the several counties of the state, and which may hereafter be conferred by laws which may be enacted. Said board of managers are likewise charged with all liabilities and duties now imposed upon county commissioners and shall perform all duties prescribed by law, and shall act and serve in lieu of the board of county commissioners to whose duties and liabilities it shall succeed. In addition to the powers and duties now prescribed by law, the said board of managers are hereby authorized and empowered to appoint a county manager, who may be a member of said board of county managers, with such duties and to serve under such rules and regulations as the board may prescribe.

The said county manager may serve as tax supervisor, or in such other capacity as the board of managers may designate, and he is hereby authorized to audit the affairs of the county and to do so and perform any any all other acts that pertain to county government as the board may direct. The compensation of the county manager shall be fixed by the board of county managers, and shall be paid out of the general county funds in monthly payments."

Section 3 provides that all officers of Hyde county shall make reports to the board of county managers as often as they may be directed to do so, to submit records and furnish all information requested by the managers, who are empowered to audit the accounts of the county officers.

Section 4 appoints the defendants a board of managers to serve for terms of two, four, and six years respectively and provides that every two years one member of the board be elected for a term of six years, the defendants to qualify on March 15, 1925, and provides also for filling vacancies in the office.

Section 5 repeals all conflicting clauses.

The act was not passed in compliance with article 2, section 14 of the Constitution.

Small, MacLean & Rodman, of Washington, N. C., and Carroll B. Spencer, of Swan Quarter, for appellants.

W. L. Spencer and S. S. Mann, both of Swan Quarter, and H. C. Carter, of Washington N. C., for appellees.

ADAMS J.

Counties are civil and political divisions of the state created and organized for the more convenient administration of government, and are invested with such powers as are essential to the welfare and protection of the public within their boundaries. They are not regarded as municipal corporations in the strict legal sense (although referred to under this title in article 7 of the Constitution), but as instrumentalities of the state; and, in the exercise of ordinary governmental functions, they are subject practically to the unlimited control of the Legislature, unless restricted by constitutional provision. Mills v. Williams, 33 N.C. 558; White v. Com'rs, 90 N.C. 437, 47 Am. Rep. 534; Dare County Com'rs v. Com'rs, 95 N.C. 190; Com'rs of Cumberland County v. Com'rs of Harnett County, 157 N.C. 515, 73 S.E. 195.

With respect to the institutions and finances of a county, article 7 has the following provisions:

"Section 1. In each county there shall be elected biennially by the qualified voters thereof, as provided for the election of members of the General Assembly, the following officers: A treasurer, register of deeds, surveyor and five commissioners.

Sec. 2. It shall be the duty of the commissioners to exercise a general supervision and control of the penal and charitable institutions, schools, roads, bridges, levying of taxes and finances of the county, as may be prescribed by law. The register of deeds shall be, ex officio, clerk of the board of commissioners. * * *

Sec. 14. The General Assembly shall have full power by statute to modify, change or, abrogate any and all of the provisions of this article, and substitute others in their place, except sections seven, nine and thirteen."

Instances in which the legislative power defined in section 14 has been exercised appear in many of our decisions, among which are the following: Harriss v. Wright, 121 N.C. 172, 28 S.E. 269; Audit Co. v. McKenzie, 147 N.C. 462, 61 S.E. 283; Trustees v. Webb, 155 N.C. 379, 71 S.E. 520; Com'rs of Yancey County v. Road Com'rs of Yancey County, 165 N.C. 632, 81 S.E. 1001; Woodall v. Highway Com., 176 N.C. 377, 97...