Archer v. Joyner

• Decision Date: 07 March 1917
• Docket Number: 104.
• Citation: 91 S.E. 699,173 N.C. 75
• Parties: ARCHER ET AL. v. JOYNER ET AL.
• Court: North Carolina Supreme Court

91 S.E. 699

173 N.C. 75

ARCHER ET AL. v. JOYNER ET AL.

No. 104.

Supreme Court of North Carolina

March 7, 1917

Appeal from Superior Court, Northampton County; Cooke, Judge.

Action by J. M. Archer and others against W. H. Joyner and others. Judgment dissolving the restraining order and dismissing the plaintiffs' action as to plaintiffs' right to recover, and plaintiffs except and appeal. Affirmed.

Invalidity of provision of the Stock Law, in respect to assessment by county commissioners to defray costs of erecting fences between townships, held not to render the whole law invalid.

Peebles & Harris, of Jackson, for appellants.

W. E Daniel, of Weldon, and Gay & Midyette, of Jackson, for appellees.

HOKE J.

On the hearing it appeared, among other things, that the state Legislature of 1915 passed an act putting seven townships in Northampton county under the stock law, the same being chapter 448, Public Local Laws 1915, and designated by common consent as the "Mason Law," after the distinguished author of the bill, then a representative of said county. By a subsequent act (chapter 768, Public Local Laws 1915) the township of Roanoke was withdrawn from the provisions of the first statute. The act declares that the townships included shall be under the provisions of the stock law as therein contained on and after January 1 1916, makes minute provision for the impounding of stock that trespasses on lands situate in the townships, etc.; further that the county commissioners are authorized and empowered, whenever they shall deem it necessary to do so, to erect such fences as the board may deem sufficient between the township lines named and adjacent townships and to defray the expense of same; shall levy and collect an assessment, not to exceed 10 cents on the $100 valuation of the property returned for taxation in said county. Provision is also made that any one or more citizens in said townships named or in those adjacent thereto, may construct, at their own expense, a line fence, erect gates, etc., when it may be considered necessary for their proper protection, and authority is conferred to condemn land 20 feet in width on which to place the fence, the damages therefor to be assessed by a justice of the peace and two disinterested freeholders, etc. The present action is prosecuted by citizens and residents of the adjacent townships against the defendants, certain citizens and residents of the stock law territory, to restrain the latter from putting in force and carrying out the provisions of the Mason Act and of impounding plaintiff's stock thereunder, on the ground, chiefly, that the Mason Act should be declared unconstitutional for the reason that the tax provided for, not being for a necessary expense, cannot be imposed without a vote of the people, pursuant to article 7, § 7, of the Constitution.

The county commissioners are not made parties defendant, and it appears, further, that there is no present purpose to build the fence or lay the tax referred to in the statute, and it may be that this action could in no event be maintained because the probability of injury is too uncertain and remote to warrant the exercise of the injunctive powers of the court, but, if it be conceded that the action lies as one in the nature of a bill of peace to prevent multiplicity of suits, a course...