Hill v. Commissioners of Forsythe Cnty.

• Decision Date: 30 June 1870
• Court: North Carolina Supreme Court
• Parties: JOHN G. HILL et al. v. THE COMMISSIONERS OF FORSYTHE COUNTY.

67 N.C. 367

JOHN G. HILL et al.

v.THE COMMISSIONERS OF FORSYTHE COUNTY.

Supreme Court of North Carolina.

June Term, 1870.

An act of the General Assembly, authorizing the people of a County to take stock in a Railroad Company, and to determine the question by a popular vote, and tax themselves to pay for it, is constitutional.

[ Taylor v. Commissioners of Newbern, 2 Jones Eq. 141; Caldwell v. Justices of Burke, 4 Jones Eq. 323, cited and approved.]

Motion to vacate an injunction, heard before Cloud, J., at ______ Term of FORSYTHE Superior Court.

This was an application on the part of the plaintiffs, who represented themselves as tax payers and property holders of the county of Forsythe, in behalf of themselves and others, asking for an injunction against the defendants, to restrain them from the imposition and collection of certain taxes, to pay instalments due upon a subscription made by the county of Forsythe to the North Western North Carolina Railroad Company. The following facts were found by the presiding Judge. “A majority of the justices of the peace were present at the court house in Winston, on the 25th day of march, 1868, and made an order to submit the question of subscription to the qualified voters of the county, on the 4th day of April, 1868, and directed the sheriff to open the polls on that day.

That notice of this election was published in two newspapers, printed and circulated in that county; that said election was held at the time appointed, and at the usual places for holding elections in said county, and due return of the result of the voting was made to June Term of the County Court; that a majority of the justices of the county were present, and on the bench at the said June Term, concurring in the orders made; that a large majority of the qualified voters of the county did vote on the question of subscription, and that a majority of the said votes were cast in favor of subscription; that a subscription of 1,000 shares of stock was made, by the agent of the county appointed for that purpose on the -- day of June, 1868; that the defendants have laid taxes to pay the instalments due upon the subscription made to the North Western North Carolina Railroad Company for the years 1870-'71.

Upon the foregoing state of facts the injunction, theretofore granted, was vacated by his Honor. Whereupon the plaintiffs appealed to the Supreme Court.

Several errors were assigned. The chief one and the only one discussed by the Court is, “That the injunction was dissolved, and defendants allowed to collect the taxes, without any constitutional power in the legislature to authorize the subscription, and without a sufficient compliance with the acts of the General Assembly in that case made and provided.”

Scales & Scales and Dillard & Gilmer, for plaintiffs .

Clement, Masten and Batchelor, for defendants .

READE, J.

The main question is, whether the Legislature has the power to authorize the people of a county to take stock in a railroad, and to determine the question by a popular vote, and to tax themselves to pay for it. The Legislature in 1852 authorized the town of Newbern to take stock in the Neuse River Navigation Company, for the use of the town, and to issue bonds, and to levy a tax upon the property holders of the town to pay them. One of the tax payers filed a bill to...