Cain v. Commissioners of Davie Cnty.

• Decision Date: 28 February 1882
• Parties: P. H. CAIN and others v. COMMISSIONERS of Davie County.
• Court: North Carolina Supreme Court

86 N.C. 8

P. H. CAIN and others

v.COMMISSIONERS of Davie County.

Supreme Court of North Carolina.

February Term, 1882.

MOTION by plaintiffs for an injunction to restrain defendant commissioners from collecting a certain tax, heard at Fall Term, 1881, of DAVIE Superior Court, before Eure, J.

The general assembly, at its session in 1881, passed an act intended, as expressed in its title, to prevent live stock from running at large in the counties of Davie and Anson, by erecting a fence around their boundaries, the fifteenth section of which is in these words:

“Whenever a majority of the qualified voters of said counties, or any township thereof, as appears by the returns of votes cast for the various electors of president of the United States at the last presidential election, shall by petition, duly signed, signify to the board of county commissioners of Davie and Anson counties, their approval of the provisions of this act, that thereupon the provisions of this act shall be in full force and effect; and the said board of county commissioners shall thereupon advertise by posted notices at five or more public places in each township in said counties, and in a newspaper in the town of Mocksville, the enforcement of the provisions of this act, and proceed to execute the duties imposed upon them by the provisions of this act; and the board of commissioners of Anson county shall likewise advertise by posting as aforesaid, and by publication in a newspaper established in Wadesboro; provided that before the commissioners of Anson county shall declare the provisions of this act in force, they must be satisfied that a majority of the qualified voters of said county have signed the petition herein provided for.” Acts 1881, ch. 172.

The duties the board of commissioners are directed to perform are prescribed in the tenth, eleventh and twelfth sections, as follows:

§10. It shall be the duty of the board of county commissioners of Davie and Anson counties to erect a good and lawful fence around the entire counties of Davie and Anson, or such townships therein as shall avail themselves of the provisions of this act, and to erect gates on all the highways leading into said counties, and to keep the same in good repair.

§ 11. If the owner of any land shall object to the building of any fence, herein allowed, his land not exceeding twenty feet in width shall be condemned for the fence-way as land is now condemned for railroad purposes by the North Carolina railroad company; provided that no fence shall divide a tract of land against the consent of the owner, but may follow the boundary lines thereof; provided further, that when a public highway divides a tract of land, the fence may follow the highway even against the consent of the owner of the land so divided.

§ 12. That for the purpose of carrying out the provisions of section ten of this act, the county commissioners may levy and collect, as they do other taxes, a special tax upon all the real property taxable by the state and county within the county or township which may avail themselves of the provisions of this act.

A petition approving and accepting the act and intended to fulfill the condition preceding its going into effect, containing the signatures of more than a majority of the electors who voted at the election designated, was presented to the commissioners; and, adjudging a compliance with its requirements, they proceeded to give public notice of the fact and to declare that the act had been approved by the necessary number of qualified voters, and would go into operation and be enforced on and after the first day of May, 1881.

The present action was instituted on April 30th, the day preceding that fixed by the commissioners, and a complaint then filed reciting the substance of the enactment, and the action of the commissioners under it, and alleging as grounds of objection thereto, that

1. The necessary number of qualified voters had not signified their approval, many of those whose names

were signed not being such.

2. The boundary fence would be thirty-five miles in length, onerously expensive to those who were to be taxed for its construction.

3. The tax required would exceed the constitutional limit.

4. The act had not been submitted to a vote and received the popular approval.

5. The restriction of the tax to real estate violates the equality and uniformity prescribed in article five, section three, of the constitution.

6. The taking and appropriating lands for the fence-way cannot be done without indemnity to the owner.

7. The requirement that stock be penned before the construction of the fence is premature and unwarranted.

On May 2nd application was made to the judge at chambers, supported by the verified complaint as evidence, for an injunction, and thereupon it was ordered that the commissioners show cause before him at Winston, on May 17th, why an injunction should not issue, and meanwhile they were restrained from taking further action in the premises. At the hearing of the motion an affidavit of one of the plaintiffs was introduced, containing lists of names of persons on the petitions of approval, who are alleged not to be on the registry of the different townships from which the several petitions profess to come, and also an affidavit of one of the commissioners, avowing the integrity of the conduct of the board in making the canvass and ascertaining the result, and his belief, then and still, that the approval did proceed from a majority of the qualified voters of the county, His Honor denied the motion for an injunction and taxed the plaintiffs with the costs, from which ruling they appeal.

At the fall term following, the plaintiffs make a second application to the succeeding judge for an injunction, and in its support offer an additional affidavit, and say that the commissioners have levied a tax upon the lands in their county, (while the state and county taxes for general purposes are 69 1/2 cents upon the hundred dollars valuation) of 25 cents additional in disregard of the limitations imposed in the constitution, and that they have improperly used and misappropriated portions of a balance in the county treasury collected for county purposes under the general law. This charge is met by a counter-affidavit of the same commissioner, who states that the fund applied to the building of the fence was intended to be replaced out of the tax levied under the act, none of which had yet come in, and that they intended to use no more of it, and that the 25 cent tax had been assessed in the manner prescribed by law.

This motion was also denied, and the plaintiffs again appealed.

Transcripts in both appeals are sent up and constitute two cases in this court.

Messrs. Watson & Glenn and Furches, for plaintiffs .

Mr. J. M. Clement, for defendants .

SMITH, C. J. After stating the above.

It was wholly unnecessary, and attended with useless expense, to prosecute both appeals, since every exception to which the first refusal of the writ is liable lies with equal force against the last, and the same relief is attained by allowing it upon either application. We should be disposed therefore to tax the appellants with the costs of a needless record, if the merits were found to be with them upon the subject matter in dispute, and if we should direct the issuing of the injunction.

The arrest of proceedings to enforce the act is asked upon the several grounds that the form of legislation adopted, making the operation of it dependent upon the volition of voters, is unwarranted as an attempted abnegation of legislative functions; there has not been a compliance with the precedent condition of a written approval of a majority of the qualified voters; and the provisions of the enactment are repugnant to the constitution.

These we propose to examine.

1. The form of legislation:

It has not been seriously questioned that the legislature may make an enactment to...