Claywell v. Board of Road Com'rs of Burke County

• Decision Date: 16 May 1917
• Docket Number: 483.
• Parties: CLAYWELL ET AL. v. BOARD OF ROAD COM'RS OF BURKE COUNTY ET AL.
• Court: North Carolina Supreme Court

92 S.E. 481

173 N.C. 657

CLAYWELL ET AL. v. BOARD OF ROAD COM'RS OF BURKE COUNTY ET AL.

No. 483.

Supreme Court of North Carolina

May 16, 1917

Appeal from Superior Court, Burke County; Frank Carter, Judge.

Action by R. T. Claywell and others against the Board of Road Commissioners of Burke County and others. From a judgment continuing a preliminary restraining order, defendants appeal. Affirmed.

The action was instituted by plaintiffs, citizens and taxpayers of Burke county, N. C., in behalf of themselves and all other taxpayers of the county, to restrain the board of road commissioners of said county from issuing county bonds to the amount of $300,000, and from doing other specified things under a statute of the Legislature passed January, 1917 entitled "An act appointing road commissioners for road improvement of Burke county." There was judgment that the restraining order be continued to the hearing, and defendants excepted and appealed.

Invalidity of portion of House Bill No. 3 of 1917, for a bond issue held to render the entire act invalid; such provision not being separable from the creation of the road improvement commission thereby provided for.

Spainhour & Mull, of Morganton, and Self & Bagby, of Hickory, for appellants.

Avery & Ervin and S. J. Ervin, all of Morganton, for appellees.

HOKE J.

Prior to 1917, and under former acts of the Legislature, the improvement of the roads in Burke county seems to have been carried on chiefly under what may be termed the township system, and, pursuant to that system, Morganton township had voted a bond issue of $50,000 for public roads, $45,000 of which had been issued and sold and much of the proceeds expended. Six other townships had voted bonds for road purposes in amounts aggregating $170,000. It does not appear whether any or what part of these bonds have been issued and disposed of. The remaining townships of the county, five in number, have been paying a special tax in aid of road improvement. Under these conditions, with a view, no doubt of coordinating effort in this very important matter, and making the same more efficient by substituting a county for a township system, if this should prove feasible, there was introduced into the lower House of the recent General Assembly (1917) H. B. No. 3, S. B. 155, a bill incorporating defendants as a road commission for improvement of roads in Burke county and giving them extensive powers over the roads and bridges of the county, except the bridges over the main Catawba, authorizing them to issue bonds of the county not to exceed the sum of $300,000, and the annual levy of a tax not more than 30 cents on the $100 valuation of property and 90 cents on the poll for providing a sinking fund and to meet current expenditures for the construction and maintenance of the roads. This commission was authorized further to take over the available road funds of Morganton township, and to set aside $50,000 of the bonds to pay the outstanding indebtedness of that township, and to take over the road funds, etc., of any other township that had voted or issued road bonds, and provide for paying its indebtedness, unless such township, on an election called by the commission, shall decide to keep its funds and apply them under the direction of its local board, and the latter is continued in existence for the purpose, if such course should be adopted. The commission are further directed to first lay out and construct 12 principal highways leading in different directions from Morganton to specified points, most of them on the lines of adjoining counties, these to be surveyed by expert surveyors and engineers, and to be let out by contract, if this can be satisfactorily done, and that any moneys arising from said bond issue, not required for the designated roads, shall be used and expended on other public roads of the various townships, etc. This bill was passed in the House according to the constitutional requirement that bills of this character shall have three general readings on three different days, and on the second and third readings the ayes and noes shall be entered on the journal. Const. art. 2, § 14. Having been sent to the Senate, it passed two readings, the ayes and noes being properly entered on the second reading, and before the third reading various amendments were adopted by the Senate. Among others, section 10 was stricken out and an entirely new section substituted, to the effect that the six townships, other than Morganton township, which had voted for road bonds, should not be subject to the provisions of the act unless on a vote duly taken, they or any one of them should, by a vote duly taken, decide to come under the law. The bill as amended in the Senate then passed its third reading, the ayes and noes being duly entered, was returned to the House and there concurred in, but without roll call and without the ayes and noes being further entered.

It is the accepted position that, when a material amendment is made to a bill of this kind, one coming under this constitutional provision, the required readings and entries on the journal shall be taken anew on the...