Board of Com'rs of Wilkes County v. Pruden

• Decision Date: 29 October 1919
• Docket Number: 505.
• Parties: BOARD OF COM'RS OF WILKES COUNTY v. PRUDEN ET AL.
• Court: North Carolina Supreme Court

100 S.E. 695

178 N.C. 394

BOARD OF COM'RS OF WILKES COUNTY v. PRUDEN ET AL.

No. 505.

Supreme Court of North Carolina

October 29, 1919

Appeal from Superior Court, Wilkes County; Webb, Judge.

Action by the Board of Commissioners of Wilkes County against Pruden and another, doing business as Pruden & Co. Judgment for plaintiff, and defendants appeal. Affirmed.

The action was brought to test the validity of certain bonds to the amount of $275,000, which have been issued, and contracted to be sold to defendants, by the county of Wilkes for the purpose of constructing public roads in the said county. Public Local Laws of 1915, c. 345, authorized that county to issue bonds to an amount not exceeding $500,000 for the purpose of "grading, building and constructing public roads there, * * * and otherwise improving and maintaining the same." The act declares in sections 19 and 20 its object to be, "to provide for a uniform comprehensive, and practicable system of good roads in [the county], calculated in a general way to serve the needs of every section thereof," and then further provides for a wise judicious, and equitable distribution of the funds derived from a sale of the bonds, so that each township and section of the county will be benefited, and in such a way as will be advantageous to the county as a whole. The bonds were issued and sold to the amount of $250,000, but this fund proved to be insufficient to carry out the scheme as to roads contemplated by the act, resulting from the sudden and large increase in the cost of labor and material necessary for the purpose, which undertaking was to be executed by the Good Roads Commission appointed by the act. That body has since had complete control of the county's road system.

By chapter 63 of the Public Local Laws of 1917, the act of 1915 was amended by reducing the amount of bonds authorized thereby from $500,000, to $250,000 and validating the previous issue of $250,000 in all respects. Section 3 of the act of 1917 provides:

"That except as herein amended the said chapter three hundred and forty-five of the public local laws of nineteen hundred and fifteen shall remain in full force and effect."

Public Local Laws of 1919, c. 451, increased the bond issue of 1915 as reduced in 1917, and authorized an issue of $250,000 in bonds to complete the public roads of Wilkes county, as the proceeds from the former issue of $250,000 had proved insufficient for that purpose. That act provides that the proceeds of the bonds last authorized shall be distributed among the townships of the county, so as to carry out the spirit and intent of the act of 1915; that each section shall receive its proportionate share; and, in order to accomplish this purpose, it is further provided that a certain amount (naming it) shall be applied to paying the expense of laying out and constructing a road in each township, the route or course of the road to be determined by the commission so as "to serve the best interests of the townships."

Public Local Laws of 1919, c. 443, provides for the issue of $25,000 in bonds for the completion of the Boone Trail Highway to the line of Watauga county. There were other provisions, in the acts just mentioned, which need not be set out, as they are not material to the case and the question presented by it.

The commissioners have contracted with the defendants to sell the bonds for $275,000 authorized by both acts of 1919, to them, at a sum agreed upon, and have brought this action to recover the stipulated price. Defendants refused to pay because they allege that the bonds are invalid.

Judge Webb was of the opinion, and so held, that the bonds are valid, and gave judgment for the plaintiff. Defendants appealed.

C. N. Malone, of Asheville, and J. W. Hinsdale, of Raleigh, for appellants.

Joseph M. Prevette, of Wilkesboro, and Hayes & Jones, of North Wilkesboro, for appellee.

WALKER, J. (after stating the facts as above).

The particular contention of the defendant is that the acts of 1919 are in violation of the Constitution, art. 2, § 29 which prohibits the enactment of "any local, private or special act * * * authorizing the laying out, opening, altering * * * or discontinuing of highways"; but we are of the opinion that this is a misconception of the object and purpose of those laws. It was not intended to require the local authorities to lay out, open, alter, or discontinue any road or highway; but they were passed by the Legislature for the purpose of enabling the local authorities designated in them to issue bonds, and out of the proceeds to pay the expense of constructing roads in the various townships of the county, in order, by special directions, to complete the scheme of road building which was authorized by the Public Local Laws of 1915, c. 345, and this will be apparent to any one who will read the four acts together. The exact location of the roads was left to the good judgment and discretion of the local authorities named in the acts; but, in order to equalize the benefits to accrue to each and every part of the county, the Legislature considered it wise and expedient that the money raised by a sale of the bonds should be distributed upon some fixed basis, or according to a fixed rule, so that this equal apportionment might be the better enforced. It was not passing laws to lay out or construct roads, but to pay for these things by issuing and selling bonds, just as was done in Brown v. Commissioners, 173 N.C. 598, 92 S.E. 502. There is no prohibition in our Constitution, not even since the amendments of 1916-17 were ratified, which prevents the Legislature from passing an act to pay for the construction of roads in the manner prescribed in these statutes. The court, in People v. Banks, 67 N.Y. 568, interpreting a provision of the Constitution of that state, which is similar to article 2, § 29, of our Constitution, with reference to a...