Cleveland Cotton Mills v. Cleveland County Com'rs

Citation13 S.E. 271,108 N.C. 678
PartiesCleveland Cotton-Mills v. Commissioners of Cleveland County.
Decision Date12 May 1891
CourtUnited States State Supreme Court of North Carolina

Appeal from superior court, Cleveland county; G. H. Brown, Judge.

The plaintiff contracted in writing with the defendants to construct for the latter a bridge across First-Broad river in the county of Cleveland, and the latter stipulated and promised to pay the former for the same the actual cost of the bridge. The price was not otherwise specified. A majority of the justices of the peace of that county, not in session with the defendants at the time, signed a paper writing in which they "do by our [their] signatures ratify and confirm and concur in the above contract, made on the 21st day of May, 1888, between the county commissioners of Cleveland county and Cleveland Cotton-Mills," etc. In the contract it is stipulated that "the payments [are] to be made in annual installments in amounts equal to the tax on its [the plaintiff's] property in this county each year, until full payments shall be made." Afterwards, at a regular joint meeting in June, 1890, of the commissioners and justices of the peace, a quorum of the latter being present, the plaintiffs asked in writing that the justices of the peace "ratify and concur in the contract" mentioned above. A motion in this joint meeting was made to that effect, which was adopted, 23 justices of the peace voting for and 13 against it. The defendants did not vote. The plaintiff complied fully on its part with the contract and the defendants accepted the bridge, which cost $2,730.95. A new road was established leading across this bridge, and it and the bridge have been constantly used by the public, and there is no other way of crossing the river in the northern part of the county when the water is high. The board of commissioners for 1888, after the completion and acceptance of the bridge, "made the first payment on said bridge amounting to $185.21, an amount equal to tax on plaintiff's property in this county for that year." Between the time of this first payment and the time when under the contract, the second payment to be made came due, a new board of county commissioners came into office, and upon demand they refused and still refuse to pay the second installment of the contract price due the plaintiff, but nevertheless they exercise control over the new road which leads to and across the said bridge, and it and the road have been constantly used by the public as a highway, and the supervisors control the road. This action is brought to recover the sum of money alleged to be due to the plaintiff upon and by virtue of the said contract. The defendants contend that the contract sued upon is void, and of no effect, because it was not made "with the concurrence of a majority of the justices of the peace" of the county as required by the statute, (Code, § 707, subsec. 10;) and further, that it is void because it undertakes to provide in advance that a part of the regular revenues of the county coming from the plaintiff shall be devoted to a specified purpose, etc. The court gave judgment for the plaintiff for the amount due, and the defendants appealed.

Merrimon, C.J., and Clark, J., dissenting.

Batchelor & Devereux, for appellants.

W. J. Montgomery and J. F. Schenck, for appellee.

Avery J.

The courts of this country have generally adopted the common-law principle that, if an act is to be done by an indefinite body, the law, resolution, or ordinance authorizing it to be done is valid if passed by a majority of those present at a legal meeting. 1 Dill. Mun. Corp. § 277, (215.) Where the law creating a municipal corporation is silent on the subject, the majority of the members-elect or officers or persons authorized to act constitute the legal body, and a majority of the members of the legally organized body can exercise the powers delegated to the municipality. 1 Dill. Mun. Corp. § 278, (216;) Heiskell v. Mayor, etc., 65 Md. 125, 4 A. 116; Barnert v. Paterson, 48 N. J. Law, 395, 6 A. 15. The same rules apply to other bodies, whether the two houses of the legislature or other organized bodies of officers or persons to whom the legislature has given authority. The powers delegated to a county can, as a general rule, be exercised only by the board of county commissioners, or in pursuance of a resolution adopted by them. Code, § 703. The commissioners, organized and acting as a board, are the embodiment of municipal authority. In their names the county must sue and be sued. The only limitations upon their exercise of the corporate functions of the municipality is to be found in subsections 1, 10, 11, 17, and 20 of section 707 of the Code. Subsection 10 provides that, where the cost of building or repairing a bridge shall exceed $500 the commissioners can order the construction or repair only "with the concurrence of a majority of the justices of the peace," as subsection 1 imposes the restriction that taxes shall not be levied by the board except "with the concurrence of a majority of the justices of the peace sitting with them." Before the constitution of 1868 was adopted the justices of the peace in the several counties exercised the powers delegated to the counties by the legislature. The justices of the peace were the judges of the courts of pleas and quarter sessions. For convenience the various statutes specified the particular number that must sit to discharge certain judicial duties or exercise police powers of different kinds. Rev. Code, c. 31, § 1. "A majority, or twelve," were required to meet on the second and third days of the term of the county court first held after the election, to take the sheriff's bond. Rev. Code, c. 105, § 10. The justices of the peace, "a majority being present," were required, at their first court held after the 1st of January of every year, to levy a tax for county purposes. Rev. Code, c. 28, § 1. The justices being then the representatives of the county as a corporation, and recognized by the law as a body clothed with judicial authority and charged with administrative duties, it followed that powers delegated to them were to be exercised by a majority constituting a quorum according to the common-law rule, unless some statute prescribed that a smaller number would be sufficient, or more than a majority would be required to discharge a specified official duty. After the constitutional amendments had been ratified and had taken effect (on January 1, 1877) the legislature, having entire control of county government, provided (Code, §716) that the justices should meet biennially on the first Monday in June, and, a majority being present, "should proceed to elect not more than five nor less than three county commissioners." The commissioners can call the justices of the peace together not oftener than once in three months. Id. § 717. The justices are required, by section 719 of the Code, to fill vacancies occurring in the board of commissioners of a county. It is clear that by implication of law a majority of the majority of the whole number necessary to constitute a quorum may fill a vacancy in the board of commissioners and elect all of the commissioners in the biennial meeting ("a majority being present") by the express terms of the law in the same way. In addition to the four instances already mentioned in which the justices of the peace of the several counties are required to participate in their government, we find that it is provided in subsections 11 and 20 of section 707 that the commissioners shall be clothed with authority to meet the necessary expenses of the several counties, or to sell or lease real estate belonging to the county, only with the "assent of a majority of the justices of the peace therein." We think it is clear that the purpose of the general assembly, according to the ordinary meaning of the language employed by it, was to require the concurrence of a majority of the whole number constituting a quorum, to be expressed in the usual way by a majority of those present, where the justices should ratify or express their approval of an order for the levying of taxes for county purposes, or provide for constructing bridges, involving an expenditure of more than $500, just as a majority (under chapter 28, § 1, Rev. Code) levied the tax before 1868.

Under the system of county government established by the constitution of 1868 the several justices of the peace were made each a judicial officer with a limited jurisdiction, and those residing in each township were created a body politic for certain purposes; but there were no powers exercised by all the justices of a county as a body, and consequently no provision of law recognizing them as an organization. After the amendments had been ratified the legislature of 1876-77 provided (Code, § 717) that they might organize at their meetings, to be held not oftener than four times a year, with the register of deeds as ex officio clerk, and, in the absence of a specific requirement, empowered a majority constituting a quorum to transact business. It seems probable that the general assembly did not propose originally to recognize the justices in their organized capacity except for the purposes mentioned, and therefore, in intrusting them with the supervisory power to ratify or annul the action of the commissioners in five out of the six, it was deemed best to declare what number should be requisite for each purpose though the number prescribed might amount to an affirmance of the common-law rule. It must be remembered that, unless a contrary intent is apparent from the words of the statute, in each case a majority of the organized body is to constitute a quorum and express their will in the usual way. We must also note the fact that the powers to levy...

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