Commissioners of Dare Cnty. v. Commissioners of Currituck Cnty.

• Decision Date: 31 October 1886
• Court: North Carolina Supreme Court
• Parties: COMMISSIONERS OF DARE COUNTY v. COMMISSIONERS OF CURRITUCK COUNTY.

95 N.C. 189

COMMISSIONERS OF DARE COUNTY

v.COMMISSIONERS OF CURRITUCK COUNTY.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, heard on demurrer, by Shipp, Judge, at September Term, 1886, of CURRITUCK Superior Court.

It appears from the complaint, that the county of Currituck was authorized by statute to subscribe, and did subscribe, for shares of the capital stock of the Albemarle and Chesapeake Canal Company, of the nominal value of $44,000.00, and issued its bonds, thus creating a debt for that sum, to pay for its stock; that some time afterwards, in the year 1870, the county of Dare was created by statute, and part of it was taken from the county of Currituck, but the people of the part thus taken were not released from paying their proportionate part of the debt of Currituck county, contracted in aid of public improvements; that the part of the debt to be paid by the people of the county of Dare, thus taken from the county of Currituck, has been ascertained, and it amounts to 15 11/20 per centum of the entire debt, and the latter county has obtained judgment for the same, and has sold and assigned this judgment to its creditors in payment of their debts; that this judgment has not yet been paid; that afterwards the county of Currituck sold its stock in the Canal company named, for the price of $5,000.00, and received the money. It is alleged that the county of Dare is entitled to 15 11/20 per centum of the sum of money thus realized; that it has made demand upon the defendant for the same, and payment has been refused. Judgment is demanded for $777.50, with interest from the first day of January, 1880, and for costs. The defendant demurs to the complaint, upon the ground that it does not set forth facts sufficient to constitute a cause of action, in that it fails to allege that the act creating the county of Dare, gave or assigned to said county, any portion of the property or assets of the county of Currituck.

The Court sustained the demurrer, and gave judgment for the defendant. The plaintiff excepted and appealed to this Court.

Mr. E. F. Aydlett, for the plaintiff .

Mr. W. J. Griffin, for the defendant .

MERRIMON, J. (after stating the facts).

It cannot be questioned seriously, that the Legislature has power to create new counties, composed of territory and the people inhabiting it, taken from one or more existing counties, and to change the boundaries of counties. It likewise has power, in the formation of new counties, to require that the people who live in the portion of territory so taken from a county, shall continue to pay their proportionate part of the county debt of the county from which they shall be so separated, existing at the time of the separation; and it may likewise relieve them from such debt. Indeed, they would be relieved if there were no provision to the contrary. It may also provide that the new county shall have such parts of the property of the county or counties from which its territory is taken, as it shall deem wise and expedient, or it may entirely omit to allow it any part thereof. The power thus possessed by the Legislature is a necessary one. It is legislative in its nature, in the absence of any constitutional provision to the contrary, and the exercise of it gives character to counties when established. These are not created for the particular, special, or exclusive benefit of the people having property in them. They are of, and constitute parts of the State government. They are created for political and civil purposes of the State, and may be created without special regard to the will, wish, or convenience of the people who inhabit them. They are instrumentalities of the State government, and subject to...