Caldwell v. The Justices of The Cnty. of Burke

• Decision Date: 31 December 1858
• Citation: 4 Jones 323,57 N.C. 323
• Court: North Carolina Supreme Court
• Parties: TODD R. CALDWELL and others v. THE JUSTICES OF THE COUNTY OF BURKE.

4 Jones Eq. 323

57 N.C. 323

TODD R. CALDWELL and others

v.THE JUSTICES OF THE COUNTY OF BURKE.

Supreme Court of North Carolina.

December Term, 1858.

A statute authorising the people of a county to take stock in a railroad, and to raise the funds to pay for it by themselves, or otherwise, is not forbidden by the constitution.

Under the charter of the Western North Carolina Railroad Company, passed in 1855, and the amendment at the next session, it was Held (PEARSON, C. J., diesentiente) that the justices of any of the county courts of the counties along the line of the road, are authorised to determine on an amount to be subscribed by such county to the stock of such company, and to submit the same for the approval of the voters of such county, notwithstanding a former proposition to subscribe may have been submitted to them and rejected.

Held further, that such subscriptions may be made toties quoties, as the emergencies of the undertaking require.

APPEAL from an interlocutory order of the Court of Equity of Burke county continuing an injunction; BAILEY, J., presiding.

The facts of the case and the statutes referred to, are sufficiently stated in the opinion of the Court.

Badger, Graham, B. F. Moore and T. R. Caldwell, for the plaintiffs .

Avery and Bragg, for the defendants .

RUFFIN, J.

Though the Court entertains but little doubt upon the question, yet, in the view taken of other points in the case, it becomes unnecessary to determine, whether relief by injunction in this Court is the proper mode of redress for those citizens of a county, who allege grievances from proceedings of this kind; and, therefore, nothing more will be said on it.

It was, we think too, properly admitted at the bar, that a statute, authorising the people of a county, or town, to take stock in a rail-road, and to raise the funds to pay for it by taxing themselves or otherwise, is not forbidden by the constitution. From time immemorial, the counties, parishes, towns, and territorial sub-divisions of the country, have been allowed in England, and, indeed, required to lay rates on themselves for local purposes. It is most convenient, that the local establishments and police should be sustained in that manner; and, indeed, to the interest taken in them by the inhabitants of the particular districts, and the information upon the law and public matters generally, thereby diffused through the body of the people, has been attributed by profound thinkers much of that spirit of liberty and capacity for self-government, through representatives, which has been so conspicuous in the mother country, and so eminently distinguishes the people of America. From the foundation of our government, colonial and republican, the sums necessary for local purposes have been raised by the people or authorities at home. Courthouses, prisons, bridges, poor-houses and the like, are thus built and kept up, and the expenses of maintaining the poor, and of prosecutions, and jurors, are thus defrayed, and of late, a portion of the common school fund, and a provision for the indigent insane, are thus raised, while the highways are altogether constructed and repaired by the local labor, distributed under the orders of the county magistrates. When, therefore, the constitution vests the legislative power in the General Assembly, it must be understood to mean that power as it had been exercised by our forefathers before and after their migration to this continent. In accordance with these views, is the case of Taylor v. The Commissioners of New Berne, 2 Jones' Eq. 141; so that the question may be said to be settled here.

The question remains, nevertheless, whether the proceedings to which the plaintiffs object in this case, are sustained by the acts under which they took place; and that depends upon their construction.

The charter of the Western North Carolina Rail Road Company was passed the 15th of February, 1855, and incorporated a company, with a capital of six milhons of dollars, if the requisite stock should be taken, to build a road from Salisbury to some point on the French Broad river, beyond the Blue Ridge. By the act, the road is laid off into three sections--the first beginning at Salisbury and running west, and it is required that one section shall be built before the others shall be begun, and that subscriptions of stock shall be made for the several sections separately; that for the first section to be limited to $300,000, or, in a certain event, to $400,000; and the act engages that for all stock thus subscribed, on which a deposit of five per cent. shall be made, a subscription shall be made on behalf of the State to double the amount. Upon the completion of the first section, then, operations may be begun on the second, and to that end, books of subscription are to be again opened, and upon a certain amount being obtained, measured by the estimates of the cost of that section, there is the same engagement for a subscription on the part of the State; and so on for the residue of the route. Then, in the close of the act, 1855, C. 228, Pr. L. Sec. 47, there is a provision in these words: “That any county, through which the road passes, may subscribe for any such amount of the capital stock in said company, as a majority of the voters of said county may approve; for which purpose, the court of pleas and quarter sessions of said counties, are hereby authorised to hold an election at the usual time and places of voting for members of the General Assembly.” Subscriptions were opened under the charter, and the sum required for the first section was subscribed, and the corresponding subscription made by the State, and the work was commenced. In 1856, Priv. A. ch. 68, an act was passed to amend the charter, the provisions of which, material to this case, are: that the directors might open books for further subscriptions for $200,000, or $300,000, in their discretion, as an addition to the stock before subscribed for the first section, which is extended to Morganton and no further, with a like stipulation, that upon five per cent. being paid on the subscription by solvent persons, or by counties, a subscription should be made on behalf of the State to double the amount. By the third section, the directors might also, in their discretion, open books for subscription for stock to an amount sufficient to meet one-third of the (estimated) cost of constructing a second section of the road, beginning at Morganton, and extending within ten miles of the Swanannoa tunnel, with a proviso, that the State would not be bound to take stock for this section, until the first section to Morganton should be completed. Then follows the fourth section, in these words: “That before any proposition for subscription by counties shall be submitted to the people for their approval, provided in the charter, the county court of the county proposing to subscribe, (a majority of the acting justices being present) shall determine on the amount of stock to be subscribed by said county, and the manner in which the question shall be submitted to the people, the time when the vote shall be had thereon, and the person, by whom the subscription on behalf of said county, shall be made, and the court shall have power to make all such orders, rules, and regulations, for the issue and sale of the county bonds, necessary to insure the payment for the stock subscribed, and to lay such tax, from time to time, as may be necessary to pay the interest on said bonds, and ultimately liquidate the principal of the same.”

Under those acts the proceedings were had, which it is the object of this suit to restrain the defendants, the justices of Burke, from completing. Two objections are mainly urged on the part of the plaintiffs.

One is, that the county court did not, prior to ordering a vote of the people to be taken, directly “determine” on the amount of stock to be taken, and, therefore, that every thing, founded on the order, falls. The Court is inclined to the opinion, that such a determination must be considered as having been substantially made; because, the record states that a majority of the justices were present, and a majority of those present voted in favor of a proposition, that the county should subscribe for stock to the amount of $50,000, and after directing a popular vote on the proposition, there was a further order, that if a majority of the votes should be for subscription, “the chairman of the county court shall make such subscrip-which shall be binding upon the county.” But the want of formality in those proceedings, if any, is fully supplied by the entries at...