Ellis v. Greene

• Decision Date: 19 May 1926
• Docket Number: 533.
• Citation: 133 S.E. 395,191 N.C. 761
• Parties: ELLIS et al., Board of Road Com'rs of Mitchell County, v. GREENE.
• Court: North Carolina Supreme Court

133 S.E. 395

191 N.C. 761

ELLIS et al., Board of Road Com'rs of Mitchell County, v. GREENE.

No. 533.

Supreme Court of North Carolina

May 19, 1926

Appeal from Superior Court, Mitchell County; Finley, Judge.

Controversy without action pursuant to C. S. § 626, by W. B. Ellis and others, constituting the Board of Road Commissioners of Mitchell County, against D. A. Greene.Judgment for plaintiffs, and defendant appeals.Modified and affirmed.

This is a controversy without action pursuant to C. S. § 626.The court below rendered the following judgment:

"This cause coming on to be heard before his honor, T. B. Finley resident judge of the Seventeenth judicial district, and being heard upon the agreed case and after argument of counsel, for the plaintiff and defendant, it is ordered adjudged, and decreed by the court that the $10,000 of road bonds by Bradshaw township, Mitchell county, N. C., and described in Exhibit A in said agreed case, when issued and delivered, constitute the legal and valid obligation of said Bradshaw township, Mitchell county, N. C., and that the said defendant shall carry out and perform the conditions and stipulations of the contract for the purchase of said bonds in accordance with the terms thereof.

"It is further ordered, adjudged, and decreed by the court that the $25,000 of road bonds by Red Hill township, Mitchell county, N. C., and described in Exhibit B of said agreed case, when issued and delivered, constitute the legal and valid obligations of said Red Hill township, Mitchell county, N. C., and the said defendant shall carry out and perform the condition and stipulations of the contract for the purchase of said bonds in accordance with the terms thereof.

"It is further ordered and adjudged and decreed that the $15,000 of road bonds by Bakersville township, Mitchell county, N. C., and described in Exhibit C of the said agreed case when issued and delivered constitute the legal and valid obligation of said Bakersville township, Mitchell county, N. C., and the said defendant shall carry out and perform the condition and stipulations of the contract for the purchase of said bonds in accordance with the terms thereof.

"It is further ordered, adjudged, and decreed that the board of road commissioners of Mitchell county have ample legal authority to issue, sell, and deliver that said three issue of bonds by the said Bradshaw township, Red Hill township, and Bakersville township, all in Mitchell county, pursuant and in conformity with chapter 172, Public Local Laws 1915, as amended bychapter 326, Public Local Laws 1921, as amended bychapter 64, Public Local Laws, Extra Session 1921, also amended by chapter 231, Public Local Laws, Extra Session 1921, and pursuant to other laws of the General Assembly as may be applicable to the issuance and sale of said bonds on behalf of said townships by said road commissioners.

"It is further adjudged, ordered, and decreed by the court that the board of county commissioners of Mitchell county have ample authority pursuant to said statutes above referred to, to levy annually a special tax in each of the said three townships of sufficient rate and amount to pay the principal of said bonds and the interest thereon as the same may become due."

From the foregoing judgment, the defendant excepted, assigned error, and appealed to the Supreme Court.

Chas. N. Malone, of Asheville, for appellant.

McBee & Berry, of Bakersville, for appellees.

CLARKSON J.

Under Public Local Laws 1915, c. 172, "An act for the construction and maintenance of the public roads and bridges of Mitchell county," a body corporate was created, known as "the board of road commissioners of Mitchell county," with full power over the roads and bridges of Mitchell county.This act was amended by chapter 326, Public Local Laws 1921, as amended bychapter 64(Extra Session) Public Local Laws 1921, also amended by chapter 231(Extra Session) Public Local Laws 1921.The construction of these acts are now before us.

It is well settled that the Constitution of the state recognizes as governmental agencies the existence of counties, townships, cities, and towns.They can, at the will of the Legislature, be changed, divided, and abolished.Constitution, art. 7, § 14:

"Powers of General Assembly over Municipal Corporations"-"The General Assembly shall have full power by statute to modify, change or abrogate any and all of the provisions of this article and substitute others in their place, except sections seven, nine and thirteen."

The exceptions: Section 7, no debt, etc., can be contracted without vote of the people except for necessary expenses.Section 9, taxes to be ad valorem.Section 13, debts in aid of rebellion not to be paid.Board of Trustees v. Webb,155 N.C. 379, 71 S.E. 520;Tyrrell v. Holloway,182 N.C. 64, 108 S.E. 337;State v. Jennette,190 N.C. 96, 129 S.E. 184;Day v. Com'rs of Yadkin,191 N.C. 780, 133 S.E. 164.

In Huneycutt v. Commissioners,182 N.C. page 321, 109 S.E. 4, 5, it is held:

"We have also repeatedly upheld acts of this character incorporating boards of road commissioners and giving them full control and authority over the construction, maintenance, laying out, altering, and discontinuing of the public roads and highways.Com'rs v. Com'rs,165 N.C. 632[81 S.E. 1001], and cases there cited.In Highway Commission v. Webb,152 N.C. 710 , the court decided that the Legislature, in its discretion, might create a board of road commissioners and vest them with such authority over the roads as the county commissioners had theretofore possessed.'It is no objection to this legislation that the issuing of the bonds and the control and ordering of road work are given to the local authorities, while the county commissioners are directed to levy and collect the taxes.'[Board of]Trustees v. Webb,155 N.C. 383[71 S.E. 520].Again, in Hargrave v. Com'rs,168 N.C. 626[84 S.E. 1044], 'The questions presented in this case are almost identical with those considered in Com'rs v. Com'rs,165 N.C. 632[81 S.E. 1001], in which a similar act was upheld.In that case, and also in [Board of]Trustees v. Webb,155 N.C. 379[71 S.E. 520], Pritchard v. Com'rs,159 N.C. 636[75 S.E. 849], affirmed on rehearing, 160 N.C. 476[76 S.E. 488], Tate v. Com'rs,122 N.C. 812[30 S.E. 352], Herring v. Dixon, [122 N. C.] 420[29 S.E. 368], and in other cases, this court has held that the construction and maintenance of public roads are a necessary public expense, and that the General Assembly may provide for the construction and working the same, and may create a board to do this, distinct from the county commissioners, and fix and authorize the levy of taxes for that purpose, as in this act, without a vote of the people.We know of no reason to question the correctness of those decisions."'

Bakersville township bonds: The only authority for the issuance of bonds by Bakersville township is contained in the latter part of section 23 of chapter 326, Public Local Laws 1921:

"That said board of road commissioners are hereby authorized, empowered and directed to issue any necessary amount of bonds, chargeable to any township or to Mitchell county as the case may be, to cover any outstanding indebtedness now owing by said county for any roads already constructed, or now under construction or which may be under contemplation or construction."

Public Local Laws, 1921, c. 231(Extra Session), is a confirmatory and validating act.Latter part of section 1 is as follows:

"A bill to be entitled 'An act to amend chapter three hundred and twenty-six, Public Local Laws nineteen hundred and twenty-one, relating to the public roads of Mitchell county and to authorize bond issues and special taxes therefor,' be and the same is hereby enacted, re-enacted, and confirmed."

In Commissioners v. Boring,175 N.C. page 109, 95 S.E. 43, 45, it is held:

"We have frequently held, at least in principle, that, where the roads of the different townships or districts are set apart and a scheme is devised whereby they can be planned, laid out, constructed, or improved entirely under the township's control and management, and without reference either to state or county benefit, it is not within the legislative power to tax one community or local district for the exclusive benefit of another.Harper v. Com'rs,133 N.C. 106[45 S.E. 526];Faison v. Com'rs,171 N.C. 411[88 S.E. 761, Ann. Cas. 1917E, 72];Keith v. Lockhart,171 N.C. 451[88 S.E. 640, Ann. Cas. 1918D, 916], and numerous cases in other jurisdictions collected in Commissioners v. State Treasurer [Lacy],supra, 174 N.C. 141[93 S.E. 482, 2 A. L. R. 726], are to the same effect.'The taxing district through which the tax is to be apportioned must be the district which is to be benefited by its collection and expenditure.The district for the apportionment of the state tax is the state, for a county tax the county, and so on.Subordinate districts may be created for convenience, but the principle is general, and in all subordinate districts the rule must be the same.'Cooley on Taxation (3d Ed.) 430.'The constitutional requirement of uniformity of taxation forbids the imposition of a tax on one municipality, or part of the state, for the purpose of benefiting or raising money for another.37 Cyc. 749."

The language of the statutes under consideration is not full and explicit, but, by construing them together in pari materia we think a reasonable construction and intent is that the board of road commissioners of Mitchell county had a right to issue the bonds chargeable to Bakersville township for road purposes, "now under construction or which may be under contemplation or construction."With power given to issue the bonds, it...